Volume 279 — Missouri Reports

— Hon. George TV. Wanamaher, Judge. (1) The defendant’s instruction numbered 1 is erroneous in that said instruction tells the jury that the injury to plaintiff’s eye is no evidence whatever of negligence.

Prohibition. (1) The right to condemn real estate must be strictly-construed and the right of the citizen sacredly preserved under the constitution, and laws of the State, City of Tarkio v. Clark, 186 Mo. 285; Orrick School District v. Dorton, 125 Mo. 444; Railroad v. Schweitzer, 243 Mo. 122,1. c. 126. (2) Section 52 of the drainage act and Section 47 of the levee act, contain the words “may elect,” with reference to the organization specified in the act.

<p>1. INSURANCE POLIO S': Acceptance. Inconclusive negotiations concerning an insurance policy, which, contains a clause that the insurance shall not take effect until the first premium is paid and the policy delivered to and accepted by the insured during lifetime and in good health, do not constitute an insurance contract. The facts of this case are reviewed, and it is held that the policy tendered by the company was never unconditionally accepted during the good health of the insured, or that the company understood that the policy sent and received was accepted, or was acceptable except upon a condition which could not be met, and that therefore there was no completed contract.</p> <p>2. -: Non-Payment of First Premium.. A stipulation in an insurance policy requiring the first premium to be paid in advance and during the good health of the insured as a condition upon which it is to take effect is enforcible, and if the first premium was neither paid nor tendered during the insured’s good health the policy did not become effective, and there is no enforcible insurance contract.</p> <p>3. -: Payment Recited in Policy. The payment of the first premium, where the policy itself recites that such first premium was made, cannot be disputed for the purpose of invalidating the policy; but where the recital is that “the insurance is granted in consideration of the payment in advance” of a named sum of money, “being the premium for the first year’s insurance under this policy,” the recital is not a specific recital of payment, but a mere statement that the first payment shall be the consideration for the issuance of the policy.</p>

<p>1. JURISDICTION: Collateral Attack: Return in Another Case. In a partition suit a defendant, whose interest in the land was sold upon execution under a default judgment rendered in another circuit court, has the right to offer the sheriff’s return in that case in evidence, for the purpose of showing that the court did not acquire jurisdiction over the persons of the defendants therein, because of insufficient service of the summons.</p> <p>2. -: Sheriff’s Return: Words Understood. If the sheriff’s return recites that he left a copy of the writ and petition “with a person family” of said defendants, the words “of the” will be understood between “person” and “family,” so that it would read “with a person of the family” of defendants.</p> <p>3. -:-: Service Upon Husband and Wife. If the defendants are husband and wife, and cannot be found in the county, it is proper for the sheriff to leave a copy of the petition and writ, and a copy of the writ, “with a person of the family” of said defendants, at their usual place of abode, over fifteen years of age. One such person, in contemplation of the statute, represents both defendants.</p> <p>4. -: -: -: Copies for Each. Where the defendants are husband and wife and cannot be found, the leaving of copies of the petition and writ for one, and a copy of the writ for the other, with some person of the family of said defendants, over fifteen years of age, at their usual place of abode, is all that the statute requires. If it could be construed to require such person to deliver a copy of the petition and writ to the first party served, and a copy of the writ to the other, still, in the absence of evidence to the contrary, it will be presumed that both the sheriff and said person did their duty.</p> <p>5. -: The Return. Adjudicated. The sheriff’s return recited: “l hereby certify that I executed the within writ in Lincoln County, Missouri, on 26th day of September, 1907, by leaving a copy of the writ and petition and a copy of the writ with a person family of said Emeline M. Wells and James B. Wells at their usual place of abode over the age of fifteen years.” Held, sufficient to uphold a default judgment.</p>

Louis City Circuit Court. — Hon. William A. Kinsey, Judge. (1) Tlie stipulation whereby plaintiff released her claim so far as the telephone company was concerned did not constitute such a technical release as would discharge the defendant, a joint tortfeasor, and should have been construed as a covenant not to sue. Ridenour v. International Harvester Co., 205 S. W. 883; McDonald v. Goddard Grocery Co., 184 Mo. App. 432; Ar-nett v. Railroad Co.,- 64 Mo.

<p>1. EES ADJUDICATA: Ejectment: Voluntary Conveyance: Former Appeal. While a judgment in ejectment is not res adjudieata as to any issue determined therein, the doctrine announced on an appeal from such judgment is an authoritative statement upon the law as applied to the facts therein presented; hut a finding by the trial court that a certain deed from a husband to his wife, recitiñg a nominal consideration, was voluntary and void as to creditors, there being no showing that it was in fact supported by a valuable consideration, is not res adjudieata in a subsequent suit in equity in which a valuable consideration is asserted.</p> <p>2. WITNESS: Competency: Other Party Dead: Agent. A woman, whose son-in-law is dead, cannot testify that he owed her notes to the amount of three hundred dollars and that she bought from him the lots in suit and had him deed them to his wife and that the notes were the actual consideration for the deed, which recited a consideration of one dollar. She was not the agent of the wife, hut a party to the original contract, for the transaction is precisely the same as if she had purchased the lots, had the conveyance made to herself and subsequently conveyed to the wife; and under the statute (Sec. 6354, R. S. 1909), the son-in-law, “the other party to such contract,” being dead, she is incompetent to testify' in favor of the wife, of any person claiming under the wife.</p> <p>3. CONVEYANCE: Nominal Consideration: Voluntary: Correcting Mistake. If no witness competent to testify is produced to show that a deed from the husband to his wife was supported by a valuable consideration, a recital therein that it was for a nominal consideration prevails, and it must be adjudged void as to his existing creditors, and neither the wife nor her grantees can maintain a suit in equity against them to correct a mistake in it.</p> <p>4. DISQUALIFICATION OF JUDGE: Judgment of Dismissal: Void Execution. A judgment rendered by a judge not authorized to hear or determine a ease is subject to collateral attack; and where á cause was submitted to a special judge and by him taken under advisement, and one of the counsel in the case afterwards became the regular circuit judge, a subsequent judgment of dismissal rendered by such regular judge is void, and an execution for costs and a sale of lands thereunder are likewise void.</p> <p>5. DOWER: Mansion House: Limitations. Actions to establish the widow’s dower in her husband’s real estate, unless begun within ten years after his death, are barred by limitations; and the occupation by the widow of the mansion house thereon after her husband’s death is no longer, since the Revision of 1889, an exception to the unqualified language of Section 391.</p>

<p>1. CONSTITUTIONAL LAW: Title: Leasing Railroad. The title to an act passed in 1870, entitled, “An Act to amend chapter sixty-three of the General Statutes, entitled ‘of -railroad companies/ so as to authorize the consolidation, leasing and extension of railroads,” was broad enough to authorize a designation in the body of the act of the terms and conditions upon which such leases should be made, and to include a provision that “a corporation in this State leasing its road to a corporation of another state shall remain liable as if it operated the road itself.”</p> <p>2. -: Speed Ordinance: Six Miles An Hour: Unreasonableness. An ordinance limiting the speed of railroad passenger trains to six miles an hour at a much-used public-street crossing, 1200 feet from the station, in a city of the fourth class containing 2700 inhabitants, is not unreasonable, nor an unlawful interference with interstate commerce, but a needed protection of the public at such crossing.</p> <p>3. DEMURRER TO EVIDENCE: Practice. Where defendant, at the close of plaintiff’s ease in chief, offers a demurrer thereto, and upon its being overruled puts in its own evidence, the sufficiency of the evidence to sustain the verdict must be determined from all the evidence in the case; and the appellate court, in considering the demurrer, will indulge every inference in favor of the verdict which men of average intelligence and fairness might legitimately draw from the proven facts.</p> <p>4. NEGLIGENCE: Contributory: Demurrer to Evidence: Proven Facts: Humanitarian Rule. Where there was substantial evidence tending to prove (1) that the servants in charge of the train were negligent in failing to ring the bell, and keep it ringing, as required by statute, as it approached the public-street crossing where plaintiff’s husband was killed, (2) that they were guilty of negligence in failing to give proper and timely danger signals after he was known to be in peril, (3) that they were guilty of negligence in violating the six-mile speed ordinance and which they continued to violate until he. was struck by the train, (4) that they were guilty of common-law negligence in running the train, at the time and place of the accident, at a dangerous and unsafe rate of speed, (5) that the engineer was negligent in failing to reduce the rate of speed after seeing deceased in peril and apparently oblivious to the approaching train, and (6) that said servants were likewise negligent in failing to give danger signals with a whistle, so as to arouse in deceased a realization of the danger into which he was moving, no demurrer to the evidence can be sustained, although it be conceded that deceased, at the time and place of the accident, was guilty of negligence that directly contributed to his own death.</p> <p>5. -: Duty of Engineer: Inference. In the absence of evidence to the contrary, the jury have the right to draw the inference that the engineer of a passenger train entering a town was at his place in the cab, looking towards the station, since he owed that duty to his passengers, as well as to members of the public who might be upon the track ac a public-street crossing.</p> <p>6. -: -: Inference from Sounding Whistle. Where defendant offers evidence tending to show that the station whistle was sounded and the bell was rung before the train reached the public-street crossing, the jury have the right to infer that the engineer and fireman were at their respective places in the engine cab; and hence they have the right to infer, the view being clear and the track straight, that the engineer saw deceased in peril when the train was 500 feet away and that he was moving to a place of danger on the track at the street crossing, apparently oblivious to the approach of the train.</p> <p>7. -: -: Failure to Testify: Other Inferences. Where the view was unobstructed for 500 feet before the train reached the public-street crossing where plaintiff’s husband was struck, the jury have the right to take into consideration the fact that the engineer and fireman, who of all persons were best prepared to give the actual facts concerning deceased’s movements, were not produced as witnesses.</p>

<p>1. EXPRESS TRUST: Power of Beneficiary to Mortgage. A deed giving to the trustee power to sell, convey, pledge, mortgage or otherwise dispose of land, and to invest, re-invest or use the money derived from any such sale, mortgage or pledge, or any income arising from said property, for the use, benefit, support and maintenance of another, creates an express, active trust in the land, and gives to the beneficiary no power to sell or mortgage the same.</p> <p>2. -: Pleading: Cause of Action: Present Interest. An allegation that it is now necessary that plaintiff, in the exercise of the powers conferred upon him as trustee by a certain trust instrument, either lease, sell or mortgage the lands for the purposes of the trust, and that a mortgage executed by the beneficiary constitutes a cloud upon the plaintiff’s title and has heretofore and does now prevent the plaintiff from carrying out the provisions of said trust, states that plaintiff had an interest in the land at the time his suit was brought.</p> <p>S. -: Cancellation of Beneficiary’s Mortgage: Discovery of Defect. A “mind of legal acuteness’’ is generally, if not always, required to determine what rights of a beneficiary of a trust are alienable; and where the defect in the mortgage made by the beneficiary is of such a character as to render it invalid but can only be discovered by a mind of legal acuteness, a court of equity will remove it as a cloud upon the trustee’s title.</p> <p>4. -: -: Sufficient Facts. Where the trustee- is unable to carry out the powers conferred upon him by the trust instrument unless the suspicion cast upon his title by a mortgage made by the beneficiary is removed, and there is no adequate legal remedy open to the trustee, a court of equity will, at his suit, cancel the mortgage.</p>

<p>1. FOREION ‘WILL: Effect in This State. The will of a resident of Illinois, executed and probated there, when a copy duly authenticated is filed for record in this State, will take effect and be • interpreted according to the laws of this State, exactly as if it had been originally proved here.</p> <p>2. -: -: Partition. Children, residents of Illinois, not mentioned in their father’s will, by which he attempted to devise all his property, wherever situate, to his widow, may maintain a partition proceeding in the courts of this State and assert the same rights' to land in this State, belonging to testator at the time of his death, that they could have done had he left no will.</p> <p>3. -: -: Contrary to ■ WiU and Statute. Children “not named or provided for” in their father’s will, by bringing suit for the partition of lands belonging to him at the time of his death, do not seek partition contrary to any will which affects them, and consequently Section 2569, Revised Statutes 1909, which provides, that no partition of lands devised by any last, will shall be made contrary to the- intention of the testator as expressed in the will, has no application to them.</p>

<p>CORPORATION: Sale of Properties: Annihilation: Injunction. A corporation organized for the express purpose of buying and selling real estate will not be destroyed by a sale of a large tract of land belonging to it; and an injunction suit to enjoin the sale, brought by a minority of the directors against the majority, who in regular meeting assembled have authorized the sale, cannot be maintained on the ground that such sale will annihilate the corporation.</p>

<p>1. INJUNCTION: Dismissal Without Hearing. In an injunction, if the bill states a cause of action entitling plaintiff to a hearing on the merits and he does not in any way waive his right to have the case proceed in due course, it would seem, though it is not decided, that, under Sec. 2532, R. S. 1909, the court is not authorized to dismiss the bill without a hearing on the merits and without having passed upon the matter pf issuing a temporary restraining order.</p> <p>2. MEASUREMENTS: Unlawful Bushel: Prescribed By Ordinance. An ordinance which prescribes that a bushel box shall be 23% inches long, 9% inches deep and 11 inches wide calls for a box whose cubical content is 2493.5 inches, and is contrary to the statute (Sec. 11961, R. S. 1909) which says the content of a bushel shall be 2150.4 cubic inches, and attempts to make unlawful the use of a box of any other dimensions, even though it contained the exact statutory content.</p> <p>3. MOOT CASE: Abatement: Costs. An appeal from a judgment dismissing plaintiffs’ bill for an injunction at their cost will not abate unless thereby they are given a full measure of relief. Before a defendant may abate a case by complying with the demands-of the petition, he must comply with all its demands, including the payment of costs.</p> <p>4. -:-: Injunction: Threat to Continue Wrong. An injunction to restrain a city officer from destroying the market boxes of plaintiffs, who are farmers and gardeners, will not abate an appeal on the ground that the objectionable sections of the ordinance under which defendant- had destroyed their boxes had been repealed after the case was submitted and others enacted in lieu thereof, if the defendant has threatened to destroy, without a hearing, all boxes he believes to be of different dimensions from those prescribed by the ordinance as amended. In view of such threat, the determination of the case does not turn upon a mere moot question.</p> <p>5. INJUNCTION: -Clean Hands: Determined Without Hearing. The trial court is not empowered to decide, without a hearing on the merits, upon a mere preliminary consideration of the question whether upon the face of the petition a temporary restraining order should be issued, that the plaintiffs have not come into court with clean hands.</p> <p>6. -: -: Limitations of Rule. The rule that he who comes into equity must come with clean hands has its limitations. The particular iniquity which prevents the pursuit of an equitable remedy must relate to the particular matter in hand, and must arise out of the transaction which is the subject of the suit. If the. plaintiffs, who by their petition ask that a city commissioner be restrained from destroying their market boxes, who has threatened to destroy them on the ground \ that they are not of the dimensions prescribed by ordinance, have used the boxes with the understanding that some persons would be deceived as to their contents, they come with unclean hands; but if the facts show that the boxes have long been in use, that the purchasers of their produce fully know their contents, and fail to show that some consumer or purchaser has been deceived, they do not come with unclean hands.</p>

<p>1. WEIGHTS AND MEASURES: Legislative Power: Invasion of Sight to Contract. For the purpose of protecting the public and consumers from fraud and imposition in their purchase of commodities, the Legislature has the right, as a police regulation, to regulate weights and measures, and delegate that authority to municipal corporations, in so far as they exercise police powers; but the regulation must not be such as to invade the constitu- » tional right to make contracts.</p> <p>2. -: -: -: Reasonable Restrictions. A legislative exercise of the police power to fix weights and measures necessarily limits the freedom of contract that would otherwise exist; but so long as the restriction has a reasonable relation to the exercise of the power and is not so arbitrary or capricious as to be a deprivation of due process of law, freedom of contract in the constitutional sense is not interfered with.</p> <p>S. -: -: -: Bushel Boxes According to Statute: Penalty for Use of Boxes of Different Dimensions. An ordinance establishing standard bushel and half-bushel boxes to contain the same cubical content of the bushel and half-bushel prescribed by statute, to be used by truck gardeners and farmers in selling their fruits, vegetables and other produce in the city, and prescribing a penalty for the use of boxes of a different capacity and thereby sufficiently guaranteeing that boxes of a different capacity will not be used, is not unconstitutional as impairing the obligation of contracts, although it makes unlawful the use of boxes of a less capacity which have been in general use for many years.</p> <p>4. -: Bushel Boxes of Given Dimension: No Penalty. The court may determine whether an ordinance prescribing that hushel and half-bushel boxes to be used by farmers and truck gardeners in marketing their fruits and vegetables within the city shall be of certain dimensions, is unreasonably arbitrary, and may settle the question by inspecting the face of the ordinance, or may find it unreasonable by a state of facts which affects its operation; but" an ordinance which prescribes that a bushel box shall have certain dimensions and a half-bushel box certain other dimensions, but prescribes no penalty for the use of boxes of different dimensions, but only a penalty for the use of boxes of a different capacity, is not unreasonable.</p> <p>Held, by PARIS, J., concurring, that the ordinance is valid .only because it prescribes no penalty for the use of boxes of different dimensions, thus making the prescription that the bushel and half-bushel boxes shall have certain dimensions only advisory, and not mandatory. Held, also, that the city has no power to say that the- boxes shall be of a required length, width and depth.</p> <p>5. -: -: -: Oppressive Enforcement: Injunction. Plaintiffs cannot have an injunction to restrain the city from pursuing some unexpected and unthreatened prosecution. If the ordinance requires plaintiffs in marketing their vegetables and produce to use boxes having the number of cubic inches prescribed by statute for bushel and half-bushel containers, and fixes a penalty for the use of boxes of different capacity, and also goes further and prescribes that boxes of those capacities shall be of certain length, breadth and width but prescribes no penalty for the use of boxes of different dimensions, and their contention is that the ordinance interferes with their use of boxes of a smaller capacity which have long been in use, and they make no showing that they intend to use boxes of the prescribed capacity, the ordinance will not be held to be invalid on the theory that it will be interpreted to mean that they must use boxes of the specified dimensions and therefore will be oppressively and illegally enforced.</p> <p>6. -: Sale By Weight. Where the ordinance does not require the immediate purchaser from the gardeners to purchase by weight, although such purchasers are commission merchants and retail dealers who have not been deceived as to the contents of the “short” boxes long in use, yet if the commodities in the boxes can be passed on to the°ultimate consumer, the city has the right, in order to provide against imposition by the use of the smaller boxes, to enact an ordinance requiring the use of boxes containing the statutory capacity of a bushel and half-bushel, and affixing a penalty for the use of boxes of different capacities.</p>

<p>APPEAL: No Assignment. I£ appellant’s brief in a civil case nowhere distinctly alleges the errors upon which he relies for a reversal of the judgment, either by assignments or points and authorities, Rules 15 and 16 of the Supreme Court require that his appeal be dismissed. Mere statements that “plaintiff is entitled to recover on the undisputed facts,” that “Instruction 2 should have been given,” etc., do not “distinctly allege the errors committed by the trial court.”</p>

— Eon. Andrew A. WMtseft, Judge. (1) “Contributory negligence, as a rule, Is a matter of defense, which must be pleaded and proved by the defendant. When plaintiff makes out a prima-facie case, entitling him to go to the jury, the burden then shifts to the defendant, if he relies upon plaintiff’s negligence, to disprove and overcome that case, to the satisfaction of the jury.

— lion. Thomas Seehorn, Judge. (1) The excessive verdict was not cured by the remittitur which the court ordered.

Louis City Circuit Court. — Son. Victor S. Falhenhainer, Judge. (1) It is not admissible, upon the trial of an indictment for burglary or larceny, to introduce evidence of other burglaries or larcenies. State v. Daubert, 42 Mo. 242; State v. Spray, 174 Mo. 569; State v. Boatright, 182 Mo. 33.

— Hon. B. G. Thurman, Judge. (1) Ejectment must be brought against a party-in possession, and plaintiff must allege in his petition that defendant is in possession, and must prove it when defendant denies possession. Clarkson v. Stanehfield, 57 Mo. 573; Shaw v. Tracey, 95 Mo. 531. (2) A city can open or establish streets only by ordinance. R. S. 1909, secs. 9261, 9262.

<p>Appeal from St. Louis City Circuit Court. — Eon. Thomas L. Anderson, Judge.</p> <p>(1) The court erred in striking out the words “aid, abet” in plaintiff’s amended petition. The rule is well settled that one who is present, aiding and abetting another who commits an assault is as much a principal as he who strikes the blow or fires the shot. Murphy v. Wilson, 44 Mo. 313; Gray v. McDonald, 104 Mo. 303; State y. Orrick, 106 Mo. Ill; Miles v. Lucas, 110 Mo. 219; Brouster v. Fox, 117 Mo. App. 711; Schraper v. Ostmann, 172 Mo. App. 610. (2) The court erred in allowing witness Marbury to testify to the language used by plaintiff in his argument to the jury. Cox et al v. Whitney, 9 Mo. 531; Collins v. Todd, 17 Mo. 537; Avery v. Ray, 1 Mass. 11; Hoagland v. Forest Park Highlands Amus. Co., 170 Mo. 343; Lee v. Wooley, 19 Johns. (N. Y.) 318; State v. Atchley, 186 Mo. 174, 179; Maynard v. Beardsley, 7 Wend. (N. Y.) 560, 564; Rochester v. Anderson, 1 Bibb. (Ky.) 428; Keiser v. Smith, 46 Am. Rep. 342, 364, 71 Ala. 481; Millis v. Forrest, 2 Duer, 310; Ireland v. Billiott, 5 Iowa, 478; Thrall v. Knapp, 17 Iowa, 468; Le Laurin v. Murray, 75 Ark. 232; Dupee v. Lentine, 147 Mass. 580; Murphy v. McGrath, 79 111. 594, 596; Linder v. Hine, 84 Mich. 517; Elsworth v. Thompson, 13 Wend. (N. Y.) 658, 663; Roach v. Caldbeck, 64 Yt. 593. (3) The court erred in allowing the evidence of the witnesses of what the appellant said an hour and a half or more before the assault concerning Marbury, Luther Williams and King Williams, or either of them, in his argument before the jury in the case of the State of Missouri against John McBrien and to draw their conclusions as to the effect upon the audience, etc., in mitigation of damages or in extenuating the offense. (4) The remarks of the appellant in the case of the State v. McBrien were made as an attorney in behalf of his client and were therefore privileged. 3 Am. & Eng. Ency Law (2 Ed.), 294, 295. (5) No instruction as to malice on behalf of defendant or defendants should be given under the law and the evidence in this case. The instruction as given is erroneous in itself. State v. Wray, 172 Mo. 639; State v. Scoggs, 159 Mo. 581. (6) The court erred in not granting plaintiff a new trial on the ground that the jury failed to award him actual damages. Le Lauren v. Murray, 75 Ark. 232, 238; Coxe v. Whitney, 9 Mo. 531; Collins v. Todd, 17 Mo. 537; Goldsmith v. Jay, 61 Vt. 488; Lovelace v. Miller, 43 So. (Ala.) 734.</p> <p>(1) The plaintiff having elected to proceed against defendants upon the charge of conspiracy and assault-as the result thereof must recover upon that theory or not at all — and hence must recover against all defendants or none. Aronsen v. Ricker, 185 Mo. App. 528, 533; Rice v. McAdams, 62 S. E. 774; Hoblichtel v. Yawbert, 39 Mo. 877; Laverty v. Yanarzdale, 65 Pa. St. 507; Hines v. Whitehead, 99 N. W. (Ia.) 1064; Shafer v. Ostman, 148 Mo. App. 648. (2) The question of whether, or not plaintiff had sustained any actual damage was also, by plaintiff’s own instructions, left to the jury, and, having found against plaintiff on each hypothesis, plaintiff cannot now be heard to complain. Berkson v. K. C. Cable Ry. Co., 144 Mo. 220; Ellis v. Harrison, 104 Mo. 250. (3) Appellant cannot complain of the court in not instructing. the jury differently because he caused such failure by failing to ask other or different instructions. Anchor Milling Co. v. Walsh, 24 Mo. App. 101. (4) Appellant asked and the court gave instructions virtually limiting his recovery to a verdict against all the defendants and warranted the jury in believing that unless he was so entitled to recover, he was not entitled to recover at all. Having thus limited himself and invited error, if error it be, appellant is in no position now to complain. Schafer v. Ostmann, 148 Mo. App. 648. (5) While it is the duty of the court to instruct the jury in writing on all questions of law arising in the trial of a civil case, yet it is not the court’s duty to so instruct unless instructions are asked: R. S. 1909, sec. 1987; Coleman v. Drane, 116 Mo. 387; Brown v. Printing Co., 213 Mo. 611; Nolan v. Johns, 126 Mo. 159; Marion v. Railroad, 127 Mo. App. 129; Morgan v. Mulhall, 214 Mo. 461, 464; Powell v. Railroad, 255 Mo. 456; Sweet v. Bunn, 195 Mo. App. 503; Willis v. Miller, 189 Mo. App. 325.</p>

<p>1. TAXATION: Board of Equalization: Judicial Acts: Certiorari. The State Board of Equalization in fixing the value of property in any county acts judicially, and its valuations have the force and effect of judgments of courts. Of course, if in making its valuations it exceeds its powers or statutory jurisdiction, and such fact appears upon its record, the courts can quash its judgment by certiorari; but the courts cannot nullify its judgment in a collateral proceeding.</p> <p>2. _:-: -: Collateral Attack. The action of the State Board of Equalization being judicial in character its judgment cannot be attacked in a collateral proceeding. To be overthrown there must be a direct attack upon the judgment itself for the purpose of vacating, annulling and setting it aside. It cannot be annulled .by a showing, when suit is brought on a tax bill against a bank, that the board valued and assessed defendant’s property at one half its true value and all other personal property in the county at forty per cent of its true value. Such a defense would be a collateral attack on the judgment, and is therefore unavailable, and evidence to show such discrimination is incompetent.</p>

<p>1. SUIT ON LOST INSTRUMENT: Insurance Policy: Affidavit. The statutes requiring that in a suit founded upon a written instrument, if “the debt or damages claimed may be ascertained” therefrom, such instrument “shall be filed with the justice, and no-other statement or pleading shall be required,” and if such instrument shall be lost an affidavit stating such loss or destruction and setting forth the substance of the instrument, do not apply to a life insurance policy, for an insurance policy is not such an instrument, since it cannot be ascertained from its face the debt or damages due; and hence, it cannot be ruled that the justice fails to obtain jurisdiction of the subject-matter of an action for an amount alleged to be due on an insurance policy, on the sole ground that neither the .policy nor an affidavit that it was lost was filed with the justice.</p> <p>2. LIFE INSURANCE: Extended Policy: Failure to Give Notice of Insured’s Death: Bar to Recovery. Sections 6946 and 6948, Revised Statutes 1909, providing that, in case of extended life insurance, notice of the claim and proof of death must be submitted to the company within ninety days after insured’s death, must be read and construed together, and a failure to give notice and make proof of death within such time, absent waiver or estoppel or other matter of avoidance, defeats recovery. A claim under the policy is not, by said statutes, strictly speaking, defeated by reason of forfeiture, but because failure to give notice and make proof of death constitutes a failure to perform a statutory requirement essential to the creation of a valid claim against the company.</p>

<p>1. STREET IMPROVEMENT: Elimination of Part of Ordinance Plan. Under the charter of Kansas City, an ordinance may provide for the widening and grading of a street, and the grading of intersecting streets, as a part of a general scheme to establish one continuous trafficway, “all as one general improvement,” and a circuit court cannot ignore or alter any material part of such ordinance; and where the ordinance provided that thirteen intersecting streets should be graded or regraded so as to constitute approaches to a trafficway, the court had no authority, in an attempt to ascertain the damages and benefits, to receive a verdict or render a judgment which eliminated four of the intersecting streets from consideration.</p> <p>2. -: General Improvement: Instruction for Separate Verdicts. Where the charter and ordinance provide for one general improvement of a highway, crossed by thirteen streets, it is error to instruct the jury that the damages and benefits from the grading of the highway and each intersecting street are to “be considered and determined separately” and that thirteen separate verdicts are to be rendered.</p> <p>3. -: Instruction To Disregard Testimony. In so far as an instruction attempts to direct a jury to exercise their own judgment as to the damages and benefits free from any connection with the testimony, it is error.</p> <p>4. -: General Improvement: Individual Benefit to Lot: Separate Assessment. Where the charter and ordinance unite all elements of the street improvement into one general improvement, it is error to instruct- the jury that they “have no right to assess any lot to pay for any of the-proposed street improvements, except for such improvement as will actually benefit the particular lot,” or that they “have no right to assess any greater sum against any lot than it will be actually benefited by the particular improvement.” The improvement being a general one, no attempt should be made to accredit any one portion of the improvement with benefits apart • from the others, except to separate the grading benefits from the condemnation benefits.</p> <p>5. -:-: Damages Exceeding Benefits: As to Particular Lots. Where the court has told the jury that the proposed street improvement is necessary as a matter of law, and that if they find the entire damages exceed the benefits they should go no further, but so report, another instruction telling them that if they find that “the total benefits from the proposed grading of any intersecting street do not equal the amount of damages to lots on such street, then you need to proceed no further as to such intersecting street,” is error, in that it conflicts with the other correct instruction, and besides is contrary to the law governing such cases.</p> <p>6. -: Damages to Non-Abutting Property. Where the charter ■ and ordinances made 23rd Street and the intersecting streets one for the purpose of the improvement, an instruction telling the • jury that only property abutting on 23rd Street is entitled to damage's is error, the evidence tending to show that the deep cut in 23rd street deprives the owners of property abutting on the intersecting streets of vehicular access thereto.</p>

<p>1. DEED OF MARRIED WOMAN: Defective Acknowledgment: Prior to 1883. A deed made by a married woman, the certificate of acknowledgment of which simply recited that she and her husband “personally appeared before me, a notary public in and for said county, both being personally known to me and acknowledged the execution of the annexed deed,” made when the statute (Secs. 680, 681, R. S. 1879) requiring that any officer taking the acknowledgment of a married woman to any deed of conveyance of real estate must examine her separate and apart from her husband, and so certify in the certificate of acknowledgment, and further certify that she executed such conveyance freely and without compulsion of her husband, was in force, was void.</p> <p>2. -: Abandonment of Land. The defense of abandonment, disassociated from other defenses, such as adverse possession or failure to pay taxes, has never been recognized at common law as affecting title to real property; for at common law title can neither be lost nor gained by abandonment operating alone.</p> <p>3. :-: Laches and Estoppel: Suit for Interest. Neither laches nor estoppel in vais is as to her real estate'imputable .to a married woman who ever since the making of her void deed in 1882 has been under the legal disability of coverture, the reason being that .prior to the Married Woman’s Acts of 1889 the right of possession of a married woman’s lands was in her husband and was a vested right which was not destroyed by those acts, and she could n’ot before or since have maintained an action for possession. Since the Act of 1897 she could have maintained an action to determine interest, but was not compelled to do so, but that act did not divest the husband’s existing right to possession, or permit her to sue for possession during his life.</p> <p>Held by GRAVES, J., dissenting, that the Act of 1897 afforded to a married woman the right to assert her interest in land, and a remedy; and if she stood by for eighteen years after its enactment and saw valuable improvements made upon the land she is barred by estoppel in pais from asserting such interest; and estoppel in pais goes both to the remedy and the right, and may be set up as a defense in actions at law and suits in equity.</p> <p>4. -: Estoppel By Covenant in Void Deed. A married woman is not estopped to assert her interest in land by a covenant in a deed which is void as to her because not acknowledged in the manner required by statute. The deed being void, any covenant in its cannot be efficacious to produce estoppel.</p> <p>5. -: Limitations. Neither the ten-year, nor the thirty-one-year, nor the twenty-four-year Statute of Limitations was a bar to a married woman’s suit begun in 1915 to establish her interest in land attempted to be conveyed in 1882 by a deed void because it was not acknowledged in the manner prescribed by statute, she being at the time and ever since under the legal disability of coverture. There was no time when she was capable of maintaining an action for possession, and as no such action can accrue to her until her husband’s death, the thirty-one-year and the ten-year statute has never begun to run as to her, and her suit to establish her interest is not barred by the twenty-four-year statute, because it was begun in less than twenty-four years after the Act of 1897 was passed.</p> <p>Held, by GRAVES, J., dissenting, that Section 1881, Revised Statutes 1909, which antedated the Married Woman’s Acts of 1889, should no longer be held to except married women from the provisions of the ten-year and other statutes of limitations, .but the Married Woman’s Acts having made her a femme sole, with power to sue for her interest in lands, she should be considered discovert, and said Section 1881 should not be held to prevent the statutes of limitations from running against her.</p> <p>6. -: -: Thirty-year Statute: Obligation to Pay Taxes. As between a married woman, whose deed made in 1882, in which her husband joined, was void as to her because not acknowledged in the manner prescribed by statute, and who has since been under the disability of coverture, and her husband’s grantee and grantees by mesne conveyances, as the obligation to pay taxes rests up the latter, the holders of his lifetime right to possession; and hence the thirty-year Statute of Limitations does not apply to her in her suit to establish her interest in the land, she being at no time entitled to its possession.</p> <p>7. CHAMPERTY: Agreement of Attorney to Pay Cost. An agreement by an attorney with a married woman to pay the cost of a suit to recover her interest in land, in consideration of a one-half interest in the amount recovered, even if champertous between him and her, does not serve to deprive her of relief touching the land as against a stranger to'the contract.</p>

<p>1. BOABD OP EQUALIZATION: Constitution: Certiorari. In a certiorari brought to quash the record ot a county board of equalization, if the record shows on its face that the officers designated by the statute were named as composing the board and that they were present at its meetings, it cannot be held that such persons were not de jure members of the board, or that said board was illegally organized.</p> <p>2. -: Jurisdiction: Insufficient Notice: Appearance. Whether or not the notice to the taxpayer that an increase in the assessed valuation of his property was sufficient, if he actually appeared before the board of equalization and the matter was continued, and before such increase was made he appeared specially and filed his objections thereto, his appearance vested'the board with jurisdiction.</p> <p>3. -: Amending Becord: Classification. Amendments of the records of the board of equalization, made prior to its final adjournment by the direction of its presiding officer, which did not change the amount of the increase in the taxpayer’s assessment, but simply specified the classes of property to which it was applicable, did not oust the board of jurisdiction, or impair the validity of the increase.-</p> <p>4. -: Trebling Assessment. The County Board of Equalization, after .increasing the taxpayer’s assessment to equal the amount of property owned by him, is by statute given power to treble the assessment upon a finding that he has given a false list.</p> <p>5. -: Increasing Assessment: Certiorari. In reviewing the action of the County Board of Equalization by certiorari the courts cannot go beyond the face of its record; and since under the statute it had authority to increase the assessment of the property returned by the taxpayer, and to add that omitted, if It had knowledge of facts justifying such action, it will not be held on certiorari that it exceeded its statutory powers, if it heard evidence before it made the increases and it is not denied that the taxpayer owned property equal to the amount of the increased valuation.</p>

<p>1. INSURANCE: Res Adjudicate: Decision of U. S. Supreme Court: Assessment: State Tax. Only such questions as were before the court and were decided by it upon writ of error become the law of the case by force of its judgment therein. A decision of the Supreme Court of the United States holding that the Supreme Court of Missouri, in passing on the validity of certain assessments by an insurance company organized under the laws of Connecticut, had not given full faith and credit to certain public acts and judicial proceedings of the State of Connecticut, was not an adjudication of the validity of that portion of each assessment, in-eluding the one on which the alleged forfeiture was based, which included a state tax of two per cent of the amount thereof, nor of that portion of the unpaid assessment which contained a charge of quarterly expense dues not yet due; for the former judgment of the Supreme Court of Missouri was based on no such grounds, but was simply against the validity of the assessment and the forfeiture of the certificate for non-payment, and the question of the right of the company to include the state tax as a part of said assessment, and to declare a forfeiture for its non-payment, is one arising under a state statute, of which the Supreme Court of the United States could take no cognizance upon a writ of error, it being the rule of that court to leave to the state courts the duty of ascertaining and determining the contractual relations of parties dependent solely upon a state law; and, besides, that court did not attempt to determine the validity of assessments which included the state tax.</p> <p>2. REVERSAL OF JUDGMENT: Remand for Retrial: Further Procedure. When a judgment is reversed by the Supreme Court and the cause is remanded for a new trial, the trial court has jurisdiction, not only to retry the issues of fact presented by the pleadings in the first trial in accordance the principles announced in the judgment of reversal, but also to reframe those issues as provided by the Code of Civil Procedure; for a retrial does not mean a mere replica of the former trial, but is a trial in the light of the experience and knowledge acquired in the interval.</p> <p>3. INSURANCE: Assessment: State Tex as Part. An assessment which includes as a part thereof the two per cent tax mentioned in Section 7099, Revised Statutes 1909, is void, and its non-payment constitutes no ground for a forfeiture of the certificate of insurance.</p> <p>4. -: -: -: Doing Business As Old-Line Company. The fact that defendant, since it issued the certificate of insurance, has ceased to issue certificates on the assessment plan and is now doing its assessment business without a special license therefor, but is doing business simply as an old-line joint-stock company, does not affect the substantial rights of the parties to an action on the certificate, nor relieve it of the wrong, of including the two per cent tax in the assessments.</p> <p>5. -: -: -: Smallness of Tax. The fact that the tax improperly included in the insured’s assessment amounted to only fifteen cents on each assessment, and that the entire mortuary fund to which it accrues belongs to the certificate-holders, is no ground for upholding an attempted forfeiture of the certificate, where the insured, prior to the attempted cancellation, not only paid illegal exactions amounting to nearly, if not quite, the amount of his alleged delinquency, but also paid a considerable sum into a fund which is held for distribution among living certificate-holders when the amount thereof in force shall have been reduced to one million dollars.</p> <p>6. -: -: Forfeiture. The law abhors a forfeiture, and this aversion has resulted in the rule that it may be prevented by a construction as technical as that by which it is invoked.</p> <p>7. -: -: Damages: Attorney’s Fees. The fact that when the case was before the court on a former appeal it committed error which caused a reversal of its judgment by the Supreme Court of the United States, did not affect the right of plaintiff to damages for vexatious delay and attorney’s fees on a retrial.</p>

<p>1. NEGLIGENCE: Insufficient Fire Escapes: Death in Dormitory. Section 10663, Revised Statutes 1909, relating to fires escapes, is applicable to the City of St. Louis, and the death of a member of an athletic club while asleep in the fifth floor When the building was destroyed by fire affords a basis for a legitimate inference that his death was caused by the negligence of the owner in failing to comply with the statutes and ordinances relating to furnishing fire escapes.</p> <p>2. -: -: Question for Jury. If the building which deceased occupied at the time it was destroyed by fire, which caused his death, falls within the classification designated in the statutes and ordinances, and was not supplied with the fire escapes required by them, the question of whether insufficient fire escapes was the proximate cause of his death is one for the jury.</p> <p>3. -: -: Dormitory: Definition. The common and ordinary significance of the word “dormitory” is a place for sleeping; and the fifth floor of an athletic club, on which 93 rooms were distinctly reserved for sleeping quarters and accommodation of its members, with provision for increasing the number of such rooms to 130, was a dormitory within the meaning of the statute and ordinance, which required that “all buildings of non-fireproof construction, three or more stories in height, used for manufacturing purposes, hotels, dormitories, schools, seminaries, hospitals or asylums, shall have not less than one fire escape for every fifty persons, or fraction thereof, for whom working, sleeping or living accommodations are provided above the second floor.” And the evidence being that the building destroyed by fire did not have the requisite number of fire escapes, the question of whether the insufficient supply was the proximate cause of the death of a member of the club asleep in the dormitory was one for the jury.</p> <p>4. -: -: -: Owner’s Knowledge of Use. There ip no necessity of further proof that the owner of the building had knowledge that its lessee, an athletic club, was using the fifth floor of the leased premises for “dormitory” or sleeping purposes prior to the fire which destroyed the building, than the undisputed fact that the building and such floor had been so used for eleven years, during all of which time the owner occupied a portion of it.</p>

<p>1. PURCHASE OF LAND: Unilateral Contract: Mutuality Supplied. A mere option agreement to sell land, though in' its inception unilateral and lacking in mutuality, may, when bottomed on a valuable consideration and accepted by the promisee within the time limited by the promisor, form the basis of an action for specific performance.</p> <p>2. -: -: -¡ — : Consideration: Extension. The word consideration is correctly defined as a benefit to the party promising, or a loss or detriment to the party to whom the promise was made. An extension by the vendor of the option agreement for thirty days, made on the last day of the option period and bottomed on a valid consideration, if accepted by the vendee on any day before the extension period expired, is enforcible and cannot be withdrawn before the expiration of such period; and if the vendor agreed to extend the option for thirty days upon condition (a) that the vendee give the vendor a certified copy of the report of his drillings for coal on the land and (b) pay interest on all deferred payments from the beginning of said thirty days in the event he should buy, and he unequivocally accepted the terms of purchase, and continued-the drillings, though he did not furnish the certified report, which could be of no value to the vendor after the vendee’s acceptance, there was a valuable consideration for the agreement, and the vendee is entitled to specific performance.</p> <p>3. -: Breach of Contract for Other Reasons. A breach of the option contract to purchase land, by the vendor before the expiration of the option period, for reasons other than the vendee’s failure to perform, relieved the vendee from doing the vain and useless thing of furnishing a certified report of his drillings for coal on the land, called for by the agreement before the vendee had accepted the terms of purchase, but no longer of practical utility after he had accepted, although the drillings themselves furnished the consideration for the agreement.</p>

<p>1. SCAFFOLD: Movable Platform. It is a matter of common knowledge that a platform for the use of workmen in erecting a large and tall building is readjusted and moved either laterally or perpendicularly as the work on the walls progresses, but it is none the less a scaffold on that account. Where the entire wall of a building, sixty or eighty feet long and fifty or sixty feet high, was separated into sections called panels, and the platform on which the men worked in removing the forms was moved from panel to panel as the work progressed, the platform was a scaffold within the meaning of Section 7843, Revised Statutes 1909.</p> <p>2. -: Negligence: Specific Acts: Fall: Burden of Proof. Testimony that one of the chains supporting the scaffold had become unfastened will support an inference that it was insecurely fastened. But it is not necessary under the statute (Sec. 7843, R. S. 1909) to prove a specific act, of negligence which caused the scaffold to fall. The statute requires that the structure “shall be well and safely supported” and “so secured as to insure the safety of persons working thereon,” and this language means that the giving</p> <p>■ way of scaffold and the consequent injury of a workman raises a prima-facie presumption that his employer had failed of his duty and places the burden on him to show that it gave way without any negligence on his part. The statute would possess no force or effect if the injured workman were required to point out a specific defect in the scaffold furnished him, and which fell, causing his injury.</p> <p>3. -: -: -: -: Res Ipsa Loquitur. While the doctrine of res ipsa loquitur does not generally apply to a case arising between master and servant, it is so applied where the injury to the servant is caused by some appliance peculiarly within the master’s knowledge and control, of which the servant is ignorant and with whose construction or arrangement he has nothing to do.</p> <p>4. NEGLIGENCE: Fellow-Servants: Carpenter and Common Laborer. A carpenter constructed the platform on which the men were to work in taking down the scaffolding, and a common laborer had nothing to do with its constructing and knew nothing about it. Later after the platform was completed, the carpenter and laborer stood on the platform and were working together in taking down and receiving the timbers of the scaffold when the platform fell, injuring the laborer. Held, that they were not fellow-servants in the work of constructing the platform, and as the laborer’s action for damages is based on a violation of the statute requiring employers to furnish safe scaffolds or structures for such work, his action is not barred on the theory that his injuries were due to the negligence of a fellow-servant.</p> <p>5. -: -: Detached Employee. When the master uses one servant to construct a place in which he and the other servants are to work, and the place is made unsafe by that servant, and a fellow-servant who was not employed in that particular work is injured because of the defect, he is not the fellow-servant of the one who did that particular work so as to defeat recovery.</p>

<p>. 1. JURISDICTION: Venue: Corporation: Libel. The Act of 1909 (Sec. 1755, R. S. 1909), declaring that “suits for libel against corporations shall be brought in the county in which the defendant is located, or in the county in which the plaintiff resides,” in so far as it permits a plaintiff to bring a libel suit in the county in which he resides against a corporation whose place of business is in another county and whose newspaper in which the libel is published is printed in such other county, is invalid, in that it denies to said corporation the equal protection of the laws, since, were the libeler an individual, the plaintiff could not maintain his suit in his own county unless the libeler were found and served therein. A resident of Cole County cannot maintain a suit in the circuit court of said county against a corporation whose place of business is in the City of St. Louis and whose newspaper in which the libel is published is printed in said city, unless said corporation waives the lack of jurisdiction. [Per McBAINE, Special Judge; WALKER, FARIS and GRAVES, JJ., concurring; BOND, C. J., and BLAIR and WILLIAMS, JJ., dissenting; WOODSON, J., not sitting.]</p> <p>2. EQUAL PROTECTION: Corporations. Corporations come within that provision of the Fourteenth Amendment declaring that no State shall deny to any person within its jurisdiction the equal protection of the laws. Therefore the laws must extend to them the same protection they extend to individuals.</p> <p>3. -: Corporations' and Individuals: Venue: Classification. It is an advantage to a plaintiff to sue in the county in which he lives, and to a defendant to defend in the county of his residence; and,a statute which permits a plaintiff in a libel suit to sue a non-resident corporation libeler in his own county, and denies to him the right to sue a non-resident individual libeler in the same county, makes an unreasonable classification against the corporation, and is invalid, since the classification is not based upon a difference bearing a just and proper relation to the attempted classification.</p> <p>4. LIBEL: Public, Officials. Citizens, through newspapers and-otherwise, have the right to criticise the official acts of public officers. Rules relating to defamation of an individual in private life do not apply to the official conduct of a public official. A qualified privilege of free discussion" and free criticism of the public acts of public officials is essential to free government.</p> <p>5. -: -1 — : Matter Por Court. It is the duty and province of the court to determiné whether the spoken or written published matter complained of relates to the public acts of the plaintiff and is of public interest, and to further determine whether the comments upon the facts and the criticism are qualifiedly privileged; and if the alleged libelous matter pertains solely to plaintiff’s public conduct as a public official, and all the substantial facts are admitted to be true or established without substantial controversy, and the comments upon them are qualifiedly privileged, the court should not submit the case to the jury.</p> <p>6. -: Inference. A newspaper has a right to draw inferences from established facts as to the motives of a public official, whether such inferences are right or wrong, reasonable or unreasonable, provided they are made in good faith.</p> <p>7. -: Qualified Privilege: Malice. A defendant has a qualified privilege to criticise and censure the public acts of a public official, but the privilege does not exist where defendant is actuated by malice, by which is meant the presence of an improper motive.</p> <p>S -: Malice: Proof: Other Articles. The burden of establishing malice or improper motive is upon the plaintiff in a libel suit; and is not established by the introduction of other articles which only show that plaintiff’s conduct as a public official was being discussed and censured for the purpose of bringing about needed reforms, as defendant viewed the matter, in the management of a public institution.</p>

<p>1. PRACTICE: Judgment on Pleadings: Ascertainment of Cause of Action. In an action brought by property owners for the cancellation of special tax bills, wherein the pleadings consist of the petition, an answer and a reply denying the allegations of the answer, the sole question, on the filing by defendant of a motion for judgment on the pleadings, is whether the petition states a cause of action entitling plaintiffs to the relief asked.</p> <p>2. STREET IMPROVEMENT: Maintenance and Repair: Benefit Assessments. Under the present charter of Kansas City the city has power by ordinance to direct that the cost of repairing and maintaining an existing boulevard be paid by special assessments against the abutting property, or said cost may be paid out of the funds belonging to the park district in which the improvement is made or out of the general park fund; and the exercise by the city of its option to authorize the cost to be paid by special assessments will not be held to be illegal, unless the act is clearly unreasonable, oppressive arid subversive of the rights of the property owners.</p> <p>3. -: General Power of Cities: Conelusiveness of Exercise Upon</p> <p>• Courts: Fraud. The power of cities to grade and improve streets is legislative and continuing, subject to such restraints as may be imposed by valid charters; and the power being conferred by charter, and the charter provision being in harmony with constitutional and statutory authorization, the courts will not interfere, either directly or collaterally, with'municipal action, in the absence_of fraud. The governing body of the city, and not the courts, is the judge of the necessity and expediency of the exercise of the power conferred, and the fraud that will authorize the courts to interfere with municipal action is not that it has resulted in individual hardship, or that in working out a general scheme an individual burden without corresponding benefit is imposed, but only an act so unreasonable, oppressive and subversive of the rights of citizens in the general purpose declared, as to clearly indicate an attempted abuse rather than a legitimate use of the power conferred.</p> <p>4. -: Part of Street: Inequality of Non-Uniformity.- A city having charter power to improve or repair streets, and to “pay for such improvement or any part thereof” out of its general funds or hy special assessments against abutting property, may pay for repaving a portion of a boulevard out of its general fund, and at a later time provide that the cost of repaving another portion . shall be paid by special assessments; and in the absence of fraud, it will not only be presumed that the city authorities had good and sufficient reasons for proceeding by different methods in the two proceedings, but there was no such inequality or lack of uniformity as denied to the abutting property owners the equal protection of the laws.</p> <p>5. -: Exemption from Subsequent Taxation: Contractual Right. The charter and ordinance under which a street was improved do not constitute a contract with abutting property owners who paid taxes therefor, that their property will not be burdened with taxes to pay for subsequent repairs or repaving. The statute, or a charter in harmony therewith, conferring upon a municipality power to provide for the construction, repair and maintenance of streets, may be changed, so as to provide a different method of paying for the improvement, or so as to repair an improvement already made, and such change in the law does not constitute an impairment of any supposed contract between the city and the abutters, who paid for an earlier improvement, that their property will not be sujected to taxes to pay for a later improvement or repairs.</p> <p>6. -: Maintenance: Tax Bills Prima-Facie Regular. Special tax bills issued for the improvement of a boulevard import prima-facie validity under the charter of Kansas City, and are evidence of the liability of the property for the amount thereof; and an allegation in the petition that the resolution authorizing the improvement provided that the boulevard shall “be paved the full width thereof with bituminous pavement macadam” does not justify the conclusion that the tax bills were issued for maintenance work. Besides, the charter provides for the maintenance of a boulevard by special assessments.</p> <p>•?. -: Change in Charter: Omission of Exemption Right: Impair-' ment of Contract. A provision in the city’s charter at the time the boulevard was paved, to the effect that when a boulevard has been constructed at the expense of the adjoining property it shall thereafter be maintained at the expense of thg park district in which it is situated or out of the general park fund, did not create a contract right with abutting owners that their property would be exempt from special assessment for improvements made after the charter provision was annulled, or inhibit the annullment of such provision; nor was such exemption kept alive by a clause in the subsequent charter that “the repeal of any law by the provisions of this charter shall not in any wise affect any right acquired or accrued thereunder, nor shall this charter in any wise affect the right acquired or accrued under the previous charter.” The operative force of the provision in the original charter prevailed so long as that charter was in existence, hut no longer, and “the right acquired thereunder” did not prohibit the city, by a new charter, to provide a different method for paying for street improvements.</p>

<p>1. DRAINAGE DISTRICT: Sufficiency of Petition. It was unnecessary for the petition praying for the organization of a drainage district under the Act of 1905, to state whether the ditch was to be open or closed.</p> <p>2. -: Report of Viewers: Actual View. The Act of 1905, did not require the report of the first board of viewers of a drainage district to show an actual view of the proposed improvement. However, the report in this case, when fairly construed, does show an actual view.</p> <p>3. -: Notice. If the first notice to the landowners described the proposed ditch exactly as it was described in the report of the first viewers and in the petition, and gave notice that the report had been filed, it was sufficient.</p> <p>4. -:--: Description of Lands. The second notice to land- . owners, required by Section 5587, Revised Statutes 1909, is not required to describe the lands to be affected by the organization of the drainage district by the county court. The report mentioned in that section is that of the second board of viewers provided for by Section 5584, which requires the report to be accompanied by a plat showing the separate tracts affected and the names of their owners, and if the plat correctly describes the lands a misdescription in the second notice of certain lands is immaterial, especially if the misdescription consisted of an error giving a township number as 56 instead of 57, which error, being clerical, was subject to correction upon the face of the report.</p> <p>5. -: Estimate' of Costs.. The estimate of the costs of the improvement can be shown by the plat and profile filed with the viewers’ report. ' ■</p> <p>6. -: Notice of Hearing Before Viewers: Due Process. A special notice to the landowners of their right under Section 5585 to “appear before the viewers and freely express their opinions on all matters pertaining thereto” is not required, where the landowners are in court by proper notice when the viewers are appointed and notice is given of a hearing after their report is filed.</p> <p>7. -: Notice of Bond Issue. The statute does not require specific</p> <p>notice that a bond issue is contemplated as a method of securing funds; and if the petition contained a prayer for the issuance of bonds in statutory form and notice of the pendency of the petition was given, that was all that was required. Besides, a lack of authority to issue bonds is no defense to a suit to collect an installment tax.</p> <p>8. -: Organization: Collateral Attack. The validity of the incorporation of a drainage district is not open to collateral attack; and where there has been a colorable effort, in good faith, under a valid law, to incorporate the district, and it has been and is exercising powers vested in such public corporations and the State has not attempted to inquire into the legality of its organization, the illegality of its organization cannot be shown as a defense in a suit for taxes levied by it.</p> <p>9. -: Assessor’s Book: Collection of Tax. There can be no valid drainage district tax without a valid assessment; but the ditch assessment book required by Sec. 5602, R. S. 1909, has no relation to the assessment of drainage taxes. Under the Act of 1905 the assessment is made by the county court, and its basis is the report of the viewers and engineer confirmed by the court; and its validity is in no way dependent upon the ditch assessment book, which the clerk is required to make up, but his failure to perform that duty does not render the tax uncollectable.</p> <p>10. -: Taxes: Limitations. The plea of the Statute of Limitations to a suit brought in October, 1914, for the drainage taxes of 1910, 1911, 1912 and 1913, is unavailing.</p>

<p>1. SHERIFF’S DEED: Recitals: Judgment as Evidence. The recitals in a sheriff’s deed are prima-facie evidence of the facts therein set forth, and in ejectment the introduction in evidence of the judgment under which the execution sale was made is not necessary to establish title in the purchaser.</p> <p>2. -: Recital of Levy. A sheriff’s deed is not required by the statute to recite a levy upon-the lands sold.</p> <p>3. APPEAL: Printing Evidence Omitted at Trial. The printing in the abstract of a judgment rendered at a former trial of the case, which was not offered by either party at the trial which resulted in the judgment appealed from, does not put such judgment in the record, and all contentions based on such former judgment are eliminated from the case.</p> <p>4. SHERIFF’S SALE: Pending Appeal: Subsisting Judgment Against Non-Appealing Defendant. A sale upon special execution issued upon a judgment against a mortgagor who did not appeal and which, was never disturbed as to him, made during the pendency of the appeal which resulted in reversing the judgment rendered in behalf of the other defendant, was a saie, as to such non-appealing defendant, under a subsisting judgment.</p> <p>5. -: At Second Term: Written Stipulation. A sheriff’s sale is not invalid because made at the second term after the issuance of special execution, rather than at the first. Besides, it is in poor grace to-urge any infirmity in the sale on the ground that it was made at the second term where the parties have entered into a written agreement postponing the sale to that term in order that defendants might have longer time to redeem under the mortgage which was the basis of the judgment.</p> <p>6. -: Collateral Attach: Misleading Notice. A lack of proper notice of a judicial sale is an irregularity which renders the sale voidable, but not void; and being only voidable, the sheriff’s deed, made under execution, cannot, because of an infirmity in the notice, be attacked in a collateral proceeding, such as an ejectment brought by the purchaser. So -where the special execution recited that the debt and costs were declared a lien upon the land, and the sheriff’s deed contained the same recitals, the deed cannot be attacked in ejectment on the ground that the notice of sale stated that one of the defendants owned all the lands as tenant by the entirety jointly with the other defendant and that it was the interest of such tenant that would be sold.</p> <p>7. ACKNOWLEDGMENT: Regular on Face: Hidden Defects: Record. If a deed of trust contains a certificate of acknowledgment in proper and regular form, it is the duty of the recorder to receive the instrument and place it upon record, and if so recorded it imports constructive notice to all subsequent purchasers; and though, upon a trial in court, it is adjudged that the deed had not been acknowledged,- because the notary’s recitals in his certificate were false, its record nevertheless imported' notice to such subsequent purchaser.</p>

<p>1. RAILROAD: Mandamus: Compelled Operation. A railroad company in possession of its road may be compelled by mandamus to operate its road in accordance with the positive requirements of its charter, and mandamus is the proper remedy to compel a railroad to perform a definite duty to the public.</p> <p>2. -: Abandonment of Spur Track: Without Permission. Since the enactment of the Public Service Commission Act of 1913 a railroad company, engaged in operating a spur or branch line, cannot determine for itself the question- of its right to abandon such line, but it must apply to the Public Service Commission for leave to abandon, and may be compelled by mandamus to continue operating such spurs or branches until the Commission has acted and its order has become final.</p> <p>3. -: -: -: Decrease in Freight Rates. And notwithstanding the Public Service Commission refused to permit the railroad company to charge increased freight rates asked for over the spur tracks it was operating in submission to the Commission, it cannot, without the permission of the Commission, abandon the operation of such tracks on the ground that they cannot be operated profitably at the rates permitted, but its duty is to apply to the Commision for such permission or for such adjustment of the rates over its entire line as 'will not work a hardship.</p> <p>4. -: -: Operated at Loss: Confiscation. That an order of the Public Service Commission or a judgment of court concerning a particular facility or a portion of the line of a railroad company may result in some financial loss does not necessarily bring it in to conflict with the provisions of the Constitution relating to due process of law and equal protection of the laws.</p> <p>5. -:-: Confiscation: Raised in Mandamus. In a mandamus brought by the Public Service Commission against a railroad company to compel it to operate certain spur tracks which it has abandoned without permission, the question of whether the order to operate, if obeyed, may result in financial loss to the company and therefore be in conflict with the Constitution, has no place.</p>

<p>1. TESTIMONY: Competency: Abandoned Objection. An objection to the competency of a witness as an expert, for whom the court stated'a reason why he was" competent, to which no objection was made, after which the witness testifies without further objection, must be considered as having been abandoned.</p> <p>2. -: Harmless Conclusion. Where plaintiff had testified that as her automobile turned east to cross the railway tracks she saw a north-bound street car “coming at a rapid rate of speed and at a distance of seven or eight feet from the machine,” no harm was done by the statement of a witness for defendant who testified that the street car was not more than eight or ten feet distant when the automobile turned across the track and he “saw they could not help but get hit when they turned across there.”</p> <p>3. -: General Objection. A mere objection to certain testimony and a mere motion to strike it out, both in the most general terms, no reason being assigned for either the objection or the motion, will not save for review on appeal the court’s ruling overruling the motion.</p> <p>4. AUTOMOBILE: Highest Care Required of All Drivers: Negligence Imputed to Owner. The negligence of a seventeen-year-old son of plaintiff, who was the driver of the automobile owned by her and in which she was riding, is imputable to her, and the law imposes upon the driver, and consequently upon her, the duty of exercising the highest degree of care for the safety, not only of pedestrians and other travelers on the public street, but for herself as well; and if she is injured as the result of the collision of her automobile with a street car, she cannot recover unless her driver was at the time exercising the highest degree of care.</p> <p>5. -: -: Statute: Contributory Negligence. The statute (Par. 9, sec. 12, p. 330, Laws 1911) requiring any person owning, operating or controlling an automobile running on or across public roads, streets or other public highways, to use the highest decree of care that a very careful person would use under like circumstances, to prevent injury to persons on such highways, and making an owner or driver failing to use such care liable for damages to any person injured, requires such driver or owner to exercise the highest degree of care to avoid collisions with street cars and other automobiles and thereby to avoid injuring himself, as well as pedestrians and travelers on the street. It supplants the common-law rule which requires such driver or owner to be in the exercise of only reasonable or ordinary care for his own safety, and makes his failure to exercise the highest degree of care contributory negligence. [Disapproving Advance Transfer Co. v. Railroad, 195 S. W. (Mo. App.) 1. c. 568, and Hopkins v. Sweeney Automobile School Co., 196 S. W. (Mo. App.) 772.]</p>

— Hon. Fred Lamb, Judge. (1) An estimate of the cost, location and construction . of the improvement was made by the viewers, as is shown by the report of the viewers set out in the abstraet of the record. (2) The incorporation of Drainage District No. 13 is preliminary and is not a final decree adjudicating anyone’s rights from which an appeal lies; it simply organizes an entity with which to further proceed to effect reclamation.

<p>1. PUBLIC SERVICE COMMISSION: Excessive Rates: Judicial Question. The statute expressly gives the Public Service Commission authority to fix railroad rates, and in determining whether a proposed rate is lawful for the future the Commission does not act judicially, but simply ascertains what are the existing law and facts and applies to the particular utility the previously declared will of the Legislature.</p> <p>2. RAILROAD: Spur Tracks: Regulation of Rates by Commission. As long as a railroad company operates spur or tram tracks in the public service it must do so subject to the regulatory powers of the Public Service Commission; and the fact that it operated them under tariff rates filed with the Commission is sufficient to warrant a finding by the Commission that it was using the two industrial spur or tram tracks, four or five miles long and connecting with its main line, in the puDlic service; and that subjects them to regulation by the Commission.</p> <p>3. -: -: Included in Charter: Operation. Whether the tariff rates to be charged by a railroad company for the carriage of freight over its spur or tram tracks are subject to regulation by the Public Service Commission is not to be made to depend on whether such tracks are included in its charter. The power of the Commission to regulate the freight charges of a railroad company is to be determined by what it does rather than by what its charter says. The Commission’s supervision is not limited to lines constructed or owned by a railroad company, but is- expressly by statute (Sec. 43, p. 580, Laws 1913) extended to lines operated by it; and the railroad company cannot escape lawful regulation by denying its right to operate a line which it in fact is operating in the public service under regularly published tariffs.</p> <p>4. -: Short-Haul Rates: Reasonable Variation. A freight-rate unlawful because in conflict with a valid constitutional inhibition is unreasonable. The short-haul clause of the statute is constitutional and a freight rate violative of it cannot be upheld on the ground that it is reasonable.</p> <p>5. -: Regulation of Rates: Estoppel: Agreement Upon Rates Charged. A railroad company cannot rely upon estoppel under a contract void because in direct conflict with an express constitutional prohibition. Complainants are not estopped to ask the Public Service Commission to reduce within the maximum statutory charges the freight rates to be charged by a railroad company over its tram or spur lines, by the fact that, when the company was about to cease to operate the spur tracks, they entered into an agreement with it to pay charges in excess of the statutory maximum rates, and the company, in pursuance to the agreement, bought a special engine and expended five thousand dollars in putting the tracks in condition for hauling cars thereon.</p>

Certiorari. (1) The assignments of error in relator’s motion for new trial were sufficient. Wampler v. Railway Company, 269 Mo. 464; Stid v. Railway Company, 236 Mo. 397; Collier v. Lead Company, 208 Mo. 256. It has been so held in criminal cases under a more exacting statute. State v. Noland, 111 Mo. 492. (2) The petition does not state a cause of action under the res ipsa loquitur doctrine. McGrath v. Transit Co., 197 Mo. 97.

Louis City Circuit Court. — Hon. Kent K. Koerner, Judge. (1) Where the answer admits the allegations of the petition and seeks to avoid same by pleading affirmative defenses, as in this case, the burden of proof is on defendants. Richardson v. George, 34 Mo. 104; St. Louis Tow Co. v. Orphans’ Benefit Ins. Co., 52 Mo. 529; Glover v. Henderson, 120 Mo. 367; Knoche v. Whiteman, 86 Mo. App. 568; Schutter v. Adams Express Co., 5 Mo. App. 316; Kent v. Miltenberger, 13 Mo.

Clair Circuit Court. — Eon. Charles A. Calvird, Judge. (1) In a proceeding to establish a public road the petition must be accompanied by the names of all resident landowners. R. S. 1909, Sec. 10435; R. S. 1899, sec 9414; Spurlock v. Dornan, 182 Mo. 242; Bennett •v. Hall, 184 Mo. 407. (2) The word “owner”'in statutes of eminent domain is used in a comprehensive sense and includes all persons having any interest in the land. 15 Cyc. 844, 845; Ry.

<p>1. PRIVATE ROAD: Easement at Common Law. The doctrine of private ways existed at common law, and was usually founded on a presumption of grant or reservation; as where one sold a close surrounded by his own estate he was presumed to grant the easement of access, or if he sold his surrounding estate and reserved the close a reservation of the same easement would be presumed. And it was this doctrine of presumed easement which the State recognized and perhaps enlarged in Section 20 of Article 2 of its Constitution.</p> <p>2. -: Pleading: Accessible. The statute (Sec. 10447, R. S. 1909), prescribing the manner in which an easement of access by a private 'road may be acquired, prescribes no formula of words in which the petitioh must set forth that the petitioner is the owner of the tract of land for which the easement is desired and that no public road passes through it or touches it. Any words that expressed these facts in plain and unmistakable terms are sufficient; and if it uses such words, the petition is not defective or insufficient for that it does not employ the work “accessible” used in the statute.</p> <p>3. -: Character of Easement and Lands. The right to an easement of access to private lands is not personal, but pertains to the land to which it becomes appurtenant; and the right does not depend upon the extent of the tract, nor the number of acres owx-ed by petitioner, nor upon the lines of Government subdivisions, but it may be invoked where the petitioner owns lands on both sidüs of an impassable stream, and for the benefit of that part of the tract which lies on the opposite side of the stream from a public road which touches the part on that side at one corner.</p> <p>4. -: High Bluffs: Prohibitive Expense. The fact that the part of petitioner’s tract on the side of an impassible stream, which part is touched at one corner by a public road, consists of high bluffs and craigs, and that the expense of constructing a road on • ■ that side would be prohibitive, is a strong reason for creating a private way of access to the part of the tract on the opposite side.</p> <p>6. -: Pleading: Showing Present Access. And the mere fact that the petitioner in his petition has described that part of his tract on the side of the impassable stream, which at one corner is touched by a public road, does not preclude him from presenting his claim to a private way to .the part of the tract on the opposite side.</p>

<p>1. RECEIVER: Suit for Funds Converted by Predecessor: Proper Relator. A receiver appointed under Sec. 2018, R. S. 1909, cannot maintain a suit in his own name against the sureties on the bond of his predecessor; but where the order appointing the original receiver directs him to take possession of the property and with leave of court to bring such suits as shall be necessary to recover the assets, and the same power is given to the successor receiver, with nothing in the record showing an attempt to vest the legal title in either receiver, the suit to recover from the surety on the first receiver’s bond for moneys converted or misappropriated, should be brought, not in the name of the successor receiver, but in the name of the' company for whom the receiver was appointed.</p> <p>2. BOND:' Liability for Funds Converted by Receiver: Deposit in Bank. A bonding company cannot discharge its obligation as surety by pointing out some other person who is also legally liable for a loss. So where a receiver was appointed for an industrial company and authorized to take possession of its assets, including money on deposit to its credit, .and defendant as surety executed its bond, obligating itself that the receiver would faithfully and truly account for all moneys, assets and other property that should come into his hands, and thereafter the receiver caused to be transferred on the bank’s books to his credit as receiver a deposit previously made to the credit of the industrial company, and thereafter by checks signed by himself as receiver and payable to himself drew out the deposit and converted it to his own use, the bonding company is liable to the company for the amount so misappropriated, and cannot escape payment on the theory that the bank had actual knowledge that the deposit was a trust fund and that the company was the real owner thereof. The legal title of the fund was in the company, but the right to possession after its redeposit was in the receiver, and the bank was bound to pay his checks when in proper form, and therefore the surety must account for the money misappropriated; and although the industrial company, upon a showing that the bank knew that the receiver was converting the fund to his own use and with such knowledge aided him in so doing by honoring his checks, might in a proper proceeding recover from tho hank, still the surety must respond upon its guaranty that the receiver would faithfully account for the money and other assets reduced to his possession.</p> <p>3. BILL OF EXCEPTIONS: Withdrawn and Another Allowed. Tho allowance of a bill of exceptions by the court in term time, like any other act or proceeding, is in fieri during the term and can be modified or set aside. So that where a bill of exceptions was allowed and filed on the 17th and then by leave and order of court withdrawn, another approved and ordered filed in open court and actually filed on the 18th and made a part of the record was regular.</p> <p>4. VEXATIOUS DELAY: Damages and Attorney’s Fees: Suit on Guaranty Bond. It is true that Section 7068, Revised Statutes 1909, authorizing the recovery of damages and an attorney’s fee for vexatious refusal to pay applies only to actions against (1) an insurance company for loss on (2) a policy of insurance; but it embraces policies of “fidelity, indemnity ... or other insurance,” and those words are broad enough to include a company licensed to do “fidelity and surety insurance” for a consideration, and in an action on the judicial bond of such a company by which, for a consideration or premium paid, it guarantees that a receiver appointed hy the court will faithfully and truly account for all moneys, assets and other property that may come into his hands, it is proper for the court or jury to allow damages and a reasonable attorney’s fee for its vexatious refusal to pay the principal sum converted by the receiver to his own use.</p>

— Hon. Samuel Davis Judge. (1) The court erred in overruling defendant’s peremptory instruction to find for the defendant. The specification of negligence on which plaintiff went to the jury was in substance and effect that the explosion was occasioned solely by the negligence of the engineer in failing to see that the engine was properly supplied with water. Plaintiff must stand or fall under the foregoing specific charge of negligence. Northam v. United Rys.

<p>Appeal from Wright Circuit Court.— Hon. C. H. Blanker, Judge.</p>

<p>1. NEGLIGENCE: Separate Acts: Allegations: Proof of One: Electric Wire. A petition alleging that “defendant negligently and carelessly permitted one or more of its said wires charged with electricity, to become uninsulated and broken in two, -and to fall to the surface of ■ said alley and to remain broken in two and down while fully charged with electricity, when it knew, or ought by the exercise of the highest degree of care and caution to have known, that they were so uninsulated and broken and down,” charges three acts of negligence, namely, negligently permitting said wires (1) to become uninsulated, (2) to break in two and (3) to fall to the ground; and plaintiff was not required to prove all three charges, but if he proved that the wire became uninsulated or broken in two, and remained in that condition for such a length of time as to have enabled defendant to discover the defect by the use of proper care, then defendant is liable to a pedestrian who stepped upon the wire, even though it was not down for more than a moment.</p> <p>2. -: Uninsulated Electric Wire In Alley: Notice: Proximate Cause. Substantial evidence that defendant was repeatedly notified that its electric wire was defective, spluttering and making blue light, and had ample time to have repaired it before it broke in two and fell in the alley and neglected to do so, is sufficient to charge defendant with gross negligence; and if after such notice, and the breaking and falling of the wire, a boy, running through the alley, came in contact with it and was injured, defendant is liable in damages for his injuries, even though the wire had fallen only a few moments before he came in contact with it and defendant had no notice that it was actually down; for in such case, neglect to repair the defective wire after repeated notice or after ample time to have discovered its defective and dangerous condition, was the proximate cause of the boy’s injury. Under such circumstances the length of time the wire was down was wholly immaterial.</p> <p>3. -: Separate Acts: Proof of One: Instructions: Broadening Issues. Where plaintiff’s petition charges three separate acts of gross negligence, proof of any one of them which was the proximate cause of his injury will justify a verdict in his favor; and an instruction which submits the three charges alleged, does not broaden the issues.</p> <p>4. -: Evidence: Telephone Communication. Where an electric light company had a telephone in its office with a given number and said number was published in the telephone directory, and a user of said telephone called said number and some one answered by giving the name of the company, a communication then imparted to the said company that its electric wires in a certain locality were crippled, to which the reply came, “All right; we will attend to it,” is admissible evidence in a subsequent action for damages by a boy who was burned by one of said crippled wires, even though the witness did not know the name of the person who answered for the company.</p> <p>-5. VERDICT: Excessive: $35,000. Plaintiff came in contact with one of defendant’s electric wires, and was badly burned in his hands, arms, chest, abdomen, back and ujjper legs; one hand was amputated at the wrist; he has very imperfect use of the fingers of the other hand, but the upper part of the arm is dead, and the constrictions are such that it has become- fastened to the skin of the body, and that condition can never be remedied; the burns about the chest and abdomen were so severe that the cavity of one lung and the abdominal cavity are permanently constricted; he can never use his remaining hand for any kind of work; he suffered indescribable nervous agony for several months,' and all his life he must be a broken, helpless and suffering cripple. The jury returned a verdict for $50,000, which was by the trial court reduced to $35,000. Held, that the judgment for $35,000 will not be disturbed.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Kimbrough Stone, Judge.</p> <p>(1) The petition stated no canse of action. 13 C. J. 722; 9 Cyc. 717; 4 Ency. PI. & Pr. 928; 2 Bates on PI. & Pr. 1252; 1 Boone’s Code PL 29, sec. 19; Montgomery County v. Auchley, 92 Mo. 126; Wesson v. Homer, 25 Mo. 81; McNulty v. Collins, 7 Mo. 69; Muldrow v. Tappan, 6 Mo. 276; Robinson v. Levy, 2.17 Mo. 488. (2) Methods of raising defect in petition proper. Chandler v. Railway Co., 251 Mo. 592; Childs v. Ry. Co., 117 Mo. 414; Greer v. Railway Co., 173 Mo. App. 276; McGrew v. Railroad Co., 230 Mo. 496. (3) Amendment of petition after judgment was error. Porter v. Railway Co., 137 Mo. App. 293; Coleman v. Ins. Co. 69 Mo. App. 566; Shaw v. Ins. Co., 79 Mo. 420; Hart v. Harrison Wire Co., 91 Mo. 414; Andrew v. Lynch, 27 Mo. 167; O’Toole v. Lowenstein, 177 Mo. App. 662; Golden v. Morn, 126 Mo. App. 518; Sawyer v. Railway Co., 156 Mo. 468; Elfrant v. Seiler, 54 Mo. 136; Case v. Fogg, 46 Mo. 47; Merrill v. Mason, 159 Mo. App. 601, 141 S. W. 454. (4) There was a fatal variance between the pleadings and the proof. Worth V. Ins. Co., 64 Mo. App. 583; Shepard v. Boone Ins. Co., 138 Mo. App. 20; Wallette v. British-Am. Ins. Co., 91 Md. 471; Prescott v. Jones, 69 N. H. 305; Taylor v. Ins. Co., 47 Wis. 365; Idaho Co. v. Ins. Co., 8 Utah, 41.</p> <p>(1) The court did not err in admitting testimony under the pleadings, (a) The objection was so vague and general that the court would have been justified in overruling it, even if the ground now advanced were well taken. Clark v. Loan Co., 46 Mo. App. 248. (b) The petition set forth a good cause of action, even before it was amended, and the court committed no error in overruling the objection to the introduction of any evidence. (2) The court properly permitted the amendment of the petition. R. S. 1909, sec. 2119, subdivs. 8 and 9; R. S. 1909, secs. 1851, 2120; Meyer v. Schmidt, 130 Mo. App. 333; Thomasson v. Insurance Co., 114 Mo. App. 109; Sandusky v. Courtney, 168 Mo. App. 325; Murphy v. Insurance Co., 70 Mo. App. 78; Buck v. Ry. Co., 46 Mo. App. 55. (2) There was no error in overruling the demurrers. The proof precisely sustained the pleadings, showing a valid contract whereby in consideration of plaintiffs’ promise to pay the premium defendant promised to insure plaintiffs against loss by fire. This contract was in force at the time of the fire, whether it bé construed to commence at the date of the conversation which constituted the contract or at the date of the expiration of the then existing policy. 19 Cyc. 673; Elliott on Contracts, par. 4203; Embrey v. Dry Goods Co., 115 Mo. App. 130, 127 Mo. App. 383; Lingenfelter v. Ins. Co., 19 Mo. App. 252; Duff v. Fire Association, 129 Mo. 460;' Lowery v. Danforth, 95 Mo. App. 441; Green v. Cole, 103 Mo. 70.</p>

Louis City Circuit Court. — Eon. Wm. Kinsey, Judge. (1) The tax bill is not legal evidence in this case, because (a) not authenticated by certificates of the collector or filed with the petition as required by law. B. S. 1899, sec. 9303; State ex rel. v. Scott, 96 Mo. 75; State ex rel. v. Phillips, 102 Mo. 664. (b) It is not baed on a valid assessment. State ex rel. v. Cunningham, 153 Mo. 642; Oort v. City of Cameron, 19 Mo. App. 585.

<p>1. NEW TRIAL: Sufficiency of Evidence: AppeUate Practice. If there was any evidence developed at the trial to uphold a verdict for plaintiff, the order granting to her a new trial must he affirmed on appeal; if there was none, the. order will be set aside and the verdict for defendants reinstated.</p> <p>2. LEASE: Relation: Right of Lessor to Inspect. If the written contract granted to the lessee an estate for years, and entitled him to possession during the. term against the lessor, without any right to enter except to inspect the quarry work and ascertain whether or not it was being performed according to agreement, the relation was that of lessor and lessee.</p> <p>3. CREATION OF NUISANCE: Liability of Lessor. If the intended use of leased premises by the lessee would, of necessity, create a nuisance, the lessor must be held to have authorized the nuisance and to be answerable for consequent damage; for no one may use, or agree that some one else may use, his property so as to harm others.</p> <p>4. -: -: Explosions in Stone Quarry: Question for Jury. That a hill, leased for a stone quarry, could not be worked without danger to persons and property 400 or 450 feet from the place of blasting, and that therefore the blasting constituted a nuisance, is deducible from testimony showing that the danger was continuous, or at least occurred at intervals for a considerable period, and that it disturbed dwellers within the range of the blast, and persons exercising the common right of travel on street cars on a boulevard 400 to 450 feet from the point of blasting; and that a nuisance did not necessarily arise from the work may be inferred from evidence that the quarry could be worked without risk to the neighborhood and that before the day of the injury to plaintiff as she was riding on a street car no debris had been thrown as far as the boulevard; and hence, whether, under such circumstances, a nuisance would necessarily arise from the work, was a jury matter.</p> <p>5. -: -: Quarry Operated by Receiver and Not by Lessee. Where the leased quarry was not being operated by the lessee at the time a flying stone struck a passenger on a street car, or by any one else for whose conduct the lessor was responsible, but, without the consent of either, by a receiver in bankruptcy of a construction company under an order of court, neither the lessor, nor the lessee is liable in damages for the injury to the passenger, the lessee’s only connection with the work at the time being at most that of an employee or agent of the receiver.</p>

<p>1. NECESSARY PARTIES: Pledgor of Note Alone: Trustee of Express Trust: No Possession. It is not enough to authorize the pledgor of a negotiable note, exceeding in amount the debt for which pledged, to maintain suit on the note in his name alone, that the pledgee loan it to him for purposes of protest, consent to and aid the pledgor in the suit, and through his counsel present the note in evidence at the trial; but in order to constitute the pledgor a trustee of an express trust, the pledgee must actually part with the physical possession of the note. If the original payee, after his assignment of the note, becomes possessed thereof, he can maintain the action in his name alone, notwithstanding his name is indorsed thereon in blank, for under the statute (Sec. 10018, R. S. 1909) he can strike out the indorsement and make a paper title in himself; but without actual possession, the right to strike out the indorsement, or to maintain an action on the note as the trustee of an express trust, does not exist.</p> <p>2. -: -: -: -: Pledged Note in Excess of Debt. The fact that the notes, indorsed in blank, exceed the amount of the debt for whose payment they were pledged, does not authorize the pledgor alone, without actual physical possession of the notes, to maintain suit thereon, although the pledgee consents to such suit. By an indorsement in blank and delivery notes are fully negotiated, and the indorser loses all title thereto, even title to the excess of the amount thereof over the debt for which they are pledged, and for the title to pass back to the indorser or pledgor there must be an actual redelivery. Nor does the fact that the pledgee ioaned the notes to the pledgor for purposes of protest, nor that the pledgor in his petition alleges that he is the owner and legal hold thereof, make him the trustee of an express trust, for he must prove such allegation.</p>

<p>1. DORMITORY: Athletic Club. A seven-story brick building, the west half of which was occupied by an athletic club, having a kitchen and dining room on the third floor, a banquet hall and ten sleeping rooms on the fourth floor, thirty-six sleeping rooms and a library on the fifth floor, thirty-nine bed rooms on the sixth floor, having in all sleeping accommodations for one hundred and twenty-five persons, in which seventy persons were sleeping at the time of the fire, was a dormitory within the meaning of Section 10668, Revised Statutes 1909, and was required to be equipped with fire escapes as provided by Sections 10666, 10667 and 10668.</p> <p>2. DEATH IN DORMITORY: Insufficient Fire Escapes: Proximate Cause: Res Ipsa Loquitur. When fire safety-appliance laws are violated, and death, unexplained except by the physical facts, occurs as a result of fire in a building not equipped with the required appliances, but which is by law required to be so equipped, the case should go to the jury under the rule of res ipsa loquitur, although there is no positive evidence that the death was due to a lack of such appliances. Even though there was no physical obstruction between the room in which deceased was sleeping and a near-by exit to a fire escape, unless the fire barred the way, yet if no person sleeping in other rooms opening on the corridor escape by said exit, and there is further evidence from which it may be inferred that had there been the required appliances at another part of the corridor he might have escaped, the rule applies, and the jury must determine the proximate cause of his death.</p> <p>3. NEW TRIAL GRANTED: Weight of Evidence: Appellate Practice. Where under the facts in evidence the rule of res ipsa loquitur required the case to go to the jury, and they returned a verdict for defendant, the action of the trial court, granting to plaintiff a new trial on the ground that the verdict was against the weight of the evidence, will not he disturbed on appeal.</p>

— Hon. Joseph D. Perkins, Judge. (1) Under tlie contract made on March 14, 1.910, the amount due the defendant on April 1,1911, would he the amount of the two first coupons, $724.76. But the plaintiffs were required to pay $739.90, or $15.14 usury. This $15.14 was the interest at eight per cent for six months on coupon one, and was compounding the interest oftener than once a year at the contract rate named in the note.

Louis City Circuit Court. — Hon. William T. Jones, Judge. (1) The court erred in overruling the demurrer to the evidence.