Volume 272 — Missouri Reports

<p>1. FINDING OF FACTS: By Court Sitting as Jury: Appellate Rule. The findings of fact by the trial court in a jury-waived law case are attended on appeal with the presumptions of verity which clothe the verdict of a jury, and will not be disturbed if supported by any substantial evidence whatever; but if there is no evidence upon which to base such finding, although no instructions were asked or given and no objections or exceptions were taken at the trial, but the point is saved only in the motion for a new trial, the appellate court will interfere.</p> <p>2. BESIDENCB: Intention: How Shown. Residence is largely a matter of intention, and intention is to be deduced from acts and utterances of the person whose residence is in issue.</p> <p>3. -:-: As Manifested by Will: Abandonment. A statement in decedent’s will, made in this State shortly before his death in this State, that his residence was at ‘‘Marshall, Saline County, Missouri,” is a solemn written admission that his residence was at such place; and a further statement that his residence had formerly been at “Pueblo, county of Pueblo and State of Colorado,” together with the admission, plainly indicate both an abandonment of a former residence and the acquisition of a new one; and the two make out a prima-facie case of residence in this State for the purposes of an assessment of a collateral inheritance tax.</p> <p>4. -: -: -Disqualification to Vote. The fact that, after an absence of thirty years in other states, decedent stated in November that he was not qualified to vote in this State, after his return to the residence of his niece in April, where his will was made and where he died in December, is no contradiction of the solemn admission in his will that he was a resident of this State, for he was not qualified to vote in this State until he had resided here one year.</p> <p>5. -: -: -: No Payment of Taxes. Nor does the fact that,'after an absence of thirty years, he paid no personal taxes in this State, contradict the prima-facie case made by the will, since his death, after he returned to this State, occurred before he became liable for taxes here. Nor does the fact that he was . not assessed for taxes here.</p> <p>6. EXAMINATION OF FACTS: Appellate Eule. All the cases are reviewed, and it is held that the rule that has become firmly fixed in this State is: (a) The findings of facts, either general or special, of a trial court sitting in a jury-waived case at law, will, have applied to them in, the appellate court the same presumptions of verity which attach to the verdict of a jury in a law case; (b) such findings of fact may be examined by the appellate court'if the point that there was no (sufficient evidence is properly preserved in the motion for a new trial alone; (c) in such cases an examination as to sufficiency of the evidence may be had in the appellate cofirt, whether or not instructions were asked, given or refused; and (d) such examination will extend only to a determination of the single question whether there is any substantial evidence to sustain the finding of the trial court. If there is such substantial evidence, and if such - substantial evidence he merely contradictory, or, if the evidence adduced be such that reasonable men may draw therefrom more than one inference to sustain the judgment, or if the evidence offered reasonábly tends to sustain the finding made, such finding is absolutely conclusive upon the appellate court, and it cannot interfere therewith; but if'there is no substantial evidence to contradict the prima-facie case máde out by plaintiff, the appellate court will reverse the finding made by the trial judge for defendant, and remand the cause for a new trial, with instructions that, if the evidence is not materially changed, the finding be for plaintiff.</p>

<p>1. ACCIDENT INSURANCE: Accidental or Intentional Injury. Evidence tending to show that plaintiff fell from the step of a street car, his shoulders striking the ground first; that immediately after the accident a bruised place was discovered on the rear portion of the top óf his head and he was lying on his back, his left hand crushed; that the unconsciousness was caused by concussion of the brain resulting from the injury to his head, and could not have been produced by the injury to his hand; and that he became unconscious before his hand was crushed, is evidence that the injury was accidental, and that he did not intentionally thrust his hand under the car wheel, and made a case for the jury.</p> <p>2. -: Warranties: That Beneficiary Was Wife. In a suit on an accident policy by the insured for injuries to himself, a warranty in the policy that a certain named woman was his wife is not material, and if untrue is not a defense. The purpose of naming a beneficiary is to designate a person who will receive the insurance money only in event of insured’s death.</p> <p>3. -: -: Policies of Life Insurance: Materiality: Questions for Jury. An accident policy, at least those portions of it providing indemnity for loss of life, is a policy of life insurance, within the meaning of the suicide statute (Sec. 6937, R. S. 1909), and that . statute provides that no misrepresentation made in obtaining a policy of insurance on the life of any person shall be deemed material unless the matter misrepresented actually contributed to the contingency or event on which the policy is to become void, and whether it so contributed in any case shall be a question for the jury. Even though the representation or warranty as to the beneficiary in case of the insured’s death is false, the court cannot peremptorily instruct to find for the company, for the jury still have the right to say whether such misrepresentation actually contributed to the loss.</p> <p>4. -: Warranties: Insured’s Habits of Life: Income: Other Insurance. Even though the insured warranted that his habits of life were correct, that his income per week exceeded the gross amount of weekly indemnity promised in all accident policies carried by him, and that he had no other accident insurance, if the evidence upon the issue of the falsity of these warranties is conflicting, the matter is for the jury, and the court cannot peremptorily instruct them to find for defendant.</p> <p>5. INSTRUCTIONS: Assuming Disputed Facts: Comment on Evidence. Instructions which assume as true facts in dispute, or contain unwarranted comments on the evidence', should be refused.</p> <p>6. -: Plaintiff’s Failure to Testify. An instruction telling the jury that plaintiff was present in court and heard the testimony . of witness relating his conduct and movements about the time he received the injury complained of, and that from his failure to take the stand in his own behalf a strong presumption of law arises that his testimony, if given, would not sustain the issues on his part, if ever proper, is not proper in a case where defendant took plaintiff’s deposition, which covered every point that might possibly relate to the issues, and read it to the jury.</p> <p>7. EVIDENCE: Moral Character of Insured: Charges in Another Court. A charge contained in the answer of plaintiff’s wife filed in a divorce proceeding wherein plaintiff -was charged with sexual perversion, is not evidence of such fact. Nor is the mere fact that plaintiff stood charged at the time of his suit on the accident policy with a criminal charge in another court, any evidence that he is guilty of the charge.</p> <p>8. -: Exhibition of Injured Arm in Court. The exhibition in open court by plaintiff of his injured arm, which is the subject of his suit on an accident policy, at the request of his attorney, to a physician who at the time was testifying, to which an objection was sustained, after which no request was made that the jury be discharged or that counsel be adrqonished for his conduct, is no ground for reversal.</p> <p>9. JUROR: Voir Dire Examination. If the record leaves in doubt what questions were asked and what actually occurred upon the voir dire examination of the juror, his alleged false answers cannot be reviewed on appeal.</p> <p>10. SUPPLEMENTAL MOTION FOR NEW TRIAL: Untimely. Matters attempted to be preserved by a supplemental motion for a new-trial filed out of time cannot be considered.</p>

<p>1. CITY: Current Expenses: Payment of Debts of Prior Years. Section 12 of article 10 of the Constitution gives to a city authority to levy the annual maximum rate, of taxes for city purposes and to spend it all, as it see? proper, in paying its current expenses of all hinds, and it is beyond the power of the Legislature to divert those current funds to the payment of debts of prior years.</p> <p>2. -:-: -: Extra Tax. When a city contracts a valid debt for any year, then spends for other purposes its current funds for that year, leaving such debt unpaid, it has the power, if authorized by a two-third vote, to levy a tax in excess of the annual rate for city purposes, in order to pay that debt.</p> <p>3. -: New Debt. Where by way of a compromise of a judgment against a city for debts due a water company for hydrant rentals, bonds were voted by the people to pay the amount agreed upon, the debt evidenced by the bonds, if not a new debt, was a very different debt from that evidenced by the judgment.</p> <p>4. -: Sufficiency of Tax Bill: Special Tax. The law does not require that the back tax bill shall state a full and complete cause of action for the tax. It is not necessary to its validity that it show with specific clearness the purposes for which a “special tax” and a “sewer fund tax” were levied. The real matter for consideration is whether the tax imposed under section 12 of article 10 of the Constitution is included in the term “special” tax used in section 11.</p>

<p>1. NEGLIGENCE: Child Near Track: Ordinary Care Towards Persons. An instruction telling the jury that “a motorman in charge of a street car is only required to exercise towards persons near its tracks ordinary care to prevent injury to persons if near the track” would not by using the word “persons” cause the jury to infer that a three-year-old child is to be considered as an adult, and is not error.</p> <p>2. -: -: Precaution After Danger Seen. An instruction which tells the jury that before they can find for plaintiff they must find that defendant’s motorman was guilty of negligence in not taking such precautions as a reasonably prudent person would have done under the same circumstances, to avoid injuring the three-year-old child, in the street between the curb and track, “after the motorman saw him in a position of danger from being run over by the rear wheels of the car,” is erroneous. The rear wheels having run over the child’s feet, the instruction relieved defendant of liability if the motorman failed to see him in a position of danger from being run over by them, whether such failure to see was or was not the result of the motorman’s negligence.</p> <p>3. -: -: Use of Word Ban. An instruction that assumed that the three-year-old child “ran” towards the car as it passed, where there is no evidence that he ran, while not reversible error, would be more technically accurate if it used the word “move.”</p> <p>4. -:-: Contest Between Persons of Equal Standing. Where the rear wheels of a street car ran over the feet of a three-year-old child, and he sues for damages, an instruction telling the jury that the case should be “considered the same as if it was a contest between two persons of equal standing in the community” should not be given, because it is apt to mislead the jury into believing that the defendant owed to the child no greater duty to look out for its safety than it owed to an adult under like circumstances.</p> <p>5. -: Unavoidable Accident: Instruction. Where the issue raised by the facts is simply one of negligence vel non of the motorman, and there is no evidence of any accident within the proper meaning Of the term, an instruction telling the jury that if they believe and find from the evidence that plaintiff’s injuries were “due to an unavoidable accident and not to any negligence of the motorman,” should not be given.</p> <p>6. -: Approximate Cause: Undefined. The use of the words “approximate cause” in an instruction, without defining or explaining the term, tends to mystify, rather than to aid the jury in reaching a correct conclusion.</p> <p>7. -: Child in Street: Demurrer to Evidence. When a demurrer to the evidence is considered, plaintiff is entitled to have it viewed in its most favorable light; and where there is evidence tending to show that a child less than three years of age, unattended, stepped from the curb into the street as the street car slowly approached; that as the front of the car passed him he was standing five feet from the track, to which position he had approached from the curb while the car had traveled twenty feet; that the motorman saw him and watched him only until the front trucks had passed beyond the position of the child, and then ceased watching him and started to increase the speed, a demurrer to the plaintiff’s case of damages for negligence should not be given; for evidently after the front trucks passed, the child moved a step or two closer to the car and placed his hands against the side thereof (as some of the evidence tended to show) and was thrown off his feet and fell in such a way that his feet became entangled under the rear wheels, which ran over them. The motorman’s duty of exercising ordinary care for the child’s safety was not fully performed by watching the child only until danger from the front trucks was passed.</p> <p>8. -: -: Moving Car Slowly: Lookout. A motorman seeing a child of tender years on the street moving towards the track does not by moving slowly relieve himself of the duty of keeping a lookout for the child until it is out of danger.</p>

<p>1. ABSTRACT: Judgment for Defendant. An abstract of the judgment in the words: “March 4, 1914. Jury returned a verdict for defendant and judgment accordingly for defendant” sufficiently describes a judgment for defendant for purposes of appeal.</p> <p>2. -: Piling Bill of Exceptions. If the abstract of the record proper shows appellant was granted leave to file a bill of exceptions within a designated time and that before the expiration of that time the bill was allowed and filed, it shows that the bill was “duly filed” within the meaning of those words as used in Rule 31.</p> <p>3. WAIVER: Proof of Necessary Averment. The plaintiff may waive proof of a necessary averment in defendant’s answer by trying the case as if the proof had been made.</p> <p>4. DEPOSITION: Notice. Authority to take depositions is purely statutory, and while they may be taken conditionally, no officer, who is without a commission issued out of a court of record, has authority to take testimony or compel the attendance of witnesses by issuing subpoenas until the proper service of a proper notice of the time and place,</p> <p>5. -: Subpoena Before Notice: Subsequent Service. A subpoena issued before notice to take deposition is served, is issued without authority. And being unauthorized when issue.d, a subsequent service of the notice and subpoena at the same time will not give it validity.</p> <p>6. -: -: Palse Imprisonment. A person who issues a writ for the arrest of another is liable for an action for false imprisonment if he is without authority to issue it. So that a notary who issues a subpoena for a witness before service of notice to take depositións, is without authority to issue a writ of attachment for such witness on his failure to obey the subpoena, and is liable in an action for false arrest if the witness is attached.</p> <p>7. -: Notice Naming Wrong Place. A notice to take depositions in a suit pending in Independence, which names Kansas City instead of Independence as the place where the suit is pending, will not authorize the officer to enforce the attendance of witnesses. The statute makes the courts at the two places distinct and separate courts.'</p> <p>8. -: - — : Mitigation: Nonsuit. Knowledge by the witness that the notice to take depositions wrongfully named Kansas City instead of Independence as the place where the suit is pending and a concealment of that knowledge for the purpose of creating a damage suit, go to mitigation of damages in a suit for false arrest for failure to obey the subpoena, but will not authorize a nonsuit.</p> <p>9. -: -: Waiver. A signing of an acknowledgment printed on the notice to take deposition, to the effect that defendant acknowledges the service of notice, waives the issue of dedimus and all exceptions to time, etc., has no more effect than its terms import. It does not authorize the taking of depositions in a suit filed in a different place from the one mentioned in the notice. Such waiver would not confer validity on a void subpoena issued before the waiver.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.</p> <p>(1) Where property is taken for public use its value should be paid; when not taken, hut only injured, its depreciation in value only should be allowed. Railroad v. McGrew, 104 Mo. 300; Railroad v. George, 145 Mo. 46; Doyle v. Railroad, 113 Mo. 288. (2) The value of buildings or other improvements located on land taken for public use should be included in the award of damages. City v. Morse, 105 Mo. 518. (3) Where two tracts of land, divided by a public street, are used for a single purpose, and one or part of one of such tracts is condemned and taken for public use, and the other tract is damaged or its. market value is depreciated by such taking, damages should be awarded the owner therefor. 10 Am. & Eng. Ency. Law, 1166; Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282-; Elevator Co. v. Railroad, 135 Mo. 353; Railroad v. Nercross, 137 Mo. 415; City v. Brown, 155 Mo. 545;, Railroad v. Brick Co., 198 Mo. 698; Drainage District v. Dawson, 243 111. 175; Railroad v. Drummond, 205 Mo. 167; Lough v. Railroad, 116 Iowa, 31; Shirley v. Railroad, 121 Ky. 87. (4) In such a case, if the part taken is of greater value in connection with the whole than as a separate parcel, the measure of damages for the part taken is'the fair cash value of the part taken considered as a part of the whole. Railroad v. Humiston, 208 111. 100. (5) Where property taken for public use has been improved for carrying on a special business, and such business enhances the value of the site, this should be considered in awarding damages to the owner. 10 Am. & Eng. Ency. Law, p. 1161; Railroad v. Jacobs, 110 111. 414; Belting Co. v. Boston, 183 Mass. 254; Railroad v. Chicago, 172 111. 198; Railroad v. Chicago, 100 111. 21; King v. Railroad, 20 N. W. (Minn.) 135; Telegraph Co. v. Railroad, 202 Mo. 688; Railroad v. Brick Co., 198 Mo. 711. (6) While the owner of land taken for public use is required to minimize the damages by using his property in the most advantageous way, he is not required to invest large sums in the acquisition of other property to take the place of that condemned, in order to minimize the damages. Railroad v. Brick Co., 198 Mo. 714; Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 299.</p> <p>(1) The finding of the eonrt stands as a special verdict and will not he disturbed where there is substantial evidence to support the same. Leavitt v; Taylor, 163 Mo. 170; Walther v. Null, 233 Mo. 110. (2) On a mere question of value depending on conflicting evidence, this court will not interfere with the findings of the commissioners and the circuit court. ' St. Louis v. Brown, 155 Mo. 567; St. Louis v. Abeln, 170 Mo. 324. (3) Where two tracts of land, divided by a public street, are used for a single purpose, and a part of one of the tracts is taken for public purposes, the owner is entitled to damages for the depreciation in the value of the other tract, but he must minimize the damages by adjusting himself to the changed condition. The possibility of obtaining other land in the neighborhood for the same purpose must be considered in estimating appellant’s damage. Bridge Co. v. Schauhacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282; Elevator Co. v. Railroad, 135 Mo. 353'; St. Louis v. Brown, 155 Mo. 545; Railroad v. Brick Co., 198 Mo. 698; Railway Co. v. Switzer, 117 111. 399; Railway Co. v. Brugger, 24 Tex. Civ. App. 367; Sutherland on Damages (3 Ed.), sec. 1067, p. 3122; Sedgwick on Damages (8 Ed.), sec. 1172, p. 437.</p>

<p>1. HEIRSHIP: Illegitimate Child. The right of a plaintiff to claim title to land as the heir of the testator, who by will gave a life estate to his wife, is precluded by testator’s death on February 15, 1860, and the birth of plaintiff to said widow on May 31, 1861.</p> <p>2. -: -: Heir of Mother. A child of the testator’s widow who took no steps to enlarge the life estate given her by the will into a fee in one-half the land as authorized by statute, cannot claim title in the land as heir at law of such widow.</p> <p>3. WIDOW’S ELECTION: Acquiescence in Will: Limitations. In the absence of evidence to the contrary, it must be presumed that the widow, who probated her husband’s will and qualified thereunder as executrix, and which gave her a life estate in all his lands, elected to take under the will; and being thus seized, she could not. deal with the property in such a manner as to start the Statute of Limitations running adversely to the rights of the remaindermen.</p> <p>4. CONVEYANCE BY LIFE TENANT. A deed by the life tenant conveys to the grantee no such title as will enable him to successfully assert an interest in the land after the life tenant’s death. The life tenant’s interest terminated upon her death, and cannot be enlarged by her conveyance.</p> <p>5. -: Limitations. Whatever may have been the character of the holding of the land by the grantee of fhe life tenant, he cannot claim title by limitations, or defeat the rights of remainder-men, if sufficient time has not elapsed since the life tenant’s death to sustain a claim under the Statute of Limitations.</p> <p>6. APPEAL: Rulings Limited to Adjudication of Appellant’s Claims. On appeal the rulings must be limited to the errors of which appellant complains. So-that where plaintiff, who claims, first, as heir of the testator, second, as heir of testator’s widow, and, third, as grantee of the life tenant, is the only appellant, the court cannot review the adverse claims of the defendants, who filed cross-bills, and to whom the court adjudged the land in controversy in equal moities.</p>

<p>1. CONTEMPT: Sufficiency of Judgment. A judgment which, sets forth facts conveying definite information of the precise subject-matter under inquiry by the grand jury at the time contemnor refused to answer, is sufficiently certain as to such subject.</p> <p>2. -: Revealing Secrets of Grand Jury. Inquiry by the grand jury of a witness as to the source of information he caused to be published in a newspaper, that a certain person had been indicted, who had not been arrested, is a legitimate and proper subject of inquiry by the grand jury.</p> <p>3. -: -: Reasons for Statute. The purpose of the statute in requiring the secrets of the grand jury to be kept inviolate and in forbidding a disclosure of the fact that an indictment has been found against a person not in actual confinement or under bail, is to prevent the escape of such person; but the fact that the statute forbids such revelations, is of itself sufficient reason, whether the offense charged be great or small.</p> <p>i. -: -: Excuse: To Accommodate Newspaper Reporter. He who violates the command of the statutes forbidding a revelation of the fact that the grand jury has found an indictment against an accused who has not been arrested or bailed, cannot justify his conduct by the fact that the person to whom under the cover of confidential friendship -he gave the information was the reporter of a newspaper who desired to “scoop” his competitor in the ' business of obtaining and printing so-called news.</p> <p>5. -: Refusing to Testify Before Grand Jury: Constitutional Immunity. The constitutional provision against self-incrimination will not protect a witness before the grand jury in refusing to tell whether the information he published in his newspaper, that a certain person had been indicted, was obtained from a member of the grand jury or an officer of the court or a witness who had been before them. If any of those persons made a revelation of the information he was guilty. of a misdemeanor, but a reporter who listened to the disclosure, or wrote it down, or reported it, was guilty of no offense, and cannot excuse himself from telling the grand jury which one of them gave him the information, on the ground that his answer would tend to incriminate himself— though an answer to an inquiry as to “where he got his information” might do so, but that is not decided, because he did not give his “constitutional rights” as his reason for refusal to answer . that question.</p> <p>6. -: Term of Commitment: Error Corrected bn Habeas Corpus. The judgment and commitment fixing the punishment of a contemnor, who has been properly adjudged guilty of contemptuously and contumaciously refusing to answer proper questions propounded to him by the grand jury, at imprisonment “until the further order of this court, or until he be otherwise legally discharged .by due process of law,” is manifestly erroneous, since the statute fixes the duration of punishment till contemnor gives the evidence which he had previously contemptuously refused to give; but he is not on that account entitled, on Habeas Corpus, to his unconditional discharge, but the contempt being criminal, as contradistinguished from civil contempt, the court, under the provisions of the statute (Sec. 6316, R. S. 1909), will assess the proper punishment.</p>

<p>1. CRIMINAL INTENT: Presumption: Possession of Property: Corpus Delicti. The possession by one of the property of another does not raise any presumption, nor is it of itself evidence, that the property was stolen. The possession must be accompanied by other in-. criminating circumstances, inconsistent with the possessor’s innocence. The evidence in this case does not establish beyond a reasonable doubt that the property was stolen or the defendant’s guilt.</p> <p>2. -: Instruction: Unexplained Possession of Stolen Property. The purpose of an instruction on the question of the presumption of guilt arising from the recent unexplained possession of stolen property, is to aid in determining the identity of the felonious taker; and where defendant admits that the hog alleged to have been stolen was by his -direction taken from the range and placed-in his barn by his hired hands, such an instruction should not be given, since the question at issue is not the identity of the taker, but the intent with which the hog was taken.</p> <p>3. -: -: Assuming Property Was Stolen. Where the issue is whether or not the hog found in defendant’s possession was stolen, an instruction which assumes that the hog was stolen is erroneous.</p>

<p>1. EES AD JUDICATA: Eecord of Former Trial: Writ of Error. Where the Court of Appeals had affirmed the judgment of the trial court rendering judgment for damages against plaintiffs on their bond in a dissolved injunction and had remanded the cause to the circuit court with directions to enter judgment for a designated sum as of a certain date,’ and the circuit court had complied with that mandate, the interested parties being present, plaintiffs cannot, by a writ of error sued out of the Supreme Court to review this last judgment, inject into the case, to aid the writ, the record of the trial which resulted in the judgment from which the appeal was taken to the Court of Appeals, for the issues raised in that trial had become res adjudieata, and form no part of the record and proceedings brought up by the writ of error,, and hence cannot be reviewed by the Supreme Court.</p> <p>2. APPELLATE JURISDICTION: Nominal Party. Jurisdiction cannot be conferred by the presence of a merely nominal party.</p> <p>3. -: County as Nominal Party: Motion for Damages on Injunction Bond. An injunction brought by a bank against the county and another bank to restrain the county treasurer from depositing the county funds in the defendant bank uesignated as county depositary had been dissolved, and on appeal to the Supreme Court the judgment was affirmed. Thereafter upon, motion to assess damages on the injunction bond the court rendered judgment for defendant bank in the sum of $7000, and plaintiffs sued out a writ of. error to the Supreme Court. Held, that the county was only a nominal party to the proceedings and had no right to file such a motion, because the interest on its deposits, about which the original suit centered, had been paid, and if the revenue laws were involved they were involved only in the original proceeding, which was settled on the former appeal; hence, the Supreme Court has no jurisdiction of the writ of error.</p>

<p>1. INSANE PATIENT: County Charge. A state hospital makes out a prima-facie case -for a claim against the county by showing that the patient had entered the hospital as a county patient and that the charges for a definite subsequent period had not been paid.</p> <p>2.____• -; Inheritance of Estate: Notice to State Hospital: Evidence That Notice Was Received. Where the county court made an order reciting that a certain person, theretofore confined in a state hospital as a county patient, had become possessed of an estafe sufiicient to support himself and family, that the probate court had appointed a guardian to take charge of his person and estate, and ordering that such person be no longer a charge upon the county, a transmission of that order to the hospital, in the manner prescribed by Sec. 1429, R. S. 1909, bars the right of the hospital board to recover from the county for the keep of said patient thereafter; and testimony by the- deputy county clerk that on the same or the next day after the order was made he made a certified copy of it, inclosed it in an envelope with the county clerk’s return address thereon, sealed it, directed it to the superintendent of the hospital, and mailed it, and that he had a specific recollection of mailing the particular document, is positive evidence that the order was received by the hospital, and sufficient to raise a prima-facie presumption that the superintendent received the copy so sent, and to submit that issue to the jury. '</p> <p>3.-:-:-: Instruction: Changing “Deposited With” to “Transmitted To:” Definition. The court did not err in changing the words “deposited with” to “transmitted to” in the instruction asked by the hospital, directing the jury that although they might find from the evidence that the county court made the order transferring the insane patient from a county charge to a pay patient, yet, unless they should further,find that a certified copy of the order was "deposited with” the superintendent of the hospital, the verdict should be for it. The statute requires the clerk to “transmit” the certificate to the superintendent, and that duty is discharged when the order is duly mailed in an envelope and addressed to the proper party. That is the meaning of “transmit,” while “deposit with” is not synonymous with “filing,” but means something more than “to deliver” and something different.</p> <p>4.-: -: -: -: That Notice Was Received. The appellant hospital cannot complain that the jury .was not required in terms to find that the order of the county court transferring an insane person theretofore kept at the hospital as a county charge to a pay patient, was actually received by the hospital authorities, where the .word “received” was contained in no instruction asked, and the theory of appellant’s instruction on which the issue went to the jury was that the proper mailing of the order was a prima-facie presumption that it was duly received.</p>

<p>1. NEGLIGENCE: Pedestrian on Track: Evidence of Signals at Crossing. Where defendant’s unfenced spur track ran through á thickly-settled community, and the use of the track by pedestrians had been acquiesced in for years by defendant, and'its trains were run over the track not for public convenience but at irregular intervals in hauling coal, evidence that no bell was rung or whistle sounded just before or at the time of backing the loaded cars over the track on which the deceased was walking when struck, is competent, and is not to be excluded on the theory that the statutory duty to give such signals at a road crossing does not pertain to a pedestrian on a track 150 feet from a public crossing.</p> <p>2. -: -: -: Instruction: Anticipating' Pedestrian on Track. It being the duty of the railroad company to ring the bell or sound the whistle when it approached that portion of its track used for travel by pedestrians, it was error to instruct the jury that their verdict must be for defendant unless the trainmen saw or by the exercise of ordinary care could have seen the deceased in a position of peril and thereafter failed to stop the train in time to avoid striking him, especially when the facts point to the conclusion that the failure to give either of the signals tended to cause the injury. That neither of the trainmen saw the deceased did not lessen the duty to give one or the other signal.</p> <p>3. '-: Instruction: Based on Conjecture: Climbing on Car. The giving of an instruction which attempts by inference based on conjecture to define the limit of defendant’s liability is error. To tell the jury that their verdict must be for defendant if the deceased fell or was thrown under a moving train in an attempt to climb on tbe cars, where there is no testimony from which the conclusion can reasonably be drawn that he made such an attempt, is error.</p> <p>4. -: -: Result of Mere Accident. Where the injury was caused either by the negligence of defendant or that and the contributory negligence of deceased, an instruction that if the injury was the result of a mere accident plaintiff cannot recover, should not be given.</p> <p>5. -: -: Trespasser. The deceased was not a trespasser when struck by defendant’s train while walking on a portion of its track which ran through a thickly settled community and was much used as a pathway by pedestrians with defendant’s acquiescence; and an instruction limiting defendant’s liability on the assumption of trespass was erroneous.</p> <p>6. -: Ordinary Care: Lookout on Rear of Backing Train. In backing a long train of cars over a portion of its track on which pedestrians had a right to be and frequently traveled, ordinary care requires that a railroad company place some one on the last car to look out for such persons. .</p>

Certiorari. (1) The statement, claiming damage of $750 on account of the iron boiler because the laundry plant was rendered useless by the. fire, is a mere conclusion from facts known by the insurer through personal inspection by its agents in company with the insured, before the proofs of loss were executed, and did not and could not deceive the insurer.

<p>APPELLATE JURISDICTION: Constitutional Question: Not Raised at Trial. Unless a constitutional question was both timely raised and decided by the trial court and preserved for review no such question can be considered or decided in the appellate court. A court of appeals is not authorized to transfer a case to the Supreme Court on the ground that to properly determine the case it would be compelled to decide a constitutional question, where no such question had been raised by either party.</p>

<p>1. APPELLATE PRACTICE: No Bill of Exceptions: Questions for Adjudication. -Absent a bill of exceptions, the only question for adjudication on appeal is whether, or not the judgment is such as could have been made on the pleadings. Whether or not the deed held in judgment was procured by fraud or undue influence, or was without consideration, being questions dependent upon the facts established by the evidence and those facts being absent, cannot be considered.'</p> <p>2. EQUITY: General Relief. A court once possessed of a cause in equity will not release its hold until full equity has been done to all parties interested therein. Especially is this true where there is, in addition to the prayer for specific relief, a general prayer for relief; for, in such case, the court must consider the full import of the pleadings.</p> <p>3. -: -: Cloud on Title: Partial Relief. Where the question for adjudication is the validity of a deed, and the specific prayer is that it be cancelled as a cloud upon the title to the whole tract, the court, Under a prayer for general relief, can grant partial relief, and cancel it as to a part of the tract.'</p> <p>4. HOMESTEAD: Deed of Husband Alone: Cancellation. A deed made in 1909 by the husband alone, which conveyed lands of which the unassigned homestead acquired prior to the Act of 1895 was a part, is invalid as to the homestead without the signature of the wife, and as to it may be cancelled" as a cloud upon the title, but .is not invalid as to the rest of the tract, and as to it may be confirmed.</p> <p>5. -: Definition: Conveyance. The homestead in the country as defined in the statute means the dwelling house and appurtenances and the land used in connection therewith to the fextent and value of $1500; and it includes only so much of the land as (together with the dwelling house and appurtenances) is worth $1500. It' is only as to that homestead that the statute makes void the individual deed of the husband.-</p> <p>6. -: Conveyance by Husband Alone: Valid as to Excess. A deed signed by the .husband alone, who has a living wife, conveying a whole tract owned by him, in which he has an unassigned homestead, is not void as a whole, but is valid as to the excess of land over and above the homestead proper as defined by the statute, subject to the wife’s inchoate right of dower in the excess. [Ruling that such question was not involved in Bushnell v. Loomis, 234 Mo. 371, and that the decision therein was not intended, in view of the facts held in judgment, to announce a contrary rule.]</p> <p>7. -: Assignment in Equitable Proceeding. In an equitable proceeding to remove cloud upon title to land, a court of equity has power, both because of its inherent equitable powers .and by the statute (Sec. 6713, R. S. 1909), to appoint commissioners to set off the homestead and the widow’s dower in the whole tract conveyed by the individual deed of the husband, and by that method ascertain from what portion of the land the cloud upon the title is to be removed.</p>

<p>1. TAXATION: Agricultural Lands by City: Exemption: Repeal by Legislature. In the absence of a constitutional inhibition to the contrary (and there was none in the Constitution of 1820), the Legislature was vested with inherent power to repeal a provision in a charter granted by special act of the Legislature in 1853 forbidding the city to levy and collect taxes on lands included within an extension of its corporate boundaries unless and until said lands were laid off into lots. Said act did not create a contractual obligation on the part of the General Assembly to exempt , said lands from city taxes, nor an express or implied agreement to refrain from repealing said exemption or amending said act.</p> <p>2. -: -: -: Subject to Subsequent Laws. Lands exempt from city taxation by a special charter granted in 1853 became subject to taxation for city purposes after said city became a city of the fourth class, under the general law of taxation relating to cities of such class, there being nothing in the then Constitution or in the act itself which inhibited the General Assembly from making such property subject to city taxes.</p> <p>3. -: -: No Exemption by Subsequent Act. Section 11335, Revised Statutes 1909, does not exempt agricultural or pastoral lands included within the corporate limits of a city which was incorporated by special act of the Legislature in 1845, amended in 1853 so as to include such lands and providing that they were not to be taxed until laid off into lots; and the General Assembly had power, under the Constitution of 1875, to enact said Section 11335, omitting such exemption therefrom.</p> <p>4. -: -: Prospective Operation of Constitution of 1875. The Constitution of 1875 was not intended to be so prospective- in its operation as to forbid the Legislature from repealing a provision in the special charter granted to a city in 1853 exempting agricultural lands within its then corporate limits from city taxes. The Constitution in effect declared that the owner of such lands should not after its adoption receive the benefit of any exemption from taxation found in said special charter.</p> <p>5. -: -: No Longer Considered Within Corporate Limits. The fact that agricultural land was brought within the city limits ' by' legislative enactment in 1853, and that the exemption of it from city taxation was one of the inducements for bringing it in, and that subsequently the Constitution and statutes repealed that exemption, valid when made in 1853, do not constitute a sufficient reason ior considering the property as no longer within the city’s corporate limits.</p>

— Hon. Thomas B. Allen, Judge. (1) The relator had the right to appeal from the said final judgment of the county court to the circuit court. Secs. 4096, 4091 and 3956, E. S. 1909. (2) Where the right of appeal exists mandamus does not lie. State ex rel. v. Macon County Court, 68 Mo. 48; State ex rel. v. Marshall, 82 Mo. 488; State ex rel. v. County Court, 83 Mo. 539; State ex rel. v. Megoun, 89 Mo. 157. Where any other adequate remedy exists, mandamus does not lie.

<p>1. PRINCIPAL AND AGENT: Negligence of Automobile Driver: Liability of Owner: Presumption. In a suit for damages against the owner of an automobile, for personal injuries due to the negligent driving of the car by the chauffeur, in the absence of the owner, proof that the automobile was owned by the defendant and that the chauffeur was in his general employment raises' a presumption that the chauffeur at the, time was acting within the scope of his employment and makes a. prima-facie case against the owner resting on the presumption. But such presumption takes flight upon the appearance of evidence of real facts to the contrary.</p> <p>Held by WOODSON, J., dissenting, that the court cannot hold as a matter of law that the prima-facie case was completely overcome and destroyed by the evidence introduced by defendant, but whether or not it was so destroyed is a question for the jury, whose province it is to determine its credibility and weigh its probative force.</p> <p>2. -: -:: -: Pailure to Observe Master’s Direction. Where the chauffeur was directed to take the automobile to the master’s garage, which he could have done in an hour, and instead of doing so spent five hours or more driving over the city before (in a drunken state) he negligently ran the car against plaintiff, there is no presumption that at the time of the accident he was acting within the scope of his employment; but in order to hold his master liable for the damage, positive proof that he was in fact at the time of the accident engaged in the performance of duties for the master was required.</p> <p>,3. -: -: -: -: Having Car Repaired. The fact that, after the master < directed the chauffeur to take the automobile to the garage, the chauffeur, who was an experienced mechanic, discovered a “knock” in the engine and, instead of remedying the defect himself, which he could easily have done, went to the general garage of cars of like manufacture, and there saw and took into his car the man in charge, does not establish that such trip was within his duties, even though he had been previously instructed to go to a machine shop and have some parts made. Especially is this true, where the facts show that the chauffeur for the next two hours, after making'said trip and before the accident occurred, was engaged in a joy-ride and a drunken debauch.</p> <p>4. -: -: -: Slight Deviations from Directions. Slight deviations from the master’s directions to his chauffeur, or incidental things done hy him for his own benefit while in the line of his service for the master, will not destroy the presumption that the regularly employed chauffeur, at the time he negligently ran his automobile against a pedestrian, was acting within the scope of his employment. But the acts of the chauffeur in this case where not slight deviations, nor mere incidents of his employment, but destroyed the presumption.</p>

<p>1. WILL CONTEST: Action at Law. A will contest is a statutory-legal action triable by - a jury, whose verdict, if supported by substantial evidence on the issues properly submitted, is conclusive on appeal, absent error in the trial and in the giving and refusal of instructions.</p> <p>2. ILLEGITIMATE CHILD: Eight to Contest Will. Unless the plaintiff can prove a lawful marriage between testator and his mother, either before or after his birth, and thus establish his heirship and consequent right to attack the will, he must establish, in some other way, a status giving him a financial, interest in testator’s estate which would be benefitted by a setting aside of the will. No such interest can arise from the fact that he is the natural but illegitimate child of the testator, for in such case he has no heritable right except through his mother.</p> <p>3. -:-: Financial Interest: Devisee Under Former Will. No such financial interest in testator’s estate as authorizes him to contest the will is established by a showing that he was the devisee in a former will which was taken by testator after its execution into his own possession and kept until it was destroyed by him prior to the execution of the will in contest.</p> <p>4. TESTAMENTAEY CAPACITY: Tests. The tests of testamentary , capacity are: first, the testator must understand the ordinary affairs of his life; second, he must know both the nature and extent of his property and the persons who are the natural objects of his bounty; and, third, he must know that he is disposing of his property in 'the manner and to the persons mentioned in the will. Tested by these rules, the testator, aged eight-eight, had sufficient capacity to make the will in suit.</p> <p>5. --:-: Application of Tests: Old Age. A failure of memory resulting from old age or sickness, forgetfulness of the names of persons testator has known, idle questions, a requiring of the repetition of information, personal eccentricities and oddities, are not evidence of such mental disease and deterioration as render testator incapable of disposing of his property by will.</p> <p>Held, by GRAVES, C. J., dissenting, that the court should not .take single facts and say that each, standing alone, is insufficient to justify the submission of mental incapacity to the jury, but that if the combined circumstances tend to show incom- • petency, the question should be submitted to them; and that the fact that the will was made in April and the testator died in August of softening of the brain, a rather slow but progressive disease, is a strong circumstance tending to show mental incapacity.</p> <p>6. -:-: Old Age, Fall and Fainting Spells. The fact that at the age of eighty-five testator made a misstep on the stairway and fell, striking on his head, the fall producing unconsciousness, and that following the fall he was subject to fainting spells, during which he could remember nothing until he got over them, and that his memory grew less distinct as his age advanced, did not deprive him of the power to will his estate, provided after the fall he was still able to attend to his ordinary affairs as usual and otherwise at the time he actually made the will possessed the qualifications of competency as defined in the accepted test rules.</p> <p>7. -: -: Misc.ly Conduct. Misc.ly conduct in hoarding money, or keeping it on his person or in his room, or piling it up in a safe deposit box, does not legally detract from testator’s capacity to make a will.</p> <p>8. -: -: Mistakes in Money Calculations:.’ Fault of Memory. The fact that the testator was mistaken as to the amount of money he had on a certain occasion deposited in a bank'was a mere fault of memory, and does tend to prove a lack of testamentary capacity.</p> <p>9. -:-: Coarse Habits. Testimony that in his old age testator was occasionally very lightly clad in summer time; that at one time he was seen in a state of nudity; that when reproached about the impropriety of his dress, he replied it was hot; that he Was rough, strong in mind and physical constitution, coarse in habits and unrefined in tastes, miserly in disposition and vulgar in behavior, does not tend to establish testamentary incapacity at the time of making the will.</p> <p>10. -: -: Apoplexy: Soundness,on Date of Will: Hypothetical Questions. The facts that a few months prior to making the will, and again a few months after, testator, eighty-eight 3 ears of age, had a fainting spell and a slight attack of apoplexy, and could give to his physician no intelligent statement of the history of his illness or of his condition, were not a’sufficient basis for hypothetical questions relating to his testamentary competency propounded to experts, first, because of their intrinsic lack of probative force, and, second, because the undisputed testimony was that on' the day the will was written, in pursuance to a prior appointment, he spoke freely and without reserve of his purposes in making the will, dictated its contents and approved and signed its draft, and the circumstances of- his condition on that day as established by that testimony were omitted from the hypothetical questions.</p> <p>11. -: Undue Influence. The facts that the testator, a very old man, whose wife had long been dead, in his will disposing of an estate valued at fifty-seven thousand dollars, gave three hundred dollars to a woman who had rendered him many personal services, in consideration that she take care of his burial ground, gave the bulk of his estate to his daughter, and named her son by a former marriage as executor, who the evidence shows was chosen because of his business training and abilities and whom he placed in management of his affairs after the will was made but to whom he gave nothing, do not tend to establish undue influence on the part of any of them.</p>

<p>1. INDEPENDENT CAUSES: Explosion of Dynamite: Substantial Evidence: Question for Jury. The rule that when the evidence discloses two independent causes of the injury, for one of which defendant is liable and for the other of which he is not, it is incumbent upon the plaintiff to show that the cause for which defendant is liable produced the injury, imposes upon the plaintiff the duty of offering substantial evidence tending to show that the cause for which defendant is liable produced the injury; and that having been done, the jury, under proper instructions, passes upon the question of fact thus involved, just ?' upon any other such question,. and the quantum of evidence necesary to sustain a finding thereon differs not at all from that required on other issues of fact. The appellate court cannot weight conflicting evidence upon such an issue.</p> <p>2. EXPLOSION OF DYNAMITE: Independent Contractor: Liability of City. The use of explosives by an’independent contractor in the construction of a sewer, of such character as to necessitate blasting, must be foreseen by the city; but such use is lawful, and having in readiness, near the work, dynamite in proper quantities for use in blasting, is neither necessarily nor so palpably dangerous, when managed in the ordinary way, as to constitute a thing inherently dangerous; and if the explosive so held,in readiness becomes, in the circumstances of a particular case, a nuisance by reason of the independent contractor’s negligence of method, without more, provided he is not incompetent, he alone, and not the city, is liable for injuries resulting from explosions.</p> <p>3. -: Negligence in Storing: Proof of Particular Causal Acts. In determining, after an explosion, whether or not the independent contractor, engaged in constructing a sewer necessitating blasting, had created a nuisance in the street, the locality, the quantity and manner of keeping must be considered, as well as the nature of the explosive and its liability to accidental explosion; and in deciding whether or not a public nuisance existed in connection with the storage of the material which exploded, the question of the manner in which it was kept may enter into consideration; but when it is once determined upon sufficient evidence that such nuisance was maintained, then no particular causal act directly contributing to the explosion need be shown.</p> <p>4. -: Nuisance on Private Property: Liability of City. A city is not ordinarily liable for failure to abate a nuisance upon property of a private owner, no injury to the users of the street being threatened,-'since that is but a failure to exercise a governmental power.</p> <p>5. -: Nuisance in Street: Maintained by Contractor: Liability of City. The fact that the independent contractor was engaged in work for the city has nothing to do with the question of whether the city is liable to an owner of property, adjacent to a street, for damages to said property resulting from a' nuisance created by said contractor in the street.</p> <p>6. -: -: -: -: Notice. In the absence of notice to the city and of facts from which notice can reasonably be inferred, that the contractor, engaged in the construction of a sewer requiring blasting, had taken into the shed erected in the street, in which were a gasoline engine supplied with fuel and used in drilling rock and a large tank containing a reserve supply of gasoline and placed a few feet from the engine, some sticks of dynamite, taken from the usual place of storage near by, which did not explode, the city is not liable in damages for injury to private property abutting on the street, resulting from an explosion in the shed, in which there was no habitual storage of dynamite.</p>

<p>1. PROCESS: In Name of the State. The provision of the Constitution requiring that “all writs and process shall run in the name of the State of Missouri” is directory and not mandatory in its nature.</p> <p>2. -: -: Order of Publication. An order of publication which conveys the same information that it would impart if running in the name of the State is neither void nor voidable, although it is not made to run in the name of the State; and being neither void nor voidable, but a substantial compliance with the law, it cannot upon motion be quashed because it does not so run. [Overruling Obiter dicta in Doan v. Boley, 38 Mo. l. c. 450.] '</p> <p>3. MERITS OF ACTION: Disregard of Technical Errors. Where the court has jurisdiction of the subject-matter and by a substantial compliance with the law has obtained jurisdiction of the persons of defendant, it should disregard a failure of the writ or process to technically comply with constitutional provisions or statutes that are purely 'directory, if such process imparts to defendant the same information as would a technical compliance therewith.</p>

<p>1. NEGLIGENCE: Speed Ordinance: Invalidity: Pleading. Where defendant pleads and relies upon a certain ordinance as a defense to plaintiff’s charge of negligence, the invalidity of said ordinance should he pleaded, and if not pleaded it cannot be excluded as evidence on the ground that it is invalid.</p> <p>2. -: -: Invalidity Raised at First Opportunity: Waiver. The invalidity of an ordinance, relied upon by defendant as a defense to plaintiff’s action for negligence, like the unconstitutionality of a statute, should be raised at the first open door in the course of orderly procedure in the case, and if not so raised its invalidity is waived; and the ordinance being pleaded as a defense in the answer, the first opportunity for asserting its* invalidity in this case was by an averment in the reply.</p> <p>3. - — :-: Conflict With State Statute: Waiver. If the answer pleads that plaintiff was guilty of contrihutory negligence in running his taxicab in excess of a certain speed ordinance pleaded, and plaintiff replies that the ordinance was in force and that he was not driving in excess of its speed rates, the court is not required to decide that said ordinance conflicts with a state statute on the same subject, neither can said ordinance be excluded from evidence on any such ground.</p> <p>4. -: -: Exclusion Harmless Error. If the ordinance fixed a maximum speed of ten miles per hour and there was evidence tlat plaintiff’s taxicab at the time of his injury was being driven by him at the rate of twenty-five or thirty-five miles, and the instruction made ordinary care the measure of plaintiff’s duty, it was not harmless but prejudicial error -to exclude said ordinance as evidence; for a rate in excess of the ordinance rate was negligencé per se, and a rate in excess of that speed was contributory negligence and defeated plaintiff’s right to recover, and without such ordinance the jury might find that a rate of even thirty-five miles per hour was ordinary care.</p> <p>5. AUTOMOBILE SPEED: Power of' City to’ Regulate. The Act of 1911 did not expressly or by intendment withdraw from cities the power to regulate the speed of automobiles upon their streets, nor does such act deprive cities of their power to enact valid ordinances providing reasonable speed and other regulations in the use of streets by automobiles.</p> <p>6. ORDINANCE NEGLIGENCE: Unlighted Wagon. Where defendant’s long-reach wagon, loaded with long steel beams, extending some eight feet beyond the hind axle, stalled at the intersection of two streets after nine o’clock at night, they were guilty of ordinance negligence for failure to have lights on the wagon, in obedience to an ordinance requiring all such vehicles, while in use upon the streets between the hours of sunset and sunrise, to “display one or more lights or lanterns on the outside of such vehicles, visible from front and rear,” and are liable to the driver of an automobile who saw the wagon, but did not see the steel beams, with which he came in contact, and which were of the same color as the asphalt pavement — unless his right to recover is barred by his contributory negligence in driving at an excessive speed.</p> <p>7. COMMON LAW NEGLIGENCE: Blocking Street. Evidence that a long-reach wagon, loaded with long steel beams, extending some eight-feet beyond the hind axle, stalled after nine o’clock at night at the poorly-lighted intersection of two streets; that it sunk down into the asphalt pavement and remained there for thirty minutes or more; that the street which crossed the one in which it was traveling was a continuously used highway; that the wagon and beams blocked the whole of the south side of that highway, which was the side used by automobiles going east, as plaintiff’s was; that neither the owners of the wagon nor their servants did anything in the way of performing their duty to the traveling public by way of warning or signals, and that plaintiff’s taxicab collided with the steel beams and he was injured, is such evidence of common law negligence as entitled’ plaintiff to go to the jury on that issue.</p> <p>8. CONTRIBUTORY NEGLIGENCE: Question for the Jury. Where there is conflicting evidence on every vital question touching the negligence of plaintiff, the question of his contributory negligence is an issue for determination by the jury; and notwithstanding the evidence on that question preponderates in favor of defendants, the appellate court cannot declare as a matter of law that plaintiff was guilty of such contributory negligence as bars a recovery, even though all the testimony except his own, which is positively to the contrary, shows recklessness on his part at the time of the accident.</p>

Mandamus. (1) Section 5883', as amended, says: “If the court finds that the owners of a majority in acreage of the proposed district are petitioners, or have joined in prayer of said petition for said district or improvement, hy motion, then the court shall . . . find in favor of making the improvement.” Reagan v. County Court, 226 Mo. 79. (2) Mandamus is the proper remedy in this case.

Louis City Circuit Court. — Hon. Rhodes E. Cave, Judge. (1) A married woman cannot by will dispose of ber real property except subject to the rights of tbe husband to his curtesy therein. Sec. 536, R. S. 1909. (2) Where a man and woman are married and issue capable of inheriting is born of said marriage, the husband, by operation of law, immediately becomes vested of a freehold estate in all real property of which the wife was seized at the time of her death.

Prohibition. (1) Our form of State government is divided into three separate and distinct departments — the executive, legislative and judicial — and each is exclusively confided to a separate… Held: became vacant, and the Governor appointed James Hagerman to fill this vacancy. This appointment, under the law, was until the next general election. Sec. 2674, R. S. 1909; State ex rel. v. Amick, 247 Mo. 271; State ex rel. v. Perkins, 139 Mo. 115.

— Hon. A. H. Waller, Judge. Defendant’s demurrer to the evidence should have been sustained, because: (1) There was no proof of actionable negligence of the defendant. Railroad v. Newell, 196 Fed. 868; Tuttle v. Railroad, 122 U. S. 189; Reece v. Railroad, 239 U. S. 463; Miller v. Railroad, 185 Mich. 432; Haring v. Railroad, 137 Wis. 367; Eliott v. Railroad, 204 Mo.- 17; Coin v. Lounge Co., 222 Mo. 506.

— Hon. E. M. Dearing, Judge. (1) The plaintiff brought this mandamus suit, the defendants made due return to the alternative writ, the facts were agreed upon in writing by both parties in the mandamus case and the relator filed his motion for a peremptory writ, which motion was in affect a demurrer.

— Hon. Frank Kelly, Judge. (1) It is established by the undisputed evidence that the land in controversy was occupied and used by Stephen Lewis and family as a homestead at the time of his death on April 5, 1873, and did not exceed in value the sum of $1500. (2) The deed by which he acquired the land from Wright, is dated December 6, 1871, and was deposited for record on January 6, 1872, as shown by the file marks thereon.

— Hon. A. H. Waller, Judge. (1) Upon the marriage of Fanny E. Cooper tho devise made in item three of the will of David Cooper, was to the four children as a class, and the devise was to them and the bodily heirs of each of them, thereby entailing the real estate upon them. Long v. Timms, 107 Mo. 519; Faris v. Ewing, 183 S. W. 280; R. S. 1909, sec. 2874.

<p>Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.</p> <p>(1) This ease is within the jurisdiction of the circuit court. Sec. 22, art. 6, Constitution; Secs. 1727,1794, 2535, R. S. 1909; Santer v. Leveridge, 103 Mo. 622; State v. Dearing, 180 Mo. 64; Hope v. Blair, 105 Mo. 92; Mc-Quillin’s Missouri Practice, sec. 206. (2) The prohate court has no jurisdiction to determine the title to property. Sec. 34, art. 6, Constitution; Sec. 4056, R. S. 1909; In re Estate of Strom, 213 Mr. 6; State v. Bird, 253 Mo. 579;.In re Wood Estate, 138 Mo. App. 262; 2 Woerner’s Am. Law of Administration, p. 1033.</p> <p>(1) The demurrer to plaintiff’s -amended petition was properly sustained. It shows that plaintiff was then acting as executor under the will of Alexander Largue and that his administration had not been completed; nor had his final settlement been approved. The jurisdiction of plaintiff’s accounts is vested in the probate court. Plaintiff voluntarily submitted himself to such jurisdiction when he qualified as executor and continued to act as such for eleven years,.from 1906 down to this date, lie cannot now be heard to assert that the probate court has no jurisdiction. Constitution, art. 6, sec. 34; R. S. 1909, sec. 4056. (2) The title to the real estate mentioned in this suit is not in question. Johnston, as executor, inventoried the real estate in the probate court as the property of Alexander Largue. The equitable title thereto immediately vested in Largue’s devisees under his will, L. Anna Grice and John Grice. There are no adverse claimants and no adverse claim has ever been asserted as to either the real or personal property by anyone. Plaintiff’s petition shows that Largue, by his will of which plaintiff is executor, devised and bequeathed all his real and personal property to L. Anna Grice and John Grice; that John Grice transferred his interest to Mathilde Largue; that Mathilde Largue by her will named Mathilde Puller as her residuary legatee and devisee. These claimants are not adverse and no adverse claimant has ever appeared. The sole issue in this caso is whether Johnston is entitled to excessive commissions, charges and expenses in his dual capacity as “trustee” and as executor. In certain instances he claims fifteen per cent commissions as “trustee” and also five per cent commissions as executor on the same items. He has hopelessly commingled his accounts as trustee and as executor. He now denies the jurisdiction of the probate court over his accounts as executor, in the hope that the circuit court will allow him commissions as trustee in excess of the amount which the probate court, under the law, would allow him as executor. (3) Plaintiff claims double commissions as trustee and as executor. Judson v. Bennett, 233 Mo. 607.</p>

<p>1. QUASHING EXECUTION: Grounds. An execution can be quashed only on grounds that go to the integrity of the judgment, the jurisdiction of the court or defects in the process itself.</p> <p>2. -: In Ejectment: Homestead. After judgment in an action of ejectment, in which defendant was personally served and made default, an execution, issued after the adjournment of the term and levied upon the same land, cannot be quashed on the mere ground that the premises constitute defendant’s homestead. That defense was appropriate in the action of ejectment, and not having been made defendant is concluded by the 'judgment therein.</p> <p>3. -; — :-: -: As to Defendant’s Wife. But if defendant’s wife was not a party to the action of ejectment, neither the judgment therein nor process issued thereon is conclusive as to her, nor are her homestead rights affected thereby, nor is she precluded by either from asserting them in a proper proceeding..</p>

— Hon. E. M. Dearing, Judge. (1) Every presumption is in favor of the county court acting from proper and right motives and the burden is upon the plaintiff to overthrow such presumption by a greater weight or preponderance of the evidence. Beardon v. Miller, 54 Mo. App. 201; State ex rel. v. Flemming, 147 Mo. 10; Martin v. Stoller, 107 Mo. 317; State v. Brown, 75 Mo. 317; State ex rel. v. Weatherby, 45 Mo. 17; Agan v. Shannon, 103 Mo. 661.

— Hon. Frank G. Johnson, Judge. (1) Under the pleadings and the evidence the court erred in decreeing a cancellation of the release of the deed of trust and reinstating same as a lien superior to appellants’ title under the sheriff’s sale in execution. Davis v. Owenly, 14 Mo. 170; Valentine v. Havener, 20 Mo. 133; Stillwell v. McDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Reed v. Owenby, 44 Mo. 204; Black v. Long, 60.

Louis City Circuit Court. — Hon. Thomas L. Anderson, Judge. (1) Respondents herein, as the daughters of Mrs; Scudder, are not exempt from Missouri inheritance tax by reason of the fact that they are children of an adopted child of testator. In order for the children of Mrs. Seudder to he exempt from an inheritance tax they must come within one of the following classes: First, legally adopted children of Samuel Cupples; or, second, direct lineal descendants of Samuel Cupples.

<p>1. CONTINUANCE: Due Diligence. The showing of due diligence on the part of the applicant bears an important. part in determining his right to a continuance. Where defendant, after he had learned that a notary public in a near-by State, employed by him for the purpose, had refused to take the deposition of an absent witness, still had ten days before the day already set for the trial in which to take the deposition and made no further attempt to take it, the court did not abuse its discretion in refusing a continuance.</p> <p>2. AGE OE PROSECUTRIX: Contradictory Evidence by Hér: Party to Action. The prosecutrix testified that at the time of the trial, which occurred April 10,1917, she was sixteen years of age, and that the act of sexual intercourse occurred February 10, 1916. On cross-examination she testified that she was born on July 9, 1901, and that she was fifteen years old in 1915. Held, that, her testimony being contradictory on the issue of whether she was between the age of fifteen and eighteen years at the time the act was committed, the question of her age was for the jury. The rule, that where one of the parties to the suit testifies to facts against interest he is bound by such admissions unless avoided by contrary satisfactory evidence given by himself, has no application to the conflicting testimony of a witness not a party to the suit, and consequently no application to the said testimony of prosecutrix.</p> <p>3. EVIDENCE: Statutory Rape:. Inference from Witness’s Refusal to Criminate Himself. No inference of the existence of the incrimi- ' nating fact is permitted to be drawn from the witness’s claim of his constitutional right to refuse to answer, and therefore the witness’s claim of the privilege is not a proper matter of evidence for the jury’s consideration. Where Waddle was absent from the State at the date of defendant’s trial for statutory rape of a girl between the ages of fifteen and eighteen years and of previous chaste character, it was not error to exclude the testimony of the justice of the peace to the effect that at the preliminary hearing said Waddle was a witness and on being asked if he had had sexual intercourse with prosecutrix he refused to answer on the ground that his answer would incriminate him.</p> <p>4. -} --: Chaste Character: Prior Acts of Sexual Intercourse. In a prosecution of a defendant for carnal knowledge of a girl between the ages of fifteen and eighteen years and of previous chaste' character, testimony of prior acts of sexual intercourse with other men is proper, but subsequent acts with them are not material on the question of her previous chaste character or of defendant’s guilt.</p>

— -Hon. John A. Rich, Judge. (1) The court did not err in refusing defendant’s instructions 11, 12, 18 and 14. (a) It would have been reversible error to give instruction No. 11. State v. Finkelstein, 269 Mo. 612. (b) Instructions 12 and 13, asked by defendant, were substantially set out in instructions 3 and 7 given. (2) The court did not err in admitting the testimony of Katie Gulley and Mrs. Emma. Jenkins regarding the age of said Katie Gulley.

<p>Appeal from Jackson Circuit Court. — Hon. E. E. Porter-field, Judge.</p> <p>(1) THe defendant being charged with rape upon Eva Frampton, it. was error for the trial court to admit evidence of an act or acts of intercourse by defendant with Clara Parker, or of statements or admissions by defendant with reference thereto. State v. Smith, 250 Mo. 274; State v. Teeter, 239 Mo. 475; State v. Vandiver, 149 Mo. 502; State v. Banks, 258 Mo. 479; State V. Phillips, 233 Mo. 299; State v. Hyde, 234 Mo. 200; State v. Horton, 247 Mo. 657. (2) The court erred in permitting the defendant to be cross-examined with reference to matters and things not mentioned or touched upon in his examination in chief. Sec. 5242, E. S. 1909; State v. Burgess, 259 Mo. 383; State v. Swearengin, 190 S. W. 268; State v. Kinney, 190 S. W. 306; State v. Pfeifer, 267 Mo. 23; State v. Goodwin, 195 S. W. 725. (3) The court erred in permitting the day book and ledger of Dr. Janes • to be introduced in evidence and read to and examined by the jury. Childress v.'Cutter, 16 Mo. 24; Morrissey v. Perry Co., 47 Mo. 521; State v. Hamilton, 263 Mo. 298. (4) The court erred in permitting the State to introduce evidence showing that the alleged act of intercourse was committed forcibly and against the will of the prosecutrix, there being no allegation in the information that the act was committed forcibly and against the will of prosecutrix. Sec. 22, Art. 2, Constitution. (5) The court erred in refusing to instruct the jury to find the defendant not guilty at the close of all the evidence as requested by defendant, for the reason that the evidence is not sufficient to sustain the verdict. State v. Patrick, 107 Mo. 147; State v. Goodale, 21.0 Mo. 275; State v. Tevis, 234 Mo. 276; State v. Donnington, 246 Mo. 343; State v. Law-horn, 250 Mo. 293.</p> <p>(1) The trial court did not commit error in allowing the State to admit evidence of acts of intercourse of the defendant with Clara Parker and statements or admissions by the defendant with reference thereto. This was allowable to show the intent or motive of defendant. State v. Thornhill, 174 Mo. 370; State v. McLaughlin, 149 Mo. 19; State v. Bailey. 190 Mo. 279; State v. Sarony, 95 Mo. 349; State v. Turley, 142 Mo. 403;. State v. Phillips, 160 Mo. 503; State v. Franke, .159 Mo. 535; State v. Pennington, 124 Mo. 383; State v. Minton, 116 Mo. 605; State v. Williamson, 106 Mo. 162; State v. Toohey, 203 Mo. 678; State v. Spaugh, 200 Mo. 594; State v. Bailey, 190 Mo. 279; State v. Bolch, 136 Mo. 103; State v. Cooper, 85 Mo. 256; State v. Bayne, 88 Mo. 604; State v. Myers, 82 Mo. 558; State v. Hodges, 144 Mo. 50; People v. Molineux, 168 N. Y. 293, 62 L. R. A. 329-335; Goresen v. Commonwealth, 99 Pa. St. 398; Commonwealth v. Robinson, 146 Mass. 577; Commonwealth v. Snell, 189 Mass. 22 ; Hawes v. State, 88 Ala. 37; Higgins v. State, 157 Ind. 57; People v. Harris, 136 N. Y. 423; Zoldoski v. State, 82 Wis. 580 ; Wheeler v. State, 23 Tex. App. 598; Shafner v. Commonwealth, 72 Pa. St. 60; Wharton’s American Criminal Laws (6 Ed.), sec. 649; 3 Greenleaf on Evidence, sec. 15; Stevens, Digest of Evidence, arts. 11, 12; People v. Zucker, 154 N. Y. 770; Regina v. Cotton, 12 Cox’s C. C. 400; Regina v. Geering, 18 L. J. Maj. Cas. 215; Regina v. Heesom, 14 Cox’s C. C. 40; Gossenheimer v. State, 52 Ala. 313; Hobbs v. State, 75 Ala. 1. Admissions and statements of the accused are always admissible against him when freely and voluntarily made. State v. Barrington, 198 Mo. 109; State v. Spaugh, 200 Mo. 596; State v. Daly, 210 Mo. 664; State v. Green, 229 Mo. 650. (2) The court did not err in permitting the defendant to be cross-examined with reference to acts of intercourse by the defendant with Clara Parker and with reference to admissions or statements made by the defendant concerning such acts of intercourse. Authorities under point one; also: State v. Barrington, 198 Mo, 85; State v. Mills, 156 Mo. 85; State v. Feeley, 194 Mo. 315; State v. Eishenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Keener, 225 Mo. 4991. (3) The court did not err in permitting the day book and ledger to be introduced in evidence and read and examined by the jury. 33 Cyc. 1473; Neill v. State, 49 Tex. Crim. App. 219; People v. Yann, 129 Cal, 118; 10 R. C. L. secs. 63, 341, 343, 350, 372; Note to 69 L. R. A. 475. (4) The court committed no error in allowing the State to show that the alleged act of intercourse was committed by force and against the will of the prosecutrix. State v. Ernest, 150 Mo. 347; State v. Allen, 174 Mo. 689.</p>

<p>1. HOG: Carcass. A defendant charged with stealing hogs cannot be convicted of stealing the carcass of a hog. The carcass of a hog, by whatever name called, it not a hog. The word “hog” means a live animal.</p> <p>2. -: -: Venue: Failure of Proof. Defendant was charged with stealing four black hogs in Reynolds County and was indicted in that county. The evidence shows that the hogs were stolen and killed in Dent County, and thereafter their carcasses were taken by defendant and two other persons into Reynolds County, where they were cleaned and divided among them. Held, that there was a total failure of proof. Defendant could not under the indictment be convicted of stealing the carcasses of hogs in Reynolds County, because he was not so charged.</p> <p>3. -: -: Statute. The statute (Sec. 4535, R. S. 1909) making it grand larceny to steal any “horse, mare, gelding, colt, filly, ass, mule, hog or neat cattle” shows on its face that it is not capable of being construed to embrace those animals when dead.</p>

<p>1. VARIANCE: Question Not Raised in Trial Court. Tbe statute (Sec. 5114, R. S. 1909) requires that the trial court be allowed an opportunity to rule on the question of a variance between the proof and the allegations in the indictment, and if the question is not raised in the trial court it cannot be ruled in the appellate court. In this case the indictment charged that the defendant by false pretense obtained “the sum of five hundred dollars lawful money” and the evidence showed that a check for that sum was the medium of payment.</p> <p>2. FALSE PRETENSE: Indictment. No set form of an indictment charging the crime of obtaining money by false pretense can be prescribed. The aspects of such crimes are so variable that only a general or skeleton form can be formulated.</p> <p>3. -: -: Agent of Defendant. An indictment -which fails to charge that the attorney who transmitted the statement of two women upon which a claim for damages was paid by a railway company, was at the time the agent of defendant in that behalf, is defective. It was further necessary to charge, that the attorney in transmitting the statement of the w,omen acted in that behalf at the procurement or upon the instigation of defendant. It was not sufficient to charge that defendant and his accomplices, the two women, consulted and employed the attorney and placed the statement in his hands and that he communicated it to the company.</p> <p>4. -: -: Purported Statement. Án indictment which charges that an attorney exhibited to the agent of a street railway company a statement, “purported to be the statement” of two women, who falsely claimed to have been injured on said company’s street ear, and said agent, relying on the false and fraudulent statements communicated to him by the attorney of said women, to be true and being deceived thereby, etc., is defective. It should have charged that the exhibit was an actual statement of the women, and not a “purported” statement.</p> <p>5. -: -: Ownership: Receivers. The ownership of street railway property is not by an ordinary court receivership transferred to the receivers, but remains in the company; and an indictment for obtaining money by false pretense is not invalid because it charges that the money fraudulently obtained was the property of the company.</p> <p>6. -: Instruction: Following Indictment. An instruction which fairly follows a proper and sufficient indictment and the evidence adduced is not erroneous. .</p>

<p>APPELLATE JURISDICTION: Construction of Federal Statute. The Supreme Court does not have appellate jurisdiction of a cause wherein a railroad company was fined one thousand dollars for shipping cars of cattle from Iowa into Missouri without having a certificate of inspection attached to the waybill, as provided by Sec. 717, R. S. 1909, on the theory that the Federal law on the spbject has supplanted the State statute, and wherein the position of the State is not that the Federal statute is void, or that Congress had no power to pass it, but that it does not cover the subject-matter. The case does not involve the validity of the Federal statute, or the constitutionality of the State statute, but merely the construction of the Federal act.</p>

<p>1. GAMBLING DEVICE: Poker Table. A poker table not being one of the devices enumerated in Sec. 4750, R. S. 1909, it is necessary that the indictment point out in what manner the table was adapted to playing games of chance. ■</p> <p>2. -: -: Used in Connection With Cards. It is not the game, but the device, at which Section 4750 is aimed. The use of cards and poker chips in connection with the poker table, where they are not charged to be a part of the device, does not make the table a gambling device.</p> <p>3. -: -: -: Indictment. An indictment which simply charges that defendant set up and kept a certain table and gambling device, to-wit, a poker table, which was adapted and designed for the purpose of playing games of chance, and that cards and poker chips were used on said table for the purpose .of playing games of chance, but does not charge that defendant kept and set up or furnished the cards or chips, or in what manner the table was adapted or designed for the purpose of playing games of chance, is defective.</p> <p>4. -: Playing at Home. Section 4750, Revised Statutes 1909, does not prohibit one from allowing gambling on his premises. Another section (Sec. 4753, R. S. 1909) covers that offense.</p>

<p>1. INSTRUCTION: Assumption of Defendant’s Guilt. An instruction telling the jury that “flight raises the presumption of guilt, and if you believe from the evidence that the defendant, after having stabbed and killed Philip Carpenter,” etc., where the stabbing was not admitted by defendant, but unequivocally denied by him, is erroneous, in that it assumes that defendant “stabbed, and killed Philip Carpenter.” Even though the great weight of the testimony and defendant’s previous extra-judicial confession unerringly point to the falsity of his denial, it is still the province of the jury to decide whether or not it is false.</p> <p>2. -: Flight* It is proper to give an instruction on the subject of flight where the facts show that defendant four days after the stabbing of deceased left the scene of the -crime and went to a distant city and was there shortly afterwards arrested at a place and amid environments which might well argue an attempt at concealment; but the instruction should aptly embody the explanation which defendant gives on the witness stand of his alleged flight, or reason for his presence in said city.</p> <p>3.IMPEACHMENT: Former Conviction in Police Court. It was error to permit the defendant, being tried for a felony, to be asked by the State on cross-examination, in an effort to impeach him as a witness, whether he had ever been convicted of a crime, and upon his denial to permit the State to ask him if he had not been convicted of vagrancy in the police court, and upon his further denial, to call the police judge, in rebuttal, and permit him to show by the records that defendant had been convicted of vagrancy in said court.</p> <p>4. -: -: Criminal Offense. A conviction of vagrancy in a police court in violation of a city ordinance is not a conviction of a “criminal offense” within the purview of Sec. 6383, R. S. 1909. Those words are by the statute (Sec. 4925, R. S. 1909) confined to a conviction of a misdemeanor or felony in violation of a State law.</p> <p>5. INSTRUCTION ON MANSLAUGHTER: Failure to Give. A failure to instruct on manslaughter in a murder case should be specifically assigned as error in the motion for a new trial.</p> <p>6. -: When Authorized: No Assault. Insulting actions or gestures without an assault upon the person will not reduce the homicide to manslaughter. Where upon a provocation unknown to defendant, his companion struck deceased and a fight ensued between them, and while defendant was looking on but taking no part in the fight deceased came near him and struck at him but failed to hit him, and thereupon defendant stabbed and killed deceased, there was no manslaughter in the case, and no instruction on the subject should have been given.</p> <p>7. INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE. Where not a single element in the case depends for its proof upon circumstantial evidence no instruction on that subject should be given.</p> <p>8. ACCESSORIES: Before the Fact. Where the fight which culminated in death came up suddenly, no words passed between defendant and his companion until deceased was stabbed and fell, and when deceased asked a negro woman who was talking with defendant’s companion if there was “anything doing” the companion struck deceased and a fight between them began, and defendant without saying or hearing a word stood by with his knife in hand till a favorable opportunity presented itself and then stabbed and killed deceased, no instruction as to accessories before the fact should be given.</p>

<p>1. ASSESSOR: City of St. Louis: City or State Office: Under the Constitution and statutes of this State and the charter of St Louis the assessor in said city does not derive his title to the office from the general statutes, as do assessors in other parts of the State, but from the charter framed in harmony with the Constitution.</p> <p>2. -: Proviso Excepting St. Louis Out of General Statute: Enlargement to Include Said City. The proviso of the general statute of 1900 (Sec. 11341, R. S. 1909) requiring the election at “the general election” of a county assessor in “the several counties of this State” (said proviso declaring that “this section shall not apply to the city of St. Louis”), if held to be invalid (not necessary to be decided), then the remainder of the act cannot be held to enlarge the territory embraced so as to include said city and so as to authorize the qualified voters of said city to elect an assessor at the general election in November or the Governor to appoint respondent to the office in case they do not so elect.</p> <p>3. -: -: -: Intention as Manifested by Proviso. Even though a proviso excepting a part of the State from the operation of a general statute be invalid, yet as it expressly excepts that part, it' demonstrates the legislative intention not to apply the general provisions of the statute to the territory so excepted, and for the courts, by eliminating the proviso, to make the remainder apply to the whole State in its entirety, would be to give to the act an effect that is manifestly contrary to that intention, and would be judicial legislation.</p> <p>4. -; -: -; Validity of Proviso. In view of the fact that the proviso to the Assessor’s Act of 1900 (Sec. 11341, R. S. 1909) expressly excepts the city of St. Louis from the operation of the act, and that the remaining part of the act cannot be enlarged to include the territory of said city or to authorize the Governor to appoint the respondent assessor for said city, it is wholly unnecessary, in a quo warranto to oust said appointee, to determine the constitutionality of said proviso. Yet it is certain that if the proviso is void, thé whole act is void.</p> <p>Held, by PARIS, J., that the proviso is not void; that long prior to the adoption of the Constitution of 1875 the city of St. Louis had been excepted from the operation of the general laws governing the election of assessors, and that Constitution did not nullify such exceptions unless they were inconsistent with the city charter or. were repealed expressly or by necessary implication by some statute, and there is no such repealing statute, and the exception is embraced in the charter; and that, barring the effect of Section 11 of the Schedule, the Constitution operated with no more potency to repeal an existing special law than it did to repeal a general law; nor does the enactment of a general law ipso facto and necessarily repeal a local or special law, but in order to have that effect the two must be in irreconcilable conflict, or the legislative intent to prescribe one single authoritative rule must clearly appear.</p> <p>Held, by WALKER, J., concurring, that the general statutes pertaining to the office of assessor would be utterly inapplicable to such an officer in the city of St. Louis, and incapable of enforcement there, and a review of them manifests a steadfast legislative purpose from the time of the adoption of the Constitution of 1875 to the present, to leave the control of the assessment of property to the city charter and ordinances; and, since a ruling that said proviso is invalid would necessitate the amendment of the entire body of the law relating to the duties of the assessor and the assessment of property, and prior to such amendment the city would be without power to assess property for purposes of taxation, the validity of the proviso should be upheld if it can be sustained under any reasonable interpretation.</p> <p>Held, by WILLIAMS, J., dissenting, with whom GRAVES, C. J., and BLAIR, J., concur, that the proviso to Sec. 11341, R. S. 1909, is unconstitutional, and that the remaining portion of the act constitutes a valid statute complete in itself and is of such character-as to justify the belief and presumption that the Legislature would have enacted it even though the proviso had been omitted or its invalidity been known.</p>

Certiorari. (1) The respondent judges failed and refused to follow the last controlling decisions of this court. The conflict is between this decision and the decision of this court in Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260. And said instruction is in obvious and irreconcilable conflict with the decision in Hall v. Coal Company, 260 Mo. 369.

Certiorari. The majority opinion and judgment of the St. Louis Court of Appeals in the case of Flack v. Wahl, in deciding that evidence of the lunacy or mental incapacity of Flack may be given in evidence to the jury without being pleaded, or made an issue by the pleadings, failed and refused to follow the last controlling decisions of the Supreme Court on that question and that decision and judgment should, therefore, be set aside and annulled by this court.

Mandamus. (1) Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the reenactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption when the re-enactment takes effect at the same time. 1 Lewis’s Sutherland on Stat. Const.

— Hon. Fred Lamb, Judge. The court erred in overruling defendant’s demurrer to the evidence, this because: First: The evidence wholly failed to show that the particular tool with which plaintiff was working was furnished by defendants, but showed on the contrary, that the tool was of plaintiff’s own selection.

Appeal fronr Cole Circuit Court. — Eon. J. G. Slate, Judge, (1) The enforcement of physical connection and interchange service between carriers, railroad compánies, telegraph companies, telephone companies, or between such a company and customers, under reasonable conditions, through switches, spur tracks, or -connecting wires, is an exercise of the power of regulation, and not an act to be accomplished only through an exercise of the right of eminent domain.

<p>1. PUBLIC SERVICE COMMISSION: Alteration of Grade Crossings: Delegation of Legislative Power. It was entirely competent for the Legislature to delegate to the Public Service Commission composed of trained experts exclusive power to require the installation, alteration- or removal of the crossings of highways by railroads and street railways, and a separation of grades at such crossings, and to prescribe the terms upon which . such separations are to be made and the proportions in which the expense shall be divided among the railroad and street railway corporations affected, or between them and the State, county or municipality or other public authority in interest, as it has done.</p> <p>2. -: -: -: Modifications of Common Law. The statute giving to the Public Service Commission “exclusive power” to charge the costs and expenses of the elimination of a street grade-crossing and the restoration of the highway against the street railway or steam railroads affected, or to apportion them among other parties interested, and making it its duty to apportion such costs among such corporations and “the Slate, county, municipality or other public auhtority,” is but a modification by positive law of the common law, .by expanding the principles of the common law so as to fit the conditions arising in social and industrial evolution and to apply them to a fuller and more enlightened justice than was afforded" under the narrower enunciations of that law at a time when there were fewer diversities of interest to be affected by the removal of railroad street crossings.</p> <p>3. -: -: Reasonable Apportionment of Costs: According to Trackage. Where the Public Service Commission found the total cost of the removal of dangerous street-level crossings and the restoration of the highways, and subtracted therefrom the estimated consequential damages to private property and apportioned that deduction to the city, and of the balance of $238,000 apportioned $203,431 to the steam railroads and $34,569 to the street railway, using the “trackage basis” plan in making the allotment, principally but not solely, but taking into consideration certain other elements of constructive cost and benefit of the general improvement, and its finding is sustained by the clear preponderance of the relevant testimony as to the proper method of making the apportionments, they will not be held to ' e unreasonable or unjust, although the street railway company contended throughout that it should be required to pay only the estimated cost of the work to be done within its track zone, which would be materially less than its allotment.</p> <p>4. -:• Reasonableness of Order: Determined Upon Equitable Principles. The reasonableness and justice of an order of the Public Service Commission will be determined by the court upon a review of all the evidence as in a trial of a suit in equity.</p> <p>Held, by BLAIR, J., dissenting, with whom WILLIAMS, S., concurs, that, for the reasons stated’in State ex rel. Wabash R. Co. v. Publ. Serv. Com., 271 Mo. 155, the court in cases like this does not weigh the evidence as in suits in equity.</p>

Mandamus. (1) Jurisdiction of the subject-matter is conferred by law, and its non-existence may not be waived. Service of process has to do with jurisdiction of the person, and is waived by appearance to the merits. Fithian v. Monks, 43 Mo. 515; State ex rel. v. Smith, 104 Mo. 422; State ex rel. v. Neville, 110 Mo. 348; Dowdy- v. Wamble, 110 Mo. 284; Railway v. Lowder, 138 Mo. 536; 7 R. C. L. 1029; O’Brien v. People, 216 111. 354.

<p>Appeal from Bates Circuit Court. — Eon. G. A. Calvird, Judge.</p> <p>(1) The existence of undue influence may be shown from the relationship and surroundings of the parties at and previous to the time; the nature and character of the contract, and any unreasonable and unfair advantage secured by it. It devolves upon the respondent to show "an honest and fair deal” in every -respect. Kirsehner v. Kirschner, 113 Mo. 297; Martin v. Baker, 135 Mo. 504; Eñnis v. Burham, 159 Mo. 518; Gay v. Gillilan, 92 Mo. 251; Harvey v. Sullens, 46 Mo. 152; Mc-Faddin v. Catron, 120 Mo. 273. (2) The evidence and physical facts in this case show that Nannie Mace was completely in the hands of, and under the control of, in body and mind, her brother and his family, at the time of the making of this deed; and was not capable of measuring minds with him in the preparation and execution of a contract of this character. For more than a year before she had been afflicted "with cancer in every organ; the womb, liver, breast and lungs; the hospital surgeon, after ‘an examination, refused to operate, and says she only has about three months to live.” Reason tells us there could be no greater physical and mental pain and suffering than her condition from that time until the day of. her death was bound to produce; and this deed in question could not have been her "voluntary act and deed” in her condition and under the surroundings. Heimeyer v. Heimeyer, 259 Mo. 534; Cornet v. Cornet, 248 Mo. 184; Kincer v. Kincer, 246 Mo. 419. (3) The physical facts as shown by the condition of Nannie Mace, at the time this deed was executed ; her letters, the two wills, and the peculiar wording and reasons given for its execution in the face thereof, shown" conclusively .that there was some undue influence at work at the time of its execution. It matters' not what witnesses may testify to in this case, Nannie Mace’s great affliction and dependent position, coupled wi’h these instruments in writing, tell the whole story; she was unduly influenced, if she knew it at all. It was not her mind framing these strange phrase as an excuse for making this deed as shown in the face thereof; it is- unreasonable; it is not her free act and deed. Jones v. Belshe, 238 Mo. 524-540; Yosti v. Laughran, 79 Mo. 594; McClure v. Lewis, 72 Mo. 314; Hall v. Napenberger, 97 Mo. 509. (4) The physical condition of Nannie Mace from August 31, 1911, until her death on September 14, 1912, was as pitiable and helpless and dependent as can be imagined. She was stricken with “cancer of the ovaries,” which for more than a year before the making of this deed had spread and entered all the most vital and sensitive organs of her body. All know that ailments of this character affect the mind, to some extent at least; and if this be true, then Nannie Mace’s mind and will power was not in a condition to meet on equal terms the mind and will power of respondent in this case in a contract giving him every foot of real estate she owned. 2 White & Tudor’s Leading Cases in Equity, p. 1156; Cadwalader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 226; Martin v. Baker, 135 M‘o. 504; Gay v. Gillilan, 92 Mo. 250. (5) The past history of all the parties to tins suit, the helpless and dependent condition of Nannie Mace in the hands of respondent and his family, taken in connection with the peculiar wordings of this deed, in explaining why it was made, show conclusively some undue influence, and that it was -btained by fraud. This deed “convicts itself.” It spells “fraud” in many places. Major v. Kidd, 261 Mo. 618. “All these things point to a. master mind.” Mowry v. Norman, 204 Mo. 192; Roberts v. Bartlett, 190 Mo. 701; Myers v. Hauger, 98 Mo. 438. “When we consider the assiduous care used in order to make it appear to be her own free act, we are irresistibly forced to the conclusion that the attorney was acting in the interest of the defendant in carrying forward their purpose in securing this property.” Martin v. Baker, 135 Mo. 509. The record in this case clearly shows that the deed in question was never delivered. Scott v. Scott, 95 Mo. 319; Huey v. Huey, 65 Mo. 689; Sneathen v. Sneathen, 104 Mo. 209; Givens v. Ott, 222 Mo. 395; Murphy v. Gabbert, 166 Mo. 601; Standiford v. Standiford, 97 Mo. 231; Terry v. Glover, 235 Mo. 550.</p> <p>(1) The finding of the trial court in this case is absolutely correct. There is no testimony to base a finding either that the grantor in the deed, Mrs. Mace, was of unsound mind, or had been induced to execute the deed by reason of undue influence on the part of Thomas L. Ward. Jones v. Thomas, 218 Mo. 508; Teckenbrock v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 83; McDermott v. Keesler, 240 Mo. 278; Wing v. Havelik, 253 Mo. 502; Lee v. Lee, 258 Mo. 599; Winn v. Grier, 217 Mo. 440; Turner v. Anderson, 236 Mo. 523; Gibony v. Gibony, 230 Mo. 106; Current v. Current, 244 Mo. 429. (2) Influence which is obtained over a party by kindness or affection so as to create a desire on the part of the party in favor of one to the exclusion of some one else, is not undue influence. Andrew v. Linebaugh, 260 Mo. 623; Turner v. Anderson, 236 Mo. 523; Seibert v. Hatcher, 205 Mo. 83. (3) Old age and sickness do not, in and of themselves, constitute incapacity to transact the business of devising or conveying lands. Lee v. Lee, 258 Mo. 599. (4) The fact that a daughter took a deed from her father, who was seriously afflicted with consumption and asthma, to lands worth $1500, upon the agreement to furnish him a home and give him personal attention during his life, was not any fraud, altho he was living with said daughter at the time; neither did any such circumstance create any fiduciary relations so qs to raise a presumption of undue influence; and in such case it is held that there was no evidence tending to show the exercise or existence of undue influence, and that the deed could not be set aside on any such ground — and that courts sit to enforce fair and just contracts — not to abrogate them. Lee v. Lee, 258 Mo. 599. (5) The influence exercised upon a party sufficient to invalidate a deed or a will, must be of such a nature and character as amounts to over-persuasion, coercion or force, destroying his free, agency or willpower, as contradistinguished from the mere influence of affection or attachment or the desire of gratifying the wishes of one beloved, respected and trusted by him. Unequal distribution of property among one’s kin is not sufficient to- establish undue influence. Winn v. Grier, 217 Mo. 420. (6) Even though the mind of a party be weakened by disease, there must be substantial evidence that the influence of another operated and was undue to shape the will or deed before it can be held to be void because.of undue influence, and it must be proven that such- influence was exercised. Turner v. Anderson, 236 Mo. 523. (7) There was a good delivery of the deed in this case. Givens v. Marbutt, 259 Mo. 223; Seibert v. Highan, 216 Mo. 12-1; Chambers v. Chambers, 227 Mo. 262.</p>

<p>1. PARTIES PLAINTIFF: Suit on Bank Bond: Assignee. An assignee of all the assets, including choses in action, claims and demands, due or to become due the assignor, to be collected by the assignee and applied to the use of the assignned, is authorized to sue ón a bond given by an employee of the assignor as a guaranty of efficient service, since such assignment constituted the assignee the trustee of an express trust.</p> <p>2. _: -: -: Misjoinder of Parties. Nor did such assignment and statutory authority to sue preclude the assignee from joining the assignor as a party plaintiff in the action on the bond, as one “having an interest in the subject of the action.”</p> <p>3. BANK: Assignment to Trust Company: Statute. The statute (Sec. 1084, R. S. 1909) does not prohibit a bank from assigning its assets to a trust company to liquidate its affairs and effect its retirement from business. On the contrary, it encourages such course, as an appropriate agency for carrying out the purpose, in an expeditious and inexpensive way, beneficial to both creditors and stockholders.</p> <p>4. -: -: -: Improper Plaintiff: Pleading. To authorize the sureties on the bond of a cashier to interpose the defense that an assignment by a bank to a trust company for the purpose of liquidation was unlawful because the statute requires the Bank Commi: sioner to take charge of a bank in a “failing condition” and forbids such a bank to “make a voluntary general assignment,” it develops upon them when sued on the bond to plead it. The point that a petition, alleging that the plaintiff trust company is the assignee of all the assets of the bank, show's on its face that such company is an improper plaintiff, cannot be sustained upon a demurrer thereto.</p> <p>5. BOND: Ambiguity: Aliunde Interpretation. The bond given by a cashier of a bank for efficient service constitutes a contract, and as such is subject to the rules of interpretation applicable to other contracts. If it be ambiguous, the court will look, not merely to its terms, but to its subject-matter, the circumstances attending its making and the interpretation given it at the time by the parties themselves; but if it be not ambiguous, resort to these extraneous matters is not permitted, and being clear in its terms it will, as to accommodation sureties, be strictly construed.</p> <p>6. -:-: Obligation Against Mistakes But Not Against Peculations. The bond of the cashier of a bank read that if he “shall well and faithfully perform all duties as such cashier” of said bank “the above named and undersigned sureties hereby agree to hold said bank harmless for any loss occasioned by any act of such officer until all of his accounts with such bank have been paid.” Meld, not to be ambiguous, and while not such a bond as is required by the statute, is neither meaningless nor unauthorized, nor preclusive of the taking of a statutory bond, but is an obligation against inadvertence or honest mistakes and as such is binding on the sureties, but it does not cover the cashier’s peculations and thefts; and the rules of construction, which require that as to accommodation sureties, a bond must be strictly construed and their liability limited to its exact words, forbid the insertion or elimination of words that would render it a statutory bond.</p>

<p>1. APPELLATE JURISDICTION: Amount in Dispute: Determined by Entire Record. In ascertaining tbe amount in dispute, in determining appellate jurisdiction, the court is not necessarily bound by the statement in the petition, but may go to the whole record to ascertain the fact.</p> <p>2. -: -: Appeal By One Partner After Assignment By Other. Where one of the two partners assigned his interest in the claim to defendant and the trial court rendered judgment against him and he did not appeal, and the greatest amount, including interest, which the remaining partner could have recovered under his theory of the case was $5813.36, and defendant does not plead a counter-claim, nor seek affirmative relief, but raises only such issues as would if allowed defeat plaintiff’s right to recover, the Supreme Court does not have appellate jurisdiction of the case, although both the remaining partner and defendant appeal, and the case was before the Supreme Court on a former appeal before the courts, of appeals were, given jurisdiction of causes involving less than $7,500.</p>