Volume 274 — Missouri Reports

<p>1. ELECTRIC WIRES: Insulation: Utmost Care. An electric company, if reasonably chargeable with knowledge, or of facts making it reasonably probable, that persons may lawfully come into close proximity to its wires, for purposes either of business or pleasure, is obligated to use every accessible precaution to insulate its wires at such places and to use the utmost care to keep them so.</p> <p>2. -: -: Knowledge: Children: Anticipation. A public service corporation, stretching its electric wires, in a city, through trees near the roof of a low house which for some time was being constructed and around which small boys played while the construction was going on, must take notice of boyish impulses and anticipate the presence of children in such trees. The rule applies whether or not the company knew that the particular small boy who was injured was in the habit of climbing the tree; the company is required to know the tree, the fact that the wires passed through it, and that, the opportunity being present, it was the kind of tree that children might climb into to play in its branches, since these things any person of practical common sense would know. [Following Temple v. Elec. Co., 89 Miss. 1.].</p> <p>3. -: Children: Climbing From Roof to Tree. Nor is the rule inapplicable because the nine-year-old boy did not climb from the ground into the tree where the wires were, but climbed from the roof of a near-by house on which he and other boys had for some time been in the habit of playing. The company is required to anticipate the presence of boys in trees through which their uninsulated wires pass, whether they climb from the ground into the tree or from the roof of a near-by house around which they have been in the habit of playing.</p> <p>4. -: -: -: Trespasser. Whether the tree through which defendant’s electric wires ran was on private property or in a public alley, if it was not defendant’s property, a boy who climbed into the tree and was injured by falling on the uninsulated wires, was not a trespasser.</p> <p>5. -: -: -: Contributory Negligence: Proximate Cause; The presence of the boy in the tree was not contributory negligence, there being no evidence that he knew that the electric wire upon which he fell was defectively insulated or that he purposely touched it. It cannot be held as a matter of law that the breaking of the limb on which the nine-year-old boy stepped in an attempt to descend from the tree, rather than the non-insulation of the electric wire on which he fell when the limb broke, was the proximate cause of his injury.</p> <p>6. INSTRUCTION: Inclusion of Extraneous Matter: Waiver. Appellant waived its right to object to a reference to an extraneous matter in an instruction given for respondent by requesting an instruction including the same matter.</p> <p>7. -: Contributory Negligence. Not every omission of a reference to contributory negligence renders erroneous an instruction for plaintiff in a personal injury case. Where the instruction required the jury to find defendant was guilty of acts of positive negligence in leaving the electric wires uninsulated and then required them to find that this negligence was the cause of plaintiff’s injury, and other instructions fully present the issue of contributory negligence, there is no substance in the complaint that this instruction excluded that defense.</p> <p>8. REMARKS OF COUNSEL: Excessive Verdict. Where as a result of the injury to the nine-yeay-old boy one of his arms has been amputated below the elbow and his other hand is almost useless, the fingers being burnt and drawn, a verdict for $7500 is far below the amount which the facts would have warranted, and any argument of counsel said to have' affected the size of the verdict was unprejudicial.</p> <p>9. -: Greedy Corporation. Plaintiff’s counsel in Ms argument to tlie jury said: “Don’t encourage these wealthy, greedy corporations to justify that which cannot compensate this hoy simply according to law and according to your duty to the law.” Held, that this meaningless and incoherent sentence co.uld not have “distracted the minds of the jury from a calm deliberation of facts,” especially in view of an express disclaimer in other portions of the argument that anything was asked because defendant was a corporation, or because of anything save the law and the evidence.</p>

— Hon. J. G. Slate, Judge. (1) Sec. 7099, R. S. 1909, is unconstitutional and void. Sec. 3, Art. 10, and Sec. 4, Art. 10,’ Constitution of Missouri; Sec. 1, Art. 14, TJ. S. Constitution.

- — • Hon. L. B. Wood-side, Judge. (1) Cancellation or recession is an exercise of the most extraordinary power of a court of equity, and will not be exercised except in a clear case on strong and convincing evidence. 9 Corpus Juris, p. 1254, sec. 195; Jackson v. Wood, 88 Mo. 76; Bryan v. Hitchcock, 43-Mo. 527; Haydon v. Railroad, 222 Mo. 140; Cohron v. Polk, 252 Mb. 281.

<p>1. BENEFIT ASSESSMENT: According to Area: Gross Inequalities. An assessment in proportion' to area which distributes a local tax in grossly unequal proportions, not because of special considerations applicable to the parcels taxed, but in blind obedience to a supposed charter rule, is invalid.</p> <p>2. -: -: -: Blocks. Where the charter requires the costs of grading a street to be charged as a special tax on all lands on both sides of the street in case the land be laid off in lota or blocks, a theory that the land was laid off in lots and blocks as shown by a plat made many years previously when the lands lay outside the limits of a rapidly growing city, made with no idea of conforming the lots and blocks to the size and shape of those usually found in plotted portions of the city, but laid out in large and irregular tracts for suburban rather than urban purposes, is not correct.</p> <p>3.-: -: -: -: Further Division. If the large tracts on one side of thte street, laid out originally by a recorded plat into large lots and blocks for suburban purposes, are not only susceptible of further division, but such sub-division is necessary if they are to develop like other city property in the vicinity, an assessment, made according to blocks and apportioned according to area, which results in a benefit district several times wider on one side of the street to be improved than on the other, itf - grossly unequal and unjust.</p>

<p>1. TAXATION: Against Banks: Tax Bill. If it appears from the tax hill filed with the petition that the assessment was made against the bank and not against the stockholders, the State cannot recover in a suit against the bank alone on the facts disclosed by ✓ such tax bill.</p> <p>2. -:-: Assessment Against Stockholders: Tax Bill Not Conclusive. The tax bill, while prima-facie evidence that the amount of taxes designated therein is just and correct, is not conclusive in respect to its recitals. Although the tax bill attached to the petition shows that the assessment was made against the bank, it may be shown by the assessment list that the assessment was properly made against the stockholders, and not against the corporation.</p> <p>3. -: Assessment Against Stockholders: Liability of Bank. The State may recovfer in a suit against a bank for taxes assessed against its stockholders, unless the bank has no funds or property under its control with which to pay them.</p> <p>4. -: Assessment and Payment: Banks. The statutory intention was to place national and state banks on the same plane as to the matter of taxation, and to require the corporations in each instance to pay the taxes assessed against their real estate, and to require their personal property to be assessed against their stockholders, as their interests may appear, from statements furnished the assessor by their chief officers, and to require the taxes assessed on the shares of stock to be paid by the corporation, which is authorized to recover from the owners of the shares the taxes so paid.</p> <p>5. -: Liability of Assignee. A bank which acquired by purchase all the assets of another bank, among other things $6,064 in “reserve funds, undivided profits, premiums and earnings,’’ becomes a creditor of the State for the taxes assessed against the stockholders of the assignor, then due, though not delinquent, and the amount of such taxes may be recovered by suit - against the as-signee bank.</p> <p>6. -: -: Valdity of Sale: Estoppel. The bank which by purchase acquired all the assets of another bank, when sued for taxes which the law required such other bank to pay, is estopped to assert the invalidity of the sale by which it acquired such assets.</p>

Prohibition. (1) Section 64 of the Public Service Commission law of Missouri does not authorize the commission to institute a suit to enforce an order of the commission until there has been a hearing by the commission. (2) If said section authorizes the proceeding' instituted before respondent, then it is unconstitutional'and void and an attempted taking of the railway company’s property without due process of law. Sec. 30, art. 2, Mo.

— Hon. James D. Barnett, Judge. (1) The court erred in refusing the demurrer to the evidence asked by defendant at the close of all the testimony, because there was no evidence upon which to base a verdict that the death was accidental. The law is well settled that inferences may not be based upon inferences, or presumptions upon presumptions.

<p>1. NUISANCE: Powder Magazine: Negligence. A plant used in the manufacture and storage of powder, as to all property and residents in such proximity to it as are subject to danger from its ' explosion, is a nuisance regardless of the negligence in the manner of beeping it.</p> <p>2. -: -: Sufficient Evidence. The evidence set out in this case tends to show that defendant’s powder plant was a nuisance.</p> <p>3. HIGHWAYS: Railroads: Use. The plaintiff recovered judgment for damages for injuries suffered when powder stored or in process of manufacture on defendant’s powder plant exploded as a train on which she was a passenger was passing the plant. Belli, that the right of the public to use the railroad for the purpose of travel and the use of it for that purpose by the public gave to the railroad its character as a public highway, so far as this case is concerned.</p> <p>4. -: -: Bargaining Away Bights of Public. The consent of the railroad company to the use of a tract beside its tracks for powder mill purposes could not affect the rights of a passenger on one of the trains. The railroad cannot bargain away the rights and safety of the public.</p> <p>5. NUISANCE: Powder Mill: Competent Evidence. To establish that the powder mill was a nuisance because located in dangerous proximity to residents and property, evidence as to location of villages, schools, roads, farm houses, etc., is competent.</p> <p>6. -: Recovery: Concussion: Blasting Cases. Where only proof of the existence of the nuisance and of the consequent injury is required, plaintiff may recover for such of her injuries as were due to concussion. The rule as to blasting (even if the modern tendency of decisions were not against it) has no application to such a case.</p> <p>7. INSTRUCTION: Omission of Admitted Pact. It is not error for an instruction to omit to require the jury to find a fact which is clearly established by the evidence and is undisputed.</p> <p>8. EVIDENCE: Ultimate Fact: Province of Jury. An inquiry of a physician as to whether the plaintiff’s physical condition could have resulted from the accident as it was described and his answer that “it could cause this condition,” were not an invasion of the province of the jury.</p>

<p>1. LIMITATIONS: Acknowledgment of Ownership. A frequent statement by a- mother that her homestead, on which she and her son had resided from his infancy until he was forty years of age, that the land belonged to him, without any act or declaration on his part to indicate any connection between this continued acknowledgment and his position on the land, is not sufficient to establish, after her death, ownership or title by limitations, since there was nothing in the nature of the possession of either inconsistent with the possession of the other.</p> <p>2. -: Cotenancy. To bar the other children by adverse possession to land occupied by their mother and a son as a homestead, the son must establish such an unequivocal change in his conduct after her death as to constitute notice of a severance of the possessory relation of tenants in common, and actual possession for ten years thereafter. For such son to simply remain on the land after his mother’s death, and continue to work it as he had done, with his brother, during her life, and receive, without objection, the profits, with the brother while he lived and by himself after the brother’s death, is not sufficient to give notice of a claim adverse to the other children.</p> <p>3. EJECTMENT: Equitable Answer. If the answer sets up a purely equitable defense to plaintiff’s action of ejeetmeht (which is an action at law), the cause is converted into a suit in equity- and the appellate court will examine and weigh the evidence and determine its sufficiency to sustain the defense pleaded.</p> <p>4. RESULTING TRUST: Guardian and Curator. When a trustee purchases property with trust funds and takes the title in his own name a trust results for the benefit of the trust estate, which may be followed in favor of persons not named in the deed in proportion to the amount of the interest of each in the fund, and the rule applies to executors, administrators and guardians of minors, who invest estate funds in lands and take the title in their own names or in the names of some of the beneficiaries.</p> <p>5. WIDOW: Interest in Husband’s Personalty: No Exercise of Option. Where under the statute the widow was entitled absolutely to a share in her husband’s personal estate equal to a share of a child, or at her option to one-third of it absolutely, subject in either case to the payment of his debts, it will be assumed, in the absence of anything in the record to indicate that she exercised her option, that she was satisfied with the share of a child, although there were' six children.</p> <p>6. -: Resulting Trust: Purchase of Lands With Estate Funds. The administratrix, hy her appointment, became a trustee of the entire personal estate, and if instead of distributing it she invested it in lands, causing some of them to be conveyed to intestate’s children and taking the title to one tract in her own name, such lands, for purposes of distribution, were a part of the trust fund.</p> <p>17. -:-:-: Equal Distribution. And if all the children received lands and other property, equal in value to their respective shares of their father’s estate, except the youngest, who .received nothing, and the mother took title to one tract in her own name, whose value was equal to that of the others, a decree vesting the title to this fine tract in said youngest son,' upon the mother’s death, according to her frequently expressed intention, does equity.</p> <p>8. EJECTMENT: Heirs Bound by Acts and Declarations of Ancestor. After the death of the widow leaving the youngest son in possession, all the other heirs of herself and husband brought this suit against him, in ejectment, to recover their undivided interest in the land as heirs of their mother. -Bélcl, that the plaintiff’s are bound by the acts and declarations of the mother with respect to the trust and character of her possession, to the same extent that she, if living and a party, would be bound upon a trial of the same issue.</p> <p>9. INFANT: Charged with Childhood Expenses. Where the father died when defendant was two years old, and his mother, the ad-ministratrix, distributed the father’s personal estate by buying farms for the adult children and one for herself, upon which she and defendant remained until her death, he is not, in determining whether he received his distributive share of the estate, to be charged with his nurture during infancy, where he received little education and worked faithfully on the mother’s said homestead.</p>

— Eon. Frcmh P. Divelbiss, Judge. (1) Under tlie undisputed and uncontradicted facts shown in this record, the amounts severally assessed as benefits against each of the railroad companies respectively on account of the construction of the levee are so palpably and grossly excessive and out of all proportion to the decreased- cost of maintenance and the increased physical efficiency of the roadbeds that the contributions in cash and the outlay of work and material exacted…

<p>1.SIDEWALKS: Ice and Snow. A city has power, under the Constitution of Missouri and appropriate charter ability, through the medium of penal ordinances, to require each owner to remove snow and ice from the public sidewalk in front of his urban property.</p> <p>2.-: -: Inapt Constitutional Provisions. Neither Section 4 of Article 2 of the Constitution, providing that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry, nor Section 21 of the same article, providing that private property shall not be taken or damaged for public use without just compensation, nor Section 31 of the same article, providing that there cannot be in this State either slavery or involuntary servitude except as punishment for crime, has any reference or relation to the validity of an ordinance requiring the owner of abutting property to remove ice and snow from the sidewalk and fixing a moderate fine for failure to do so.</p> <p>3. POLICE POWER: Comprehensiveness. The police power does, not confer on the whole people, represented by the lawmaking branch of the government, authority to control rights which are purely and exclusively private; but it is the power, inherent in every government, to regulate the conduct of citizens toward each other in such a way that all may exercise that measure of liberty of action consistent with the welfare and freedom of others. It includes the power to establish laws requiring each citizen to so conduct himself, and to so use his property, as not unnecessarily to injure another.</p> <p>4. -: Removal of Snow and Ice: Benefit to Abutting Owner: Public Convenience. The same governmental principle by which the Legislature may construct sidewalks and reconstruct and repair them when they have fallen into decay, by charging the expense as a tax against the abutting property, applies with equal force to the compulsory removal by the owner of ice and snow therefrom. But it does not rest wholly upon the special benefit conferred; the matter of public convenience, whic¿ all persons must consider in the use of their property, is also an element in the imposition of the burden. The right to impose the burden is an incident to the exercise of the police power by which urban conditions and values are created.</p> <p>5. -: -: -: Equality of Burden. It is not necessary to the validity of the exercise of a police power that it distribute the burden imposed with mathematical certainty. To compel each owner of property abutting on a street to remove the ice and snow from the front sidewalk is a distribution of the burden according to public convenience and justice.</p>

<p>1. LAW CASE: Tried by Court: Appellate Rule. An action to quiet title, coupled with, a count in' ejectment, wherein the issue is whether the plaintiffs are heirs at law of the common source of title, is a law case, and having been tried by the court sitting as a jury, the judgment must be upheld on appeal if there is any substantial evidence to support it.</p> <p>2. CHILDREN OP FORMER SLAVES: Marriage: Abandonment of First Spouse. The statute (Sec. 344, R. S. 1909) requires that the offspring of former slaves, born while their parents were held in slavery, must have been born while the relation of man and wife existed. It connotes either a ceremonial marriage, or a common-law marriage, or the similitude in form of one or the other; but since a slave was incapable of making a contract, no penalties can be visited uppn him or his offspring if, having gone through the form of marriage and begotten and had born issue thereof, he afterwards, during the life of the first qwcm-wife, abandoned her and married another woman.</p> <p>3. -: -: -: Good Faith. The statute legitimized children of slaves who “were living together in good faith as man and wife at the time of the hirth of such children;” and under it, if the slave at different times in good faith lived with two spouses, and while so living with them children were horn to him, such children after their emancipation were legitimate, and capable of inheriting from him. But he could not “in good faith” live with two women at the same time “as man and wife;” and if after a form of marriage with one spouse, he abandoned her and entered into a ceremonial marriage with another and they cohabited together as man and wife, and two years thereafter a child was born to the first- spouse, such child is not legitimate, since he and she were not then “living together in good faith as man and wife,” hut such child was the result of illicit cohabitation.</p>

Louis City Circuit Court. — Hon. Kent K. Koemer, Judge. (1) The statute provides that -where two or more defendants are sued jointly and one of said defendants and the plaintiff reside in the county where the suit is filed, personal service of summons with copy of petition in said suit, on the resident defendant, will entitle the plaintiff to have copies of the summons sent to the sheriff or other proper officer of each of the different counties wherein the non-resident…

Louis City Circuit Court. — Hon. W. M. Kinsey, Judge. 1 (1) As the trust created in clause seventh of the will of Mary Walter is not restricted to a life or lives in being and twenty-one years it violates the law as to perpetuities and is void. 30 Cyc. 1483;; Sheppard v. Fisher, 206 Mo. 208. (2) The intention of the testatrix must be gathered from the words employed in, the will.

<p>1. LIBEL: Newspaper Arieles: Bead Together. Where a suit tor libel is based on alleged charges contained in certain newspaper articles, it is proper to consider prior articles in the series to which reference is made in the ones complained of, in order to determine the meaning of the alleged libelous charges and to show malice.</p> <p>2. -: Public Officer: Charges and Criticism: Malice. The rule which permits the criticism of public officers is the same as that which governs the criticism of all matters of public interest, such as public institutions, places of entertainment, books and pictures. That rule distinguishes between charges of conduct admitted to be true and criticism thereof, and false charges of misconduct and criticism based on an assumption of their truth. In the latter case, the charges being false, the falsity of the charges carries the malice into the criticism and there is no burden on the plaintiff to show that the criticism was malicious; in the former case, the charges being true, the burden is on the plaintiff to show that the criticism is malicious, in that it is unjust, malevolent or exceeds the bounds of fair opinion.</p> <p>3. -:-: Charges Established: Criticism Characterizing Treatment of Convict as Torture. The charges in the newspaper publication were that the plaintiff, who was Warden of the State Penitentiary, had (1) whipped convicts, (2) had kept a particular convict suspended by his hands in rings, attached to the wall over his head, his feet resting on the floor, for fourteen hours a day for twenty days, and (3) that he had thus kept him in the rings in order to compel him to confess where he had obtained whiskey and heroin; and these charges were either admitted or established by testimony that was uncontradicted. Held, that, editorial comment that the punishment was “twelfth-century torture methods,” was not a charge, hut a justifiable criticism. When plaintiff kept the convict in the rings as he did to compel a confession he used “torture” within the dictionary meaning of the word.</p>

<p>1. EJECTMENT: Limitations: Finding of Trial Court. A finding by the trial court in an ejectment that the respondent has been in the actual adverse possession of the land for ten years, claiming to be the owner, if supported by substantial evidence, is binding on the appellate court.</p> <p>2. EES AD JUDICATA: Extent: Different Tracts in Ejectment. If the title of the five acres in suit was not determined in the former ejectment between the same parties, though defendant’s answer asserted ownership and prayed judgment, the judgment adjudging plaintiff to he the owner of an adjoining ten-acre tract and ignoring that part of the answer is not res adjudicata of defendant’s claim to the five acres. Even though the facts supporting defendant’s title to both tracts are the same, yet the title to the five acres was not a matter or issue that could have been brought forward in the former action in such a manner as to affect the decision as to the separate ten-acre tract.</p>

<p>1. CONTRACT: Attorney’s Employment: Construction: Relation to Subject-Matter. A contract of employment of an attorney, in which he designates the probable' fee to be paid him for his services in , bringing to a conclusion complicated litigation having many entanglements, is to be interpreted in the light of surrounding circumstances. If of doubtful meaning, it will be given a construction which will make it reasonable and fair between the parties. It is fundamental of all rules that the intention of the parties must be gathered from the subject-matter of the contract, the relation of the parties to the subject-matter, and the ordinary language used.</p> <p>2. -: -: -: Quantum Meruit:'Estimate of Time and Pee. Where plaintiff, after an investigation, was asked to make an “estimate of what the ultimate law fees would be,” and replied, with an estimate of the time within which the litigation might be concluded and of what his maximum fees would be during that time, the two estimates, made in the same connection, cannot be so separated as to limit his recovery to the estimated amount and to lengthen out the time to a much longer period; and if the time in concluding the litigation far exceeded his estimate, without his fault, but because new contingencies developed which prolonged and intensified his labors, and during the progress of his employment other litigation, not in contemplation at the time his estimate was made, was added to the litigation first placed in his hands, his recovery is not limited to the estimated fee, but he is entitled to recover the reasonable value of his services.</p> <p>3. -: -; Without Fixing Compensation: Quantum Meruit. A contract of employment binding upon the parties may be made which does not designate the compensation to be paid.' In such case the compensation is quantum meruit. And where it was understood that plaintiff was to receive a reasonable compensation, and the contract contained only an estimate of the probable fees to be paid, he is in no worse plight than he would be had the contract made no mention of compensation.</p> <p>4. -: Or Quantum Meruit: Variance. Where the petition states in detail and at length the services rendered by plaintiff, proceeds on the theory that he was employed without a definite amount being fixed as compensation therefor, and asks judgment for the value of those services, it states an action for quantum meruit; and even though defendant contends that the compensation was not to exceed a designated sum, and plaintiff that there was no such limit, it is still a suit in quantum meruit, if defendant’s trial theory was that plaintiff was entitled to recover the value of the services rendered within a maximum limit.</p> <p>5. QUANTUM MERUIT: Compulsory Reference: Special Findings by Court. A lengthy memorandum of specific findings of fact made by the trial judge, in addition to his general ,finding, is not a finding under the statute, and adds nothing to the general finding, but may be of value on appeal as showing inducements for inferences drawn by the judge different from those drawn by the referee.</p> <p>6. -: -: In Law Case: Review. If the case is an action at law and one1 of compulsory reference, and exceptions to the referee’s report are sustained and the report set aside, a subsequent finding by the court, after additional evidence is taken, is, as to the facts found, if supported by evidence, binding on the. appellate court.</p> <p>7. -Reasonable Compensation: $107,360.57 for Attorney. The evidence is fully reviewed, and it is held that an allowance of a compensation of $107,460.57, less $27,500 previously paid, for 274 Sup — 15. services rendered by an attorney during three and one -half years, and by six assistants employed by him, together with his immense traveling and other necessary expenses, in' defending numerous suits for defendant, involving from $22,000 to $1,500,000, in which, despite many legal entanglements and the thwarting opposition of defendant’s board of managers, he defeated one suit for $1,500,000, won $800,000 for his client in another, and succeeded in successfully handling the others, was convincingly reasonable.</p> <p>8. -: -: Successful Litigation. The results of an attorney’s efforts may fairly be considered as ■ an element in measuring the value of his services.</p> <p>9. -; -Evidence: Records in Other Cases: Competency: Opposition of Client. Where after the attorney had prepared and tried defendant’s case in the Federal court, he was discharged before decision was rendered, and his successor, because of the machinations of defendant’s manager who was working in the interest of the adversary litigant, preserved no assignments.of errors, whereupon individual stockholders employed the attorney to intervene in their behalf in the appellate court and as a result of his efforts the judgment was reversed, the records in that case are competent evidence in his suit to recover compensation for his services rendered prior to his discharge, in which one of the defenses is that he was incompetent, for the purpose of demonstrating the soundness of his theories in the conduct of the litigation which had been entrusted to him by defendant, and for the purpose of showing the opposition and enmity of the directors of the defendant company and their efforts to prevent a favorable result.</p> <p>10. -: Interest: Amended Petition. An attorney, who sues in quantum meruit for the reasonable value of services rendered, is entitled to interest on the allowance from the time suit is brought. And if an examination of his amended petition shows that he asked for no greater sum in it than he had in his original petition, he is not to be denied interest between the dates of the filing of the two petitions.</p> <p>11. -: -: Asking Por Reference. An attorney is not to be deniedinterest on the reasonable value of his services rendered because he asked for and obtained a reference, and thereby- caused delay in the final determination of the case. No litigant is to be punished for resoring to authorized means for the administration of justice.</p> <p>12.-: Employment: Arbitration: Premature Suit. A defendant, when sued in quantum, meruit by its attorney for the value of services rendered, in order to maintain its contention that the contract of employment provided for an adjustment by arbitration and there had been no attempt to arbitrate, must plead such defense.</p> <p>13. -: -: -: night to Sue. An agreement to arbitrate does not oust the court of jurisdiction, nor create a condition precedent, unless by express words or necessary implication the contract imports an intention to make it a condition precedent.</p> <p>14. -: -: -: Indefinite Proposal. A mere suggesion or proposal to submit to appraisers the question of attorney’s fees, contained in a letter in which he estimates the value of his services, is unenforcible, as an agreement, for want of definiteness.</p>

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) Tire clause of tlie policy of insurance here under consideration should he construed liberally in favor of the insured. Schmohl v. Insurance Co., 189 S. W. '597; State ex rel. v. Ellison, 266 Mo. 590'; 1 May on Insurance (4 Ed.), see. 175, p. 343’; La Force v. Assurance Co., 43 Mo. App. 518. (2) Plaintiff is entitled to double indemnity under the policy involved in this case.

— Hon. Frank G. Johnson, Judge. (1) The defendant having a perfect and complete defense under the laws of the State of Kansas, such defense is a vested property right and defendant cannot he deprived thereof by any court or other instrumentality of the State of Missouri without violating the Constitutions of the United States and of the State of Missouri, (a) The constitutional questions were properly and timely preserved and presented to. the trial court.

— -Now. Karl Kimmel, Judge. (1) Plaintiff acquired no riglit under the alleged assignment from Louis A. McGinnis to maintain an action against Thomas McGinnis for accounting of profits from a joint adventure of Louis A. McGinnis and Thomas McGinnis. Such right was not assignable. 1 Ency. PL & Pr. 99; 1 R. C. L., 225 ; Daunes v. Worch, 28 R. I. 99, 13 Ann. Gas. 647 ; 4 Cyc. 22, 103; Whittle y. Skinner, 23 Vt. 531; Jones v. Babcock, 15 Mo.

— Eon. Edgar B. Wool-folk, Judge. (1) The court committed error in excluding the testimony as to the mental condition of Samuel Hein-bach, and his actions, manner, imaginations and hallucinations. The court erred in excluding the evidence as to his manner of talk and ability to talk and carry on a conversation and understand business transactions. The court erred in excluding the evidence as to Hein-bach’s drinking and as to the white horse.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) It was error to give defendant’s instruction numbered 2. (a) Plaintiff bad a right to presume that the motorman would stop the car, as such cars were customarily stopped, and that he would not allow it to be run beyond the platform • so as to endanger her. Scott v. Met. St. Ry. Co., 138 Mo. App. 201; Percell v. Railroad, 126 Mo. App. 44; Lawson v. Met. St. Ry. Co., 40 App. Div. 307; Franlc y. Met. St. Ry.

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. In view of the fact that the deed of trust from Boyers to Kotthoff, trustee, expressly conveyed the property to “the said party of the second part, and to his successor as hereinafter designated and to the assigns of him and of his successor, forever” and further provided that “in case of his [Kotthoff’s] absence, death, refusal to act or disability in any wise the then acting sheriff of the city of St. Louis,…

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) The affidavits for appeal below, filed in the probate eonrt were, if anything, only from the order of the probate court, suspending the executor. (2) The right to an appeal is statutory. State ex rel. v. Wood-son, 128 Mo. 514; State ex rel. v. Talty, 139 Mo. 379; Kansas City v. Railroad, 189 Mo. 261; Star Bottling Co. v. Exposition Co., 240 Mo. 634.

— Hon. Frank Kelly, Judge. (1) As tlie company was lawfully in the State, doing business therein, it was necessarily acting under its Wisconsin charter, with all the powers contained therein^ subject… Held: that Gilchrist held for defendant and defendant was the owner thereof. Sec. 2867, R. S. 1909. The conveyance to Gilchrist and Gilchrist’s declaration of a trust was a device to evade the statutes and therefore futile. 19 Cyc. 1247, 1286; Com. v. Railroad, 114 Pa.

Prohibition. (1) Appeal by executor or administrator will not be allowed without bond when the interest of the executor or administrator is opposed or antagonistic to the interest of the estate. Secs. 292, 294, R. S. 1909; Potter v. Todd, 73 Mo. 101. (2) Mandamus will not issue to control the judgment or discretion of an inferior court. Betts v. Megown, 89 Mo. 156; State ex rel. v. Fort, 180 Mo. '97.

Appeal' fom St. Louis City Circuit Court. — lion. Wilson A. Taylor, Judge. (1) The court erred in overruling appellant French’s motion for judgment in her favor and order of delivery of the collateral to her offered at the close of plaintiff’s case. 31 Cyc. 787 (a); Dibert v. D’Arcy, 248 Mo. 644; 31 Cyc. 825 (2), 836; Richardson v. Ashby, 132 Mo. 238; Schaaf v. Fries, 90 Mo. App. Ill; O’Meara v. Swandson, 62 Mo. App. 73; Cotton v. Arnold, 118 Mo-.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) Even if defendant’s counterclaim be disregarded entirely, it was gross error to give plaintiff a judgment when, witb all liabilities paid, be bad in bis pocket more than be would bave made bad be completed tbe contract. Drainage Dist. v. Surety Co., 252 Mo. 565; Moore v. Gauss & Sons Mfg. Co., 113 Mo. 98; Harrison v. Franklin, 126 Mo. App. 366; Mitchell PI.

<p>1. PROHIBITION: Facts: Motion for Judgment Upon Pleadings.* Where the return to the preliminary rule in prohibition admits all material facts pleaded in the petition, and relator thereupon moves for judgment upon the pleadings, the cause is to he determined upon the law applicable to the facts stated in relator’s petition.</p> <p>2. REPEAL OF STATUTE: Defective Title: Effect on Existing Statute: Waiver. An act which attempts to repeal an existing, statute, if void because of a defective title, leaves the existing statute in full force. Consequently, it is not necessary to decide relator’s contention that the Act of 1885, which undertook to repeal Section 6013, Revised Statutes 1879, and enact a new statute in lieu thereof, was void because of a defect in its title, if relator lias fully complied with said existing Section 6013, which required a foreign insurance company to execute and file a power of attorney designating and authorizing “some person” as its attorney in fact to accept and receive service of process, and it has, though apparently in obedience to the Act of 1885, executed and filed its power of attorney designating and authorizing the Superintendent of Insurance to accept and receive service of process in its behalf, which Act of 1885 required relator to so designate said superintendent as its attorney in fact.</p> <p>3. FOREIGN INSURANCE COMPANY: Service Upon Superintendent of Insurance: Venue.</p> <p>Held, by PARIS, X, and GRAVES, C. X, with whom Walker, X, concurs, that Section 7042, Revised Statutes 1909, providing that in all proceedings that may be instituted against a foreign insurance company, in any court of this State or any court of the United States in this State, service of process may be had upon the-Superintendent of Insurance, is a service statute and not a venue statute.</p> <p>Held, by WOODSON, X, dissenting, that said Section 7042 is both a service statute and a venue statute, and being such it makes a foreign insurance company licensed to do business in this State a resident of every county in the State, and confers jurisdiction upon the circuit court of any county in which the suit is filed to hear and determine the case.</p> <p>4. -: -: -: Prohibition. If upon no sort of service of process the circuit court of a particular county can acquire jurisdiction to hear and determine a particular case, because of a lack of statutory venue, then prohibition will lie.</p> <p>5. -: Venue: Suit in Any County: Like Other Corporations. The statutes do not confer upon the holder of a policy issued by a foreign insurance company licensed to do business in this State, which has filed Its power of attorney with the Superintendent of Insurance authorizing him to receive and accept service in its behalf, the right to choose any one of the many counties in this State as the forum in which to try the suit, by filing his petition in the circuit court of the county so chosen and having the summons served upon the said superintendent. Where such a company has no agent in Audrain County for the transaction of its usual 'and customary business and the plaintiff resides and the cause of action accrued in St. Louis, the circuit court of Audrain County does not have any jurisdiction to hear and determine an action founded on such policy.</p> <p>Held, by PARIS, X, with whom GRAVES, C. X, and WALKER, X, concur, that the venue in a suit against a foreign insurance company, licensed to do and actually doing business in this State, which has filed its power of attorney with the Superintendent of Insurance to receive and accept service in its behalf, is determined by Section 1754, Revised Statutes 1909, which provides that an action against a corporation may be brought in the county where such cause of action accrued, or in any county where the corporation has an agent for the transaction of its usual and customary business, and not by Section 1751, nor by Section 7042, which is a service statute and not a venue statute. Section 7042, requiring a foreign insurance company to file a power of attorney authorizing the Superintendent of Insurance to receive and accept service in its behalf, is a service statute and does not authorize the circuit court of any one of the many counties in the State which the holder may choose as the forum, to hear and determine an action founded on a policy issued by said foreign insurance company. The venue in such case is determined by Section 1754 alone; service of process is governed by Section 7042 alone.</p> <p>Held, by WOODSON, J., dissenting, that said Section 7042 is also a venue statute, and the circuit court of Audrain County has jurisdiction to hear and determine said suit, whether the plaintiff be a resident of St. Louis or of another State and whether his cause of action accrued in St. Louis or elsewhere in this State or in another State.</p> <p>6. -: Special Venue Statues: Permissible Constitutional Classification. Held, by FARIS, j., with whom, WALKER, J., concurs, that Subdivision 4 of Section 53 of Article 4 of the Constitution expressly forbidding the General Assembly to “pass any local or special law . . . changing the venue in civil or criminal cases” by its very language excludes the permissible classification given by Subdivision 32 of said section in all matters of legislation, except those in regard to which special laws are by the preceding thirty-one subdivisions expressly forbidden.</p> <p>Held, by GRAVES, C. J., that there might be a valid classification of corporations as to the venue of actions.</p> <p>7. -: Venue: Hardship of Rule. The character of business done by insurance companies accentuates and increases the apparent hardship of the rule, applicable to them as well as to industrial corporations, that the venue of suits against them is either the county where the cause of action accrued or the counties in which they maintain an agent for the transaction of their usual and customary business; but that hardship is a difficulty to be solved by the General Assembly, if a solution which is not inhibited by the Constitution is possible.</p> <p>Held, by GRAVES, C. J., that said Section 7042 is not a venue statute, but it is not invalid as violative of Subdivision 4 of Section 53 of Article 4 of the Constitution, and that a valid statute classifying corporations as to venue of actions might be and should he enacted.</p> <p>Held, by WOODSON, X, dissenting, that said Section 7042 is a venue statute, is so recognized by the Supreme Court of the United States and by this court in a number of decisions, and was intended 'to permit a foreign insurance company to be sued in any county in this State, and the purpose of its enactment was to give relief against such hardships.</p> <p>8. -: -: Federal Constitution. Since Section 7042, Revised Statutes 1909, does not determine the venue of a cause of action against a foreign insurance company licensed to do business in this State, it does not transgress the due-process-of-law clause of the Federal Constitution; it does not permit a venue of a causa of action against a foreign insurance company that it denies to a domestic insurance company.</p> <p>9. -: -: Prohibition: Agent in County. A foreign insurance company licensed to do business in this State is not entitled to a writ of prohibition prohibiting the circuit judge of the county in which the suit is brought from trying the case, on the mere showing that the plaintiff resides in another county and that the cause of action accrued in such other county; it must also show that it does not maintain an agent for the transaction of its usual and customary business in the county in which the suit is brought, and that is a question of fact, which is for the determination of the circuit judge.</p>

<p>1. REFERENCE: Findings and Legal Conclusions of Referee: Review on Appeal. Findings of fact and conclusions of law by a referee in a law case, which have received the approval of the trial court, are to he considered in the appellate court as are findings of fact and legal conclusions of the trial judge in a law case; which means that the substituted findings of fact by the trial court will be reviewed only to the extent of determining whether they are supported by substantial evidence.</p> <p>2. ADMINISTRATION: Account: Barred by Limitations: No Exception: Review. An assignment that the trial court erred in refusing to charge against the executors a store account paid by them long after it was barred by limitations will not be considered on appeal if no exception was filed to the action of the referee in allowing the account. Nor will any other assignment be considered on appeal if to tlie finding of tlie referee no exception was saved and no reference thereto was made in the motion for new trial.</p> <p>3. --, — : Paying Debt on Real Estate. The payment, after maturity, hy the executors of a debt of $4000 secured by a deed of trust on land worth $9000, bearing six per cent compound interest and promising ten per cent as attorneys’ fees if collected by legal process, after judgment in the probate court, from which no appeal was taken,- was in the interest of the estate, and authorized by the broad provisions of Section 143, Revised Statutes 1909..</p> <p>4. -: Costs of Trial. Where the devisee filed twenty-one exceptions to the executors’ report, three of which were sustained in the circuit court on appeal, the court did not abuse its discretion in assessing half the costs against him.</p> <p>5. -: Executor’s Commission. The executors are entitled to a commission of five per cent of the amount for which they sold a lot of corn, charged and appraised to them, applied in extinguishing a chattel mortgage thereon.</p> <p>6. -: Extra Compensation in Addition to Commission. Under. Section 229, Revised Statutes 1909, executors, who succeed, after protracted litigation, in collecting over $45,000 in life insurance made payable to decedent’s estate, however vigilant and honest they may have been and however great an amount of work they may have performed in administering the estate, are not entitled to an extra compensation in addition to their statutory commission of five per cent on personal property and money arising from the sale of real estate.</p>

<p>INDEMNITY INSURANCE: Duty of Insured to Minimize Damages. An indemnity insurance company, which has from the institution of a suit for damages against the insured company hy one of its employees for personal injuries steadfastly denied its liability because of lack of timely notice) does not. hy a letter notifying the insured that the employee’s claim can he settled for a named small sum and offering “by way of compromise” to pay one half of said sum for a release and a stipulation of dismissal, relieve itself from the duty to pay the judgment subsequently obtained against the insured in an undefended trial. Such facts do not justify an invocation of the general rule that the insured company should pay a sum to mitigate the damages when it has the right to recover that sum from the indemnifying company. [Dissenting opinion of FARRINGTON, J., of Springfield Court of Appeals, in same case, 186 Mo. App. 1. c. 332 et seq., approved and adopted.]</p>

<p>1. HOMESTEAD: Home. The homestead statute was framed on the principle that the home is the thing to he encouraged.</p> <p>2. -: Head of* Eamily. The homestead statute applies alike to “the homestead of every housekeeper or head of a family,” and this description, carefully preserved in its disjunctive form, is repeated in section after section of the, act.</p> <p>3. -: Dwelling House. The homestead statute defines the word homestead to he the “dwelling house and appurtenances, and the, land used in connection therewith’’ to the extent specified.</p> <p>4. -: Family: Relationships to Head. The “family,” as used in the homestead statute, is the personnel of the home; and it is usually unnecessary to discuss the degrees of consanguinity to which the tern} refers. In this case the family consisted of an unmarried man, who owned the forty acres of land, and an elderly maiden sister, who resided with him thereon, kept his house in order and devoted her spare time to manual labor upon the fifteen acres of cultivated land, and as a result of such labor in the course of many years acquired a couple of horses, a cow and two calves, but otherwise received her support from him; and it is held that 'there was a family within the meaning of the homestead statute, and that he was “the head of a family.”</p> <p>5. -: Sale Under Execution: Excess: Title of Purchaser. Judgment for debt was obtained against an unmarried man, who was the owner of forty acres of poor land, upon which was a dwelling house, about fifteen acres of which had been reduced to cultivation. He had been the owner for twenty years, and during fourteen years of that time occupied the dwelling house with his widowed mother and maiden sister; after the mother’s death he and the sister continued for six years to -reside on the land. The sister kept the house and worked out of doors, as well as in the house, and as a result of her manual labor acquired a little live stock, but otherwise she neither had nor earned any money, but the brother managed the place and supported her. After the judgment against the brother he conveyed the forty acres to her, and she conveyed it to another, who knew the facts concerning the indebtedness. Execution was issued and the property sold and conveyed by the sheriff to plaintiff, who brings suit to have the brother’s conveyance set aside as a fraud upon his creditors. Held, that the property was a homestead, the brother the head of a family, and the conveyances could not be set aside as a fraud upon creditors.</p> <p>Held, by GRAVES, O. J., concurring, with whom WOODSON, J., concurs, that the owner of a homestead can convey the same without committing a fraud against his creditors, and the property being of but little value and entirely within the quantity and value fixed by the statute, the sole question is whether a homesteader who has a creditor can convey good title to the homestead ■ proper without being subjected to a charge of fraud, and the question of whether he can convey the surplus above the homestead in value or quantity is not for adjudication. [Distinguishing Armor v. Lewis, 252 Mo. 1. c. 584, and Field v. Jacobi, 181 S. W. I. c. 69, and holding that the question of the right of the homesteader to convey the surplus over and above the homestead proper was not involved in those cases.]</p> <p>Held, by BOND, J., dissenting, that the sale, under execution, of land subject to a homestead, is, as to the homestead itself and the entire interest arising therefrom, void; but as to the remainder estate, after the lapse of all homestead rights, the sale carried the title and subjected it to the payment of the debt. [Citing dissenting opinion in Armor v. Lewis, 252 Mo. 1. c. 584, and the concurrence therein in Fields v. Jacobi, 181 S. W. 1. c. 69.]</p>

<p>1. MANDAMUS: Discretion of Court to Issue. Mandamus is a civil remedy provided by law in certain cases, and it is as muck error to refuse it when warranted by all the facts and circumstances held in judgment as it would be to refuse a lawful remedy for any other infracted legal right. Such a refusal in either case would be an abuse of judicial power and discretion.</p> <p>2. ELECTRIC LIGHT: Power of Cities to Purchase Plant. The various statutes, when read in pari materia, authorize cities to incur indebtedness for purchasing as well as constructing electric light plants.</p> <p>3. -: -: Additional Pive Per Cent. Section 9664, Revised Statutes 1909, is a practical rescript of Section 12a of Article 10 of the Constitution, and was intended to enlarge the power granted to cities to acquire electric light plants and other public utilities; and said Section 12a provides for increasing the limit of indebtedness authorized by the original constitutional provision to an additional five per cent of the assessed valuation of the taxable property in a city above the previous five per cent permitted by the former constitutional provision.</p> <p>4. -: -: Indebtedness Within Limits of Additional Pive Per Cent. It was not the intent of amendatory Section 12a to Article 10 of the Constitution, to forbid a city to issue bonds unless the indebtedness to be secured was an amount beyond the five per cent originally permitted to be incurred and within an additional five per cent. The purpose was to give to the city the power to incur an indebtedness for the purposes named in the amendatory section in any amount which does not exceed the aggregate of the ten per cent specified, whether for the purpose of purchasing or constructing electric or other light plants.</p> <p>5. CONSTITUTIONAL CONSTRUCTION. Provisions of the Constitution, like statutes dealing with a single subject, must be interpreted according to the plain meaning of the language employed and the paramount purpose of its framers to provide a rational, congruous and symmetrical chart of government.</p> <p>6. CITY INDEBTEDNESS: Time for Election. An election by a city of the third class, held for the purpose of authorizing the city to issue bonds for the purpose of purchasing or constructing an electric light plant, is not required to be held on the first Tuesday in April. It may be a special election, and held, in accordance with proper city ordinances, on a date different from the date of the general election for elective officers.</p> <p>7. -: Manner of Holding Election: Irregularities: Absence of Eraud. The manner of holding an election to authorize a city to incur an indebtedness for the purpose of purchasing an electric light plant is prescribed by the Australian Ballot Law; but absent fraud or a mandatory statute, irregularities in the method of voting, such as relate to furnishing booths, the duties of the judges of election and the certification of the result, are not substantial violations of that law, and do not invalidate the bonds.</p> <p>8. -: Illegal Voters. An election by a city to incur an indebtedness for the purpose of purchasing an electric light plant will not be held void because some of the voters were disqualified, if after the elimination of all such voters, there still remains a majority of two-thirds in favor of the proposition.</p> <p>9. -:-: Raised in Mandamus or by State Auditor. In a mandamus proceeding brought by a city against the State Auditor to compel him to register bonds voted by a city for the purpose of purchasing or constructing an electric light plant, a contention that some of the voters were disqualified and for that reason the election was void, cannot be considered. A mandamus proceeding is not an election contest, and the questions that certain votes at the election were disqualified by conviction of crime or non-residence are triable only in election contests. Neither do the statutes prescribing the duties of the State Auditor in the matter of the registration and certification of municipal bonds authorize him to raise or determine such questions.</p>

<p>LIMITATIONS: Defaulting City Treasurer: Liability of Bondsmen: Concealment. The surety on the bond of a city treasurer, who had appropriated the city’s money more than three years before suit was brought, and whose books it was the duty of the comptroller and auditor, both by ordinance and statute, to examine, and whose cash on hand it was the duty of the comptroller to count and see that it corresponded with his own books as well as those of the auditor and of the treasurer, and which duties were not performed, but wholly neglected, although the comptroller’s attention was by his deputy called to the great amount of cash which the treasurer’s reports showed he had on hand as being suspicious and requiring counting, is not liable for the treasurer’s defalcation. There was no such diligence to discover it as prevented the three-year Statute of Limitations (Sec. 1890, R. S. 1909) from running.</p>

<p>1.INFORMATION: Clerical Errors. Clerical misprision in the information, such as omitting the word “did” where it is plainly understood, or writing “make” for “made” or “State” for “statute,” being such errors as the reader will readily detect and instantly correct, is saved by the Statute of Jeofails, which forbids the Supreme Court to hold invalid any defective indictment or information wherein the defect “does not tend to the prejudice of thé substantial rights of the defendant upon the merits,” and is not fatal error.</p> <p>2. -: Defect Not Assigned. It is the statutory duty of the appellate codrt to notice a fatal defect in an information, if obvious, although not called to the attention of the court in the brief of defendant’s counsel.</p> <p>3. -: Robbery: Omission of ‘the Words “Against His Will.” An information attempting to charge the crime of robbery which falls substantially to allege that the taking of the property was against the will of the person robbed is palpably bad. The statute is declaratory of and defines robbery in the terms of the common law, which required such an allegation to be made in the indictment. But it is not absolutely prerequisite that the set and fixed phrase of the statute “'against the will” be employed, if words of equivalent meaning and import are used.</p> <p>4. -: -: -: Equivalent lyords: By Force. An information charging robbery which did not in words allege that the defendant took the property “against the will” of the person robbed but did allege that he took it “by force and violence to” said person, was not fatally defective, for the word “force” means "power exerted against will or consent.”</p> <p>6. TESTIMONY OF ACCOMPLICE: Cautionary Instruction. Where most of the material facts to which the accomplice testified were shown by other witnesses, it was not reversible error to refuse to give a cautionary instruction as to the weight to be given to his testimony. The rule is analogous to that relating to a conviction upon circumstantial evidence, which is: if all the evidence upon which a conviction is bottomed is circumstantial, it is error to refuse to give a cautionary instruction as to the manner of weighing such evidence; but if conviction is not sought on circumstantial evidence alone, it is not error to refuse to give the instruction. [Distinguishing State v. Woolard, 111 Mo. 1. c. 256.]</p> <p>6.KOBBEBY: Instruction: Omission of Word Feloniously. In a robbery case, it is not necessary that the instruction require that the assault was “felonious” or that the taking of the property was “feloniously done.” Especially is the omission of these words not error where the instruction requires the jury to find that the property was taken by defendant “with the intent at the time to wrongfully take and carry away and to convert the same fraudulently to his own use and to deprive the- owner thereof permanently without his consent.”</p> <p>7. -:-: No Evidence: Misdirection. If there is no evidence, either that defendant assaulted the person robbed or that he took from him the property of which he was robbed, but there is positive evidence that it- was done by others, it is error to tell the jury that they must find that both the assault and taking were done by defendant before they can convict him. But where the facts and circumstances in evidence make it a question whether defendant did actually assault the person robbed and did actually assist the two other persons present in robbing him, such an instruction is not error.</p> <p>8. -: -: ’ Non-direction: Accessory: Not in Motion for New Trial. But whether there was reversible non-direction, in that the court neglected to submit the question of whether defendant was an accessory to the assault and robbery, committed by the other robbers, or was present as a mere spectator, innocent of any unlawful intent to commit a crime, is not in the case, if no such complaint of non-direction is in the motion for a new trial. But, nevertheless, the form of an appropriate instruction to meet such a situation is set out in the opinion.</p> <p>9. IMPEACHMENT: By State of Own Witness. The admission in evidence of an information, offered by the State, showing that a witness for the State had been charged with the same robbery, and the conviction of said accomplice, is not an error of which defendant can complain, since its tendency was to impeach the State’s witness. ></p> <p>10.-: Records of Conviction: Offered by Both Sides. The defendant cannot complain that the State offered in evidence the court records showing the indictment and conviction of one of its wit- ■ nesses, if the defendant himself offered the same records.</p> <p>11. -: -: No Proper Objection. The court record showing the conviction of a witness for the defendant of a crime may always be offered for purposes of impeachment. Besides, the objection to the record should properly specify the reasons for its incoin-petency.</p> <p>12.. -: -: Offered Before Witness Testifies. The admission in chief of proper rebuttal testimony, while irregular, is not reversible error. The assignment that the State, prior to the time the defendant’s witness testified, offered in evidence the títmrt record showing that said witness had pleaded guilty to the identical robbery for which defendant is being tried, is without merit, though the irregularity is not commended.</p> <p>13. -: -: -: Query.. Whether or not the admission in evidence of the plea of guilty and record of conviction of said witness, offered by the State, would have been reversible error, if said witness had not later been offered by defendant, is adverted to, but not decided, because said witness was offered by the defendant and testified.</p>

<p>1. MOTION FOE NEW TRIAL: General Assignment: Instructions. An assignment in the motion for a new trial that “the court misdirected the jury as to the law of the case’’ is entirely too general to authorize a review of the instructions.</p> <p>2. -: -: Pieced Out by Inference. The court will not interpolate words in the motion for a new trial except in case of evident inadvertent omission. It will not piece out the motion by adding words thereto.</p> <p>3. -: Complaint of Non-Appearing Instructions. If the motion for a new trial complains of instructions designated as being of certain numbers, and no instructions bearing those numbers appear in the record, a review of them is impossible.</p> <p>4. NEGLIGENCE: Humanitarian Doctrine: Instruction. The fundamental principle of the humanitarian doctrine is the failure of the alleged wrong-doer to exercise ordinary care to avoid injury when the peril of the injured party has been discovered or by the exercise of ordinary care might have been discovered. Therefore, Where plaintiff had stepped off of the curb and had taken one or. two steps into the street when she was struck by defendant’s automobile, being driven at a speed of eight miles per hour, and the evidence was that it would have been impossible to change the course of the machine after her peril was or might by ordinary care have been discovered in time to avoid striking her, the court committed no error in withdrawing from the jury, by the instructions, a consideration of that doctrine.</p> <p>5. INSTRUCTION: No Evidence to Support Issue: Withdrawal. If there is no evidence to support an allegation of the petition it is not error to withdraw it from the jury, by the instructions.</p>

<p>1. PARTIES: Interest in Land: Administrator as Plaintiff: Not Raised at Trial. The point that the administrator of the deceased claimant is not a real party to the suit to establish an interest in the land and therefore has no standing in court, if not raised by demurrer or specific answer in the trial court, will not be ruled on appeal.</p> <p>2. WILL: Subsequent Sale of Devised Land: Ademption: Title of Dev-isee to Other Land Purchased. A devise by the owner of specific lands to his wife, a subsequent sale by him of those lands and a purchase, with the proceeds of the sale, of other lands, did not. pass the title of the lands so purchased to her, but there was an ademption of the devise, 'and there being no residuary clause in the will the subsequently acquired lands passed by inheritance to his heirs.</p> <p>3. -: Revocation by Sale. Both by common law and the statute a sale of all the property devised operates as a revocation of the will in toto, and a sale of a part of the devised property operates as a revocation pro tanto.</p> <p>4. -: Intention: Sale of Lands Devised to Wife. Unless the will contains a residuary clause declaring that all of testator’s property should pass by the will, or there is some other clause in the will expressly relating to the matter, it cannot be held that it was the intention of the testator that lands acquired by him after making his will should pass to his wife in lieu of those specifically devised to her but sold by him at. the time or prior to acquiring the others, for the will does not express any such intention.</p> <p>5. -. Presumption of Testator’s Intention to Devise All Property. The presumption that a testator does not intend to die intestate as to any part of his property, applicable to throw light upon the testator’s intention when that intention is dark and is to be ascertained from the language used, is not to be invoked to illuminate a condition arising long after the will was written. It is inapplicable as a guide in determining whether by a perfectly plain will, by which testator devised specific lands to his wife, which he subsequently sold, other lands bought with the proceeds were devised to her by the will in lieu thereof.</p> <p>6. -: Construction: Operation. The language of a will is to be construed in the light of the circumstances existing when it was written. The will operates upon the property existing at the time of testator’s death.</p>

<p>1. EVIDENCE: At Former Trial: No Objection. Where at the time certain portions of the transcript of the evidence at a former trial were offered by the State defendant made no objection, and when asked by the court if he desired to offer any part of the remainder of the transcript his counsel replied, “I don’t want to offer any part of it,” he is in no position on appeal to complain that the court refused to permit his counsel to read to the jury certain portions of the transcript of his testimony on the former trial.</p> <p>2. -: Accidental Homicide: Self-Defense. Where the defense is accidental homicide in scuffling for a knife, and there is no evidence of self-defense in the case, it is not error to exclude testimony to the effect that deceased had been in the habit of carrying a knife, since such evidence is not material to any issue involved.</p> <p>3. -; -; -; violent Character: Particular Acts. Where the defense is accidental homicide, testimony that on a prior occasion deceased stabbed the defendant is not admissible. Even if self-defense is an issue and evidence as to the violent and dangerous character of deceased would therefore be admissible, particular acts of violence are not admissible to prove such character.</p> <p>i. -: Motive: Suit for Divorce. Testimony that a short time before the homicide of a wife she had instituted divorce proceedings against defendant is admissible to show motive for the killing.</p> <p>5. -: Former Conviction. In the trial of a defendant for murder the record of a justice of the peace showing the conviction for assault and battery of a person of the same name as that of defendant, without first requiring proof as to the identity of the person convicted, is not incompetent evidence. Identity of names is prima-facie proof of identity of person.</p> <p>6. INSTRUCTION: Defendant as Witness. The court did not err in refusing to instruct the jury at defendant’s request “that they have no right to disregard the testimony of the defendant on the ground alone that he is the defendant, and stands charged with the commission of a crime. The law presumes the defendant innocent until he is proven guilty, and allows him to testify in his own behalf, and the jury should fairly and impartially consider his testimony, together with all the other evidence in the case; and, if from all the evidence, the jury have any reasonable doubt as to the defendant’s guilt, they should give him the benefit of the doubt and acquit him.” Under the doctrine of State v. Finfeelstein, 269 Mo. 612, such an instruction would he an improper comment upon the testimony of defendant.</p>

<p>1. CARRYING' PISTOL: When Intoxicated: Sufficiency of Evidence: Evasive Witnesses. The evidence in this case, detailed by evasive, equivocating and shuffling witnesses for the State, is reviewed, and held sufficient to sustain a conviction of defendant of the charge of having in his possession when intoxicated a dangerous and deadly weapon. ,*</p> <p>2. -: -: Necessity of Showing Pistol Was Loaded. In the trial of a defendant upon the charge of having in his possession when intoxicated a dangerous and deadly weapon, it is not necessary for the State to show that the pistol or firearm, carried concealed, or carried while accused is intoxicated, or exhibited by him in a rude, angry and threatening manner, is loaded, in order to make out a prima-facie case; and where the evidence shows that defendant, while drunk or drinking, entered a store, threw down a pistol on the counter, together with some cartridges, and called for soda, and there is no countervailing testimony, the giving of an instruction telling the jury that it is not material to constitute the offense charged whether the proof showed the pistol to have been loaded or not is not error.</p> <p>3. EVIDENCE: Exhibiting to Witness Grand Jury Testimony. Where the attitude of the State’s witnesses is hostile or evasive, and warrants a refreshing of their memories, it is within the sound discretion of the trial court to permit the prosecuting attorney to exhibit to them copies of their testimony before the grand jury, for the purpose of refreshing their memories.</p> <p>4. ARGUMENT: Remarks of Prosecuting Attorney. Language of the prosecuting attorney in his argument to the jury that but follows the relevant and competent testimony of the witnesses, or draws from such testimony such inferences as are fairly deducible therefrom, is not improper.</p>

<p>1. JURISDICTION: To Try a Convict. A defendant who has been convicted of murder and his punishment fixed by the jury at imprisonment for a term of years, may, before he is sentenced for such crime, be tried for larceny and burglary and sentenced according to verdict. The sentence in the murder case having been deferred until after the verdict was returned in the burglary case, the court’s jurisdiction in the latter .case was not in any wise affected, and a sentence in each case in the order of conviction was authorized.</p> <p>2. EVIDENCE: Transcript of Testimony of Deceased Witness. The notes of the testimony of a witness who has since died, taken by a stenographer at defendant’s preliminary examination, at which both defendant and the witness were present, may be read by such stenographer to the jury at defendant’s trial for the same felony. Defendant’s constitutional right to be confronted by the witnesses against him is not invaded by admitting such notes in evidence.</p> <p>3. -: -: Authentication of Stenographer’s Notes. Nor does the fact that the notes of the testimony of the deceased witness were taken by one who was' not an official stenographer, or that they were not certified to by the magistrate before whom defendant’s preliminary examination was held, render them inadmissible.</p> <p>4. INSTRUCTION: Credibility of Witness: Ealsus in Uno, Etc. The giving of an instruction telling the jury that if they believe any witness has wilfully sworn falsely to any material fact they are at liberty to disregard any or all of such witness’s testimony, is, in the absence of evident prejudice to the accused, to be left to the discretion of the trial judge; and if there is a basis for it in the evidence, the giving of it is not error.</p>

<p>1. SEDUCTION: Sufficiency of Evidence: Promise of Marriage. The evidence in this case, though sharply contradicted, was substantial in support of each of the four constitutive elements of the crime of seduction of an unmarried woman of previous good repute under the age of twenty-one years, including that of a promise of marriage prior to the seduction and the necessary corroboration of the promise required by the statute.</p> <p>2. -: Period of Gestation: Judicial Notice: Premature Birth: Corroboration of Promise. Courts take judicial notice that the period of gestation is about ten lunar months or 280 days, because it is a matter of common knowledge; but they cannot take judicial notice of the viability of a child born 36 days, or even 22 days, short of the ordinary period of gestation-. Therefore, in a seduction case, where the child was born 272 days after the alleged promise of marriage, and 268 days after the initial act of sexual relations as stated by prosecutrix and 244 days after the date of conception as fixed by her, there should, in corroboration of the promise of marriage, be proof of a lack of perfect maturity in the child from which the inference of a precocious birth would arise.</p> <p>3. -: Trior Chastity: - Conflict of Testimony. However convincing' the countervailing evidence of a lack of prior chastity of the prosecutrix may be, if there is substantial evidence both pro and con on the issue, its credibility is not for the appellate court to determine.</p> <p>4. Argument: By Prosecuting Attorney! Reference to Defendant. Where defendant did not testify, a statement made by the prosecuting attorney, in the course of his argument to the jury, that “the defendant has not stated anything in the cáse,” excepted to by counsel and unrebuked by the court, is reversible error. [Distinguishing State v. Larkin, 250 Mo. 218.]</p> <p>6. -: -: -: Preservation for Review. Where the official stenographer does not record the argument of counsel, the objectionable statement of the prosecuting attorney may be placed in the record by being embodied by counsel for defendant in his objection thereto; and if the prosecuting attorney did not deny that he used the words attributed to him and the court made no effort to ascertain the exact words used, either at the time or when the bill of exceptions was settled, the objectionable argument will be reviewed on appeal.</p> <p>6. Witness: Impeachment: Proving Statements Contradictory of Testimony. A defendant is not entitled to impeach his own witness and to go further and prove what the witness had positively stated out of court, by merely showing that the witness had made statements directly contradictory of his testimony and thereby he and his counsel had been misled and entrapped into putting him on the stand; but, in order to warrant impeachment in that manner, the witness must go further and by relating wholly contradictory facts become in effect a witness for the adverse side. A mere failure to relate facts to which the party calling the witness has been led to believe he would testify is not sufficient ground for thus impeaching the witness.</p> <p>7. Seduction: Admission of Sexual Intercourse: Proof of Pregnancy and Birth of Child. Evidence of pregnancy of prosecutrix and of the birth of a child is admissible in a seduction case; and where defendant by his counsel in open court has admitted the sexual intercourse, testimony touching the pregnancy and the birth of the child, though it relates to conduct subsequent to the commission ot the crime, is not error, and being competent the manner of proof after such admission lies in the discretion of the trial court.</p> <p>8. -: Proof of Later Acts and Other Crimes. It is competent for the State to prove by the prosecutrix that long after the seduction under promise of marriage, she and defendant went to another State and registered and for a night occupied the same room at a hotel, and that upon the trip he attempted to bring about an abortion. The evidence being competent, the fact that it tended to prove the commission of another crime did not render it inadmissible.</p>

<p>1.INFORMATION: Oath. The verification of an information hy the prosecuting attorney, that, “upon his oath, the facts stated in the information are true according to his best information and belief,” complies with the statute (Sec. 5057, R. S. 1909) and is sufficient.</p> <p>2.JURY: Summoning and Impaneling: Disqualifying Sheriff: Upon Oath of Prosecuting Attorney Alone. The act of the trial court, upon the application of the prosecuting attorney alone, alleging prejudice on the part of the sheriff in favor of defendant in designating the coroner to select the venire and perform the duties of sheriff, and, upon formal objection by the defendant to the coroner, alleging prejudice against him, the appointing by the court of an elisor to summon the venire and perform the duties of sheriff, will not be interfered with upon appeal, unless it appears that it was arbitrary and unjust. Whether the trial court acts upon the unsupported affidavit of the prosecuting attorney, or requires proof of the prejudice of the sheriff, is left to his discretion.</p> <p>3. -: Retaining Veniremen Selected by Sheriff Before Disqualification. The method prescribed by statute for summoning and impaneling jurors is directory; and if the elisor, after the disqualification of the sheriff and coroner, retained certain members of the trial panel summoned by the sheriff before he was disqualified, that fact is not error in the absence of a showing that such members were otherwise disqualified.</p> <p>4. EVIDENCE: Telephone Call for Deceased. Under the circumstances of this case, it was not error to permift a witness for the State, who resided at the house where the deceased roomed, to testify that there was a telephone call for him a short time before he was killed In defendant’s office and that it was a man’s voice at the phone, in response to which witness called deceased, who answered the phone and soon thereafter left the house. Even if by remote inference the testimony could be held to be prejudicial, its harmful effect was neutralized by the court, upon the prosecuting attorney’s failure to connect defendant with the call, in directing the jury to disregard the testimony.</p> <p>5. -: Facial Expression of Defendant. Witnesses may testify to their impressions or opinions as to matters open to the senses, but otherwise incapable of exact description. Hence, it was' not error to permit a witness to testify that defendant’s look a few minutes after the homicide was that of “desperation and determination.”</p> <p>6. -: HOMICIDE: Relations of Deceased With Wife of Defendant. It is not error to refuse to permit defendant to prove circumstances which would tend to show that deceased and defendant’s wife had sustained improper relations, where there is no evidence that the circumstances had been communicated to the defendant.</p> <p>7. -: -: Provocation. A defendant on trial for murder is not entitled to prove by other witnesses facts concerning his wife’s relation with deceased of which he had no knowledge, and which therefore could not have influenced his homicidal action. Nor should he be permitted to prove by other witnesses that what she had said to him concerning such relations were true. Such testimony does not tend to show provocation for his crime.</p> <p>8. -: Cross-Examination of Defendant. The cross-examination of defendant concerning matters which, from their evident nature, could not have proved prejudicial to him upon any theory, is not reversible error.</p> <p>9. INSTRUCTION: Credibility of Defendant. An instruction concerning the credibility of witnesses, in the usual phraseology, which does not single out defendant from other witnesses, does not conflict with the ruling in Finkelstein’s case.</p> <p>10. -: Accidental Homicide: Self-Defense. Where the defense relied upon was accidental homicide, and there was no evidence of self-defense, it is not error to refuse an instruction on self-defense.</p>

<p>Appeal from Cape Girardeau Circuit Court.- — Ho». Franh Kelley, Judge.</p> <p>(1) “A judgment is the final determination of the right of [all] the parties in the action.” Sec. 2090, R. S. 1909; Deck v. Wright, 135 Mb. App. 539'; State v. French, 118 Mo. App. IS; Baker v. St. Lonis, 189 Mo. 378; State ex rel. v. Klien, 140 Mo. 510. (2) “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” Sec. 2091, R. S. 1909; Thompson v. District, 71 Mo. 501; Hill v. Chowning, 93 Mo. App. 625; Mo. Pac. Ry. Co. v. Carter, 85 Mo. 450. (3) The' judgment of confirmation of the report of the viewers and engineer under the provisions of Art. 4, Chap. 122', R. S. 1899, now Art. 4, Chap. 41, R. S. 1909, is in effect, several as to each tract of land of forty acres or less. Jones v. Lake View, 151 Ill. 680; Kelley v. Chicago, 148 Ill-. 95; Delamater v. Chicago, 158 Ill. 580; Gribler v. Mattoon, 167 Ill. 19; Phila. & Reading C. & I. Co. v. Chicago, 158 Ill. 19; Beach v. People ex rel. Kern, 157 Ill. 662; Bliss v. Chicago, 156 Ill. 585'; Rasmussen,v. People ex rel. Kern, 156 Ill. 574; Browning v. Chicago, 155 Ill. 314. (4) The requirements of Sec. 8287, R. S. 1899, amended, Laws 1905, p. 180, Laws 1907, p. 341 (Sec. 5587, R. S. 1909), that upon the filing of ' the viewers’ report the clerk shall immediately set the hearing of the same for some day of the next regular term of the county court, and “thereupon” issue a notice, directed, hy name, to every person returned by the engineer and viewers as the owner of every lot, etc., is directory only. Lewis’s Sutherland on Stat. Const., secs. 610, 611, 612, 613, 614, 615 - and 616. (5) When the provision of the statute is in affirmative words, and there are no negative words, and it relates to the time or manner of doing the acts which constitute the chief purpose of the law, or those incidental or subsidiary thereto, hy an official person, the provision has been unually treated as directory. In re Petition of Douglass, 58 Barb. 174; Atty. G-en. v. Baker, 9 Rich Eq., 521; State v. Harris, 17 Ohio St. 608; Bladen v. Philadelphia-, 60 Pa. St. 464; Neal v. Burrows, 34 Ark. 491; Mount v. Kesterson, 6 Col. 452; Cheatham v. Brien, 3 Head, 552; Atkinson v. Rhea, 7 Humph'. 59; Sellars v. Fite, 3 Baxt. 131; In re Johnson, 98 Cal. 531, 21 L. R. A. 380. (6) A statute (as does the one under consideration), specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, is directory, unless the nature of the act to he performed, or the phraseology of the statute, is such that the designation of time must he considered as a, limitation of, the power of the officer. State v. Hamilton, etc. Ry. Co., 113 Mo. 301; State v. Ringo, 42 Mo. App. 115; St. Louis Co. Ct. y. Sparks, 10 Mo. 121; Granite Bit. Pav. Co. v. McManus, 114 Mo. App. 607. (7) The finding of the county court that due notice of the filing of the viewers’ report had been given was not a final and binding judgment, because the same was untrue, in that the record disclosed that Arcadia Timber Company had not been notified, and the court was without jurisdiction to adjudicate the report as to it, and its judgment of confirmation was void as to it. State ex rel. Douglass v. Arcadia Timber Co., 178 S. W. (Mo.) 93; 23 Cyc. 1241; Hewitt'v. Weatherby, 57 Mo. 278; Ray Co. v. Barr, 57 Mb. 291; McLaughlin v. Bank, 60 Mo. 437; Adams v. Cowles, 95 Mo. 507; Covington v. Chamblain, 156 Mo. 574; Lance v. Garberm, 105 Mo. 359; Gravis v. Ewart, 99 Mo. 13; Fithian v. Monks, 43 Mo. 520; Clark v. Bettelheim, 144 Mo. 258; Janney v. Spadden, 38 Mo. 402; Fischer v. Sickmann, 125 Mo. 165; Westmeyer v. Gallenkamp, 154 Mo. 28; Roberts v. Best, 172 Mo. 77, 82.. (8) It was the duty of the court, and it had jurisdiction to bring all the parties in interest before it, and to cause as many notices to be given as were sufficient, and necessary to accomplish that result. Sec. 8287, R. S. 1899, amended, Laws 1905, p. 180, Laws 1907, p. 341; Sec. 5588, R. S. 1909; Secs. 1786, 3863, 4080, R. S. 1909; Barnes v. Construction Co., 257 Mo. 195, 197. (9) Arcadia Timber Company had the right to waive the issuance of notice of the filing of the viewers’ report, and voluntarily enter its appearance, whioli it did, by filing its exceptions and application for a change of venue. Wicecarver v. Ins. Co., 137 Mo. App. 255; Thompson v. Merc. T. M. Ins. Co., 217 Mo. 485; New-court v. Railway, 182 M:o. 687; Sec. 1756, R. S. 1909; Harding v. Carthage, 105 Mo. App. 19-21; Baisley v. Baisley, 113 Mo. 551; Fiedler v. Schroeder, '591 Mo. 36; Barnes v. Construction Co., 257 Mo. 197. (10) Conceding that the county courts are of limited jurisdiction, and their powers must be gathered from the law, yet, the laws of the State for the reclamation of its lands have a great object and purpose in view1 and are remedial in character and are entitled to a liberal construction — a construction that enables and does not hinder. State ex rel. v. Bates, 235 Mo. 292; Laws 1913, p.. 281, sec. 2; Laws 1913, p. 267, sec. 62; In re Mingo Drainage District, 267 Mo. 278; State ex rel. v. Wilson, 216 Mo. 277. (11) When necessary to effect the legislative intent, remedial statutes will be- construed to include cases within the reason, although outside the letter. 36 Cyc. 1175'; Traudt v. Hagerman, 27 Ind. App. 152; School Dist. v. School Dist.; 120 Iowa, 119; St. Peter v. Middleborough, 2 Y. & J. 196; State v. Canton, 43 Mo. 48.</p> <p>(1) The judgment of the county court dated May 17, 1909, incorporating the drainage district and approving and confirming the assessments and benefits against the lands, as set forth in the report of the viewers and engineer, was a final judgment. State ex rel. v. Wilson, 216 Mo. 274; State ex rel. v. Redman, 194 S. W. (Mo.) 260. (2) Only one final judgment may be entered in a cause, regardless of the number of parties, or the number of issues involved. This provision of the law is mandatory. Sec. 2097, R. S. 1909; State ex rel. v. Redman, 194 S. W. 260; Besheai's v. Vandalia Banking Assn., 73 Mo. App. 293. (3) The county court is one' of limited jurisdiction, possessing only such, powers as are conferred upon it by statute, and it can exercise its jurisdiction only in the manner prescribed by statute. State ex rel. v. Redman., 194 S. W. 260; St. Louis v. Hollrah, 175 Mo. 79 ; Land Co. v. Quinn, 172 Mo. 563 ; State ex rel. v. Johnson, 148 Mb. App. 306. (4) iG-eneral presumptions indulged to sustain proceedings in superior courts' will not be allowed to aid proceedings of inferior courts. State ex rel. y. Cass County Court, 137 Mo. Appi. 698; State ex inf. v. Woods, 233 Mo.- 357. (5) A judgment against severál parties will not he treated as an entirety and annulled as to all the parties for an error against one. Elliott on Appellate Procedure, secs. 574-5; Wollman v. Loewen, 108 Mo. App. 591; Bremen Bank v. TJmrath, 55 Mo. App. 43; State ex rel. v. Tate, 109 Mo. 265; Stotler v. Railroad, 200 Mo. 149; Benseick v. Cook,- 110- Mo. 183; Freeland v. Williamson, 220 M}o. 229. (6) Where one defendant was not served and final judgment was rendered against the remaining defendant, the final judgment deprived the court of power to afterwards proceed in that suit against the defendant not appearing. Neither can any court hold a case open after judgment for further adjudication on the merits, though it may retain it for administrative purposes and make orders to carry a decree into effect. State ex rel. v. Redman, 194 S. W. 260; Beshears v. Vandalia Bank Assn., 73 Mo. App. 293; Ball v. Peper Cotton Press Co., 141 Mo. App. 26; St. Louis v. Crow, 171 Mo. 272; Henry v. Gibson, 55 Mo. 570; Holborn v. Naughton, 60 Mo." App. 1. c. 1Ó3; State ex rel. v. Muench, 217 Mo. 140. (7) A court, except as authorized by statute, has no authority to disturb its' judgment after the term. Jeude v. Sims, 258 Mo. 39; Curtiss v. Bell, 131 Mo. App. 251; Byers v. Jacobs^ 164 Mo. 141; Carr v. Dawes, 46 Mo. App. 359. (8) Want of jurisdiction of the court as to the subject matter involved cannot be waived in any manner. City of St. Louis v. Glasgow, 254 Mo. 262; Railroad v. Schweitzer, 246 Mo. 122; Drainage District v. Nabor, 256 Mo. 163; Drainage District v. Heine, 256 Mo. 164; Drainage District v. Voltmer, 256 Mo. 152; Dennis v. Baily, 104 Mo. App. 638. (9) The exceptions and the application for change of venue having been withdrawn by consent of court and the parties and “without prejudice,” did not have the effect of entering the appearance of the respondent or of waiving the necessity of a proper notice. Creighton v. Kerr, 87 U. S. 12; State v. Taylor, 51 N. J. L. 307; Sursa: v. Cash, 171 Mo. App. 403 ; Long v. Long, 141 Mo. 370; Taylor v. Slater, 21 R. I. 104.</p>

<p>1. EVIDENCE: Stipulation: Waiver. A written stipulation as to a certain fact, signed by plaintiff’s and defendant’s counsel, which, though offered in evidence by both sides for definitely restricted purposes, is ignored by both counsel and court — by counsel in introducing, without objection, testimony on one side inconsistent with or contradictory of, and on the other in support of, its state-mets of fact, and by the court in the instructions given, without exceptions — is waived, and oh appeal the ruling will be based on such testimony, and not upon the stipulation.</p> <p>2. NEGLIGENCE: Federal Employers’ Liability Act: Interstate Commerce: Question for Jury. Where there was substantial evidence, in the action brought under the Federal Employers’ Liability Act for the negligent killing of a timekeeper, that the trackmen in connection with whom he was employed were at the. time engaged in work on both the main track, which was an interstate line, and in repairing or constructing a side track, which was an intrastate track and was not in use in interstate commerce, and evidence to the contrary that they had been engaged only in constructing the side track, the question of whether the timekeeper at the time of his death was engaged in interstate commerce and whether the facts bring the case within the purview of said act, becomes one for the jury, with whose finding the court on appeal cannot interfere. And such must be the ruling, although at the time the timekeeper was killed the trackmen had ceased their work for the day and he, after making out his daily report, had started, thirty minutes later, as was his custom, to the telegraph office to. send it to the road-master in another State, and was killed by a train as he was crossing a passing-track.</p> <p>3. CONTRIBUTORY NEGLIGENCE: Federal Employers’ Liability Act: Reduction of Damages. An instruction, in an action brought under the Federal Employers’ Liability Act for the negligent killing of an employee, which tells the jury that, if they find that deceased was guilty of contributory negligence, “such finding and such fact of contributory negligence will not authorize a verdict in favor of defendant, but will only authorize that the damages assessed by you in favor of plaintiff be diminished by the jury in proportion to the amount of negligence attributable to said deceased,” is erroneous. The act says that, in such case, “the damages shall be diminished,” and the instruction should clearly tell the jury that they must reduce them, not simply tell them that they are “authorized” to do so.</p> <p>4. NEGLIGENCE: Federal Employers’ Liability Act: Measure of Damages: Motion for New Trial. The court will not review an instruction on the measure of damagés in an action brought under the Federal Employers’ Liability Act, if said instruction is in no manner mentioned in the motion for a new trial.</p> <p>5. -: -: -: Excessive Verdict: Abandoned in Brief. And if appellant complained in his motion for a new trial that the verdict was excessive, but fails to keep that complaint alive in the brief, it will not be reviewed.</p>

— Hon. Thomas B. Allen, Judge. (1) The court erred in refusing to give defendant’s peremptory instruction. The action is brought under the Federal Employers’ Liability Act, which regards negligence as the basis of the duty to make compensation and excludes the existence of such a duty in the absence of negligence. Erie Railroad Co. v. Winfield, 37 Snp. Court Rep. 556; N. Y. C. Railroad Co. y. Winfield, 244 U. S. 151; Seaboard Air Line y. Horton, 233 U. S. 492; So. Ry.

Appeal' from Jasper Circuit Court. — Hon J. D. PerTcins, Judge. (1) In constructive service where a method has been prescribed, that method is preclusive and must he observed literally and strictly. Stewart' v. Stringer, 41 Mo. 400; Stanton v. Thompson, 234 Mo. 1; Harness v. Cravens, 126 Mo. 233. For the court has no authority to permit a different service or process from that outlined in the statutes. Such a course is exclusively the prerogative of the Legislature.