Volume 282 — Missouri Reports

— Hon. B. G. Thurman, Judge. (1) Under the general charter powers of the City of Joplin, the city had express authority to pass the ordinance in question and to authorize the contract entered into with plaintiff. (2) Such a disposal of garbage is not a taking within the constitutional provision forbidding such taking, but is a proper and salutary .police regulation. Atlantic City v. Abbott, 73 N. J. L. 281; Yantine v. Petitioner, 6 Pick. (Mass.) 187; State v. Payson. 47 La.

— Non. Nat M. Shelton, Judge. (1) Plaintiffs contend that in the plain language of the third item of the will it states that Milton C. Tracy could not in any way mortgage, sell or create debts that would he a lien upon the real estate in question. It puts the fee simple in Ben N. Tracy and Ms successors. Upon the death of Milton C. Tracy, the title vests in the heirs of Milton 0.

<p>1. EVIDENCE: Objections to Introduction: Insufficient Indictment. Verbal objections to the introduction of testimony, on th'e ground that the indictment fails to charge an offense against defendant, and that such testimony constitutes a variance from the charge made in the indictment, avail nothing, nor do motions to strike out such testimony .accomplish anything.</p> <p>2. INDICTMENT: Sufficiency: Ealse Pretense. The indictment set out in this ease, whereby defendant is charged with selling a note, which he falsely represented was secured by a first lien on real estate, whereas the note actually so secured had previously been sold by him to another, is drawn under Section 4565, Revised Statutes 1909, and states every constituent fact necessary to be stated in order to charge the offense of designedly, by color of a false writing, obtaining the money of another, with intent to cheat and defraud such other.</p> <p>3. VARIANCE. Where the trial court ruled that there was no variance between the indictment and proof, and a review of the while evidence on appeal leads to the same conclusion, it will not be ruled that there was any such variance.</p> <p>4. INSTRUCTION: Statements by Defendant: Presumption. Where defendant, charged with a felony, did not testify in his own behalf, an instruction telling the jury that “statements (if any) made by defendant against himself the law presumes to be true, because said against himself, and that what he said for himself (if anything) the jury are not bound to believe, but may believe or disbelieve such statements as they are shown to be true or false by the evidence in the case,” is not erroneous.</p> <p>5. -: Other Transactions: Intent and Motive. An instruction telling the jury that “the evidence introduced as to other transactions is submitted to your consideration for the sole purpose of shedding light (if they have that effect) upon ,the intent and motive of the defendant set out in the indictment, for which he is now on trial, and for no other purpose,” and then proceeding to properly define intent and motive, was not erroneous, under the facts of this case.</p> <p>6. -: False Pretense: Check: Same as Money. An instruction, in the trial of a defendant charged with obtaining the money of another by false pretense, which tells the jury that, if such other person gave and delivered to defendant a check, which he after-wards cashed and received therefor currency, or by charging the same against the account of such other person, then the legal effect of the delivery of said check to defendant was the delivery to him of money, is not erroneous. The means employed being merely the vehicle by which defendant obtained the money, the receipt of the check and the conversion of it to defendant’s use were parts of the res gestae in obtaining the money.</p> <p>7. -: -■: Means of Deception: First Mortgage: Duplicate Note. Where the defendant sold a note for $1600, secured by a deed of trust on real estate, which was recorded, and, under the pretense of collecting interest, paying taxes, etc., received back the deed of trust, and later sold a duplicate of said note to the prosecutrix, representing that it was the note secured by the mortgage, the delivery to her at the same time of said deed of trust did not give h'er a first lien on the property, but the first lien belonged to the prior purchaser; and the court did not err in so instructing.</p> <p>8. -: All Law of Case: Refusal of Defendant’s. It is the duty of the court to give written instructions upon all questions of law arising in the case which are necessary for the jury’s information in arriving at their verdict, whether or not a request for instructions on all the law of the case is made by defendant; but where the instructions given for the State cover every feature of the case necessary for the jury’s information, it is not error to refuse instructions asked by defendant which cover substantially the same ground.</p> <p>9. WITNESS: Crying: Sympathy of Jury: Admonition. The oral admonition of the court to the jury, requested by counsel for defendant, not to allow themselves to be influenced by their sympathy for a woman, a witness for the State, who upon being subjected to a rigid cross-examination by defendant’s counsel gave way to her emotions and cried in the presence of the jury and had to be led away until she could compose herself, was full and fair in this case, and no reversible error can be based upon the incident.</p>

— Hon. C. H. SJdnker, Judge. (1) The court erred in excluding that part of the order of November 2nd, which was to be shipped “at once;” also excluding the bill of lading for that part of the shipment.

<p>1. EASEMENT ANB LICENSE: Prescription: Oral Agreement. An easement is an interest in land, and can only he created by grant, but the grant may be proved by prescription, which supposes a grant, but an easement cannot originate in an oral agreement, and where the evidence is positive that the claimed easement originated in parol an easement cannot be implied by prescription, however long it may have been enjoyed. A license is a privilege, may be created by parol, is revocable, and does not imply interest in the land.</p> <p>2. -: Outlet for Surface Water: Oral Agreement: Injunction. An oral agreement, between’ plaintiff and defendant’s grantor, by which plaintiff was given a privilege to connect a drainage ditch on his own land with a larger one on defendant’s, and thereby afford an outlet for surface waters as they accumulated on plaintiff’s, was a mere license, giving to plaintiff no right of perpetual drainage, but revokable by defendant, even to the extent of damming up the outlet.</p>

<p>1. ATTORNEY’S LIEN: Right and Remedy: Procedure. The Attorney’s Lien Statute in giving an attorney a lien on his client’s cause of action, being constitutional, created a right that did not exist at common law, but failed to provide a remedy, and therefore that the right may not perish the courts devise for its enforcement modes of procedure conformable to those general rules established in our system of jurisprudence for the security of private rights, the mode to be pursued depending somewhat on the facts of each particular case.</p> <p>2. -: — : -: Action at Law or Suit in Equity. The statute-gives an attorney, employed on a percentage basis, a lien on the cause of action of his client, who nevertheless has the absolute right to settle it, in good faith, regardless of the attorney’s wishes; and if the settlement is made without fraud or collusion, the cause of action is thereby wiped out, and if the attorney’s lien has been disregarded, he is remitted to an independent action against defendant, which may be an independent action at law for the value of the lien of which he has been deprived, or, possibly, if he so elect, a suit in equity to foreclose his lien.</p> <p>. 3. -: Action at Law: Due Process. Notwithstanding the attorney, in order to recover his fee according to contract, proceeded by filing his motion in the case which had been settled, entitling it as that case had been, and notwithstanding the motion asked the court to set aside the entry of dismissal and reinstate the case on the docket and open up the case “for the purpose of this motion,’: yet if the motion alleged every fact essential for an independent cause of action against defendant in an action at law for the enforcement of bis lien and prayed judgment for the value thereof, and defendant voluntarily appeared and answered that he was never plaintiff’s attorney in the case, and charged a conspiracy between him and plaintiff to defraud defendant, to which he replied by general denial, and the matter was submitted to the court, evidence was received and argument had, the proceeding was in general conformity to the rules and usages governing the trial of civil actions at law, and was due process of law, since the real purpose of the motion was not to revive a dead lawsuit, but to establish a monetary judgment for the value of his statutory lien.</p> <p>4. -:'-: Quantum Meruit. The existence, character and identity of an attorney’s lien for services rendered on a percentage basis are derived from his contract of employment; and when he is wrongfully discharged, or the cause of action is settled by his client without his consent, his right to recover depends upon an establishment of the contract, and the suit by the pleadings being one on an express contract he cannot recover as on quantum meruit for the value of his services rendered, and a judgment for the reasonable value of the services, as if rendered under an implied contract, is not responsive to a cause of action based on an express contract.</p> <p>5. -: -: Entitling Suit: General Prayer. The attorney’s remedy for a settlement by- defendant with his client, in disregard of his lien and contract of employment, is an independent suit against the defendant, for the value of his statutory lien, and it is not proper to undertake to establish it by filing a motion in the case settled. And, if an action at law, a prayer for general relief is inappropriate and anomalous, but not substantive.</p>

<p>1. NEGLIGENCE: Contributory: Action Arising in Another State: Comity. An action for negligence based upon Kansas statutes and Kansas ordinances, by which plaintiff, a "citizen of Missouri, sues for damages for the death of her husband, who was also a citizen of Missouri, although his death occurred in Kansas, must be heard and determined, by the rules of comity, according; to the applicable law of Kansas, and the right of plaintiff to recover must be measured by that law.</p> <p>2. -: --: Automobile: Laws of Kansas. The laws of Kansas pertaining to contributory negligence on the part of the driver of an automobile about to cross a railroad track are much stricter than the Missouri rule. In fact, they are so rigid that it is-difficult to find a Kansas authority permitting recovery in such a cass where contributory negligence is pleaded as the defense.</p> <p>3. -: --: .....-: ■-: Obstruction of View. By the Kansas rule, if the view of the driver of an auto-truck is obstructed, it is his duty to stop and see that no train is coming before he undertakes to cross a railroad track. By that rule it is his duty to get out of his car if such be necessary in order to determine whether or not a train is approaching before he attempts to cross the track. A box car on a switch track which obstructs his view will not relieve him from performing the duty; but if he slows up, and then attempts to cross, without looking for an approaching train, when by looking he could see it, and is struck, he is chargeable with contributory negligence.</p> <p>4. -;--:'-: --: Stopping But Not Looking. It is not enough under the laws of Kansas that the driver of an automobile slow up before he attempts to cross a railroad track; if ris view is obstructed, it is his duty to stop and listen; and after he gets beyond the line of obstruction, it is his duty to look before attempting to cross, and if he can see if he looks, and does not look, he is guilty of contributory negligence.</p> <p>g. ___-; —-: .-- — : Excessive Speed of Train. If the driver of the automobile could by looking have seen the approaching train and did not look, his contributory negligence in crossing the track without looking cannot be excused by the fact that the speed of the train was in excess of the ordinance rate.</p> <p>6. -: -: --: -: -: Reliance, Upon Ordinance: Presumption. It cannot b'e presumed that a resident of Missouri, driving an automobile in Kansas, knew the laws or ordinances of Kansas regulating the speed of trains. There is a presumption that an inhabitant of a city knows its ordinances, but the presumption goes no further.</p>

<p>1. MUNICIPAL CONSENT: By Ordinance. Where the statute requires that the consent of the city to the laying in its streets or alleys of conductors of electricity, water or gas he given by the “municipal authorities,” they mean that such consent is to he given by the legislative authorities acting by an ordinance.</p> <p>2. -: -: Wires in Alley: ¡Waiver: Acquiescence: Estoppel. When, the consent to lay electric wires by a corporation under the surface of a public alley adjoining its building can be by statute obtained only of the city’s legislative assembly and in a particular mode (in this case only by ordinance), the administrative officers of the city cannot waive the necessity of procuring consent from the assembly, nor can they, by acquiescing in such use of the alley, estop the city to terminate the use.</p> <p>3. WIRES IN PUBLIC ALLEY: Cognate Statutes: Power of City to Forbid Use. Section 3367, Revised Statutes 1909, empowering a company, organized to serve a city with water, gas or electricity, to lay conductors, adapted to convey the substance it is formed to furnish, through the streets and alleys, “with the consent of the municipal authorities” and subject to the reasonable regulations such authorities may impose, and Section 9947, relating to electrical corporations alone and conferring on cities power to authorize them, whether organized to supply the city with light and power or to serve a smaller patronage, to use the public ways, are cognate statutes and must be construed together for the purpose of ascertaining what measure of power, to control the use of these public ways by electric companies, the Legislature intended to invest in municipalities; and such inquiry is material in determining whether the city can terminate the use by a company which did not have the consent of the municipal authorities to construct its electric wires in public alleys, for if the authority of the city went no further than to regulate the mode of use, and fell short of power to grant the privilege on any terms, much could be said against the right of the city to remove the wires, if the company had been willing to accept a permit from the city and submit to its rules.</p> <p>4. -: -: -: Refusal of Permission. The language of Section 3367 and Section 9947, Revised Statutes 1909, excludes any other meaning than that the municipal authorities of citie3 are vested with the right to grant or refuse permission, in their discretion, to an electrical company to place its wires, either above or below ground, in a public alley or street. Section 9947 especially, and particularly the words “may by ordinance authorize any company” therein, delegated to the municipal authorities power to grant or refuse permission to use, as well as to regulate the use of, streets by an electrical company, while the words “subject to such rules, regulations and conditions as shall be expressed in said ordinance” conferred on the municipal assembly power to impose terms in making the grant.</p> <p>5. -- — : -: -.: Ownership of Pee: Permission of Abutters: Municipal Consent. The State can grant or refuse corporate franchises at will; and in granting them, may impose, on the exercise of them, any terms it chooses. So that where the State granted a franchise to an electrical corporation and conferred on it power to occupy public ways in a city with its electric wires only on condition of the consent of the municipal authorities being given, and no such consent was given, the fact that it owned the fee in the alley in which, under ground, it laid its wires, to the center thereof, and obtained permission of the abutting owner, who owned the fee of the balance of the alley, to lay its wires therein, does not prevent the statute from applying; but, despite its title to the fee and the permission of its adjacent fee-holder, by laying its wires in the alley, without the consent of the city, it violated and still violates both the statutes and the municipal ordinance, which provides against the placing of “wires, tubes or cables conveying electricity for the production of light, heat or power, unless duly authorized by the municipal assembly.”</p> <p>6. INJUNCTION: Mere Technical Right: Damage. An injunction is often denied where the only purpose or effect of it would be to restrain the violation of a mere technical right, from which no damage will ensue because of its refusal; and particularly is this true when the writ would operate oppressively, or contrary to the real justice of the case.</p>

<p>1. CITY MARSHAL: Also Constable. One person can, at tbe same time, hold the office of marshal of a city of the fourth class and that of constable of the township in which the city is located.</p> <p>2. -: -: Constitutional Provision: State Office: Municipality: Applicable Only to Cities or Counties of 200,000 Inhabitants. The Constitution provides that “in cities or counties having more than two hundred thousand inhabitants, no person shall, at the same time, be a state officer and an officer of any county, city or other municipality; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities.” Held, first, that the words “state officer” are used in their popular sense, and mean an officer whose functions and official duties are coextensive with the State; second, that tbe words “other municipality” mean a township or village; third, that the section, in both the first and second clauses, applies only in counties and cities having more than two hundred thousand inhabitants, and the second clause, namely, “no person shall, at the same time, fill two municipal offices, either in the same or different municipalities,” does not apply to cities or counties having less than two hundred thousand.</p>

— Hon. Vernon L. Drain, Judge. (1) The devise to Edna Montgomery is a qualified fee which became a fee simple title upon her death without remarriage. Sec. 570, R. S. 1909;; Yocum v. Siler, 160 Mo. 281; Scott v. Murray, 218 Pa. St. 186; Yaughn v. Yaughn, 97 Ya. 3Í22,; Rolley v. Rolley, 109 Ya. 449. (2) There was no devise in this will to take effect after the death of the first devisee. The widow could only be divested of title by a remarriage. Sec. 579, R. S. 1909.

Certiorari. (1) The tax levied by the act is a franchise tax, and not a tax upon property. Laws Mo. 1917, pp. 237-242; Mo. Constitution, art. 10, secs. 3 and 4; State v. Stonewall Ins. Co., 89 Ala. 338; Southern G-unl Co: v. Laylin, 64 N. E. 564; State v. Railroad, 45 Md. 361; Phoenix Carpet Co. v. State, 118 Ala. 143; People v. Home Ins. Co., 82 N. Y. 328; State ex rel. v. Schramm, 271 Mo. 223; People ex rel. v. Knight, 174 N. Y. 475.

<p>1. PLEADING: Cause of Action: Refusal to Deliver Cars: Intrastate Shipment. The statute (Sec. 3184, R. S. 1909) affixing a penalty against a railroad company for refusal to deliver freight cars to the consignee, contains no provision limiting its application to intrastate shipments, and where the petition does not allege that the particular shipment was either an interstate or an intrastate shipment, if defendant wishes to raise the point that the shipment did not come within the purview of the State statute, for that the Federal statute exempts interstate shipments from its operation, it must do so by pleading in its answer the exemption as a defense. An exception to the operation of a statute, if contained in a, separate section or in a Federal statute, cannot ba raised by demurrer, but to be available must be pleaded as a de- ' fense.</p> <p>Held, by GRAVES, L, dissenting, with whom WOODSON, X, concurs, that Section 3204 in specific terms limits an action brought under Section 3184 to intrastate shipments, for it says that “all th’e provisions of Sections 3179 to 3207 shall be held to apply to shipments made from one point within the State to any point within the State:” and therefore a petition which shows a shipment to have been an interstate one would be demurrable, but if it does not so allege the point that the shipment was interstate must be .pleaded in the answer.</p> <p>2. REFUSAL TO DELIVER CARS: Penal Statute: Construction,: Intent. The statute (Sec. 3184, R. S. 1909) declaring that “it shall be unlawful for any common carrier to subject any particular person to undue or unreasonable prejudice or disadvantage with respect to the transportation” of a freight car, and subjecting it . to damages in treble the amount sustained, is penal in its nature, and the rule of strict construction applies; but it is to be construed according to its true meaning and intent and so as not to defeat the plain legislative intent.</p> <p>3. -■: Ill-Will. An arbitrary and unreasonable refusal of a railroad company to deliver a shipment of coal to its consignee falls within the true meaning and plain intent of the statute, although said refusal is not the outgrowth of ill-will, disfavor or other malicious intent.</p> <p>4. -: Preference. In order for a consignee of a shipment of coal to make out a case of damages for an arbitrary or unreasonable refusal to deliver the car, it is not necessary for him to show that defendant gave undue or unreasonable preference to some other person or shipment. The statute (Sec. 31'84, R. S. 1909) does forbid a common carrier “to give undue or unreasonable preference or advantage to any particular person,’’ but it also forbids the carrier to subject any particular person “to any undue or unreasonable prejudice or disadvantage,’’ and it is not necessary that the carrier be shown to have violated the first prohibition in order to hold it liable for the second offense.</p> <p>5. -: Attorney’s Fee: Constitutional Statute. The statute (Sec. 3191, R. S. 1909) which allows a-reasonable attorney’s fee to be taxed as costs in favor of a plaintiff in a suit against a common carrier for damages for an arbitrary or unreasonable refusal to deliver a freight" car to the consignee of the shipment, applying alike to all common cariers, is not violative of Section 1 of the Focrteenth Amendment, prohibiting a state from depriving a citizen of due process of law or denying to any of its citizens the equal protection of the laws, or of Section 30 of Article 2 of the Constitution of Missouri, guaranteeing to all persons due process of law. [Overruling Paddock v. Mo. Pac. Ry. Co., 155 Mo. 524, and Thompson v. Traders Ins. Co., 169 Mo. 12.]</p> <p>Held, by GRAVES, J., dissenting, with whom WOODSON, J., concurs, that the attorney’s fee and the provision for treble damages are both penalties, and the penalties are unreasonable, and violate the Fourteenth Amendment.</p> <p>6. -: Treble Damages. The penalty that may be imposed upon a common carrier for an arbitrary or unreasonable refusal to deliver a car to the consignee of a shipment must not be so severe and oppressive as to be wholly disproportionate to the offense, or obviously unreasonable. But a statute which requires the actual damages recovered to be trebled does not violate the rule.</p> <p>Held, by GRAVES,' J., dissenting, with whom WOODSON, J., concurs, that the penalty imposed by the statute, being both an attorney’s fee and twice the amount of th'e adjudicated damages, is unreasonable, and to that extent the statute is void.</p> <p>7. -: -: Legislative Discretion. The Legislature is accorded wide discretion and large latitude in fixing the amount of the penalty to be imposed on a common carrier for an arbitrary or unreasonable refusal to deliver a freight shipment to the consignee, and its discretion will not b'e held to have been oppressively exercised unless the penalty affixed is obviously disproportionate to the offense and unreasonable; and a statute which fixes the penalty at twice the damages actually sustained and in addition allows the court to tax an attorney’s fee in favor of the successful plaintiff, is not an unreasonable exercise of legislative discretion. [GRAVES and WOODSON, JJ., dissenting.]</p>

Mandamus. (1) If the foreign corporation is legally qualified to do business in this State, and has complied with the law relating to foreign corporations, the Secetary of State has no discretion to refuse granting the license. Secs. 3037, 3030, R. S. 1909; State ex rel. v. Cook, 181 Mo. 596. (2) All statutes in pari materia are to be construed together and their meaning is to be determined from a consideration of all their provisions.

Mandamus. (1) Sections 5494 and 5495 provide for hearings upon the charges and final determination by the board. No right of appeal is given from the decision of the board which deprives the accused dentist of his registration or license or both. The right to practice a profession is a valuable right or privilege. State ex rel. v. McElhinney, 241 Mo. 606; State ex rel. v. Robinson, 253 Mo. 284.

— Hon. T. J. See-horn, Judge. (1) The trial court erred in holding that defendants’ asserted constitutional right of free speech .and personal liberty gave them the right to picket plaintiffs’ business even in a “peaceful manner,” and interfere with or destroy it, and that such did not violate plaintiffs’ constitutional right to conduct and carry on their business without interference by defendants. Hardie-Tynes Mfg.

— Hon. 0. A. Lucas, Judge. (1) Respondent is estopped by the judgment of, revival upon scire facias from now asserting any matters which could have been raised or asserted. Wood & Oliver v. Ellis, 10 Mo. 382; Ellis v. Jones, 51 Mo. 187; George v. Middough, 62 Mo. 551; Walsh v. Bosse, 16 Mo. App. 238; State v. Woerner, 33 Mo. 216; 35 Cyc. 1154, 1159-1160. (2) Appellant’s remarriage did not ipso facto dissolve the obligation to pay alimony.

Prohibition. (1) A circuit court has no superintending control over an inferior tribunal which is not within the territorial limits of its circuit. Sec. 23, Art. VI, Mo. Constitution. ‘ ‘ The expression of one thing is the exclusion of others.” Hendricks v. Sweaney, 270 Mo. 692; Kansas City v. Assn., 145 Mo. 53; Maguire v. Association, 62 Mo. 346; Sutherland on Statutory Construction, secs. 325, 326, 327.

<p>INJUNCTION: Trespass: To Restrain Opening of Public Road: Appellate Jurisdiction. The Supreme Court does not have jurisdiction of an appeal from a judgment of the circuit court in an injunction proceeding to restrain the county court, highway engineer and a road overseer from entering upon and laying out a public road ordered by the county court to be established over plaintiff’s land. Title to real estate is not involved in such a way as to give the Supreme Court jurisdiction. The suit is to enjoin a mere trespass, and a mere injunction to restrain a trespass upon land does not involve title to real estate in the constitutional sense. [Overruling Ripkey v. Gresham, 214 S. W. 851, 190 S. W. 354.]</p>

Louis City Circuit Court. — Hon. Charles B.. Davis, Judge. (1) This court has interpreted Section 32 of our Income Tax Law and held that the tax receipt for taxes paid to the State upon real and personal property had to be presented to the collector (not assessor) for credit “ — and that sneh receipt must be one that was received for taxes due and payable in the same year in which the income tax upon which it was to be credited, also became dne and payable.

Certified from Kansas City Court of Appeals.— Hon. O. A. Lucas, Judge. ■ (1) In the case of Barton v. Bridges, 126 Md. 676, 95 Atl. 359, the court cites Atlantic Delaine Co. v. James, 94 U. S. 207, where it is held that power to vacate satisfaction of a judgment “ought not to be exercised except in a clear case, and never for-alleged fraud unless the fraud is made clearly to appear; never for alleged false representations unless their falsity is certainly proved, and unless…

<p>1. APPELLATE JURISDICTION: Fixed by Trial Recora: Waiver. Jurisdiction is not tbe subject-matter of consent. Appellate jurisdiction is fixed by tbe record in tbe trial court, and neither party can change it by mere waiver of the jurisdictional question. [Overruling State ex rel. Crow v. Carotbers, 214 S, W, 857, and Scott v-Dickinson, 217 S. W. 270.]</p> <p>2. -: Constitutional Question: Colorable: Abandonment. Although a constitutional question was timely and properly raised and has been properly preserved for review in the record of the trial court, and thereby the appellate jurisdiction is fixed- in the Supreme Court, if the question is neither briefed nor urged, and is therefore to be considered as having been abandoned, the question becomes merely colorable and without substance, and the case, otherwise coming within the jurisdiction of the Court of Appeals, will be transferred to that court, just as would a case in which the alleged constitutional question had already been settled and was no longer a live question.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Clarence A. Burney, Judge.</p> <p>(1) The demurrer to the evidence should have been sustained, (a) The engine crew had the right to expect a clear track. State ex rel. Lusk v. Ellison, 271 Mo. 463; Woods v. Ry. Co., 187 S. W. 11; Gabal v. Ry. Co., 251 Mo. 257; Rashall v. Railroad, 249 Mo. 509; Van Dyke v. Railroad, 230 Mo. 259; Degonia v. Railroad, 224 Mo. 564; Cahill v. Railroad, 205 Mo. 393; Aerkfetz v. Humphreys, 145 U. S. 419. (b) No custom was pleaded or proved which would change appellants’ duty. Nivert v. Railroad, 232 Mo. 626; McMeins v. United Rys. Co., 274 Mo. 326; Pankey v. Ry. Co., 180 Mo. App. 185, 19'9. (2) Appellants’ objection to the introduction of evidence as to the custom to ring the bell and blow the whistle should have been sustained. Nivert v. Railroad, 232 Mo. 626.</p> <p>By the overwhelming weight of the evidence it is shown that Anderson was on duty in the line of his employment at the time of his mortal injury; that defendants habitually ran their trains and hand cars in the same or opposite directions during foggy weather; that' the'Only means in use by defendants for the protection of section men operating hand cars moving through the fog and on curves where the sectionmen’s view was obstructed was for the trainmen using the track to blow the whistle and sound the bell at such frequent intervals as would warn employees on hand-cars of the approach of a train in time to enable them to remove themselves and their hand-car from the track to a place of safety. The failure of defendants’ trainmen to so sound the whistle and ring the bell was the direct and promimate cause of the collision and death of Anderson and such facts being shown plaintiff was entitled to recover. Honea v. Railroad Co., 245 Mo. 637; Boyd v. Railroad, 249 Mo. 128; Schroeder v. C. & A. R. Co., 198 Mo. 329; Boyd v. Railroad, 236 Mo. 80; Hardwick v. Wab. Railroad, 181 Mo. App. 156; Lancaster v. A. T. & S. F., 143 Mo. App. 163; Nelson v. N. P. Railroad, 50 Miont. 516; M. 0. & C. v. Dersberry, 167 S. W. 881; O ’Brien v. Erie Ry. Co., 123 N. Y. Supp. 1040; L. & N. Ry. Co. v. Smith, 205 Fed. 360; Norfolk & W. Railroad v. Earnest, 229 U. S. 114, 57 L. Ed. 1097; Erie Railroad v. Purucker, 244 U. S. 324, 61 L. Ed. 1166;</p>

— Hon. Hopkins B. Shain, Judge. . (1) In beginning the work of constructing a new semaphore that had not been used and was not being used, and in no event could be used until completed, plaintiff was not engaged in interstate commerce. Bravis v. Milwaukee Railroad, 133 C. C, A. 228; Raymond v. Milwaukee Railroad, 147 C. C. A. 245, 243 U. S. 43; New York Central Railroad v. White, 243 U. S. 188; C. & E. Railroad v. Steele, 108 N. E. 4; McKee v. Elec. Ry.

— Eon. J. P. Foard, Judge. (1) The petition must show all jurisdictional facts. ' There is nothing in the petition that shows that the road runs through Varner Township or that any of the petitioners are residents thereof. All facts necessary to confer jurisdiction must appear in the records of the county court. The record must show that the petition was signed by twelve freeholders of the municipal townships through which the road runs.

<p>1. NEGLIGENCE: Liability of Master for Servant’s Act: Scope of Employment. To bind the master for injuries to a third party it is necessary that the acts of the servant, whose intervention brought about the injury, pertained, at the time, to the duties of his employment.</p> <p>2. -: -:-: Unloading Furniture: Switchman-As Helper. Plaintiff, a furniture mover, placed his wagon on the team way, south of the railroad track on which stood a car loaded with furniture; when the south door was opened, he discovered that the car had been loaded from the north door, and that some of the crates on that side would have to be moved before those next to the south, door could be loosened and taken out; he thereupon opened the north door, and placed two crates upon a “gondola” or flat car, which stood on the tr-ck ;'u"t north of the furniture car; after he had partly filled the wagon from the south door, he went to the gondola car'and was in the act of removing the two crates when defendants .'.switchman appeared and announced that he was going to move the car, to which plaintiff replied that he would immediately remove the two crates, and as he was attempting to remove one of them the switchman said he would show him an easier and faster way, and removed some pins which field up the end gate and as he and plaintiff let down the crate on this end gate it fell and injured plaintiff. Held, that the switchman was under no obligation to aid plaintiff in removing the crate and owed him no duty to await its removal before moving the gondola car, and was not at the time of the attempted removal engaged in duties which pertained to his employment, and the railroad company is not liable in damages for plaintiff’s injury.</p>

— Hon. L. B. Wood-side, Judge. (1) The administrator’s deed is void, because tbe order and report of sale do not describe tbe land in dispute, but other lands. Morgan v, Fitch, 125 Mo. 281; Gilmore v. Thomas, 158 S. W. 577; Wofford v. Mar- • tin, 183 S. W. 603. The sale was not made in conformity to the order of sale. It authorized a private sale to January 2, 1872, and thereafter a public sale. The land was sold at private sale April 12, 1872.

<p>1. COURTESY: Partition: Interest in Proceeds. A husband, entitled to curtesy in his wife’s land, but not made a party to the partition proceeding and only the interests of the heirs being sold, has no interest in the proceeds; and if he voluntarily on his own motion, comes into court and asks that his curtesy be computed and he be awarded the value thereof out of the proceeds, his prayer cannot be granted. He has a lifetime use to the land, hut he is entitled to no part of the proceeds of the sale thereof.</p> <p>2. -: -: -: Estoppel. Acceptance in lieu of curtesy by tbe husband of a portion of the proceeds of the sale of the wife’s land in a partition suit in which the heirs alone are parties, will estop him from asserting his curtesy interest in the land so sold.</p> <p>3. PARTITION: Necessary Parties. All persons having an interest in lands must be made parties to the partition proceedings. The statute requires that “every person having any interest in such premises, whether in possession or otherwise” shall be made parties. The rigorous rule applied in chancery regarding the parties is to be followed in partition suits.</p> <p>4. -: -: Curtesy. If the husband has curtesy and, though he has not been made a party in the partition suit between the wife’s heirs, the sale should be set aside, and either -he be brought in or the suit be dismissed.</p> <p>5. -: During Curtesy: Consent. A tenant for life, whether by curtesy or otherwise, cannot compel partition against remainder-men and reversioners, nor they against him, and as between their respective estates partition is not available except by consent of their respective owners. As between co-tenants for life, the right of partition extends only to a division between them of their respective estates; as between remaindermen and reversioners, the right extends to a partition of their estates, subject to the life estate. But where the husband has a life time curtesy interest in all of his wife’s lands, and nothing more, he cannot, under the statute, compel partition against her heirs, nor they against him, and there can be no partition unless a.11 the parties consent.</p> <p>6. -: -: -: Minors. Where the lands are. burdened with a life estate and some of the heirs are minors, there can be no partition until the life estate terminates or the minors become of legal age. For where the life estate exists, there can be no partition without the consent of all the parties, and minors cannot consent, nor can their guardians consent for them.</p> <p>7. -: -: -: Sale: Statutes. Section 2612, Revised Statutes 1909, declaring that “if in any case, from the nature and amount of the property sought to be divided and the number of the owners, it shall be apparent to the court, that the assignment of dower, if any, and partition thereof, in kind, cannot be made without great prejudice to the owners, an order of sale may be made,” applies, where one of the parties is a life tenant and the others remaindermen or heirs, only when all the parties consent to partition.</p> <p>8. -: -: -¡Mortality-tables Statutes. Section 8499, declaring that “if the court in any legal proceedings adjudge or decree a gross sum to he paid in lieu” of a lifetime interest, according to the mortality-tables, does not create a new right to partition, but applies only when partition can he maintained under the partition statutes, and under them no partition. can be maintained to partition lands burdened with a life estate without the consent of all the parties, and if there are minors they cannot consent.</p>

<p>1. CONSTITUTIONAL LAW: Attitude of .Courts. Unless the conflict with the Constitution is so plain as to he beyond reasonable doubt, an act of the General Assembly will be held to be constitutional and valid.</p> <p>2. -: Title: One Subject: Justice of Peace. If all the provisions of an act fairly relate to the same subject, have a natural connection with it and are the means or incident of accomplishing it, then the subject is single; and a title which reasonably fore-shows these provisions is sufficient. So that a title reading, “An Act entitled justice of the peace in townships containing seventy-five thousand inhabitants and not over one hundred and fifty thousand inhabitants,” is sufficiently comprehensive to contain provisions for four justices of the peace in the township, that they shall be paid a salary^by the county, that their fees shall be turned over to the county, that they shall give a bond for so doing, that each shall appoint a clerk to be paid by the county, and that each shall be furnished an office and necessary records and blanks by the county; for all those things relate to one subject, and all are germane to the title.</p> <p>3. -: Local and Special Law. An act which includes all townships “which now contain or may hereafter contain 75,000 or less than 150,000 inhabitants,” is not a special or local law, but is general in its application, although at the time of its enactment there was only one township in the State to which it could apply.</p> <p>4. -: Partial Repeal of General Law. The enactment of a general- law putting justices of the peace upon a salary in all townships of a designated population is not a partial repeal of a general law, although, because of it, the old general law relating to justices of the peace in all townships will be no longer, operative in such townships.</p> <p>5. -: Increase of Compensation: Change from Fees to Salary. A mere change of ■ an officer’s compensation from fees to a salary during his term is not violative of the constitutional provision that “the compensation or fees of no state, county or municipal officer shall be increased during his term of office;” for compensation dependent on the fees collected was uncertain. In order for such an act to be unconstitutional it must appear, as a matter of law, on the face of the act itself, that the salary is an increase in his compensation.</p> <p>6. ACT O.F 1915: Applicable to Justice in Office. The act placing justices in certain townships on a salary is not made inapplicable to justices in office at the time of its enactment by the words requiring each justice “before entering upon the duties of his office” ' to give bond to pay over all moneys received by him.</p> <p>7. -: Clerk Hire. The Act of 1915, Laws 1915, page 324, declaring that each justice of the peace in townships containing a certain population shall receive a salary of $2000 a year, payable monthly out of the county treasury, and that the county court shall provide each with “a clerk, to be designated by the justice of said court, at a salary of $75 per month,” does not require the justice to pay the clerk, or the clerk’s salary to be paid to the justice, and he is .not entitled to sue for the clerk’s salary.</p>

— Hon. Alonso D. Burnes, Judge. (1) The court erred in admitting in evidence the decree of the Kentucky court construing the will, (a) Because there was no evidence that such court acquired jurisdiction of this defendant or Laura Park or Mary Park, as alleged in the petition. Roach v. Burns, 33 Mo. 319; Sevier v. Roddie, 51 Mo. 580.

Louis City Circuit Court. — Hon. Victor H. Falkenhainer, Judge. (1) The contract in suit was violative of Secs. 10398, 10299,10301, R. S. 1909, and amendments thereto; therefore, no suit could he legally maintained thereon. Sprague v. Rooney, 104 Mo. 349; Haggerty v. Storage Co., 143 Mo. 238; Kitchen v. Greenbaum, 61 Mo. 110; Downing v. Ringer, 7 Mo. 586.

<p>Appeal from St. Louis City Circuit Court. — Hon. Karl Kimmel, Judge.</p> <p>(1) The demurrer to the evidence should have been sustained. Pannell v. Allen, 160 Mo. App. 721; Winter v. Van Blarcom, 258 Mo. 418; Hyde v. Hubinger, 87 Conn. 704; Stahl v. Sollinberger, 246 Pa. 525; Curley v. Baldwin, 90 Atl. 1; Sullivan v. Smith, 91 Atl. 456; Battles v. United Rys. Co., 178 Mo. App. 596; Cray v. Wabash, 179 Mo. App. 541; Hight v. American Bakery Company, 168 Mo.'App. 431. (2) Plaintiff was guilty of contributory negligence as a matter of law. Winter v. Van Blarcom, 258 Mo. 418; Sullivan v. Chauvenet, 186 S. W. 1090 (1. c.1093, Separate Opinion of Allen,'J.); Curley v. Baldwin, 90 Atl. 1; Sullivan v. Smith, 91 Atl. 456. (3) The instruction given on behalf of plaintiff as modified by the court covering the case, is erroneous in allowing the jury to find that plaintiff’s injury was caused by defendant’s negligence in running said automobile at a high and dangerous rate of speed, or without sounding any warning or giving any signal of its approach, or without slowing down as said automobile approached the said intersection of said streets. Pannell v. Allen, 16r‘ Mo. App. 721; Winter v. Van Blarcom, 258 Mo. 418; Laws 1911, chap. 83, sec. 2. (4) The instruction given on behalf of plaintiff covering the case, is erroneous in that it allows the jury to find that plaintiff’s injury was caused by defendant’s negligence in approaching the intersection of said street without sounding any warning or giving any signal of its approach or without slowing down, inasmuch as there was no. evidence showing or (Sending to show that the defendant did not slow up in approaching the place of the accident. Flannigan v. Nash, 190 Mo. App. 578; Dedo v. White, 50 Mo. 241; Schumacher v. Brewers Co., 247 Mo. 141; Black v. Ry. Co., 217 Mo. 685.</p> <p>(1) Whether or not the plaintiff was guilty of contributory negligence was a question of fact and was properly submitted to the jury. Frank el v. Hudson, 271 Mo. 495; Hodges v. Chambers, 171 Mo. App. 563; Bongener v. Ziegenheim, 105 Mo. App. 328; Ginter v. 0 ’Donoghue, 179 S. W. 732; Sullivan v. Chauvenet, 186 S. W. 1090; Schmidt v. Railroad, 169 Mo. 285; Yaughan v. Scade, 30 Mo. 600; Rowe v. Hammond, 172 Mo. App. 213; Campbell v. St. L. Sub. Ry. Co., 175 Mo. 175; Muffin v. Transit "Co., 196 Mo. 579; Deschner v. St. L. & M. Ry., 200 Mo. 237; Burgis v. Railroad, 112 Mo. 238; Jackson v. Butler, 249 Mo. 342. No demurrer to the evidence having been offered by defendant at the end of the whole case, this question is not now open. (2) There was abundant evidence to support the jury’s finding. . That the machine was run at a high and dangerous rate of speed is shown by Daly’s testimony that it was running between fifteen and twenty miles an hour; by Dr. Dean’s testimony that the boy’s kidney was cut in two, and that to cut the kidney would take a very severe blow; by the fact that the heavy steel fender or mud guard of the car, which was the part that struck the boy, was bent upward, and by the fact that the car ran from twenty-five to forty feet after striking the boy. That no warning was sounded or signal given on approaching Cote Brilliante Avenue on the west is testified to by defendant’s witness, the chauffeur, Flynn. The same witness testified that he did not slow down; that he could slow down enough to get his car in control by changing the speed, but that he did not change the speed. As to the’ physical facts showing speed, see Haake v. Davis, 166 Mo. App. 254; Aronson v. Ricker, 185 Mo. App. '534. Generally, see Laws 1911, pp. 326, 330; Ordinance of St. Louis, secs. 13,1551; Mitchell v. Brown,. 190 S. W. 354. (3) Defendant contends that the first instruction given was erroneous “inasmuch as there was no evidence tending to show that the defendant did not slow up in approaching the place of the accident.” The defendant cites decisions. We ask the court’s attention to the evidence.</p>

<p>1. INSTRUCTIONS: General Assignment. An assignment in the motion for a new trial in a civil case that “the court erred in refusing instructions as requested by defendant” is sufficient for purposes of a review of such instructions on appeal.</p> <p>2. -: -: Contrary Ruling of Court of Appeals: Certiorari. A ruling by the Court of Appeals that a general assignment in the motion for a new trial in a civil case that “the court erred in refusing instructions as requested, by defendant” is not sufficient to authorize a review of such instructions on defendant's appeal, Is in conflict with the ruling of the Supreme Court in Wampler v. Railroad, 269 Mo. 464, which, being a prior ruling, necessitates the quashing of the record of the Court of Appeals on certiorari.</p>

<p>PLEA OF GUILTY: Misapprehension: New Trial. Where a defendant has entered a plea of guilty to a felony under a misapprehension of his rights and has been misled by the prosecuting attorney to believe that if he would enter such a plea he would be paroled, whether the misleading was intentionally or unintentionally done, his motion for a new trial, based on such ground, should be sustained.</p>

<p>APPELLATE •JURISDICTION: State Hospital. A° Party A state hospital is in no sense a political subdivision of the State, nor is its board of managers state officers: therefore, the Supr-eme Court has no jurisdiction of a case in which the sole question is whether the board of managers of a state hospital or a manufacturing company is the owner of a check for $2800 held by a bank.</p>

Special appeal from Juvenile Division, Jackson Circuit Court. — Hon. Allen C. Southern, Judge. (1) The findings and judgment are contrary to and in violation of Section 1 of Article 4 of the Constitution of the United States in that it fails to give full faith and credit to the public acts, records, and judicial proceedings of the State of Kansas, and the court erred in overruling said motion to dismiss. Marin v. Augedahi, 247 U. S. 142; Tootle v. Buckingham, 190 Mo. 183.

O. '-A'. Lucas, Judge.;. ■ .’V (1) Plaintiff’s given Instruction 2 is erroneous, (a) It authorizes a finding for the plaintiff, and yet it does not cover the defendant’s defenses of waiver and estoppel, both of which were set up in defendant’s answer and borne out by the testimony. Hall v. Coal Co., 260 Mo. 367; Thornton v. Mersereau, 168 Mo. App. 9; Beggs v. Shelton, 173 Mo. App. 131.