Volume 284 — Missouri Reports

— Hon. Thomas J. ■ Seehorn, Judge. (1) The court erred in giving to tlie jury instruction number 1, as asked by the plaintiff. (,a) Because the instruction assumes that plaintiff did not look “for the approach of said car,” and that plaintiff was “unaware of the approach of said car.” It also assumes that plaintiff was in danger.

<p>Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.</p> <p>(1) ' The court erred in refusing to strike out parts of plaintiff’s second amended petition on account of same being a departure from the first petition. Scovill v. Glassner, 79 Mo. 449. (2). The court erred in not sustaining defendant’s demurrer at the close of plaintiff’s case and again at the close of the entire case. Illinois Central v. Behrins, 233 U. S. 473: Shanks v. Railway, 239 U. S. 556; D. L. & W. Ry. v. Yurkonis, 238 U. S. 439; C. B. & Q. v. Herrington, 241 U. S. 177; Matti v. Railway, 176 Pac. 154; St. L. I. M. & S. Ry. v. True, 176 Pac. 758; Odell v. Railway, 248 Fed. 343, 345; Brie Railroad v. Welsh, 242 U. S. 303; Jacoby v. Railroad, 161 N. W. 753. (3) Deceased was an employee, familiar with the yards and train movements, and defendant did not owe him the same duty that it would a passenger, trespasser or invitee. Cahill v. Railway, 205 Mo. 408; Degonia v. Railway, 224 Mo. 564; Rashall v. Railway, 249 Mo. 519; G-abal v. Railway, 251 Mo. 270. (4) Deceased was guilty of contributory negligence as a matter of law. Crecelius v. Railway, 274 Mo. 684. (5) The crew of which Crecelius was timekeeper was constructing, a new, temporary track, and as to this work, neither plaintiff nor defendant was engaged in any kind of commerce, the work being purely new construction work. Raymond v. Railway, 243 U. S. 43; New York Central v. White, 243 U. S. 188; Peterson v. Railway, 229 U. S. 146; Bravis v. Railway, 217 Fed. 234; C. & E. Railway v. Steel, 108 N. E. 4; McKee v. Railway, 88 S. E. 616; So. Pac. Ry. v. Indust. Acct. Co., 40 Sup. Ct. Rep. 130. (6) The stipulation states what the company and the deceased were doing on the day that Crecelius was killed, and clearly shows the work was new construction, and that neither party was engaged in interstate commerce, and that the accident occurred after the day’s work was over. Authorities under Point 5. (7) The stipulation is binding on plaintiff. Carroll v. Raul, 19 Mo. 103; Pratt v. Conway, 148 Mo. 299; Oskangan v. Arms Co., 103 U. S. 261; Butler v. National Plome, 144 U. S. 65; Steamship Co. v. Emigration Commrs., 113 TJ. S. 37; Tootle v. Buckingham, 190 Mo. 195; St. Louis v. Babcock, 156 Mo. 154; State ex rel. v. Merriam, 159 Mo. 655; Walsh v. Railway, 102 Mo. 582; St. Charles v. Hackman, 133 Mo. 634; Ribard v. Railway, 257 Mo. 155; Steel v. Railway, 265 Mo. 116; Munford v. Wilson, 15 Mo. 540; Scaife v. Western Co., 90 Fed. 238; Gen. Elec. Co. v. Wagner, 130 Fed. 772; Prestwood v. Watson, 111 Ala. 607; Bingham v. Supervisors Winona County, 6 Minn. 88; Abbott’s Trial Briefs, (Civil) 240; Rice on Evidence, 128; 1 Jones on Evidence, sec. 258; Greenleaf on Evidence, sec. 206. (8) The court erred in permitting expert testimony as to what was the negligent running of engines in the Morley yards. Hamilton v. Coal Co., 108 Mo. 370; Koons v. Railway, 65 Mo.. 597; L. E. & St. L. Ry. v. Berry, 35 N. E. 566; Lawson on Expert and Opinion Evidence, 584; 8 Ency. Evidence, 954. (9) The verdiet under the testimony was'excessive, and was the result of prejudice and passion and not that of deliveration. Ry. Co', v. Kelly, 241 U. S. 485; Ry. v. Gainey, 241 U. S. 494; Chafin v. Railway, 93 S. B. 882. (10) To show user it must be shown that the public as well as the employees used the track at the point of accident. Plaintiff’s Instruction 2 was therefore erroneous. Degonia v. Railway, 224 Mo. 590. (11) The verdict is excessive in that the jury did not diminish the damages as required by the Employers’ Liability Act and by Instruction 5. Railway v. Earnest, 229 U. S. 122; Railway v. Sheeley, 221 Fed. 906.</p> <p>(1) The amendment in plaintiff’s second amended petition is not a departure; and any claim of departure was waived by the appellant in answering to the merits and going to trial. Sehroeder v. Edwards, 267 Mo. 482; Sperry v. Hurd, 267 Mo. 639; Smith v. Mo. Pac. Ry., 56 Fed. 458. (2) The appellant was negligent, and the cause was properly submitted to the jury. Ry. Co. v. Glinn, 219 Fed. 148; Crecelius v. Mil. Ry. Co., 274 Mo. 671; Kippenbrock v. Railroad Co., 270 Mo. 479; Hubbard v. Wab. Railroad Co., 193 S. W. 579; Erie Railroad Co. v. Downs, 250 Fed. 419, 38 Sup. Ct. Rep. 583; Haven v. Ry. Co., 175 N. W. 587; Brossard v. Ry. Co., 149 N. W. 915. (3) Plaintiff’s instruction numbered 2 properly declares the law under the facts of this case. Crecelius v. Mil. Ry. Co., 274 Mo. 671; Kippenbrock v. Railroad, 270 Mo. 483; Hubbard v. Wabash, 193 S. W. 579. (4) Deceased was not guilty of contributory negligence. Haven v. Ry. Co., 175 N.. W. 587; Erie Railroad Co. v. Downs, 250 Fed. 415, 38 Sup. Ct. Rep. 583; Choctaw Railroad v. Baskins, 93 S. W. 758; St. Louis, I. M. & S. Ry. Co. v. Dillard, 94 S. W. 617; Jennings v. Ry. Co., 112 Mo. 268; 'Wensel v. Ry. Co., 170 N. W. 409; Torrance v. Pryor, 210 S. W. 43*3; City of Louisville v. Yaughn, 206 S. W. 547; City of Ashland v. Boggs, 171 S. W. 468, 161 Ky. 728, Ann. Cases, 1916B, 1005, 37 Snp. Ct. Rep. 652, 244 TJ. S. 654, 61 L. Ed. 1373. (5) On the day Creeelins was killed, part of the crew of which he was time-keeper were physically engaged in working on, and in the repair of the old main line track. The construction of the temporary track was also a part of the work of repairing the old main line track — and part of the work in raising and lowering the grade and making the fills and cuts in the roadbed of the old main line track — the construction of the temporary track was therefore not the construction of a new instrumentality of interstate commerce to be used permanently in the future, independently of the aforesaid repairs of the old main line track and roadbed; the temporary track was thereafter wholly abandoned and destroyed. The primary purpose of the temporary track was the repair of the old main line track and roadbed as aforesaid under the conceded facts of this record ; and, all the work done by all the crew of which Creeelius was time-keeper, was work done in the repair of the old main line track and roadbed and was work in interstate commerce under the Federal Employers Liability Act. The cases cited by appellant are cases where the track or instrumentality was purely new construction work where the instrumentality was to be used permanently as an instrumentality of interstate commerce after completion, and was not incident to or a part of the work of repairing an old instrumentality then in use in interstate commerce as in the ease at bar. Pederson v. Del., Lack. & West. R. R., 229 TJ. S. 146, 33 Sup. Ct. Rep. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153;'So. Ry. Co. v. McGuin, 240 Fed. 649; K. C. So. Ry. Co. v. Martin, 262 Fed. 241; Phil. B. & W. R. Co. v. Smith, 250 TJ. S. 101, 39 Sup. Ct. Rep. 396; Coons v. Louisville & N. Railroad Co., 215 S. W. 946; N. T. Cent. Ry. Co. v. Porter, 249 TJ. S. 168, 39 Sup. Ct. Rep. 188; Kinzell v. Ry. Co., 250 TJ. S. 130, 39 Sup. Ct. Rep. 412; So. Pac. Co. v. Indust. Acc. Com., 40 Sup. Ct. Rep. 130; Ohio Valley Elec. Ry. Co. v. Brumfield’s Admr., 203 S. W.. 541; Eley v. Railroad Co., 166 N. W. 739; Cincinnati Ry. Co. v. Hall, 243 Fed. 80; Columbia & P. S. R. Co. v. Santer, 223 Fed. 604; Erie Railroad Co. v. "Win-field, 244 U. S. 170, 37 .Sup. Ct. Rep. 557; Grand Trunk Ry. Co. v. Knapp, 233 Fed. 950; Coal & Coke Ry. Co. v. Deal, 231 Fed. 608; Brier v. Ry. Co., 168 N. W. 341, 183 Iowa, 212; Denver Railroad Co. v. Wilson, 163 Pac. 857; Richey on Fed. Em. L. & Saf. App. Act. (2 Ed.), sec. 36; 1 Roberts, Fed. Lia. of Carr., secs. 467, 468, 694; Louisville Railroad Co. v. Walker’s Admr., 172 S. W. 519, 162 Ky. 209; Stool v. So. Pac. Co., 172 Pac. 101; Knowles v. Railroad Co., 223 N. Y. 513. Graber v. Duluth Railroad Co., 150 N W. 491; Crecelius v. Mil. Ry. Co., 274 Mo. 671. (6) The stipulation was properly set aside by the trial court on motion of the plaintiff. White v. Herminghausen, 275 Mo. 694; White v. Kincade, 95 Kan. 466, 148 Pac. 608, Ann. Cas. 1916B, 667. (7) The expert testimony was competent. Reifsnyder v. Ry. Co., 57 N. W. 693, 90 Iowa, 76; Quinlan v. Ry. Co., 84 N. W. 961, 113 Iowa, 89; Czezewzka v. Ry. Co., 121 Mo. 212; Schlereth v. Mo. Pac. Ry., 115 Mo. 107; Buckman v. Ry. Co., 100 Mo. 35; Abbott’s Proof of Facts (3 Ed.), p* 830; 5 Encyc. Ev., pp. 600, 488, 692, 626; Goins v. Ry. Co., 47 Mo. App. 181; Spencer v. Bruner, 126 Mo. App. 102; Obermeyer v. Chair Mfg. Co., 120 Mo. App. 77; Seligman v. Rogers, 113 Mo. 654; Abbott’s Trial Brief (2 Ed.), pp. 564, 28; Snyder v. Witner, 82 Iowa, 652; Holton v. Cochran, 208 Mo. 424; Jones on Ev. (2 Ed.) sec. 371, p. 464; Meily v. Ry. Co., 215 Mo. 590; Wilder v. Co., 134 Iowa, 451; Combs v. Const. Co., 205 Mo. ■391; Fogus v. Ry. Co., 50 Mo. App. 265; Helfenstein v. Medart, 136 Mo. 615; 12 Am. & Eng. Ency. Law, 424, 425; Bradford v, Ry Co., 64 Mo. App. 483; Kreigh v. Westinghouse Co., 53 L. Ed. 984, 214 U. S. 249; Holmes v. Goldsmith Co., 37 L. Ed. 123, 147 U. S. 150; Gessley v. Ry. Co., 32 Mo. App. 418; Gordon v. Railroad, 222 Mo. 530; 3 Ency. Ev. 849, 855; Hamilton v. Mining Co., 108 Mo. 372; Moore v. Railroad, 268 Mo. 35; Mutual Life Ins. Co., v. Hillmon, 36 L. Ed. 711,145 U. S. 285; Denver Railroad Co. v. Spencer, 61 Pac. 606, 27 Colo. 313-, 51 L. R. A. 121; Haines Admx. v. Ry. Co., 193 Mo. App. 464. (8) The verdict is not excessive in view of the present purchasing power of money. Louisville & N. Ry. Co. v. Holloway’s Admr; 168 Ky. 262, 181 S. W. 1126, 246 TI. S. 525, 38 Sup. Ct. Rep. 379; Gulf Ry. Co. v. Carpenter, 201 S. W. 270, 39 Sup. Ct. Ren 492; So. Ry. Co. v. Bennett, 233 IT. S. 80, 34 Sup. Ct. Rep. 566, 58 L. Ed. 860, 98 S. C. 42; Meng v. Sav. Bank, 154 N. T. Supp. 509, 169 App. Div. 27; 17 C. J. 1090, 1334; Neary v. Ry. Co., 110 Pac. 226.</p>

Mandamus. (1) Respondents’ contention is that the election is illegal and void because not held in conformity with'the Australian Ballot Law.

<p>1. DEPARTURE: Different Subject-matter: Limitations. If tke subject-matter of the original -and amended petitions are not the same, different evidence being required to support them, the amended petition is not an amendment, but the statement of a different cause of action, and does not toll the Statute of Limitations, hut marks the commencement of a new proceeding.</p> <p>2. -: —-•: Dismissal: New Action: Limitatipn. If the subject-matter of the original and amended petitions were the same and the trial court on that account sustained a demurrer to the amended petition and struck it from the files, and thereupon plaintiff within one year instituted a second suit the subject-matter of which was identically the same as that stated in the amended petition, the second suit was barred by limitations if the subject-matter of the amended petition was barred at the time it was filed.</p> <p>3. -: -: New Suit Within Year: Dismissal Necessary. It is a prerequisite to the right to bring the new suit authorized by the statute (Sec. 1900, R. S. 1909) declaring that if a plaintiff suffer nonsuit he may bring a new suit within one year after nonsuit suffered, that the first suit be dismissed. By bringing a suit on one cause of action within ten years, he cannot by filing an amended petition bring to life a different cause of action already barred, nor by bringing another suit on said barred subject-matter while said former suit is pending.</p> <p>4. --: -: -: Same Subject-matter: Limitations. Plaintiff cannot avail himself of the provisions of the statute (Sec. 1900, R. S. 1909) authorizing the bringing of a new suit within one year after nonsuit suffered, unless the subject-matter of both suits are the same-and require the same evidence to sustain them; he cannot bring a suit on one cause of action, suffer nonsuit therein, and by bringing another suit within one year involving a different subject-matter and requiring different proof, avoid the effect of the ten-year Statute of Limitations which had run against said subject-matter before said second suit was filed.</p> <p>5. LIMITATIONS: When Statute Begins To Run: Demand. The Statute of Limitations begins to run from the date of the instrument sued on, and not' from the date of demand for its payment. Nor is the running of the statute interfered with by failure to make demand.</p> <p>6. -: --: Collateral. Nor will a- deposit of collateral security with the note affect the running of the Statute of Limitations; and whether the instrument sued on be regarded as a demand note with a contract attached, or a collateral obligation, it is barred in ten years from the date of the demand note.</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Where the engineer or other person is, in construction contracts, made an arbitrator to decide certain matters of fact, his decision is not binding as to matters not within the terms of the submission, nor where his decision is arbitrary, fraudulent, or plainly erroneous, nor where he misconstrues or fails to follow the contract provisions. Lewis v. Ry.

Louis City Circuit Court. — lion Thomas G. Mannings, Judge. (1) It being shown by the evidence that the defendant to whom the deed sought to be set aside was made was the manager of her mother’s property and occupied a fiduciary relation with her mother, the burden was on the defendants “to show that absolute fairness, adequacy and equity characterized the transaction. ” 2 Pomeroy, Equity, secs. 955, 956; Kincer v. Kincer, 246 Mo. 427; Byrne v. Byrne, 250 Mo. 632; Martin v.…

<p>1. CONSPIRACY: Applicant for Postoffice: Written Protests. Letters from patrons of a postoffice concerning the applications for appointment of two candidates, condemnatory of one and commendatory of the other, in which the writers express their individual opinions and their preferences, must he considered as a whole in order to reach the composite opinion, which requires the mental act of another than the writers, and therefore do not indicate such a concert of action as constitutes a conspiracy, but are to be considered protests- and individual acts.</p> <p>2. -: -: Lack of Moral Character: Admitted. An applicant for a postoffice cannot recover damages on account of a charge of lack of moral character contained in a protesting petition signed by numerous patrons, which he unhesitatingly admits was true.</p> <p>S. -: Necessary Showing. To establish a conspiracy for which an action for civil liability will lie it is necessary to prove a combination of two or more persons to accomplish an unlawful object by unlawful means or a lawful object by unlawful means.</p> <p>4. -: -: Lawful Act of One. What one may do the many may do, if the combined act works no invasion of the complainant’s rights; if one of the defendants,. charged with a conspiracy to prevent complainant from being appointed postmaster at a certain town, may have done all that is shown by the testimony without subjecting himself to damages, then none of them are liable unless their combined act worked an invasion of the complainant’s rights. [Distinguishing State ex rel. v. Assur. Co., 251 Mo. 1. c. 291, which overlooked the exception that the combined act must work no invasion of the complainant’s rights.]</p> <p>5. -: Gist of Action. The gist of a civil action for damages for conspiracy consists not in the conspiracy, but in the damage inflicted in pursuance thereof.</p> <p>6. -: Applicant for Post Office: Protests Admitted. The personal character and official fitness of an applicant for appointment as postmaster are legitimate subjects of truthful comment-, and even if the charges against him were construed as jointly made by several defendants and have a reasonable resemblance to concert of action, if admitted by him to be true, or shown by the testimony to be true and known to his neighbors, although they may have been effective in preventing his appointment, the injury was negligible, and defendants are immune from an action for damages based thereon.</p>

<p>1. MOTION TO STRIKE OUT: Waiver. By filing tlieir answer the defendants waive for purposes of appeal their prior motion to * strike out parts of the amended petition.</p> <p>2. WILL CONTEST: Incapacity: Question for Jury. The testatrix was ninety-three years of age when her will was made, three years prior to her death; without cause she had turned violently against her only son, who had become insane and was then in the hospital, and wanted to disinherit him; she became hostile towards some of her nephews and nieces, who had previously been on friendly terms with her; by the time the will was drafted her mind had become so hostile towards these relatives that she declared she did not want them to have the dirt under her finger nails; she directed that one thousand dollars be bequeathed to “the children of my sister named Schimpf” residing in Germany, when there was testimony that she had no sister by that name; and the medical expert left the question of senile dementia in uncertainty. Held, that the question of her testamentary capacity was for the jury.</p> <p>3. -: Undue Influence: Question for Jury. By her will the testatrix gave one thousand dollars to the children of a sister residing in Germany, one dollar to a nephew, five dollars to a niece, the income from the residue to her only son, and the remainder to a man and woman who were in no wise related to her; the son at the time was fifty-six years of age, was insane and confined in a hospital; he owned about $40,000 in bonds, and died after her will was made, and the property she bequeathed was acquired from him; there was testimony tending to show that at and prior to its execution, this man and woman were in full control, not only of the feeble body of testatrix, who was ninety-three years of age, but also of her property rights; that this woman assisted in poisoning the mind of testatrix against her nephews and nieces, and did not extend a welcome to them when they attempted to visit her, as would have been natural had her only motive been to serve as attendant at the sick bed; and that the man was not inclined to take these relatives into his confidence concerning her property affairs. Held, that these, and the other circumstances, made the question of undue influence one for the jury.</p> <p>3. -: -: Evidence: Proceeding in Probate Court. Where practically all of the property bequeathed by testatrix’s will came to her as either claimant against her insane son’s estate after the will was made or as his heir after his death, and her affairs were so closely interwoven with his estáte that it is impossible to understand the circumstances surrounding the one without a showing of what was done with the other, the records and proceedings in the probate court concerning the establishment of the claim against the son’s estate, the appointment of one of the legatees as curator thereof, and the administration and management of the son’s estate by said legatee after the son’s death, are all admissible evidence on the issue of undue influence. *»</p> <p>4. -:-:-: Distribution Prior to Death. Evidence that the aged testatrix, after her will was made, divided the greater portion of her personal bequests, amounting to nearly $40,000, among tbe two unrelated legatees to whom she bad bequeathed it, in order to avoid the adverse results of an apprehended contest of her will, is admissible on the theory that it was a part of a general scheme to influence her to dispose of her property, and as an aid to the jury in determining what was the motive and conduct of said legatees at and prior to the making of the will.</p> <p>5. -: -: Burden on Proponents: Fiduciary Eelation. The general rule is that the burden is on contestants to prove that the will is the product of undue influence, but where the evidence discloses a fiduciary relation between the legatees and the testatrix the burden is upon them to prove that it was not the result of undue influence; and where the facts showing the fiduciary and confidential relations are admitted by the legatees, and establish such relation as a matter of law, it is not error to instruct the jury that the burden is on them to prove that the paper is the "valid will” of said testatrix.</p>

— Hon. E. P. Dorris, Judge. (1) The verdict is responsive to the information, in that it is for common assault, a lesser offense which is necessarily included in the offense charged. One charged with assault with intent to kill may be convicted of simple assault. Sec. 4904, R. S. 1909; State v. Schloss, 93 Mo. 361; State v. Underwood, 254 Mo. 470; State v. Hoag, 232 Mo. 308; State v. Woodson, 248 Mo. 707; State v. Wilson, 126 Mo. App. 306; Hussy v. People, 47 Barb.

<p>1. CAUSE OF ACTION: Quieting Title: Injunction: A petition which alleges that plaintiff is the owner in fee of designated premises and claims title thereto, and sets forth with particularity how his claim of title was' derived; which alleges that defendant claims some interest therein, how it is. derived and that it is invalid; and which concludes with a prayer that the status quo of said premises he maintained, hy the injunction theretofore issued, and for general equitable relief, contains sufficient averments to invest a court of equity with jurisdiction to ascertain and determine the title under Section 2535, Revised Statutes 1909.</p> <p>2. -: Necessary Facts. All that is necessary to state a good cause of action is that tlie facts constituting it be set forth in plain and concise language, without unnecessary repetition; and in general if such statement is sufficiently definite to inform the defendant what is relied on, the pleading should be upheld.</p> <p>3. QUIETING TITLE; Ancillary Injunction. In a suit to ascertain and determine title, the plaintif is entitled to an injunction, as incidental thereto, for the purpose of having the court maintain the status until the title can be adjudicated, where defendant has repeatedly taken forcible possession in defiance to plaintiff’s alleged title.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.</p>

— Hon. Joseph D. Perlcins, Judge. (1) The respondents and the defendant, Lucy Johnson, to sustain the judgment, in this case, rely on the provisions of Sec. 341, R. S. 1909. For the purpose of proving their descent from Frederick Molesdale, they were permitted to.introduce testimony tending to show that the said Frederick sustained illicit relations with his stepmother, Jane Molesdale, while she was living and cohabiting with his father, Isaiah M'olesdale.

— Hon. Edgar B. Woolf oik, Judge. (1) The statutes require that a valid and effective will must be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. R. S. 1909, sec. 537; McGhee v. Porter, 14 Mo. 611; Cowan v. Shaver, 197 Mo. 203.

— Ron. Clarence A. Burney, Judge. (1) The Osage City Hotel property was the homestead of T. L. Reid and family, on and prior to the 1st day of March, 1915, and as such was free from the judgment lien and exempt from the levy of execution in favor of any judgment creditor within or -without said jurisdiction. ■ It was property in which creditors had no interest whatever, which the law could not touch, limit or restrain, and the owner, T. L. Reid, could alienate the same hv…

<p>1. QUIETING TITLE: Estoppel in Pais: Classification: Suit in Equity. •In cases relating to title to real estate estoppel in pais is classified as purely equitable. In a suit to ascertain and determine title, if the answer pleads estoppel in pais and joins the plaintiff in asking the court to ascertain and determine the title, it converts the suit, otherwise an action at law, into a suit in equity. .</p> <p>2. -: -: Pl-ivies: Knowledge. Estoppel in pais extends to and bids privies in blood, privies in estate and privies in law. It also binds all persons who with actual knowledge aid another in the act which estops him.</p> <p>3. -:-: Accretions: Deed from County to Sons. Where the father had bought “made” lands by quit claim deed, and after-wards the county brought ejectment therefor on the ground that they were not accretions, but had formed as an island in the river, and under the statute belonged to it, and in settlement of said suit the father agreed by way of compromise to pay the county $2.50 an acre therefor, and at his request the lands were conveyed to his sons, the defendants, who paid the purchase price and were put in possession by the father and have made improvements, he was thereafter, during his life, estopped to claim title to said lands; and his widow, who knew that the sons were about to invest their money in the lands and advised that it be conveyed to them, and his daughter, are likewise barred by the father’s estoppel in pais, to assert title against the sons, the widow by her knowledge and conduct, and both the widow and daughter as privies with the husband and father, whether or not the lands were in fact accretions to the father’s lands or formed as an island and belonged to the county.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Thomas B ' Buckner, Judge.</p> <p>(1) The trial court was in error in the alteration by the court of plaintiff’s Instruction No. 1, by running the pen through those phrases of the instruction which refer to the “platform,” and the refusal to give the instruction as originally offered. Patrum v. Railway Co., 259 Mo. 124; Fish v. Railway Co., 263 Mo. 125; "Williams v. Pryor, 272 Mo. 613; Johnson v. Coal Co., 205 S. W. 615; Curtis v. McNair, 173 Mo. 270; Brady v. Railway Co., 206 Mo. 509; Tinkler v. Railway Co., 212 Mo. 445; Huston v. Railway Co., 129 Mo. App. '576. (2) The trial court was in error in the alteration by the court of plaintiff’s Instruction No. 2, by running the pen through those phrases of the instruction which referred to the “platform,” and the refusal to give the instruction as originally offered. Same authorities as above. (3) The trial court was in error in the giving by the court at the request of the defendant of Instruction No. 8, which took ' away from the jury all questions of negligence in regard to the alteration or construction of the “Oliver air dump.” Same authorities as above. (4) The trial court was in error in the exclusion of certain testimony in regard to negligence in the construction and alteration of the “platform” of the “Oliver air dump.” Greenleaf on Evidence (15 Ed.), sec. 260-A. and note; Lee v. Railway Co., 195 Mo. 400.</p> <p>(1) The trial court did not err in the corrections he made in plaintiff’s instructions numbered 1 and 2, as offered. Glover v. Meinrath, 133 Mo. 303; Labbatt on Master and Servant (2 Ed.), p. 2500, sec. 931 et seq.; Winkler v. St. L. B. & B. Co., 137 Mo. 399; Hulett v. “Railway Co., 67 Mo. 242; Bohn v. Railway Co., 106 Mo. 433; Smith v. Railway Co., 69 Mo. 35; Chrisner V. Bell Tel. Co., 194 Mo. 208, 209; Jackson v. Mo. Pac. Railway Co., 104 Mo. 457; Mathis v. Stock Yards Co., 185 Mo. 444. (2) The court would have been justified in refusing plaintiff’s instruction numbered 1 as originally written, because it assumed controverted facts. (3) The trial court did not err in giving Instruction, 8, as requested by defendant. Same authorities above cited. (4) Under the testimony plaintiff was not entitled to recover in any event because he was guilty of contributory negligence. Same authorities above cited. (5) Under the testimony plaintiff was not entitled to recover in any event because he'assumed the risk of any injury in doing what he did at the time and place complained of. Same authorities above cited.</p>

— Hon. J. O. Slate, Judge. (1) Respondents are executive or administrative officers of the State of Missouri and are amenable to injunction when they attempt to do what they ought not do. Sec. 6750, R. S. 1909; Merchants’ Exchange v. Knott, 212 Mo.. 616; Ex Parte Young, 209 U. S. 123, 28 Sup. Ct. Rep. 441; Symth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 41.8. (2) Appellant, as a taxpayer and citizen of the State of Missouri, is authorized and entitled to prosecute this action.

— Hon. Arch B. Davis, Judge. (1) There was no notice to the plaintiff of the condemnation proceedings and they are void as to her. There was no assessment of damages in favor of plaintiff. The $3000 allowed by the viewers and attempted to be reduced by the county court to $1000 was not made in her favor or to unknown owners, but to William Troeger, and he, and no other, could be entitled to demand it.

Certiorari. (1) The petition does not state facts sufficient to constitute a cause of action. It shows upon its face that this suit was brought one year and ten months after the date of the death of deceased. While the petition alleges that plaintiffs had suffered a prior non-suit it does not allege that this, action was brought within one year after said non-suit; as required by the statute.

<p>Appeal from Jackson Circuit • Court. — TLon. W. O. Thomas, Judge.</p> <p>(1) Statutory causes of action for death, under Kansas laws are enforced in Missouri only on grounds of comity. Newlin v. Railroad, 222 Mo. 391; Tost v. Railroad, 245 Mo. 2:34; Woodard v. Bush, 282 Mo. 163. (2) Plaintiff’s only remedy for the death of Hurlburt under the Kansas law is the Kansas Compensation Act of 1911 as amended in 1913. Frere v. M. K. & T. Ry. Co., 94 Kan. 57; Unrine v.' Salina Railroad Co., 104 Kan. 236; Benson v. Bush, 104 Kan. 198; C. R. I. & P, Ry. Co. v. Fuller, 105 Kan. 608; Shade v. Cement Co., 92 Kan. 146; McRoberts v. Zinc Co., 93 Kan. 364. (3) Plaintiff’s instruction C-l would have been erroneons, because it illegally commented on the evidence, even if the Compensation Act had not been applicable to this action. (4) Plaintiff’s instruction number four authorized an illegal and improper measure of damages, even- if the Compensation Act had not controlled this action. Chesapeake & Ohio Railroad Co. v. Keely, 241 U. S. 485, 36 S. C. Rep. 633; Smith v. Pryor, 195 Mo. App. 259, 265.</p> <p>(1) Defendant admitted deceased Hurlburt was engaged in the scope of his employment in working for the defendant in carrying on intrastate commerce at the time he received his mortal injury. Defendant’s liability is to be measured by the Kansas Railroad Employer’s Liability Act of March 7,1911 (Laws 1911, pp. 437 to 438, G-eneral Statutes Kansas 1915, secs. 8480 to 8485.) The Workmen’s Compensation Law of 1911 passed by the same Legislature a week later does not apply, because Section 48 of this. Act (R. S. 1915, Sec. 5942) clearly, unconditionally and unequivocally excepted from its operation the Railroad Act under which this case was' tried. The Railroad Act has been repeatedly interpreted and applied .by the Supreme Court of Kansas since its enactment. Defenbaugh v. Union Pac. Railroad Co., 102 Kan. 572; Ballou v. Railroad, 95 Kan. 763; Rock-hold v. Railway Co., 97 Kan. 719; Rask y. Railroad, 103 Kan. 443. (2) Since the language of the saving clause or exception in the Workman’s Compensation Act of 1911 is clear and unambiguous, there is nothing left for this court to do but to follow the plain direction of the statute. The courts of last resort and textwriters are unanimous in their declaration of this principle of law, applicable to the facts shown by the record. 25 Ruling Case Law, sec.’217, p. 961; 1 Fed Statutes Anno. (2 Ed.), see. 142, p. 164; 36 Cyc. 1114, 1150, 1151;' 2 Sfewis’s Sutherland on Statutory Construction (2 Ed.), p. 698, sec. 366; Shank v. State, 108 N. E. 521; State ex rel. Green County v. Giddeon, 199 S. W. 948; C. C. & St. U. Ry. Co. v. Blind, 105 N. E. 492; State ex rel. v. Amick, 247 Mo. 292; Rushenberg v. So. Elec: R. R. Co., 161 Mo. 85; State ex rel. v. Levitt, 96 Kan. 452. (3) Appellant’s objection to plaintiff’s Instruction 4 is unmerited. This instruction was in accord with the Kansas law under which this case was tried and is also in line with the law of this State. Forbes v. Railroad, 101 Kan. 480; "Warders v. Railroad, 105 Kan. 4; Kansas v. Pacific Railroad Co., 19 Kan. 90; Gas Co. v. Carter', 65 Kan. 569; Barth v. K. C. El. Ry. Co., 142 Mo. 556; Powell v. Railroad, 255 Mo. 454. (4) Every allegation of negligence in plaintiff’s petition was proven by an overwhelming weight of the evidence. Counsel for appellant practically admits this, by failing, in his brief to discuss the evidence in the case.</p>

Prohibition. (1) The petition filed in the circuit court discloses that the only purpose of the suit was to enjoin relators from performing certain official acts for the public imposed upon relators by the statute. .It is not even inferentially alleged that any property right is involved. In such a case, a chancery court has no jurisdiction.

<p>1. REFERENCE: Discretion of .Trial Court. The discretion of the trial court in ordering a reference is reviewable in the appellate court.</p> <p>2. -: Long. Account: Denial of Jury Trial. Even though the items sued on constitute items of account, yet if the account stated is susceptible of easy calculation and computation by a jury it cannot be referred over the objection and protest of defendant. The statute providing for reference of a case involving long accounts is an exception to the right of trial by jury, and should not be extended to apply to any case unless it clearly appears to fall within its letter and spirit. [Following Ice Co. v, Tamm, 138 Mo. 1. c. 389-90.]</p>

— Eon. Fred1 Lamb, Judge. (1) The constitutionality and some other pertinent questions involved in Sec. 10695, R. S. 1909, with much research and some patience, seems to be settled in this State. At least no question is made in this case as to its Constitutionality. State ex rel. v. Imel, 280 Mo. 565.

<p>1. TAXATION: Franchise Tax: Interstate and Intrastate Commerce. Property in Missouri belonging to a corporation, whether foreign or domestic, engaged in interstate and intrastate commerce, may be taxed, and the tax may be imposed on the corporation on account of its property within the State, and may take the form of a tax for the privilege of exercising its franchises within the . State, if the ascertainment of the amount of the tax is made dependent upon the value of its property situate within the State.</p> <p>2, -: -: On Property Within State: In Proportion to Interstate and intrastate Business. Under the Franchise Tax Act of 1917 (Laws 1917, p. 237), declaring that “every corporation, not organized under the laws of this State, shall pay an annual franchise tax to the State of Missouri equal to three-fortieths of one per cent of the par value of its capital stock and surplus employed in business in this State, and for the purposes of this act such corporation shall be deemed to have employed in this State that proportion of its entire capital stock and surplus that its property and assets in this State bears to all its property and assets wherever located,” the right formula is to simply find what percentage of the foreign corporation’s entire assets is located in this State, even though its assets located in this State are used in both interstate and intrastate commerce; and to use the full value of its Missouri assets in ascertaining the amount of tax it should pay, is not a laying of a tax on interstate com- ■ merce in violation of Section 8 of Article II of the Constitution of the United States, although said Missouri assets arc used both in interstate and intrastate business.</p>

<p>1. CERTIORARI: Common-law Writ. In Missouri the writ of certiorari is the common-law writ, unmodified by statute. Its nature and scope and the proper use to be made of it are questions to be determined from the common-law principles and from the Missouri adjudications.</p> <p>2. -: For Review of Judicial Action. ' Geritorari will lie for the review of judicial or quasi-judicial action, but not for the review of acts which are ministerial, legislative or executive in character.</p> <p>3. -: -: Character of Tribunal. The general character o£ the acting body does not determine whether its action is judicial or legislative. Acts judicial in their nature are sometimes intrusted to ministerial or executive officers or bodies, and sometimes acts purely legislative, executive or ministerial in character are intrusted to courts of special or general jurisdiction; and the line of demarcation between legislative and judicial functions is not easy to draw.</p> <p>4. -: Extending the Boundaries of Drainage' District. The extension by the circuit court of the boundary lines of a drainage district organized in the circuit court, under the Act of 1913, Laws 1913, pages 232 to 267, is the exercise of legislative power delegated to the circuit court by the Legislature, and being such a decree of the circuit court1 extending such boundaries cannot be reviewed by certiorari.</p>

<p>1. HABEAS CORPUS: Unconstitutional Law: Jurisdiction. A person convicted and imprisoned under an invalid law or ordinance can test its constitutionality and validity by the writ of habeas corpus in the Supreme Court. An unconstitutional statute or ordinance is no law at all, and a court has no jurisdiction to base a judgment on a void law.</p> <p>2. -: Pacts Proved Against Petitioner. In a habeas corpus proceeding, the Supreme Court is not concerned in the proof made against the petitioner in the trial court by which he was convicted and imprisoned; it is only concerned in the jurisdiction or power of the trial court to act.</p> <p>3. -: Severable Ordinance: Invalid Parts. When the differenl provisions of an ordinance are severable, and not dependent upon each other, a part may be upheld upon habeas corpus and other parts declared invalid.</p> <p>4. ORDINANCE: Power of City. The only limitation upon the power of Kansas City to frame its own charter is that it must be consistent with and subject to the Constitution and laws of the State.</p> <p>5. -:-: Vagrancy,. Under the charter of Kansas City giving “to the city power to restrain and punish vagrants, mendicants, street beggars and prostitutes, and define who shall be considered and treated as vagrants,” the city has power to enact ordinances defining and punishing vagrancy. But such definitions must be consistent with the general statutes declaring what conduct shall constitute vagrancy.</p> <p>6. VAGRANCY: Definition: At Common Law. The statutes and ordinances have so frequently dealt with the subject of vagrancy, anfi they have made such extensions of the meaning of the word in order to protect society and maintain order and peace in congested cities, that its common law definition has been largely supplanted.</p> <p>. 7. -: Police Power: Limitations. Defining and punishing vagrancy is an exercise of the police power, which is a very broad, but not an unlimited, power. There is a limit to the things that may be done in the name of the police power. But it is also the least limitable of all the powers of government. In Missouri, the only limitation upon the legislative exercise of the power is the Constitution, and by it all legislative acts must be measured.</p> <p>8. -: -: Belongs to The State. The Legislature cannot surrender the police power of the State. Its exercise must be in the interest of the general welfare of the State or the municipality. Individual interests are subject to the general welfare, for without proper restrictions upon them there could be no such thing as organized society.</p> <p>9. -: Definition: Visible Means. There is no valid objection to the words “has no visible means of support” in an ordinance defining vagrancy. It is a term well understood and has definite and fixed meaning.</p> <p>10. -: -: Reasonable Effort: Indefiniteness. An ordinance seeking to define and punish vagrancy, which requires all persons in the city to show some “reasonable” effort to secure lawful employment, is void for indefiniteness and uncertainty. It does not state what substantive elements will make the effort "reasonable,” but leaves it to the judge or jury to say, and in effect permits them to enact an ordinance for the punishment of what they may reasonably or capriciously consider a crime.</p> <p>11. -: -: Within Purview of Statute. An ordinance' which in defining “vagrant” does not bring the elements of the crime within the purview of the statutory definition is, to the extent that it enlarges that definition, void. The ordinance to be valid must be consistent with the Constitution and general laws of the State. And Ordinance No. 33205 of Kansas City, which attempts to define and punish vagrancy, is inconsistent with the statute (Sec. 4789, R. S. 1909) in several material respects.</p> <p>12. -: -: Within Purview of Federal Cognizance. The or ' dinance of Kansas City declaring that any person “who shall become a member of any organization or association of individuals who are opposed to the United States prosecuting the present war,” or “who shall circulate or aid and abet in circulating literature directly intended to hinder the United States Government in the exercise of its war powers,” or “who utters seditious sentiments againsts the United States Government,” or “who aids or abets any person in the circulation of any writing, posters or circulars of any kind, intended to promote sedition, or disloyalty to the Government,” is “hereby declared to be a vagrant,” is void, because, in these four respects, it covers matters of Federal rather than State cognizance, and because these definitions conflict with the definition of a vagrant made by the statute (Sec. 4789, R. S. 1909).</p>

— Hon. Arch B. Davis, Judge. (1) The second clause of the will is broad enough to vest the fee in Gabriella Craven. (2) Where the language of first clause is sufficient to grant the fee, this will not be cut down to a lesser estate, except by language as clear and unambiguous as that contained in the first clause.

— Hon. L. A. Vories, Judge. (1.) When it is established that a dog is of a vicious or mischievous nature- and that the person owning it or keeping it has actual or constructive knowledge of that fact, the owner keeps it at his peril, and is chargeable for any failure to. so keep it that it cannot do any damage to any person who, without essential fault, is injured by it. 3 C. J. 98; Speckmann v. Kreig, 79 Mo. App. 376; O’Neill v. Blase, 94 Mo.

— Hon. Charles T. Hays, Judge. (1) The court erred in granting the State leave to amend the information by interlineation. State v. Schrum, 255 Mo. 273; State v. Henschel, 250 Mo. 263. (2) It is conceded, by reason 'of the amendment, that the- information did not designate whether it was a person, partnership or corporation to whom the instrument was passed, uttered and published. State v. Patterson, 259 Mo. 101.

— Hon. John A. Rich, Judge. (1) The evidence was insufficient to sustain the verdict. State v. Francis, 98 S. W. 11; State v. Jones, 177 Mo. 665; State v. Gordon, 98 S. W, 662; State v. Prendible, 165 Mo. 350; State v. DeWitt, 190 Mo. 51.

— Hon. Sterling H. McCarty, Judge. (1) The State in this case relied for conviction solely upon circumstantial evidence. In an attempt to prove that the defendant Idlled the hog, the State offered circumstantial evidence to show the defendant had buried the hog, but there was no circumstance in evidence to’ connect the defendant with the killing of the hog. In other words, the State undertakes,to base one presumption upon another presumption.

— Son. Fred Stewart, Judge. (1) The verdict is sufficient. If finds the defendant guilty as charged in the indictment and assesses his punishment at a fine of $100. A general verdict finding the defendant guilty as charged in the indictment, when not duplicitous is good. State v. Jackson, 222 S. W. 748; State v. Richardson, 248 Mo. 575.

— Hon. Arch B. Davis, Judge.' (1) The statutes nowhere place upon' a drainage district organized under the Circuit Court Drainage District Act of 1913, the obligation… Held: that the Counties were intended to be included in the word “corporation” as used in said section, and, therefore, it was the duty of the counties to construct these bridges. The holding .of the court was solely and absolutely upon this section of the law. State ex rel. v. Drainage District, 252 Mo. 345.

— Hon. J. G. Slate, Judge. The taking of a female from her place of abode, though it be at the instance of the accused and for the purpose of sexual intercourse, does not constitute the act “a taking within the purview of the statute.” The taking, in order to be “a taking” under the statutatory prohibition of said Section 5 must be with the intent and purpose of causing the female to become a prostitute. State v. Gibson, 111 Mo. 98.

<p>1. RECOGNIZANCE: Stay of Execution: Bond to Pay Fine and Costs. A bond which contains no condition that its principal surrender himself, but conditioned that he pay a fine which has been assessed against him within the ninety days for which he has been granted a stay Of execution, is not conditioned upon any provision mentioned in the statute (Sec. 5291, R. S. 1909), nor is it conditioned upon any failure which under the statute (See. 5134, R. S. 1909; would involve a forfeiture in a proceeding by scire facias against the sureties.</p> <p>2. -: -: -: Irregularities: Forfeiture. A recognizance, given in compliance with some condition mentioned in the statute, is not void so as to prevent a forfeiture, for irregularities for which it may be amended, or for omissions which may be supplied. But a bond which is entirely foreign to the statute, and contains no conditions upon which a recognizance may be taken, cannot be forfeited by scire facias. A statutory forfeiture cannot be adjudged for failure to comply with a condition which the statute does not recognize. The curative part of Section 5019, Revised Statutes 1909, cannot be applied to a bond unless it is conditioned that defendant appear at a certain time, as provided in Section 5291.</p> <p>3. -: Liability at Common Law: Proceeding by Scire Facias. Where the proceeding for forfeiture of a bond is under the statute by scire facias, it is unnecessary to determine whether the bond, invalid under the statute because it is not given for the performance of any condition recognized by it, is good and valid at common law.</p>

<p>1. INFORMATION: Amendment: Spelling of Name. An amendment of the information after the jury had been sworn by inserting the letter “d” in the name of the prosecuting witness so that the name would be spelled “Hodge” instead of “Hoge” was simply a change in matter of form, and defendant’s right was in no wise prejudiced thereby.</p> <p>2. TRIAL: Conduct of Judge. Petulant remarks by the trial judge, evincing impatience at the prolix manner in which the witnesses were being examined, do not alone constitute’ prejudicial error.</p> <p>3. INSTRUCTION: Deadly Weapon: Beer Bottle. The deadliness oí a beer bottle may be presumed from the wound inflicted upon the prosecuting witness when he was struck upon the head, felled to the floor and his skull fractured; and therefore it was unnecessary for the instruction to submit the question whether or not said beer bottle was a dangerous and deadly weapon.</p> <p>4. -: Malice: No Evidence. An instruction for defendant based on the assumption that the offense was committed without malice should be refused where there is no evidence to sustain the assumption.-</p> <p>5. REMARKS OF COUNSEL: Preserved for Review. To preserve for review remarks of the prosecuting attorney, alleged to have misled the jury and to have induced a verdict of guilty, the trial court should be asked to order a withdrawal of the remarks from the consideration of the jury or to reprimand the attorney, unless the improper remarks are such that their withdrawal would not cure their injurious effect.</p> <p>6. -: Sentence to Reform School. A remark by the prosecuting attorney in his closing argument to the jury that if defendant was under the age of eighteen years and was convicted he would be sent to the Reform School and not to the Penitentiary, was not such error as will authorize a reversal, where no such statement of the law, although not a misstatement of it, was included in the instructions, and the punishment meted out by the jury was the minimum authorized by law; for the verdict being sustained by ample testimony, there is no basis for a conclusion that but for the remark the jury would not have found defendant guilty.</p>