Volume 276 — Missouri Reports

— Hon. Kimbrough Stone, Judge. (1) The trial court erred in sustaining the demurrer of the-defendants to the evidence of the plaintiff on the ground that the facts disclosed do not constitute a cause of action in favor of the plaintiff and against the defendants.

<p>1. NEGLIGENCE: Dangerous Place: Coal Chute: Warning. A “trimmer” engaged in separating stone and other foreign materials from coal as it was being carried from the mine by a “shaker” into a car, in the absence of notice of approaching cars on the switch, was at work in a dangerous place, and the mining company by which he was employed, and the railway company which placed cars on the switch upon request of the mine foreman, are chargeable with knowledge of the danger. Such “trimmer” had a right to assume that the two companies would not imperil his safety by permitting or causing the car on which he was at work to be struck by other cars and moved without notice or warning to him.</p> <p>2. -: -: Relegating Duty to Another. If one person owes a duty to another, and instead of performing it himself depends upon a third to discharge it, and said third party neglects it, and as a consequence of such neglect the party to whom the duty was due is injured, the party who owed the duty is liable in damages for the resulting injuries.</p> <p>3. -: -: Duty HabituaUy Neglected: Custom. Neither the coal mining company nor the railroad company, which owed to a “trimmer” at work on a stationary car being loaded at a coal mine the duty to warn him that cars were about to be run in upon the switch, can escape the result of causing or permitting, without warning, cars to be pushed against the car on which be was working, by the fact that either or both of them habitually neglected said duty. No custom or usage can make that lawful which is unnecessarily dangerous.</p> <p>4. -: -: Question for Jury. Where the coal mining' company owed to an employee the duty to give him notice of the approach of a train on a switchtrack and its collision with the car op which he was at work, and he testifies that no such notice was given and the foreman testifies that he gave him such notice, the question of whether such notice was given becomes one of fact, to be determined by the jury.</p> <p>5. -: Contributory: Seeing Approaching Train. A “trimmer” at work in separating stone from coal on a car standing on a switch at a coal mine, was not guilty of negligence in standing with his back to a train approaching on the switch, if he .did not know it was approaching and under the rules of the railway company and of the mining company he had no reason to apprehend that a train would approach without giving him notice.</p> <p>6. -: Assumption of Risk: Employer’s Negligence. The risks which the employee assumes are those purely incidental to the employmennt, and include such injuries as are liable to occur at any time during the performance of the work in the ordinary and usual way, unaided in any degree by the negligence of the employer.</p> <p>7. -: -; -: Question for Jury. If the evidence tends to show that the plaintiff’s injuries were the result of the negligence of defendants, and not the result of an assumed risk, it presents a question of fact for the jury, and the court cannot declare as a matter of law that plaintiff assumed the risk of the particular injury.</p> <p>8. INSTRUCTIONS: Conflicting: Not Preserved. Appellants are in no position to complain that the instructions are conflicting if their motion for a new trial complained of no such error.</p> <p>9. EVIDENCE: Joint Tortfeasors. It is not error to refuse to instruct the jury that the testimony of a witness respecting a conversation with the foreman of the coal company, offered on behalf of the railroad company, should not be considered in determining the issues between the plaintiff and the coal company. The foreman was the coal company’s vice-principal, and if his testimony shows that the cars which were run against the car in which plaintiff was working were run at his request, and neither company gave plaintiff the notice which their rules required, the foreman’s testimony does not pertain solely to the defense arising out of the issues between plaintiff and the railroad company, but is pertinent to the issue of negligence between plaintiff and the coal company.</p> <p>10. NEGLIGENCE; Imputed to Joint Tortfeasors: Failure to Give Notice. The negligence of a railway company in failing to give notice to a “trimmer” at work in a car on a switch at a coal mine that a train is about to be run against the car cannot be imputed to the mining company. But if it was the duty of both companies to give such notice, and neither did so, it is not error to refuse to instruct the jury that the failure of the railway company to give the necessary notice cannot be imputed to the coal company, nor to refuse to instruct them that the failure of the coal company to give such notice cannot he imputed to the railway company. Neither tortfeasor can escape liability for failure to perform its duty to plaintiff by an attempt to make the other’s negligence the sole cause of the injury. The failure to give the notice being negligence, all tortfeasors whose duty it was to give it and failed to do so are liable.</p> <p>11. VERDICT: Excessive: $15,000. A verdict for $15,000 for a “trimmer” at a coal mine, whose leg was amputated six inches above the ankle and who also lost the little finger of the right hand, as a result of the injuries done him by defendants, was too large by $5,000.</p>

— Eon. William M. Kinsey, Judge. (1) Deeds and other conveyances without seal, from 1816 to 1893, were void. Plats without seal during the same time were void. An instrument in writing, not under seal, which the law requires to be under - seal, will not operate as an estoppel. G. S. 1865, ch. 109, sec. 7, p. 444; Shelton v. Alcock, 11 Conn. 249; Davis v. Tyler, 18 Johns. (N. Y.) 492. (2) Non-user of a public highway for a period of ten years, continuously, is an abandonment.

Louis City Circuit Court. — Hon. Wm. T. Jones, Judge. (1.) Under the law and all the evidence the court would have been justified in peremptorily directing the jury to return a verdict for the plaintiff, as was requested by her at the close of the whole case.

— Hon. Charles D. Stewart, Judge. (1) The court erred in giving plaintiff’s instruction 2. There was no evidence warranting this instruction. This was an interstate shipment. The liquor and store fixtures were purchased and delivered to Eitel in Quincy, Illinois, on December 1, 1914. He put them in a car, at Quincy, locked the car and prepaid the freight. Eitel took the goods billed to Kirksville on December 4th in the absence and without the aid or consent of defendant.

Mandamus. (1) The State Board of Equalization had both constitutional and statutory authority to employ relator for the purposes for which he was employed. Sec. 18, art. 10, Constitution 1875; Secs. 11410, 11577, R. S. 1909; Railway Co. v. State Board of Equalization, 64 Mo. 294; Washington Co. v. Railway Co., 58 Mo. 378; State ex rel. v. Grates, 67 Mo. 143; State ex rel. v. Reber, 226 Mo. 237; 23 Am. & Eng. Ency.

Louis City Circuit Court. — Hon. Charles B, Davis, Judge, (1) The court erred in overruling the objection to the introduction of any evidence and the demurrers to the evidence offered at the close of plaintiff’s case and of the entire case; for this suit was based upon Sec. 7897, R. S. 1899, and said statute, if construed and applied so as to prevent the defendant from deducting the entire indebtedness on the policy from three-fourths of the net reserve, or so as to…

Louis City Circuit Court. — Hon. Leo 8. Bassieur, Judge. (1) When a person sui juris orally or in writing explictly or impliedly declares that he holds personal property for another, he thereby constitutes himself an express trustee.

— Hon. E. M. Dearing. Judge. (1) The deeds from defendant to plaintiff represent the final agreement of the parties; their rights and liabilities are defined and limited by their terms; the entire transaction is merged in the deeds and no action cau be maintained on the option contract. Smyth v. Borohoff, 156 Mo. App. 18; Wilson v. Wilson, 115 Mo. App. 641; Matheny v. Stewart, 108 Mo. 73; Wheeler v. Ball, 26 Mo.

Jackson Circuit Court. — Hon. William 0. Thomas, Judge. (1) The court erred in giving instruction G-35. City of Kansas v. Hill, 80 Mb. 536; City of Kansas v. Baird, 98- Mo. 218; Hull v. City of St. Louis, 138 Mo. 618. (2) The award of the jury to this appellant is grossly inadequate, confiscatory and sweeps away a material part of his life’s earnings. Met. St. Ry. Co. v. Walsh, 197 Mo. 420; In re Fordham Road, 74 N. J. App. 343.

Mandamus. (1) Respondent’s return admitting, as it does, that relator was duly appointed stenographer for the Department of Land Reclamation, pursuant to law and by the officer authorized by law to make the appointment; admitting that this officer duly made out and approved vouchers for her salary for the time of her employment, to-wit, from April 1, to September 14, 1917, and that on said last named date said vouchers were duly presented to respondent for allowance;…

<p>Appeal from St. Louis City Circuit Court — Hon. Charles B. Davis, Judge.</p> <p>(1) The instructions of the court prescribed the rule for measuring the damages in this cause, by which the jury must be guided in arriving at its verdict. The award not being warranted by the rule therein laid down is such evidence of prejudice or mistake as renders it the duty of the court to set aside the verdict. R. S. 1909, sec. 2022; Baylies on New Trials, p. 505; Morris v. Railroad, 136 Mo. App. 393; Fischer v. St. Louis, 189 Mo. 579; Watson v. Harmon, 85 Mo. 443; Fury v. Merriman, 45 Mo. 500; Pritchard v. Hewitt, 91 Mo. 551; Edwards v. Railway, 82 Mo. App. 485. (2) It is conceded that defendant is released only to the extent to which it is injured by over-payments made to the contractor. Just what constitutes an “overpayment” is the controversy arising upon the instructions on the question of the measure of damages. The correct rule is that stated by the court’s instruction given at plaintiff’s request, namely, that plaintiff is entitled to recover any amount paid by it for this work in excess of the contract price, subject to credit to the defendant for any amount paid to the contractor in excess of ninety per cent of the value of the work and materials in place in the structure at the time of its abandonment by the contractor. Howard County v. Baker, 119 Mo. 397; Milavetz v. Oberg, 164 N. W. 910; Crudup v. Portland Cement Co., 156 Pac. 899; National Surety Co. v. Haley, 159 Pac. 292; Gorton v. Freeman, 152 Pac. 127; School District v. ‘U. S. F. & G. Co., 152 Pac. 668; Southwestern Surety Co. v. Lumber Co., 149 Pac. 1038; British Amer. Tob. Co. v. Surety Co., 164 N. T. Supp. 406; Hastings Land Imp. Co. v. Empire State Surety Co., 156 App. Div 258; Welsh v. Warren, 159 S. W. 106. (3) The burden of proving such injury as may have been sustained by it, by reason of the alleged over-payments, is on the defendant surety. Welsh v. Warren, 159 S. W. 106; Lackland v. Renshaw, 256 Mo. 133.</p> <p>(1) The instruction should have declared the law to be. that the defendant was entitled to a credit for any amount the owner paid to the contractor in excess of ninety per cent of the value of work and materials in place with reference to the contract price. In other words, that it was the duty of the architect to ascertain the value of work and materials in place in order to determine what proportion of the contract had been performed, and the owner was -entitled to pay the contractor only ninety per cent of the contract price with relation to the proportion of the contract completed and performed. Southern Real Estate & Financial Co. v. Bankers Surety Co., 184 S. W. 1030; Fidelity & Deposit Co. v. Agnew, 152 Fed. 959; O’Neill v. Title Guaranty & Trust Co., 191 Fed. 570; Hawkins v. Burrell, 69 App. Div. (N. Y.) 464, 74 N. Y. Supp. 1003; National Surety Co. v. Long, 79 Ark. 573; Neilson v. Title Guaranty & Surety Co., 159 Pac. 1151. (2) The effect of the instruction was to declare to the jury that plaintiff was entitled to recover damages, even though the total cost to plaintiff was less than the contract price. Plaintiff could not have suffered damages unless the abandonment of the work by the contractor caused the plaintiff to expend more than the contract price. The instruction either misdirected the jury, or was so directed as to necessarily confuse them in arriving at a correct solution of the issues. Knapp v. Hanley, 153 Mo. App. 169. (3) The court erred in refusing the instruction requested by defendant, for the reason that said instruction correctly declared the law as to plaintiff’s measure of damages. Southern Real Estate & Financial Co. v. Bankers Surety Co., 184 S. W. 1030; Fidelity & Deposit Co. v. Agnew, 152 Fed. 959; O’Neill v. Title Guaranty & Trust Co., 191 Fed. 570; Hawkins v. Burrell, 69 App. Div. (N. Y.) 464, 74 N. Y. Supp. 1003; National Surety Co. v. Long’, 79 Ark. 573; Neil-son v. Title Guaranty & Surety Co., 159 Pac. 1151. (4) The case bad been tried once and had been appealed to tbis court and tbis court rendered an opinion bolding that tbe owner was entitled to pay tbe contractor only ninety per cent of tbe value of work and materials in place witb reference to tbe entire contract price. Without reference to whether tbis doctrine should be permitted to stand as tbe law of tbe State, it is plainly the law of tbis case. Armour v. Frey, 253 Mo. 465'; Ward v. Harén, 183 Mo. App. 569; Bagnell Tie & Timber Co. v. M., K. & T., 250 Mo. 514; Scott v. Parkview Realty & Imp. Co., 255 Mo. 76; Butz v. Murch Bros. Contr. Co., 137 Mo. App. 222; Yancleve v. St. Louis, M. & S. E. R. Co., 137 Mo- App. 332; Roth Tool Co. v. Champ Spring Co., 146 Mo. App. 1; State ex rel. Shipman v. Allen, 144 Mo. App. 234. (5) Tbe judgment cannot be remanded witb direction to enter judgment for tbe full amount claimed by plaintiff. State v. Frederici, 269 Mo. 695; Johnson v. Grayson, 230 Mo. 394; Tierney v. United Railways Co., 185 Mo. App. 724; McDonald v. Mossman, 181 Mo. App. 476.</p>

<p>1. PROHIBITION: Purpose of Writ. The purview of the writ of prohibition is the prevention of the usurpation of judicial power.</p> <p>2. -: Proper Parties. The judges who have made or are about to make the ruling complained of are the only proper respondents to a writ of prohibition, and the joinder of the party in whose favor the ruling has been made in the trial court, as a respondent, is neither proper nor necessary.</p> <p>3. DEPOSITIONS: Production of Books and Papers: Dependent on Statute. The right to compel witnesses or parties whose depositions are being taken, to produce books and papers as a part of and incident to their examination, is purely statutory; and neither the statute .compelling the production of books and papers (Art. 12, ch. 21, R. S. 1909), nor that authorizing the taking of depositions (Art. 4, ch. 46, R. S. 1909), nor that authorizing the taking of depositions before a special commissioner in cities having over fifty thousand inhabitants (Sec. 6390, R. S. 1909), either by express terms or necessary implication, confers upon the court power to compel a witness or the adverse party to produce books or papers before such commissioner as a part of his deposition. [Following State ex rel. v. Taylor, 268 Mo. 312.]</p>

<p>Appeal from Jasper Circuit Court. — Hon. Joseph D. Perkins, Judge.</p>

<p>1. PARTITION: Interlocutory Decree: Motion for New Trial. If a motion for a new trial is timely filed after final decree in a partition proceeding is rendered, and it embraces alleged errors oecuring during the trial prior to the rendition of the interlocutory decree, such errors are reviewable on appeal. If an appeal is taken from the interlocutory decree, without awaiting the final decree, it is necessary that a motion for a new trial be then filed, in order that rulings leading up to it may be reviewed; but if an appeal is not then taken, but the aggrieved party waits until final decree is rendered, he may file one motion for a new trial embracing all rulings made before and after the interlocutory decree was rendered, and if such motion is overruled he may, upon his appeal, have all rulings made at any time during the trial reviewed in the appellate court.</p> <p>2. DEATH OF PARTY: Abatement: Suggestion of Death. At common law the death of a party to an action before judgment, whether served with process or not, permanently abated the suit, and could not be revived against his representatives or successors in interest; and this common-law rule has not been modified by the statutes except in the limited way mentioned in them (Secs. 1916, 1921, 1922 and 1923, R. S. 1909), and they provide for revivor only upon a suggestion of the death of the party within a designated time.</p> <p>3. -: Suggestion: By Whom Made. The statutes do not in express terms designate the person whose duty it is to suggest the death of a party to an action, but the Legislature evidently intended that any one interested in the suit could make the suggestion, for the reason that the death of either plaintiff or defendant abated the action at common law.</p> <p>. 4.--: Time for Making Suggestion: Collateral Attack. The statute does not prescribe the time when the death of a party to an action shall be suggested to the court, but its evident intention is that the suggestion must be made on or before the day the cause is set for trial, if his death is then known, but if unknown and the trial proceeds to judgment without such suggestion, a judgment against him if he died before verdict is void, and can be attacked collaterally.</p> <p>5. -: Judgment: Before and After Verdict. If either party die after verdict, judgment may be entered in the name of the original parties within one term after the verdict; but if a party die before verdict against him, no judgment can be rendered against him, but the verdict is void.</p> <p>6. -: -: After Service of Process. A judgment on special tax bills, rendered after service of process, whether by personal service or order of publication, against a defendant who died ' prior to the return day of the writ, was void, and the execution sale of the property thereunder and the sheriff’s deed were likewise void, and can be shown to be void, by collateral attack, in a subsequent suit in partition between the purchaser at the execution sale and the heirs or devisees of the decedent. [Following and approving Sargeant v. Rowsey, 89 Mo. 617, and overruling Coleman v. McAnulty, 16 Mo. 173, and all subsequent cases following it and announcing the same views, as contrary to and out of harmony with Secs. 1916, 1921, 1922, 1923, R. S. 1909.]</p> <p>7. TERM OF COURT: One Day: Fiction. The fiction of the English courts that .a term of court is within the contemplation of the law but a single day, has no place in the jurisprudence of Missouri.</p> <p>8. DEATH OF PARTY: Judgment: As to Heirs: Ho Suggestion of Death. A judgment, rendered against a defendant who died after service of process, but before the return day of the writ or appearance, and consequently before verdict, is void as to him; and if his death was not suggested to the court and the cause revived against his representative or successor in interest, it is likewise void as to his heirs or devisees.</p> <p>9. -: Judgment Before Verdict: Service Upon Devisee: Dower Alleged: Title Sold. In a suit upon special tax bills plaintiff alleged that three brothers owned the lots as tenants in common, and that the wife of one of them, who was joined as a defendant, claimed some interest in the lots. Both she and her husband were timely served with process, and, notwithstanding his death before verdict, judgment, without any suggestion of his death or attempted revival of the action, was rendered against all defendants, and the sheriff’s deed attempted to convey the entire interests of all to the purchaser. Held, first, that the legal conclusion to be drawn from the allegations is that the wife owned only an inchoate right of dower; second, that, the service of the petition, which sought to extinguish her inchoate dower, and the judgment against her, being void as to her husband, did not bind her interest in the lots acquired by his will, but was void as to her, also, both as to her dower and her devise.</p> <p>10. JUDGMENT: Effect Upon Interest Acquired After Suit Brought. A judgment does not bind the interest of a defendant acquired after suit is brought, but only the interest proceeded against under the petition as filed, unless, after the larger or different interest is acquired, the petition is amended and an alias writ is issued and served. Where in a suit on special tax bills it wás alleged that three brothers as cotenants owned the lots and they alone were joined as defendants, and after service of process upon them and the wife of one of them he died before the return day of the writ, leaving a will by which he devised his undivided one-third interest in the lots to his wife and son, a judgment against him and a sale under execution of his and his wife’s interest did not affect the interest of the wife or son acquired by the will, but the only way the interest of either acquired after the institution of the suit could have been bound was by a suggestion of the testator’s death, the filing of an amended petition stating their after-acquired interest, and the issuance and service of an alias writ upon them.</p> <p>11. PLEADING: Failure to State Cause of Action. The statute requires “a plain and concise statement of the facts constituting a cause of action,” and a petition in a suit to enforce special tax bills which simply states that a named defendant “claims some interest in each of the within described tracts” states a mere conclusion, and does not state a cause of action.</p> <p>12. -: -: Collateral Attack: Failure to Follow Express Statute. Held, by WOODSON, J., that a valid judgment cannot be rendered upon a petition which does not state facts sufficient to constitute a cause of action, since the court does not obtain jurisdiction of the subject-matter, and such judgment being a nullity it can be shown to be void in a collateral proceeding. Held, by BOND, C. J., with whom a majority of the judges concur, that a judgment of a court of general jurisdiction having the parties before it and having power to determine the class of causes for which relief is prayed is not void and is not open to collateral attack.</p> <p>Held, by FARIS, J., with whom WILLIAMS, J., concurs, that a petition in an action to enforce the lien of special tax bills which states nothing more than that a named defendant “claims some interest in each of the within described tracts of land,” but does not properly describe the land, does not state a cause of action, and. the judgment is a nullity, and can be successfully attacked in collateral proceeding; but when the defendants are in court by proper service and jurisdiction has attached by proper description of the lands against which the lien is sought, and by a compliance with all statutory requirements as to what allegations the petition in the class of cases shall contain, the judgment foreclosing the tax lien is immune from collateral attack. The court does not have jurisdiction in any case if the res is not in court, nor if the petition fails to follow express statutory requirements; but if these two conditions are met, and the party is brought into court by proper service, the judgment cannot "be successfully attacked in any subsequent collateral proceeding.</p> <p>13. ORDER OF PUBLICATION: Known Parties: Sec. 580, R. S. 1899. Section 580, Revised Statutes 1899, does not authorize an order of publication for defendants named in the petition and who are therefore known.</p> <p>14. -: -: Allegations in Petition and Order: Sec. 575, R. S. 1899. If the petition in a suit to enforce a lien against real estate names the defendants and states that they are non-residents and that ordinary process of law cannot be served on them on that account, Section 575, Revised Statutes 1899, makes mandatory the issuance of an order of publication. It is the order itself, and not the petition, that must state “briefly the object and general nature of the petition.”</p> <p>15. -: --: Jurisdiction of Person: Judgment for Different Interest in Re» Than Alleged. Even though an order of publication “briefly stating the object and general nature of the petition” is sufficient to bring named defendants into court, the judgment cannot dispose of their interest in the land acquired after its issuance, but a judgment which attempts to bind such after-acquired interest is void, because the court had no jurisdiction of the res or subject-matter.</p> <p>16. -: Jurisdiction of Person: Unknown Heirs. A petition which alleges that a certain person, “named in each of the within mentioned tax bills as one of the owners of the within described lots, is deceased, and that his interest has passed to his heirs, and that plaintiff after diligent search could not discover and is unable to insert the names of said heirs or what interest each may have,” and an order of publication directed to them as “unknown heirs” of said owner, describing the lots and the nature and purposes of the suit, is sufficient to- give jurisdiction over the persons of such unknown heirs and of the subject-matter, and a judgment which enforces a lien on only the interest they had acquired before the petition was filed is binding upon them and their said interest.</p>

<p>1. ATTRACTIVE NUISANCE: Extending Doctrine. The doctrine of “attractive nuisance,” or of tbe so-called “turntable cases,” has been accepted in this State as well-settled law. But it has gone far beyond tbe law and tbe facts of the old English case of Lynch v. Nurdin, 1 Q. B. 29, upon which it is bottomed, and rests solely, though firmly and beneficently, upon the humane sentiment of putting humanity above property; but it ignores legal landmarks and all other known and* settled grounds of legal liability, and so attenuated and fragile is the legal logic by which it is sustained that it should not be extended, in the absence of legislation.</p> <p>2. -:--: Railway Cars: Dangerous Machine. Railway cars standing on tracks are not classed as dangerous machines or as “attractive nuisances,” and the doctrine of the- “turntable” cases is not to be extended to them, the reason being (a) that the danger is obvious, like that from fire or water, and not latent; fb) the great difficulty of putting such cars in motion; (c) the impracticability of locking them, and (d) the futility of blocking them or setting their brakes.</p> <p>3. -; -: Small Flat Cars. A railway company was engaged in constructing an extension of its tracks upon its right-of-way at a point about 150 feet distant from a school, at which the plaintiff, nine years and eight months old, was a pupil. On the track the company left standing, for a period of from two to three months, two small eight-wheel flat cars from 16 to 20 feet long, unlocked, unblocked, unbraked and unfastened. The track had a grade of 3% inches per hundred feet, or nearly nine feet for the 3000 feet of open track, and it took; from eight to * twelve boys from 9 to 13 years old to move one of the cars. While the cars were not in use, children from the school, among them plaintiff, over the objections of the company, were in the habit of pushing the cars up and down the track, being trespassers, and while six or seven or more of them, whose ages ranged from ten to thirteen years, were engaged in pushing one of the cars, they ran it against plaintiff and caught and pinched his leg between the axle of the car and some piling lying along the track, tearing the calf of the leg and destroying its muscles. Held, that the car was not an “attractive nuisance” or such a dangerous machine as would justify a recovery by plaintiff under the doctrine of the “turntable” cases.</p>

<p>1. RECOGNIZANCE: Appearance on Any Day: Court of Criminal ■ Correction. Under the statutes the judge of the St. Louis Court of Criminal Correction, as any other examining magistrate, may at the conclusion of an examination in a felony case, condition the recognizance upon the appearance of the accused on not only a day certain, but. also on any future day to which the cause may be continued.</p> <p>2. -: -: Continuance: No Showing: Recital in Writ. Where the recognizance required the appearance of the- principal on May 22nd and on “any future day to which said cause may be continued,” the magistrate was -without authority to enter a judgment of default on June 2nd unless the cause was continued to that date, and in a proceeding by scire facias in the circuit court, for a judgment of forfeiture on the recognizance, it is necessary to show that the cause was continued to June 2nd. An allegation of the scire facias writ that the cause had been continued to June 2nd is not a sufficient showing.</p>

<p>1. INSTRUCTIONS: Refusal of Defendant’s. It is not error to refuse instructions asked by defendant containing no statement of the pertinent facts, if those given cover the principles of law applicable to such facts and embody a correct statement of same.</p> <p>2. OCCURRENCES AT TRIAL: Preserved for Review: Motion for New Trial. Matters occurring during a trial in order to be reviewed on appeal, must be incorporated in a bill of exceptions. It is not sufficient to set them out for the first time in a motion for a new trial.</p> <p>3. --: Attempt to Shoot Defendant: No Motion to Discharge Jury: Not Incorporated in Bill of Exceptions. Immediately after the close of the argument for the defendant, charged with murder in the first degree, the wife of the deceased arose from her seat and drawing a pistol shot at and wounded the defendant. The court ordered a recess and directed the jury to be taken to their room, and when the excitement subsided the trial proceeded, resulting in a verdict of guilty of murder in tile second degree. No objection to the course thus pursued was then made, nor was a motion filed to'discharge the jury and order a new trial, but defendant participated in the trial to its close. This occurrence is preserved for review only in the motion for a new trial. Held, the act belongs to that class of occurrences designated as the "conduct of spectators,” and it is not excepted from the rule that all matters occurring during the progress of a trial, to be entitled to a review on appeal, must be preserved in a bill of exceptions.</p>

<p>1. ELISOR: Summoning Regular Panel. Where the record shows that the elisor, appointed at the previous term because, of the prejudice of the sheriff, made a return of his venire, giving the names of forty qualified jurors, who were impaneled and sworn in the murder case, and nothing to show that the court gave any direction to the elisor as to whom he should summon or that any member of the regular panel was on the list, an objection that the court directed the elisor to call some of the regular panel as jurors in the case is without merit.</p> <p>2. INSTRUCTION: Feeling for or Relation to Defendant. A cautionary instruction on the credibility of witnesses, telling the jury that in determining the weight to be given the testimony of any witness they may “take into consideration his or her interest, if any, in result from the trial, and his or her feeling for or relation to defendant,” includes a relation of antagonism as well as of friendship, and applies to all witnesses who testified, for or against defendant, and is not likely to be misunderstood by the jury.</p> <p>3. -: Inference Upon inference: Circumstantial Evidnee: Facts to be Proven. An instruction which tells the jury that “if certain facts and circumstances” are proven by the State from which you “may infer other and connected facts” which usually and reasonably follow according to the common experience of mankind, and if such “facts and circumstances are consistent with each other,” etc., and if such “facts and circumstances have been proven” so as to satisfy your minds and consciences beyond a reasonable doubt, etc., does not permit the jury to infer certain facts from facts proven, and from these inferences deduct a further inference of guilt, but requires the “facts and circumstances” which must be consistent with defendant’s guilt to be proven; and if the awkwardly expressed wording was calculated to mislead the jury, that danger was removed by two instructions for defendant which clearly defined circumstantial evidence and the conclusions that may be drawn from it, and therefore the instruction cannot be held to have misled the jury.</p> <p>4. -: Deliberatly: Must Be Defined. It is unnecessary to prove deliberation when homicide has been committed in the perpetration of, or in an attempt to perpetrate, robbery or other felony. But though there is some evidence to show that the homicide was committed in the perpetration of another felony, yet if no instruction is given requiring the jury to find that such other felony was perpetrated or attempted, it is necessary to define deliberately in a case of first-degree murder.</p> <p>5. --: -: Must Be Proven and Defined. Deliberation is an essential element of murder in the first degree, and to sustain a verdict every constituent element of the crime must be proven, and in order that the jury may be able to find the element of deliberation they must be instructed how to find it, that is, it must be defined. The only exception to this rule is made by the statute (Sec. 4448, B. S. 1909) which makes the commission or the attempt to commit a felony the legal equivalent of deliberation and proof of deliberation in the murder trial unnecessary; but if there was no instruction requiring the jury to find that the homicide was committed in the perpetration or attempted perpetration of another felony, and it cannot therefore be said that they found that such felony was perpetrated or attempted, it,was reversible error in the murder trial to fail to define deliberately.</p> <p>6. -: -: -: Excuse: No Showing of Want of Deliberation. A failure to define deliberately cannot be excused on the theory that all the evidence tends to show the homicide was done deliberately and none tends to show a want of deliberation. [Distinguishing State v. Ferguson, 162 Mo. 668 and 152 Mo. 196; State v. Jackson, 167 Mo. 291, and State v. Tettaton, 159 Mo. 377, and pointing out that if those eases announce a contrary doctrine they conflict with State v. Hill, 69 Mo. 451; State y. Mitchell, 64 Mo. 191; State v. Dearing, 65 Mo. 530; State v. Daly, 210 Mo. 1. c. 679; and State y. Sims, 71 Mo. 538.]</p>

<p>1. GRAND JURY: Compelled Perjury. The law governing inquisitions does not contemplate that an accused person, whose alleged crime is at the time the subject of inquiry, may be compelled to come before the grand jury, and there, in secret and on oath, without counsel or friends, be required either to confess his guilt or commit perjury. The least that can be said of such a proceeding, by which defendant was induced to perjure himself, is that the State, in thus compelling either a sworn confession of guilt or perjury.* is morally an aider and abettor of the perjury.</p> <p>2. PERJURY: Compelled by Grand Jury: Confession Inadmissible. Statements made by an accused person whose alleged crime is at the time the subject of inquiry by the grand jury, unless he was advised at the time that it was his privilege not to testify unless he wished to do so, or unless they are shown by evidence aliunde to have been voluntary, are not admissible against him in a subsequent trial for perjury committed in his answers to such . inquiry; and if timely objection is made to such statements, members of the grand jury cannot in the perjury trial testify to them.</p> <p>3.--: Instruction: What Defendant Said Against Himself Presumptively True. An instruction in a perjury case, which tells the jury that “what defendant said against himself, if anything, the law presumes to be true, because said against himself,” is reversible error. It is also in direct conflict with the usual instruction in a trial for perjury, that before a conviction can be had there must be two witnesses, or one witness corroborated by circumstances, to prove the. falsity of defendant’s. oath. It has itniformily been held error in prosecutions for perjury.</p>

<p>1. VOLUNTARY ASSOCIATION: Power to Sue. An unincorporated voluntary association, such as a labor union, can maintain a suit in its own name. In view of the language of Sections 2963, 2990 and 7109, Revised Statutes 1909, such an association has the status of a corporation, and the Act of 1915, Laws 1915, page 225, provides the method of service of process upon it.</p> <p>2. —-: -: In Name of Another. But the suit of a voluntary association should be prosecuted in the name of the real party in interest. If a local trades-union has authority to sue and be sued in its own name, its suit should not be prosecuted “at the relation and to the use” of an incorporated parent organization.</p> <p>3. POWER TO SUE: Plaintiffs For Themselves and. Others. In an action at law plaintiffs cannot bring suit for all others similarly situated, as in a suit in equity. They cannot bring suit in their own names merely because the members of the trades-union in whose behalf they sue are too numerous to be joined as plaintiffs.</p> <p>4. -:: Authorization by Labor Union: Trustees of Express Trust: No Contract. Plaintiffs’ right to bring suit “in a representative capacity, for the use and benefit of said voluntary trades-union, under power and authority vested in them by said union” is available to them only in case they bring themselves within the terms of the statute as “trustees of' an express trust,” which are technical words, and include only those “in whose name a contract is made.” They cannot in such representative capacity maintain a suit for libel or other tort against the union or its members.</p> <p>5. -: Plaintiffs as Agents. Plaintiffs cannot maintain an action for libel as a friendly act to or as the authorized agent of other members of a local trades-union, because the suit would not be in the name of the real party in interest.</p> <p>6. -: -1 — : Tort: Assignment. It is possible that an assignment, for a valuable consideration, of a cause of action, though sounding, in tort, by the real parties in interest, would authorize the assignees to sue.</p> <p>7. -: Express Trust: In Personal Property. The express trust which would authorize the trustee to sue must he a formal one. A trust in personal property may be created and proved by parol, but a parol trust must be clear and definite in its terms, and must embrace a definite subject, a definite object and a definite purpose.</p> <p>8. -: -: Cause of Action: Interest in Trade Mark. An allegation that the members of a trades-union have an interest in a trade-mark, which is not connected with plaintiffs’ right to sue in behalf of said members, is not an allegation of their authority to sue, nor an allegation that title to any property is vested in the plaintiffs as trustees.</p> <p>9. -: Trade Union: Libel. The individual members of a trades-union, or the union itself, cannot authorize a few of its members to sue for damages caused by libel of its members or libel of the union.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge.</p> <p>(1) In the case of variance between the note produced and the note described in the deed of trust it is competent to show by parol evidence that the note produced is the one intended to be secured. Moore v. Russell, 133 Cal. 297; Yolmer v. Stagemann, 25 Minn. 234; Williams v. Hilton, 35 Me. 547; Johns v. Church, 12 Pick. 557; McFadden v. State, 82 Ind. 558; Lee v. Fletcher, 46 Minn. 49; Thompson v. Cobb, 95 Tex. 140; St. Lawrence v. Farmer, 66 N. Y. Supp. 584; Baxter v. McIntyre, 13 Gray, 168; Tousley v. Tousley, 5 Ohio St. 78. (2) A wife who mortgages her property for a debt of her husband is a principal debtor and not a surety; therefore an extension of the note, even if made by a valid contract and for valuable consideration, will not release her property from liability under the mortgage. Phil. Savings Fund v. Lasher, 144 111. App. 653; Alexander v. Bouton, 55 Cal. 15. (3) Even if plaintiff, Kate Finnerty, was in reality only a surety as between herself and her husband, yet, as to defendant she was a principal by reason of her recitals in the mortgage signed by her, that she and Thomas Finnerty were “justly indebted to the party of the third part for borrowed money in the sum of six thousand dollars.” And she is now estopped to deny that she was a principal or to claim that the debt was for the sole benefit of her husband. McMillan v. Parkell, 64 Mo. 286; California National Bank v. Ginty, 108 Cal. 148; Picot v. Signiago, 22 Mo. 587; Brown v. Ligón, 92 Fed. 851; Sprigg v. Bank, 10 Peters', 257; Menaugh v. Chandler, 89 Ind. 94; Long v. Crosson, 119 Ind. 3; Reed v. Cramb, ^111. App. 40.</p> <p>(1) A mortgage of a wife’s land which is void as to the wife, is void also as to the husband. Wannall v. Kem, 51 Mo. 150. (2) “A mortgage cannot spring up without an existing debt, enforceable at law, to which the mortgage becomes a security. Under this rule the debt must first be sought out as substance, the tree trunk; the mortgage becomes an incident to that sub- . stance, the shadow to that trunk! There must, then, be found a mortgage in contemplation of law. So that, to the maxim, once a mortgage, always a mortgage, there must be added another, viz., no debt, no mortgage.” Donovan v. Boeck, 217 Mo. 87. Citing: Conway’s Executors v. Alexander, 7 Cranch, 218; Desloge v. Ranger, 7 Mo. 327; Slowey v. McMurrav, 27 Mo. 113; Turner v. Kerr, 44 Mo. 429; Bobb v. Wolff, 148 Mo. 335; Dunaway v. Day, 163 Mo. 415; Bailey v. St. Louis Union Trust Co., 188 Mo. 486; Powell v. Crow, 204 Mo. 481. There can be no deed of trust if there is no debt. The evidence in this case establishes the fact that there was no debt such as is described in the deed of trust, or any other kind, and that therefore there can be no valid deed of trust. (3) The debt intended to be secured by the deed of trust must be described in the deed of trust i or the party to thq deed of trust must be able, by parol .evidence, to prove a debt which the parties at the time intended to secure by the deed of trust, and no such debt as the indebtedness evidenced by Thomas Finnerty’s individual note for $6000, dated April 1, 1908, is described in the deed of trust, and there was no proof at the trial of the case that the deed of trust was intended to secure any indebtedness of Thomas Finnerty; and there being in fact no debt, the deed of trust itself became void.</p>

<p>1. INDICTMENT: Charged As Principal and Accessories. Under the statute (Sec. 4898, R. S. 1909) an accessory before the fact “may be charged, tried and convicted and punished, as the principal in the first degree,” and therefore the necessity for formally, charging defendants both as principals and as accessories before the fact does not appear.</p> <p>2. FORMER ACQUITTAL: Three Counts: Conviction and Reversal Under First: Verdict Silent Under Others. Bach of three counts of the indictment charged the commission of the same crime. The first count charged both defendants of murder as principals, and the second and third charged each respectively as principal and as accessory before the fact. Upon the first trial both were found guilty of murder in the second degree under the first count, but the verdict was silent concerning their guilt under the second and third. They appealed and the judgment was reversed and the cause remanded. Held, that where a defendant is tried upon an indictment in three counts, each charging the same crime, and the jury returns a verdict of guilty under'the first count but is silent as to the other two, there is no such implied acquittal, after the judgment is reversed and the cause remanded, as entitled defendant to be discharged. Silence of the first verdict as to the second and third count did not amount to an acquittal under those counts [Distinguishing State v. Headrick, 179 Mo. 300.]</p> <p>3. SUFFICIENT EVIDENCE: Conflict: Demurrer. If the evidence is sufficient to submit the question of a defendant’s participation in the homicide to the jury, a demurrer thereto should not be sustained, however strong and sharp the conflicting evidence may be.</p> <p>4. CROSS-EXAMINATION OF DEFENDANT: Preservation for Review. Unless the motion for a new trial complains that the court erred in permitting the State to cross-examine defendants on matters upon which they were not examined in chief, the assignment will not be reviewed upon appeal.</p> <p>5. EVIDENCE: Uncommunicated Statements. It was not error to refuse an offer to prove that about thirty days prior to the homicide deceased had said to a third party that he had been having sexual intercourse with defendant’s sister, where the statement contained no threats and it does not appear that it was ever communicated to defendants.</p> <p>6. INSTRUCTION: Manslaughter: Provocation: Words: Threatening Acts. Mere words or threatening actions are not sufficient provocation for the heat of passion which reduces murder to manslaughter. Therefore where there are no facts to remove the case from the , operation of this rule, an instruction for manslaughter in the third degree which does not require the jury to find the heat of passion necessary to reduce the crime from murder to manslaughter is not erroneous.</p> <p>7. -: Inclusion of Elements of Manslaughter in Third and Fourth Degrees. Defendants cannot complain that an instruction is sufficiently broad to include within its terms elements of manslaughter in the third degree as well as elements of manslaughter in the fourth degree, if it confines any conviction thereunder to the smaller offense.</p> <p>8. VERDICT: Several Counts: General Verdict. Where the several counts in the indictment charge the same crime of murder in the second degree a general verdict finding defendant guilty of murder in the second degree, without specifying the count, is sufficient.</p> <p>9. -: Definite and Responsive to Charges. A verdict to be valid • must be definite and certain and also responsive to the charges. Therefore a verdict finding “Steve Reeves'guilty of murder in the second degree” and fixing his punishment at ten years’ imprison-, ment and “the defendant Odie Reeves guilty of being an accessory to the crime” and fixing his punishment at three years’ imprisonment, is insufficient as to Odie Reeves, because it'does not express an intention to find him guilty of murder in the second degree or of being an accessory before the fact, and 'did not authorize, the court, on the assumption that the jury had found him guilty of murder in the second degree, to change the punishment to ten years’ imprisonment, the minimum penalty, and is too uncertain to support any judgment.</p>

<p>1. INFORMATION: Statutory Crime: Necessary Allegations. If defendant’s offense is a statutory crime, the rule is that the indictment or information must substantially follow the wording of the statute defining it.</p> <p>2. -: Burglary in Second Degree: No Charge That Goods Were Kept and Deposited in Building. In view of the language of Section 4520, Revised Statutes 1909, unless at the time of the alleged burglary there was either a human being in the building, or goods, wares, merchandise or other valuable things were kept and deposited therein, the building was not one that could be burglarized; and an information which fails to charge that goods, etc., were “kept and deposited” in it and that the breaking and entry were with the intent to steal the goods, or that there was a human being in the building at the time, is insufficient and bad, and will not support a verdict of guilty.</p> <p>3. -: Burglary and Larceny: Charged in Same Count. It is permissible to charge both burglary and larceny in a single count of the one information; but the two charges must be kept separate, and not jumbled together and intermingled, but each must be -a complete and sufficient charge within itself.</p>

<p>1'. LARCENY: Presumption from Possession of Stolen Property: Exclusive. In the application of the rule that the presumption of guilt of burglary and larceny can arise from possession of stolen property only when the possession is exclusive, the possession is to be determined by the kind and character of the property. In order to raise the presumption it is not always necessary to show actual manual possession. In this case the evidence of possession of the money stolen from a burglarized bank in Missouri was sufficient to raise the presumption of the guilt of two men who the next day drove into a city in Illinois in an automobile, from which was taken a traveling bag containing the money.</p> <p>2. ALIBI: Instruction: Burden. An instruction telling the jury that if they have a reasonable doubt of the presence of defendant at the time and place where the crime was committed they should acquit him, is sufficient for the purpose of placing the burden upon the State of proving his guilt beyond a reasonable doubt and gives him the full benefit of the defense of alibi.</p> <p>3. EVIDENCE: Tracks of Automobile. Where defendants were caught carrying in an automobile money stolen from a bank burglarized in the night time, evidence showing the tracks of an automobile in a wheat field three-fourths of a mile from the bank was admissible.</p> <p>4. -: Bank Burglary: Proof of Previous Theft of Automobile: Preparation. It is always competent to prove preparation of means bf which a contemplated crime may be committed and escape made, even though such evidence tends to prove the commission of another and independent crime. In the trial of defendants for burglary with explosives and larceny, it is competent to prove that four days before the bank was burglarized the automobile, in which the money was carried away and which was found in possession of defendants, was stolen in a distant town, since the two crimes were so related that proof of the one tended to prove the commission of the other.</p> <p>5. PROSECUTING ATTORNEY: Argument to Jury: Comment Upon Defendants. When a defendant takes the stand as a witness in his own behalf, the prosecuting attorney in his argument to the jury may make any legitimate comment on his testimony, and may call attention to his failure to explain certain facts which would tend to aid his defense.</p> <p>6. -: -: -: Failure to Explain. A reference by the prosecuting attorney in his argument to the jury to the failure of both defendants when arrested to satisfactorily explain their possession of the stolen property, cannot be regarded as a reference to the failure of one of them to testify.</p> <p>7. -: -: -: Statements at Time of Arrest. Statements of a defendant when arrested on the charge of committing a crime are admissible against him, and are therefore proper subjects of comment and argument by the prosecutor.</p> <p>8. --: -:-: Alibi: Failure to Produce Testimony. Where the appellant in support of his defense of alibi has testified that on the day following the burglary of a bank in Missouri he and the other defendant went from his home in Peoria, Illinois, to Farmington, another town twenty-five miles distant, to buy an automobile from a named person, it is not improper for the prosecutor, in his argument to the jury, to call attention to appellant’s failure to produce evidence in support of said alibi. Said comment is also competent aga'nst the other defendant and can not be regarded as a reference to his failure to testify.</p> <p>9. -:--: -: Desperate Character of Defendants. Remarks by the prosecuting attorney, speaking of defendants as desperate characters who came into the county to commit crime, saying it was a serious menace to society to permit such men to run at large and appealing to the jury to assess the maximum punishment, detached from their context, are held not to be improper comment on the evidence presented.</p> <p>10. SUBMISSION OF CASE TO JURY. Under the cwcumstances of this case it is held that the jury could not have understood that the case was being submitted to them without instructions from the court, at the noon hour, after the argument was closed, or that they were at liberty to deliberate together upon their verdict until further instructed.</p>

— Hon. Ernest 8. Gantt, Judge. (1) The giving of an instruction which employs the term of “heat of passion” and fails to define the same, is error, and works a reversal of the judgment. State v. Skaggs, 159 Mo. 581; State v. Carion, 266 Mo. 90. (2) The State’s fifth instruction is clearly erroneous and highly prejudicial. There was no occasion ,, for giving it.

r — IAm. Hopkins B. Sham, Judge. (1) There was nothing in the evidence that would have justified a conviction of murder in the first degree. ° It was therefore error to submit to the jury the question of murder in the first degree, although the appellant was convicted of murder in the second degree. State v. Minor, 193 Mo. 609.

<p>1 1. INDICTMENT: Arson. Where a crime is defined by statute, an indictment which substantially follows its language is sufficient, provided the statutory language sets forth all the constituent elements of the offense; and the statute concerning the burning of goods for the purpose of defrauding insurance companies does that.</p> <p>2. -: -: Manner of Intended Fraud. An indictment charging arson is not defective because it does not specify in what manner defendants intended to defraud the insurance companies named. That could be done only by setting forth the evidence, which is never necessary in framing an indictment.</p> <p>3. -: -: Name of Owner: Facts Constituting Fraud. An indictment charging the burning of insured goods for the purpose of defrauding insurance companies, need not state who was the owner of the insurance, or the facts constituting Un intended fraud.</p> <p>4. -: -: Ownership of Building. The indictment is not defective because it does not allege that defendants were stockholders in the corporation which owned the property burned, or otherwise interested in it or its affairs. It is immaterial in whom was the ownership of the building. '</p> <p>5. -; -: Ownership of Policies: Assignment. An allegation that a certain company was the owner of the property burned and that said property was insured in its favor by several named companies at the time of the fire is a sufficient allegation that the company was the legal holder of the policies. It is immaterial how it received them; it is immaterial whether they were transferred to it directly by the corporation of which it was the immediate successor, or through an intermediary; and the indictment was not defective because it did not state by whom the policies, issued to another corporation, were transferred to the ■ one in which defendant was the principal stockholder.</p> <p>6. -: -: Knowledge That Property Was Insured: Included in Intent. An indictment charging defendant with burning a stock of goods with intent to defraud named insurance companies, containing every element of the crime as defined by the statute, is not defective for that it does not in express words charge that defendants knew the insurance existed. It charges intent, and intent could not exist without knowledge.</p> <p>7. CONSPIRACY: Establishment: Sufficient to Admit Evidence of Statements Against Each Other. A conspiracy may be established by circumstantial evidence, and it is largely within the discretion of the trial court to determine when it is sufficiently established to permit evidence of statements made by one of the alleged conspirators against the others. Anything said or done by one of the conspirators with respect to the purpose of the conspiracy during its existence is admissible against all of them, whether said in the presence of each other or not.</p> <p>8. ARSON: Evidence of Other Crimes: Intent. Where the evidence tending to prove the arson charged is circumstantial, proof that other fires were caused by the same parties is competent as showing intent, whether committed before or after the one charged.</p> <p>9. -: -: Participated in by Only Some Defendants: Competent Against All. If evidence is admissible as against one of the defendants it will not be excluded on the ground that it is incompetent against others. Evidence of other crimes is not admissible unless some of tbe defendants are shown to have had some connection with it. But where the owners of goods and insurance agents are jointly indicted and tried, as co-conspirators in the burning of a stock of goods for the purpose of defrauding insurance companies, evidence that said agents were persistent firebugs and attempted to make arrangements with two other companies to have their goods over-insured and then burned, is competent against such insurance agents, and being competent against them it cannot be excluded on the ground that it is inadmissible against the other defendants who had no connection with the said other schemes. However, in such case the court should instruct as to the proper application, purpose and effect of such evidence.</p> <p>10. EVIDENCE: Arson: Knowldge 'of Insurance. A defendant’s knowledge that the property burned was insured can be shown by circumstances. Direct evidence is not essential.</p> <p>11. -: -: Instruments Used in Other Crimes. An exhibit to the jury of specimens of gasoline and explosives taken by employees of one of the defendants to another fire he had arranged is proper, since it is permissible to show his attempt to cause a fire at such other place.</p> <p>12. -: -: Price Paid Por Goods Burned. Evidence of what defendant paid for the stock of goods which were burned is competent, especially where it is also shown that a fire was in contemplation at the time he bought them, since the evidence shows his estimate of their value as compared with the amount> of insurance.</p> <p>13. -: -: Policies. It is proper for the State in an arson % case, in which defendant is charged with an attempt to defraud insurance companies, to introduce the policies in evidence.</p> <p>14. -: -: No Objection. It will not be ruled that it was erroneous in an arson case to admit parol evidence to prove the contents of prior insurance, policies, if no objection was made to the testimony, or it was brought out by appellant’s counsel.</p> <p>15. -: -: Irrelevant Matter. What caused the disagreement between defendant and an associate in business and their separation when defendant bought his interest in the company which owned the goods afterwards burned, is wholly irrelevant in the arson case.</p> <p>16. INSTRUCTION: Arson: Conspiracy: Continuance After Crime. Where the crime charged was the burning of a stock of goods for the purpose of defrauding the insurers, and the conspiracy was established, an instruction defining a conspiracy and telling the jury that if they believed from the evidence that the burning was caused for the purpose of fraudulently obtaining money for which the property was insured “the conspiracy would exist until the money was obtained,” was proper, although there was no evidence that defendants had attempted to collect the insurance money.</p> <p>17. -; Comment on Evidence. An instruction restricting the application of a certain character of evidence to the purposes for which it is competent, is not an improper comment on the evidence.</p> <p>18. COUNSEL: Withdrawal from Case. Any conduct on the part of a client during the progress of litigation which would tend to degrade or humiliate the attorney, such as an attempt to sustain his ease by unlawful means, is sufficient cause for withdrawal from the case. Ordinarily the attorney, even when it becomes his duty to withdraw, must give his client proper notice before his withdrawal, so that the client may employ other counsel; but if' the cause comes suddenly during the progress of the trial, the court may permit him to withdraw immediately, and prevent injury to the client by continuing the case for a sufficient length of time to enable him to procure other counsel.</p> <p>19. JUEY: Attempt to Bribe: Withdrawal of Counsel: Discharge: Cautionary Instruction. After the trial of defendants for arson had progressed several days, a juror informed the judge that on the previous night an attempt had been made to bribe him. Thereupon he was sworn, and stated, in the presence of the other jurors and counsel for both sides, and without objection, .that on the previous evening a brother-in-law of one of the defendants approached him and requested that he do the best he could for said defendant, offering him fifty dollars, which he said was not a bribe but to pay him for the time he was spending on the case. The juror at first repulsed the man, but finally took the money and exhibited it to the court. Thereupon the attorney for the State askeA the juror and each of the others if the facts so revealed would influence them in their verdict, and they each and all answered that they would not, and that they had acquired no prejudice by reason of the revelations. Counsel for defendant then, in the presence of the jury, stated, they-would withdraw from the case, and counsel for the State protested against their withdrawal, but counsel for defendants said they had so far tried the case in a belief in defendants’ innocence, but in view of the developments they could not in sincerity present an argument to the jury for them, and would not be connected with a case in which corruption was employed. The court permitted them to withdraw, and continued the case until a later date in order to permit defendants to procure other counsel, and on that day other counsel appeared for them and filed a motion for a further continuance, which was granted, and then they filled a motion for a discharge of the jury, which was overruled. The court instructed the jury that each and all of the-defendants were innocent of any attempt to bribe one of their number, that they were not responsible for nor to blame for the withdrawal of their former counsel, and that in their deliberations they should not permit the occurrence in any way to in- - fluence them. The verdict was guilty of arson in the third degree. Held, first, that the court did not err in permitting counsel to withdraw from the case; second, whether or not the court erred in permitting the juror to relate the facts of the attempted bribery in the presence of the jury will not be ruled, because no objection thereto was made; and, third, the court did not unwisely or improperly exercise its discretion in refusing to discharge the jury on defendants’ motion made after other counsel were employed.</p>

— Hon. Edward E. Porterfield, Judge. (1) The information is fatally defective, for the reason that there is no allegation that the American National Bank was a hank incorporated under the laws of any State, territory, government or country, or that it was such incorporated hank at the time of the alleged offense. State v. Washington, 259 Mo. 335.

— Hon. J. G. Slate, Judge. (1) If the levy made hy the county court was not properly divided or apportioned, the only remedy was by mandamus, or through a proceeding by the road district affected. (2) The county court had the right to make a levy, not exceeding forty cents on the $100 assessed valuation, for county purposes. See. 11, Art. 10, Constitution; Secs. 11420,11421 and 11422, R. S. 1909.

— Eon. Edgar B. Woolfolk, Judge. (1) The demurrer filed by defendant should have been overruled. Harmon v. County of St. Louis, 62 Mo. 313. (2) The defendant was not engaged in the discharge of duties imposed alike by general law on all counties in the State, hut it was engaged in the discharge of a self imposed duty, not enjoined by any law. The defendant could not have been compelled, by law, to take the road and operate and maintain it as a toll road.

— Son. Gúy D. Kirby, Judge. (1) Courts while solicitous to maintain the paper writing as the will of an alleged testator against the complainants of disappointed expectations, should be equally solicitous to prevent imposition either through testamentary incapacity or by means of undue influence. In many eases, we respectfully submit courts have placed too much emphasis on the abstract right of one to dispose of his own, and made cases turn on such right.

— Hon. Edgar B. Woolfoik, Judge. (1) The elements entitling a woman to dower in Missouri are (1) a lawful marriage, (2) seizin of the husband, or of some other person to his use, during the marriage, of an estate of inheritance in the land, and (3) death of the husband prior to the death of the wife. Murray v. Scully, 259 Mo. 57; 3 Words and Phrases, 2188. (2) When a divorce is granted for the fault of the husband the wife’s dower is not barred. Scales v. Scales, 65 Mo.

— Hon. C. A. Galvird, Judge. (1) Plaintiff’s petition alleges that in the space between defendant’s main-line track and passing track there was a piece of rock ballast covered up and hidden from view by fine chat ballast.

Mandamus. (1) It is the duty of the Governor to appoint a State Game and Fish Commissioner who shall hold his office for a term of four years, receive a salary of twenty-five hundred dollars per annum, payable monthly out of the Game Protection Fund. R. S. 1909, sec. 6557. (2) “The Game and Fish Commissioner may provide and maintain a suitable office and may maintain a clerk when necessary.

— Ron. J. G. Slate-, Judge. (1) Rate making is the province of the State in the exercise of its police power. The express language of the Constitution, is that this power “shall never be abridged.” Art. 12, sec. 5. Even if not expressly reserved, this power, so essential to the public welfare,, would be construed as impliedly reserved. It is the governing power for the welfare of the State.

<p>Prohibition.</p> <p>(1) If there was any basis, in the record made in the county court, for the exercise of any “superintending control” on the part of the circuit court, such superintending control could have been exercised by the writs of mandamus or certiorari. St. Louis Co. Court v. Sparks, 10 Mo. 123; Bennett v. McCaffery, 28 Mo. App. 221. And, as no appeal could lie under the statutes and the decisions of this court, such superintending control could be exercised only by one or the other of such writs. Sheridan v. Fleming, 93 Mo. 325; State ex rel. v. St. Louis Co. Court, 47 Mo. App. 647; Barnett v. Pemiscot County Court, 111 Mo. App. 700. (2) The county court had full authority under the statutes to arrange contracts between different drainage districts for such an outlet as one might need and the other could furnish “on such terms as the county court may decide to be just and fair.” E. S. 1909, secs. 5613, 5614 and 5628. (3) The appellate jurisdiction, in any case, is purely of statutory origin. Expressio unius exclusio alterius est. The drainage statute itself states the cases wherein appeals will lie from the county court to the circuit court. All other cases are excluded; and, therefore, no appeal lies in such other cases. (4) In the absence of constitutional inhibition, it is within the power of the Legislature to prescribe the cases , in which and the courts to which parties shall be entitled to bring a ease for review, and to impose such conditions and restrictions as it may see fit. 3 Corpus Juris, 297; John v. Paullin, 231 U. S. 583, 58 L.' Ed. 381; Schuepbach v. Laclede Gas Light Co., 232 Mo. 611; Reetz v. Michigan, 188 U. S. 508, 47 L. Ed. 566; State v. Thayer, 158 Mo. 62; State v. Mericle, 245 Mo. 549; State v. Virron, 164 Mo. App. 212; State v. Short, 250 Mo. 333; State v. Brown, 153 Mo. 578; State ex rel. v. Woodson, 128 Mo. 514; Drainage District v. Railroad, 216 Mo. 715; Buschling v. Acldey, 270 Mo. 173; State v. Pieski, 248 Mo. 715. (5) The proceeding by appeal was entirely unknown to the common law. It is of civil law origin, and was introduced therefrom into courts of equity and admiralty. 3 Corpus Juris. 316; Wingfield v. Neall, 10 L. R. A. (N. S.) 449; State v. Thayer, 158 Mo. 62. (6) The remedy by appeal in actions of law is purely of statutory origin and exists only when given by some statutory provisions. 3 Corpus juris, 316; Bussiere v. Sayrnan, 257 Mo. 308; Barnes v. Missouri Valley Constr. Co., 257 Mo. 175; Star Bottling Co. v. Exposition Co., 240 Mo. 641; Western T. & T. Co. v. Dr. Disk, 226 Mo. 420; Owens v. Matthews, 226 Mo. 78; State v. Broaddus, 216 Mo. 342; Millar v. Transit Co., 216 Mo. 103; . Thomas v. Elliott, 215 Mo. 598; State v. Woodson, 128 Mo. 407; Sheridan v. Fleming, 95 Mo. 321; State ex rel. v. McElhinney, 241 Mo. 608; Ackerman v. Green, 201 Mo. 243. (7) Drainage laws are purely statutory proceedings both as to tribunal and the character of the proceeding’s; were unknown to the common law, and are special and constitutional; and the provisions of the code of civil procedure are not applicable thereto. Buschling v. Ackley, 270 Mo. 173; State ex rel. Hancock v. Spencer, 166 Mo. 285; State ex rel. Wells v. Hough, 193 Mo. 615; Leavenworth Ter. Ey. v. Atchison, 137 Mo. 218; Eothan v. Eailway, 116 Mo. 143; Nishnabotna Dr. Dist. v. Campbell, 154 .Mo. 151; Anderson v. Pemberton, 89 Mo; 64; Eailroad v. Townsite Co., 103 Mo. 457.</p> <p>(1) The right of appeal from the county court to the circuit court existed in this matter, and it was the proper and only method by which the action of the county court could be supervised, superintended or reviewed, (a) No other method, save an appeal would do more than bring up the record proper, which record proper had been “fixed” so as to make it invulnerable, as it was thought, to attack, (b) The inhibitions on the right of appeal, set out in Section 5592, E. S. 1909, relied upon by plaintiffs, apply to and only to a proceeding to organize a drainage district, and not to a proceeding to enlarge, clean out, remove obstructions therefrom or do new work, as contemplated by Section 5613, E, S. 1909, and See. 5614, Laws 1913, p. 279, the latter being in the very nature of things intended to become operative only after a long lapse of time and under changed conditions, (c) Even if the inhibitions in Section 5592 did -apply to such a proceeding as this, they do not apply to this particular proceeding, which was begun under the Act of 1913. State ex rel. v. Taylor, 224 Mo. 490; State ex rel. v. Bugg, 224 Mo. 537. (d) The judgment of the court extended the life of the district beyond the period for which it was originally incorporated, undertook to give a money judgment in favor of one district and against another, destroyed the plan of reclamation originally adopted by it, created a lien upon the lands of the district, without regard to whether or not any one tract would be benefited or damaged; it plunged each district into entangling alliances with all the others, virtually consolidating the five systems into one district, and gave to Elk Chute Drainage District (a district over which the county court did not have and never can have control) the power to control the other four districts and forever deprived the other four districts of the right of self determination. It expended money for lands in Elk Chute Drainage District, at values fixed by that district and wherein no one interested in any of the four other districts had any authority to be heard. It expended money entirely outside of the respective districts, and entirely outside of Pemiscot County. It was not such a judgment as might bo rendered by the county court upon the undisputed facts, or under the statement as filed, or authorized by law. (2) The total amount of tax levied upon this district for the first and now proposed improvement, exceeds the grand total of benefits originally determined. It is fundamental and no authorities are needed to sustain the assertion, that such a proceeding is a clear denial of the rights of those who are not benefited, among them being these objectors. Unless an appeal is prohibited, it is granted. King’s Lake v. Jamison, 176 Mo. 564; State ex rel. v. Taylor, 224 Mo. 490.</p>

<p>1. STREET CAR FARES: Power of Legislature to Change Contract Rates. Section 20 of Article 12 of the Constitution does not vest full power in a city to regulate street-car fares within its limits, nor does it interfere with the Legislature’s power to exercise the police power'to change such rates in a case in which the facts are- such as to call for alteration.</p> <p>2. -: Confiscation of Properties. Where the street-car company expressly states that it asks no increase in fares for the purpose of paying anything except operating expenses and fixed charges, there is no question of confiscation in the case.</p> <p>3. -: Reviewable by State Commission. Street-car rates fixed by city franchise and contract are reviewable by state agencies in the exercise of the police power to regulate rates.</p> <p>4. -: Statutory Power to Raise Rates. The statute (Laws 1913, p. 583, sec. 47) empowers the Public Service Commission to raise rates fixed by city franchise and contract.</p> <p>5. -: Interest Charges. Interest on the mortgage indebtedness of the street railway company, when the agreed Ave-cent fare does not yield enough revenue to meet it, was not deferred under the “cumulatiye” section of the franchise in this case, but under the sections concerning mortgages the interest payments were enforceable; and consequently, a showing that the company, after paying operating expenses and fixed charges, would still face a large total deficit, presents a case for the exercise by the Public Service Commission of the power to increase the rates.</p> <p>6. -: Wage Increase. The facts of this case demonstrate that an increase in the wages of conductors and motormen of the street railway of one cent an hour for each employee who received less than $1800 per year was reasonable, and necessary to a proper operation of the railway system.</p> <p>7. -: Interstate System: Power of State to Regulate. The interstate-commerce clause of the United States Constitution does not inhibit the State from regulating intra-state fares to be charged by a street railway company whose system embraces a city in this State and one which is situate just over the border line in another State, provided no direct burden is laid upon interstate commerce.</p> <p>8. POLICY OF LAW. The courts have no power or right to say what t]ie law ought to be. They have nothing to do with the policy of a constitutional law.</p>

Certiorari. (1) Even uncontradicted testimony of a witness as to alleged facts does not create a conclusive presumption that such facts are true; it is still a question, of fact for the jury to determine whether or not such alleged facts are true. Gannon v. Laclede Gas Light Company, 145 Mo. 514, 520. The. court in this case confounds uncontradicted evidence with conceded facts, and, in any event, invades the constitutional province of the jury. Wack v. Railroad Co., 175 Mo.

<p>NOTA BENE: An opinion in this case by White, C., was adopted by Division Two. By order of that Division the case was subsequently transferred to Court in Banc. Pending such transfer the divisional opinion was inadvertently certified to the Reporter for publication and published in 273 Mo. 150. This publication must be considered as expunged from that volume of the Missouri Reports.</p> <p>1. WIDOW: Husband Dying Without Children: Right to Half of Land: Election. Under Sec. 351, R. S. 1909, providing that when the husband shall die without children or other descendants capable of inheriting, his widow shall be entitled “to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely,” subject to the payment of his debts, the widow is entitled to one-half his estate, subject to his debts and subject to the terms of a compulsory election in case, in addition to her rights under said Section 351, she is also entitled to be endowed under Section 345. Where she has the two rights, she must elect; where she does not have dower under Section 345, the law elects to give her the one-half absolutely. Where dower as defined by Section 345 is non-existent, she takes the half given her by Section 351 as a substitute. Held, by BLAIR, J., that, as the widow in this case filed her election to take under Section 351, whether, in the absence of such election, she would have taken, automatically, under said section, is a question not arising on the recprd, whose decision therefore should be deferred until it is presented.</p> <p>2. -: Interpretation of Statute. No construction of a statute should be adopted which tends to shear a widow of her right to dower or of any beneficient provision granted in lieu of dower.</p> <p>3. -: Vested Remainder: No Election. Where, the husband owned a vested remainder in land, but died, without descendants capable of inheriting, during the pendency of the life estate and without ever having been in possession, his widow was not entitled to dower under Section 345, and consequently she was not required by Section 353 to elect to take a half interest in his lands given to her by Section 351 as a substitute for dower.</p> <p>4. -: Right to Half of Husband’s Land: Dependent on Preexisting Dower. A widow’s right to one-half of her childless husband’s estate, absolutely, subject to debts, under Section 351, is not dependent upon a pre-existing right to dower under Section 345. [Overruling Von Arb v. Thomas, 163 Mo. 33, and Klocke v. Klocke, 273 Mo. 150.]</p> <p>5. OVERRULING PRECEDENT: Rule of Property. The doctrine of the rule of property should not prevent the abolition of a precedent not sustainable in reason and in contravention of the terms of a statute relied upon to support it, and wh’ch has wrought injustice in every instance of its subsequent application.</p> <p>6. -:-Interpretation of Another Statute: Prospective Operation. If the decision which the court is asked to overrule construed a statute other than the one under judicial interpretation, the question of the propriety of adhering to the former decision for the preservation of intervening property rights is not present, for .no property rights acquired under that construction could be invalidated by a change of construction. In such case, the effect of overruling the former decision is prospective only.</p>

<p>1. PROHIBITION: Indemnity: Refusal to Pay: Revoking License: Merits of Claim. In a proceeding to prohibit the Superintendent of Insurance from revoking the license of a guaranty company to do business in the State for refusal to pay certain disputed claims to an insurance company, the court is not concerned with whatever of merit may inhere in the claims further than the facts in regard thereto, as disclosed by the pleadings, may prove illustrative of the power of the Superintendent to enter and enforce the order of revocation.</p> <p>?. -: Demurrer to Return: Admission: As to' Pacts and Legal Conclusions. A demurrer to respondent’s return to the preliminary writ in prohibition is in the nature of a motion for judgment on the pleadings, and its effect is to admit all facts properly pleaded in the return, and to such facts the court will look in determining the propriety of the issuance of the final writ, unless the tenor of the return is such as to authorize its construction as a demurrer. But statements of facts are to be distinguished from conclusions of law based thereon, for such conclusions are not admitted by the demurrer.</p> <p>PLEADING: Allegations of Official Duty. General allegations as to duties created by statute are not statements of facts, but conclusive of law.</p> <p>t. -: Usurpation of Judicial Power. Where the burden of the action is the usurpation of judicial power by an executive officer no basis can exist for taking judicial notice of his official duties, but the only responsive pleading is a specific averment of the denied power.</p> <p>5. -: Prohibition: Demurrer and Answer in Return.' A pleading which partakes of the nature of a demurrer as well as a return to relator’s petition, that is, a pleading which in effect demurs to and answers the same subject-matter, is not to be commended, but, under the facts of this case, will be considered as a demurrer assailing the petition as for failure to state a cause of action.</p> <p>6. PROHIBITION: Available Against An Executive Officer. The writ of prohibition is not only the process by which a superior court prevents an inferior one from exercising a jurisdiction with which it has not been invested by law, but is also available to prevent an executive officer from performing an act judicial in its nature.</p> <p>7. -: Power to Revoke License: Judicial. Power to revoke the license of a guaranty company to do business in this State is in its nature judicial. Power conferred upon a public officer involving the exercise of judgment and discretion in the determination of gustions of right affecting the interests of persons or property as distinguished from ministerial power, is in its nature judicial.</p> <p>8. --: -: Failure to Pay Claim. The Superintendent of Insurance has no power to revoke the license of a solvent guaranty company to do business in this State for its failure to pay a-disputed claim of a complainant.</p> <p>9. -: -: -: Statute: Insolvent Companies. Under the statute (Sec. 7078, R. S. 1909) much latitude is given to the Superintendent of Insurance to determine the extent and character of the information upon which he will be authorized to revoke the license of a company to do business, as hazardous to the public and unsafe to its policy-holders; but the information must be of such a nature as to indicate that the company is unsound financially. If it is sound financially, the conduct of its affairs cannot be hazardous.</p>

<p>1. STATE MONEYS: Payment: Power of Officer: Implied. No officer can pay out the money of the State except pursuant to statutory authority authorizing and warranting the payment. But whenever a duty or power is conferred by statute upon a public officer, all necessary authority to make such powers fully efficacious or to render the performance of such duties effectual, is conferred by implication.</p> <p>2. -: -: Traveling Expenses: Relegation to Act Defining Officer’s Duties. Where an appropriations act appropriates money to pay the “traveling expenses” of a public officer or department, but does not say where or upon what business the travel may be done, but does say, in a different section, that “none of the money herein appropriated shall be used for traveling expenses, unless said money is specifically authorized by law to be so used,” it is necessary to refer to the law creating the office and defining the officer’s duties, to ascertain where and upon what business travel may be done at the expense of the State.</p> <p>3. -: -: -: Outside The State: Warehouse Commissioner. Where the only words in the statute defining the duties of the Warehouse Commissioner which relate to travel are that he shall “examine into conditions and management and all matters concerning the business of warehouses and elevators” and at least once in every six months visit “each warehouse or elevator in this State and personally inquire into the management” thereof, and the only words in the Appropriations Act are that a named sum is appropriated for “rent of offices, postage, telephone, traveling expenses, machinery,” etc., for his office, which act in a subsequent section says that “none of the money herein appropriated shall be used for traveling expenses, unless said money is speficically authorized by law to be so used,” he cannot be compensated for necessary expenses incurred in traveling to Washington, D. C., to confer with the Agricultural Department and “to receive instructions with reference to a systematic method of inspecting grain throughout the different states of the Union;” for however crying the exigencies brought about by the World War, travel outside the State at its expense is not authorized by the said statutes, and the court cannot compel the State Auditor to allow his account, but must relegate the question of his compensation to the Legislature,</p> <p>4. MANDAMUS: Pleading: Indefinite Statement. A statement In a petition for mandamus against the State Auditor to compel Irm to approve a State officer’s expense account, that the expenses for which the allowance is asked “are listed as incidental and official expenses’’ is too vague and indefinite, and does not give that precise information which the court must have in order to grant relief.</p>

<p>1. PARTIES: Misjoinder: Husband in Wife’s Suit. The statutes expressly allow the wife to sue with or without joining her hus band. Consequently in a suit by a wife for damages resulting from personal injuries to her husband, to join him as a plaintiff is not a misjoinder.</p> <p>2. LIMITATIONS: Wife’s Suit for Damages, a wife’s action for damages for personal injuries to her still-surviving husband 'is not barred in five years, tor being a married woman the five-year Statute of Limitations does „„,t run against her.</p> <p>3. CAUSE OP ACTION: Physical Injury to Husband: Wife’s Right to Recover Under Section 8309. Section 8309, Revised Statutes 1909, giving to a wife the right to sue a third person for the alienation of her husband’s affections, does not give her the right to sue for damages for personal injuries to her living husband. Neither under that section nor under Sections 5425 or 5426 can she main-ta;n a suit for the loss of her husband’s society or consortium, nor while he lives can she maintain a suit for loss of support or maintenance at his hands, which results to her because of negligent injuries to him. In an alienation suit her right to recover for the loss of his society, support and maintenance is based on torts committed against her, and not against h':m; in a suit for damages for personal injuries to her living husband she sues for torts against him, and not for torts against her; after his death she may recover for loss of support and maintenance due to torts committed against him, but only because the action is transmitted to her by statute.</p> <p>Held, by EOND, C. J., dissenting, with whom WILLIAMS, J., concurs, that the wife can maintain an action for the loss of the society, support and maintenance of a living husband, lost to her by personal injuries negligently inflicted by a third party. The action for the loss of these things is grounded in the wife upon the elemental principles of the common law which recognized her personal right to enjoy the consortium of and to be supported and maintained by her husband, coupled with the provisions of Section 8309 designed to establish the right of the wife to sue for and recover for “any violation of her personal rights.”</p> <p>4. --: -: -: Double Damages. If Section 8309 gave to the wife a cause of action for the damages she sustained as a result of personal injuries to her husband, she could recover double compensation for the same injury and from the same third party; she could recover for the loss of her husband’s support and all other injuries, indirectly by his suit, and directly by her own. Held, by BOND, C. J., dissenting, with whom WILLIAMS, J., concurs, that the proceeds of a suit for the violation of the wife’s personal rights are her separate estate, and do not belong to her husband and could not be recovered in any suit by him alone.</p> <p>5. -: —i-: -: Purpose of Statute. Section 8309 does not undertake to create any new rights in or give any new case of action to the wife; it was meant to enable her to enjoy her own property free from the control or interference of her husband. Held, hy BOND, C. J., dissenting, with whom WILLIAMS, J., concurs, that the right of the wife to the society, support and protection of her living husband was established by the common law as a personal right, and has been universally admitted, and the statute gave her a further right to sue for and recover damages for a violation of that or any other of her personal rights.</p> <p>6.--: -: Married Woman’s Acts. The Married Woman’s Act of this State completely severed the wife from her husband so far as regards her personal and property rights, hut created no new property right in her. Under them the wife is entitled to the support and society of her husband, and can sue him in an ordinary action for failure to support her, and in a divorce suit for a violation of his marital duties, including a loss of his society, and she can in an alienation suit against a third person recover for the loss of the support and society of her husband. But though physical injuries to h'‘m may result in loss to her of his support and society, those statutes do not create in her a right to recover for the loss of them during his life, and after his death she can recover only because his cause of action is by the Damage Act transmitted to her.</p> <p>Held, by BOND, C. J., dissenting, with whom WILLIAMS, J., concurs, that the Married Woman’s Acts provide in express terms for the enforcement by the wife of a cause of action growing out of a violation of her personal rights, that among those rights, established by the common law, was her right to the society, love, protection and maintenance of her husband, and for a loss of those things caused hy the torts of a third person against her living husband she can maintain an action for damages. While she could not recover at common law, for then her legal existence was merged in her husband, that law recognized her personal right to the consortium, support and maintenance by him, and the Married Woman’s Acts gave her the right to sue for the redress of a violation of those personal, rights, just as if she were a femme sole.</p>

<p>1. JURISDICTION: Essentials: Divorce. The two essentials necessary to jurisdiction is the power to entertain the suit and the filing of the petition and service of process upon defendant. Without service of process the jurisdiction is not complete or exclusive. The rule as to ■ these two essentials to jurisdiction applies to divorce proceedings as well as to other civil actions.</p> <p> t </p> <p>2. -: Divorce: Action in Rem. In view of the statute (Sec. 2371, R. S. 1909), declaring that in divorce cases “like process and proceedings shall be had therein as in other civil cases,” the classification of divorce proceedings as in rem affords no basis for the conclusion that, where all the parties are residents, exclusive jurisdiction becomes vested in a circuit court upon the mere filing therein of the suit and the issuance of the writ of summons. A. divorce suit is, at most, only quasi in rem, the res being wholly intangible and consisting only in the status which the parties sustain to each other.</p> <p>3. -: No Process: Concurrent Jurisdiction. Tlie filing of a petition and the issuance of process, without service,' do not alone confer exclusive jurisdiction upon the court of a divorce suit. So where the husband filed suit for divorce in Lafayette County and the wife on the same day filed her suit in Adair County, and summons was issued in both counties on the same day, but the summons of the Lafayette Court was first served, that court obtained jurisdiction of the case, and the Adair Court did not thereafter have jurisdiction.</p>

— Hon. Daniel E. Bird, Judge. On the entire evidence the plaintiff is not entitled to recover and a verdict should have been directed in defendant’s favor. (1) The defendant did not owe .plaintiff the duty of master and servant in regard to the sand-drying stove in question; hence there was no negligence with respect thereto on defendant’s part (2) Defendant had fully performed its duty with respect to furnishing plaintiff a place to warm himself.

<p>CONFLICT IN OPINIONS. The majority opinion of the St. Louis Court of Appeals in Boeckler Lumber Company v. Wahlbrink, 191 Mo. App. 334, reaches correct conclusions, and its decision is approved.</p>

<p>Appeal from Montgomery Circuit Court. — Hon. James D. Barnett, Judge.</p> <p>(1) Upon the physical facts, defendant’s agents could not see George Dalton at the time of his injury, and all of plaintiff’s evidence tending to show that he could he seen is contrary to natural law and should therefore be disregarded. Clarke v. Railroad, 242 Mo. 606; Kelsay v. Railroad, 129 Mo. 376; Nugent v. Milling Co., 131 Mo. 253; Daniels -v. Railroad, 177 Mo. App. 281.. Plaintiff made Burns, appellant’s engineer, a witness in his own behalf. Burns testified it was impossible for him to see Dalton, looking from the cab window from his engine on the bluff side, because of curves in the track; because his view was partially obstructed by a bunk car standing on a stub track close by; because of the varying heights of the cars in the train, and the further fact that the car on which Dalton was sitting was more than a quarter of a mile distant from his engine. No observation had been or was made by any other witness who testified on behalf of plaintiff from the same or a similar position from that occupied by Burns under similar circumstances and conditions, and plaintiff therefore offered no testimony sufficient in law that tended to contradict Burns’s testimony, and plaintiff is bound by what he said. Burge v. Railroad, 244 Mo. 93; Armstrong v. Denver & R. P. Railroad Co., 203 S. W. 246; Hawkins v. Railroad, 135 Mo. App. 533'. (2) Plaintiff was a willful trespasser. He was neither an invitee or licensee and the humanitarian doctrine cannot he invoked in his behalf. Papich v. Chicago, M. & St. P. Ry. Co., 167 N. W. 686. “It is the settled law, as to infants as well as adults, that if one is injured by going under cars which may he moved a!t any time, he must he dealt with as a trespasser.” Thomas v. Railway, 93 Iowa 253; Bourrett v. Railway, 152 Iowa 582; Purcell v. Railroad, 117 Iowa, 667. “Since no duty to the trespasser arises until he is actually seen, it follows of necessity no care is due him before his peril is known. On that theory the general rule has been worked out, that an owner of property trespased upon, is not liable for an injury resulting from the trespass merely because care might have successfully guarded against such injury.” Papich v. C., M. & St. P. Ry., 167 N. W. 688. See Hounsell v. Smyth, 7 C. B. (N. S.) 731; Hargreaves v. Deacon, 25 Mich. 1; Gavin v. City, 97 111. 68; Bishop v. Railroad, 14 R. I. 318. “It follows that there was here no duty to give warning that the cars were about to he moved.” Brackett v. Railway, 111 S. W- (Ky.) 710 ; Schmidt v. Railway, 181 Fed. 83; Pa. Railway v. Martin, 111 Fed. 586. “A railroad company owes no duty to trespassers in its yards, regardless of age, except that of not wantonly or recklessly injuring them after having discovered them to he in peril.” Barney v. H. & St. J. Railroad Co., 126 Mo. 372; Ruschenburg v. Ry. Co., 109 Mo. 112; Curley v. Mo. Pac. Ry. Co., 98 Mo. 19; Wencker v. M. K. & T. Ry. Co., 169 Mo. 593. A “mere licensee” is one who is clothed with no right and to whom no invitation has been extended, hut who is upon, the premises of another by permission or acquiescence. Norfolk & W. Ry. Co. v. Denny, 106 Va. 383. No one can become such licensee on premises of a railroad company or on its trains while standing at a station without the consent of the company, either express or implied. Berry v. Mo. Pac. Ry. Co., 124 Mo. 223; Furey v. N. Y. Cent. H. R. Co., 67 N. J. L. 270. (3) George Dalton was a law breaker and a trespasser, and cannot recover in this case. Defendants’ demurrer to the evidence should have been sustained, and instruction for verdict for the defendants given, and the court erred in failing to do so. Barney v. Railroad, 126 Mo. 391; Kelly v. Benas, 217 Mo. 12; Hall v. Railroad, 219 Mo. 586; Giles v. Railroad, 169 Mo. App. 37; Barker v. Railroad, 98 Mo. 53. At the time of his injury he was acting in violation of an ordinance of Hannibal, and was guilty <5f a misdemeanor under each section. Being a law breaker, he could not, under any circumstances become a licensee of defendants. They only owed him' the duty of not wantonly or willfully injuring him after his peril was discovered. Wencker v. M., K. & T. Ry. Co., 169 Mo. 600; O’Donnell v. Railroad 197 Mo. 122; Feebaclc v. Railway Co., 167 Mo. 215; Carrier v. Railway Co., 175 Mo. 481. And this rule is not changed because Dalton' was a minor. Barney v. Railroad, 126 Mo. 392; Hobert v. Collins, Lavery & Co., 80 N. J. L. 425; Anternoitz v. Railroad, 193 Mass.- 542; Seeley v. Railroad, 157 Mich. 688.</p> <p>(1) Dalton was not a law-breaker under the city ordinance or the statute, because not within the terms of either on the facts in evidence. R. S. 1909, sec. 4874. (2) The fourth instruction for plaintiff was correct; because, even though plaintiff may be guilty of negliligence, contributing to his injury, it is no bar to his recovering therefor. “If the defendant could,,in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him.” Radley v. Railway, 1 App. Cas. (L. R.) 754; Inland Nav. Co. v. Tolson, 139 U. S. 558; Adams v. Ferry Co., 27 Mo. 95; Huelsenkamp v. Railway 37 Mo. 552; Morrissey v. Ferry Co., 43 Mo. 384; Karle v. Railway, 55 Mo. 484; Meyers v. Railroad, 59 Mo. 231; Klockenbrink v. Railroad, 81 Mo. App. 356, 172 Mo. 678; King v. Railways, 204 S. W. 1129; Beard v. Railroad, 272 Mo. 142. (3) Plaintiff’s fourth instruction was correct in stating that (on the facts supposed as to long user this railway yard as a playground for children and thoroughfare for the public) it was the duty of defendants “to exercise ordinary care to ascertain whether anybody was upon said tracks or cars and to exercise care to notify any person on or about said tracks or on or around ‘said cars’ of the proposed movement of cars on. said sidetrack, to enable them to get to a place of safety.” Tutt v. Railroad, 104 Fed. 741 (similar facts); Felton v. Aubrey, 74 Fed. 350; G-arner v. Trumbull, 94 Fed. 321; Cahill v. Railroad, 74 Fed. 285; Erie Railroad Co. v. Burke, 214 Fed. 247; Barry v. Railroad, 92 N. T. 293; Kay v. Railroad, 65 Pa. St. 269; Lamphear v. Railroad, 194 N. T. 172; Taylor v. Del.- & H. Co., 113 Pa. St. 174; Francis v. Railroad, 247 Pa. St. 425; Mason v. Railway, 89 Wis. 151; Carmer v. Railway, 95 Wis. 513; Cesas v. Railroad, 33 Utah, 156; Ashworth v. Railway, 116 Ca. 641; Railroad Co. v. Popp, 27 S. W. (Ky.) 992; Ervine v. Railroad, 158 Mo. App. 1; Mitchell v. Railroad,' 34 Atl. 674; LeMay v. Railroad, 105 Mo. 351. As to such places as that in question, the same principles as to the duty to warn, before discovery, apply as in the case of railway track crossings; as many of these decisions cited assume, and some express. R. S. 1909, sec. 3140. (4) Respondent asks the court to reconsider the ruling as to “unseen trespassers,” and to declare the law to be that in such circumstances as require the railway operatives to anticipate the presence of children where cars may strike them, it becomes the duty of such operatives to exercise ordinary care to warn those who may be in danger, as well as to use care to discover their presence. Such places are not different from regular track crossings, so far as concerns the duty to warn of train movements thereon. R. S. 1909, sec. 3140; Beard v. Railroad, 272 Mo. 155; Klockenbrink v. Railroad, 81 Mo. App. 356, 172 Mo. 678; Wilkins v. Railway, 101 Mo. 106; Fnsili v. Railway, 45 Mo. 106; Thompson v. Railway, 93 Mo. App. 555; Lynch Case, 111 Mo. 601; Brown v. Railroad, 50 Mo. 464; Clark v. Railway, 64 Mo. 440; Ransom v. Depot Co., 126 S. W. 785; Kreis v. Railroad, 131 Mo. 544; Railway v. Means, 104 N. E. 787; Klotz v. Railroad, 68 Minn. 341; Cooper v. Railway, 66 Mich. 261. (5) The fourth instruction for plaintiff was sound in stating the duty of defendants. It did not submit facts for a verdict thereon; but it announced the principles of law as to defendants’ duty to exercise reasonable care to warn as well as to discover persons in peril of being injured by train movements in a place where defendants were bound to anticipate their presence quite as much as at an established highway crossing of the track. R. S. 1909, sec. 3140. See decisions cited above. “The rationale of the rule requiring special precautions in backing trains over crossings or other places where persons are likely to be is in the increased danger to which they are subjected.” Klotz v. Railroad, 68 Minn. 341; 2 Shearman & Red. on Negligence (6 Ed.), sec. 471, p. 1179. (6) “Negligent ignorance is in law equivalent to knowledge.” Ashworth v. Railway, 116 Ga. 635; Riñe v. Railway, 100 Mo. 235. (7) Plaintiff was not bound by all the testimony of defendants’ engineer, Brown, whom plaintiff introduced as a witness: “this does not preclude him from establishing a case by other testimony, even though it is contradictory of that which he first offered.” Phelan v. Paving Co., 227 Mo. 711; Maginnis ■ v. Railroad, 268 Mo. 675; Knopp v. "Wagner, 195 Mo. 637; State v. Shapiro, 216 Mo. 370; Brown v. Wood, 19 Mo. 475; Dunn v. Donnaker, 87 Mo. 597. (8) Where facts admitted by defendants or proven by undisputed testimony indicate that the judgment below is “for the right party” it should be affirmed, without regard to any supposed errors. Here, on the admitted facts as to user of these railways premises, absence of watchman (or other employee) near the place where the plaintiff was sitting on the car, and absence of any warning or notice to plaintiff of the switching movement, defendants were liable. Redman v. Adams, 165 Mo. 71; State v. Adams, 75 Mo. 605; Commiskey. v. M'cPike, 20 Mo. App. 82; Walsh v. Exposition Co., 101 Mo. 534; Lancaster v. Collins, 115 U. S. 227; King’ v. King, 155 Mo. 406; Woody v. Railway, 104 Mo. 678; Burns v. City, 131 Mo. 372; R, S. 1909, secs. 1850, 2082.</p>

<p>1. LIBEL: Letter to City Government: Qualified Privilege. A letter addressed to the Board of Complaint, a governmental agency of the city, concerning a city employee, is qualifiedly privileged, and in the absence of an allegation that it was maliciously written is to be considered as presumably written in good faith and without malice.</p> <p>2. MANDAMUS: Production of Evidence: Privileged Communication: For Use in Libel Suit. The Supreme Court has never ruled that a court by mandamus may compel the production of a letter, not alleged to be maliciously written and therefore a privileged communication, addressed to a governmental agency established for the purpose of promoting the efficiency of the public service and authorized to receive complaints against any department, officer or employee of the city and after investigation to recommend any action deemed advisable, and which caused relator to be discharged and to be arrested, in order that its contents may be made known and used as a basis of a pending libel suit against the writers; and, hence, the opinion of the Court of Appeals holding that the members of the said Board of Complaint cannot be compelled to produce such letter for said purpose cannot be quashed on certiorari.</p> <p>3. CERTIORARI: Conflict in Opinions. Unless there is a conflict in the opinion of the Court of Appeals and some previous decision of the Supreme Court, the opinion of the Court of Appeals cannot be quashed on certiorari.</p>