Volume 287 — Missouri Reports

<p>1. APPELLATE PRACTICE: Verdict for Right Party: Decision oa Point Not Raised hy Instructions. Plaintiff sued for curtesy consummate in his wife’s lands conveyed by her alone in her lifetime. The answer was a general denial, and verdict was for defendants. The court granted a new trial on the ground that the verdict was “unsupported by any evidence,” and the defendants appeal. Both plaintiff and defendants tried the case on the theory that if plaintiff and the sole grantor in the deed were husband and wife, that issue was born alive of the marriage, that she was seized of the premises during coverture and died before suit was brought, and that defendants were then in possession, plaintiff was entitled to recover. Plaintiff’s instructions were framed on this theory, and defendants filed no demurrer and the only instructions asked by them were given, and these related only to the burden resting upon plaintiff to prove the birth of living issue and the other issues of fact set out in plaintiff’s petition. Held, that, notwithstanding court and counsel were mistaken as to the law of the case, in that their theory was that the husband, not having joined in his wife’s deed, had a curtesy estate in the land, yet, the verdict being for the right party in view of the facts and the law, the order granting a new trial will be reversed, and the cause remanded with directions to set it aside and to reinstate the judgment.</p> <p>2. CURTESY: Deed by Wife Alone. The estate of the husband, both by the curtesy initiate and by the curtesy consummate, - is completely wiped out by a conveyance by the wife of her separate real estate during her lifetime, regardless of his failure or refusal to join in her deed.</p> <p>3. -: -: Married Woman’s Acts. The Married Woman’s Acts of 1889, declaring (in Sec. 7328, R. S. 1919) that all real estate belonging to any woman at her marriage, or which may have come to her during coverture by gift or inheritance, or by purchase with her separate money or means, shall be and remain “her separate property and under her separate control,” and by declaring (in Sec, 7323, R. S. 1919) that “a married woman shall be deemed a femme sole” so far as to enable her “to contract and be contracted with,” gave to a married woman the unrestricted right to convey her said real estate by her sole deed, without her husband joining therein, and such a conveyance by her alone extinguishes his curtesy in her real estate so conveyed.</p>

Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge. (1) The arrangement with the McCaull-Dryer Tie Company was the same as with the other vendor defendants, and was a contract for the sale of the ties, not delivered f. o. b. St. Louis, and the actual freight charges thereon deducted from the selling price, but a contract, recognized and carried out by the parties, payment made by the Joyce-Watkins Company, that the McCaull-Dryer Tie Company should receive a certain…

<p>1. EVIDENCE: Dying Declaration: Antecedent Statement: Brought Out hy Defendant. A defendant cannot complain of a statement made hy deceased just prior to his dying declaration, if it was brought out by the suggestion of his counsel.</p> <p>2. -: -■: -: Competency: Bes Gestae. A statement made by deceased immediately preceding his dying declaration, that “it was a shame to shoot a man this way,” made at the time of the shooting and necessarily forming a part of the facts and circumstances attending the crime, and so indissolubly connected with the act itself as to form a part of the res gestae, is properly admitted in evidence.</p> <p>3. INSTBUCTIONS: General Objection. A general objection to instructions in a criminal case will not save them for review on appeal. The instructions complained of should be so designated, either literally, numerically or by reference to their subject-matter, as to enable the trial and appellate courts to determine what instructions are referred to.</p> <p>4. -: Converse of Those Given. If the instruction given states the facts necessary to be found to establish the crime, and cannot reasonably be construed otherwise than as telling the jury that if they find the facts stated they may convict, but unless they so find they will acquit, it is not error to fail to give a converse instruction based on defendant’s testimony. The words at the end of the instruction given for the State “unless the jury find the facts to be as stated they will acquit defendant” of themselves constitute a converse instruction, and it is only when such words are omitted from the one given that it is necessary to supplement it by a converse one.</p>

<p>1. PURCHASE OE LAND: Oral Contract: Specific Performance. The Statute of Frauds is an insuperable barrier to the enforcement of an oral contract for the purchase of land, unless the proof of such contract is so clear, cogent and convincing as to leave no reasonable doubt in the mind of the chancellor as to its terms and conditions; and where part performance is relied upon to take the case out from under the operation of the statute, there must be like proof that the acts performed refer to the contract and would not have been done unless on account of and in pursuance to it and with a direct view to its performance.</p> <p>2. -:-: Part Performance: Possession. Taking and continuing in possession by the vendee under an oral contract for the purchase of land, with the vendor’s consent, the payment of a substantial part or all of the purchase price, and the making of substantial improvements, are acts of performance when referable solely and unequivocally to the contract. The taking of posses- ■ sion alone is not generally recognized as sufficient part performance, but taking possession, followed by the further act of part payment, or the making of improvements, is sufficient to validate the parol contract.</p> <p>3. -: -: -: Signing Deed. Where the vendee made substantial part payment, went into possession, made valuable improvements, and afterwards made other substantial part payments, all referable solely to the parol contract of purchase, and a receipt for a large payment was given with the vendor’s name attached thereto, and -his testimony as to whether he signed the receipt is evasive, and he signed a deed in exact harmony with and in pursuance to the parol agreement, which he refused to deliver and accept a deed of trust for the balance, the evidence showing that a desire to avoid taxes being controlling, the contract will be specifically enforced, there being no other rational hypothesis on which the signing of the deed can be explained.</p> <p>4. -- — : -: Indefinite Terms: Cured by Interpretation. An objection that the parol contract pleaded is indefinite as to the payments to be made by the vendee before the vendor would make a deed, is cured by an allegation and proof that on the making of certain payments the vendor agreed to make a deed, which he did sign but did not deliver, for this was an interpretation of the contract which made it definite.</p> <p>5. -: -: Time of Payment: Interest as Compensation for Delay. Where the time of payment of the purchase price of land was optional with the vendee, as it spited his convenience, the law implies a reasonable time; and where the vendor accepted a second payment five years after the sale, time was not of the essence of the contract. And ordinarily, where the time of payment of the purchase is optional with the vendee, the payment of interest on the deferred payments will be sufficient compensation for the delay.</p> <p>6. -: -: Homestead: Wife’s Consent. Where the land the vendor orally agreed to sell was his homestead, enforcement will not be denied on the ground that he could not sell it without the concurrence of his wife, where he sold it with the intention of .abandoning it, acquired another homestead which he still occupies, accepted payments on the purchase price years after the sale, and permitted the vendee to remain in possession, exercising acts of ownership, for fifteen years.</p> <p>7. — -: -: Specific Performance: Wife’s Inchoate Dower. The ■wife not being a party to the parol contract for the sale of land or to the suit to specifically enforce, although it is clear that it was mutually understood that the vendee was to have a deed executed by both the vendor and his wife, and the vendee being entitled to a decree of specific performance, the purchase price should be diminished by the value of the wife’s inchoate dower, unless she will join the vendor in the execution of a deed.</p>

— Hon. Willard P. Hall, Judge. (1) Under Sec. 5438, R. S. 1909, appellant’s cause of action survived the death of William R. Nelson and the suit was properly brought against Mrs. Nelson and Mrs. Kirkwood, individually and as trustees, as being the legal representatives of William R. Nelson. Knole v. Paxton, 268 Mo. 463; Shippey v. Kansas City, 254 Mo. 23; Winter v. Van Blarcom, 258 Mo. 419; Taylor v. Met. Ry. Co., 256 Mo. 218; Ryan v. Ortgier, 201 Mo. App. 1.

<p> Certiorari. </p> <p>(1) The trial court erred in refusing to give the peremptory instruction asked by the defendant at the close of plaintiff’s case, and, again, at the conclusion of all the testimony, and the decision of the Court of Appeals affirming its ruling in that regard is at variance with the latest controlling decisions of this court. Any presumption that might have arisen from the ownership of the truck in question and from other facts and circumstances was swept aside and destroyed by the direct and positive testimony introduced by plaintiff himself. Hays v. Hogan, 273 Mo. 1; Guthrie v. Holmes, 272 Mo. 215; Bollman v. Bullene, 200 S. W. 1068; Mockowik v. Railroad, 196 Mo. 571; Glassman v. Harry, 182 Mo. App. 308; Spellman v. Delano, 177 Mo. App, 33; Allen v. Coglizer, 208 S. W. 102, (2) Plaintiff’s instruction number two, which purported to cover the whole case was erroneous and prejudicial in that it lacks the essential elements of liability, and the decision of the Court of Appeals upholding this instruction is in direct conflict Avith the folloAving latest controlling decisions of this court: State ex rel. v. Ellison, 272 Mo. 583; Wojtylak Coal Co., 188 Mo. 283; Hall v. Coal Co.; 260 Mo. 367; Walker v. White, 193 Mo. App. 18; Traylor v. White, 185 Mo. App. 331; Humphries v. Railway, 191 Mo. App. 721; Pearson v. Lafferty, 193 S. W. 43; Kerr v. Bush, 198 Mo. App. 617; Dalrymple by Guardian v. Motor Co., 135 Pac. 91, 48 L. R. A. (N. S.) 424; Standard Oil Co. v. Anderson, 212 U. S. 215; Wyllie v. Palmer, 137 N. Y. 248, 19 L. R. A. 285. (3) The errors and omissions contained and made in plaintiff’s instruction number íavo cannot be corrected and supplied by other instructions, inasmuch as plaintiff’s instruction number .two purports to cover the whole case. Walker v. White, 192 Mo. App. 18; State ex rel. v. Ellison, 272 Mo. 583; Humphries v. Railway, 191 Mo. App. 721; Hall v. Coal Co., 260 Mo. 367. (4) The trial court committed error in permitting plaintiff to testify as to the number of his children and the ruling of the Court of Appeals upon this point is in direct conflict with the following latest controlling decisions of this court; Hecke v. Dunham, 192 S. W. 120; Dayharsli v. Railway, 103 Mo. 570, 23 Am. St. 900; Williams v. Railway, 123 Mo. 573; Mahaney v. Railway, 108 Mo. 191; Stephens v. Railway, 96 Mo. 207. (5) Where appellant has once squarely objected to the introduction of certain evidence, it is not necessary that he follow it up with repeated objections on the same point. Bailey v. Kansas City, 189 Mo. 512; Wabash Ry. Co. v. Cockrell, 192 S. W. 446; Schierbaum v. Schemme, 157 Mo. 1; Gold v. Jewelry Co., 165 Mo. App. 154, Reynolds v. Publisher, 155 Mo. App. 612.</p> <p>(1) This court will not, under its rules governing applications for writ of certiorari, notice petitioner’s charge that “ the demurrer to plaintiff’s evidence should have been sustained by the trial court.” State ex rel. Scullin v. Robertson, 187 S. W. 34; State ex rel. Dun-ham v. Ellison, 213 S. "W. 459. (a) This court, for the facts in the case, will go only to the opinion of the Court of Appeals, and will not review the record to determine whether or not a demurrer should have been sustained. State ex rel. Dunham v. Ellison, 213 S. W. 459; State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Commonwealth Trust Co. v. Reynolds, 213 S. W. 804; State ex rel. Const. Co. v. Reynolds, 214 S. W. 369. (b) The Court of Appeals found that “ there was ample evidence from which the jury could find that the delivery of beer, in which the truck was engaged at the time of the injury, was the business of the brewery company,” and that point is not before this court. The cases of Hays v. Hogan, 273 Mo. 1, Guthrie v. Holmes, 272 Mo. 215, and Bolman v. Builene, 200 S. W. 1068, cited by relator, and other similar cases cited by it, are not controlling in this case. As pointed out by the Court of Appeals in its opinion, there Avas proof of abundance of facts from Avhich the jury could infer that the driver of the truck, although employed by Davis & Sons, was in fact .the servant of appellant, Dick & Bros. Lockwood v. Am. Exp. Co., 76 N. H. 580; Epstein v. Ruppert, 29 Md. 432; Sandifer v. Lynn, 52 Mo. App. 553; Diel v. Henry Zeltner Brewing Co., 51 N. T. Supp. 930; Williams v. National Cash Register Co., 157 Ky. 164; Usher v. Tel. Co., 122 Mo. App. 98; Banks v. Southern Exp. Co,, 53 S. E. 156. (2) Plaintiff’s instruction number two, which submitted the issuable facts, was correct. Counsel for petitioner complained that it did not require the jury to find that “ the driver of the truck, at the time and place in question, Avas the agent, servant or employee of the petitioner,” and is therefore erroneous. The instruction did better than that. It required the jury to find facts, which, if true, constituted him the agent of petitioner. (3) The Kansas City Court of Appeals correctly ruled against relator the contention that the trial court committed error in allowing the plaintiff to answer the question “who compose your family?” No objection was made to that question by anybody. The question was asked and answered at the outset of plaintiff’s testimony and at the beginning of the trial. The question “ Who are the members of your family?” was asked by counsel Avho represented Davis & Sons', but who did not represent the brewery company said: “ We object to it as being incompetent, irrelevant and immaterial.” That question was not ansAvered and the one now complained of was then asked and answered without any objection by any one.- Even if it could be said that the questions were the same, but they were not, the objection made by counsel for Davis & Sons amounted in law to no objection. Fuller v. Robinson, 230 Mo. 22; Stevens v. Knights etc., 153 Mo. App. 196; Renfrew v. GoodfelloAAr, 162 Mo. App. 333. (b) Such an objection would not be good unless the evidence elicited self-evidently could serve no purpose in the case. Surely it cannot be said that at the very beginning of the trial, the trial court should have known that the evidence elicited by the question was absolutely immaterial and would serve no purpose .whatever in the trial of the case. Hoav could the trial court know at that stage of the case but that the members of his family Avould be introduced to describe plaintiff’s injuries and sufferings, or for some other, material purpose? (c) But no objection Avas made by anyone to the question which Avas answered; nor Avas any motion made to strike out the ansAver. Nor Avas the point preserved in relator’s motion for a neAV trial. The only complaint made by the relator in its motion for a new trial as to the admission of evidence Avas in these Avords: “ The court erred in admitting over the objection of this defendant, incompetent, irrelevant and immaterial evidence offered by the plaintiff.” (4) Relator has not sliOAvn and cannot sIioav that in tin; opinion and judgment of the Court of Appeals in the case of Vaughn y. Davis et al., it announced any general principle of law contrary to the latest announcement of this court upon the subject, or, on a given state of facts, announced and applied any conclusion of laAV contrary to a conclusion of this court on a similar state of facts, and the writ of certiorari should not have issued in this case. State ex rel. Peters v. Reynolds, 214 S. W. 122.</p>

<p>¡Mandamus.</p> <p>(1) The bonds were issued under authority of and pursuant to Sections 1042, 1070 and 1071, Revised Statutes 1919. (2) The notice was sufficient. Sec. 1071, R. S. 1919; State ex rel. Clark Co. v. Hackmann, 218 S. W. 318; State ex rel. v. ITackmann, 273 Mo. 670. (3) It is true that in the preamble of the ordinance providing for the issuance of the bonds herein sought to be registered, the date of the judgments are referred to as “June 19, 1917,” and that these judgments were subsequently set aside. However, other judgments were procured against relator, which said judgments, as pleaded in relator’s petition for the alternative writ, and which allegation, by reason of respondent’s demurrer, stands admitted, were, “in all respects, including amounts, like the judgments rendered in favor of said companies on the said nineteenth day of June, 1917.” This, at most, is a mere clerical error,- and in nowise affects the validity of the bonds. (4) Even if the council had made an insufficient levy, or had failed to malee any levy whatever, the bonds would not be invalidated for that reason, since under our Constitution such levy can be made at any time, and if the city fails in its duty in this regard, mandamus .will lie, and such .levy can be directed made at any time en masse .for all past due interest and principal. State ex rel. v. Gordon, 217 Mo. 103; Evans v. McFarland, 186 Mo. 703; Black v. Early, 208 Mo. 281; East St. Louis v. People, 124 111. 655; East St. Louis v. Amy, 120 TJ. S. 600; State ex rel. v. Hackmann, 275 Mo. 5.34; Lamar v. City of Lamar, 128 Mo. 188. (5) The judgments against relator city sought to be funded by the issuance of the bonds in question are conclusive against it as to the validity of the debts merged into the judgments. Haishman v. Knox Co., 122 TJ. S. 316; State ex rel. v. Eainey, 74 Mo. 234; Scotland-Co. v. Hill, 140 U. S. 41; Sioux City Ey. Co. v. Osceola Co., 45 Iowa, 168; Ibid, 52 Iowa, 26; Jones v. Hubbard. 193 Mo. 165; Howard v. City of Huron, 62 L. E. A. (S. D.) 493; Edmonson v. Ind. School Dist., 98 Iowa, 639. (6) It is true that service was not had upon the mayor. “Jurisdiction over the .person can be acquired by service of the person according to law, or by consent, expressed or implied. Implied consent consists in doing such things as would indicate a willingness for the court to try the case — i. e., as filing answer or doing some sim.ilar thing without questioning the jurisdiction of the courts.” Mining & Milling Co. v. Eire Ins. Co., 267 Mo. 618; Eingling v. Hempstead, 193 Fed. 603. (7) Eespondent, in paragraph 9 of his demurrer, challenges the authority of Fenton E. Luckett to act as city attorney upon behalf of relator. This point is untenable. Section 9, Ordinance No. 2, Eevised Ordinances of the City of Jefferson, 1903. Luckett was at least de facto city attorney. Harbaugh v. JYinsor, 38 Mo. 327; Edwards v. City of Kirkwood, 162 Mo. App. 576; State v. Douglass, 50 Mo. 593; State ex rel. Lemon v. Buchanan County Board, 108 Mo. 235; Wilson v. Kimmel, 109 Mo. 260; Kilev v. Forsee, 57 Mo. 390; Akers v. Kolkmever & Co., 97 Mo. App. 520; Simpson v. McGonegal, 52 Mo. Appl 540; Usher v. Tel. Co., 122 Mo. App. Ill; Hilgert v. Asphalt Pav. Co., 107 Mo. App. 38.</p> <p>(1) It is the duty of the State Auditor to determine whether there is authority of law for the issuance of the bonds, and whether all' the conditions of the statutes applicable thereto have been complied with in the particular issuance of bonds presented for registration. Secs. 1063, 1068, E. S. 1919; State ex rel. Dexter v. Gordon, 251 Mo. 303; State ex rel. Pike County v. Gordon, 268 Mo. 326. (2) The voters of the city should be advised by proper notices of the election giving* the names of the holders of the judgments, or a sufficient description of the judgments to properly advise them as to the amount of the judgments and the amount of the bonds to be issued to pay the particular judgments. The voters- should be advised of the particular purpose of said election. Secs. 1070, 1071, R. S. 1919. (3) There must be valid judgments against the city. Said judgmust be properly described. There being no judgment rendered as of June 19, 1917, nor at the said June term, 1917, of the Circuit Court the judgment as of that date having been set aside and for naught held, and new and entirely different judgments rendered at a different term. Therefore no valid judgments existed as recited by the ordinance. The Auditor found that the law had not been complied with, and he was justified in refusing* to register said bonds. Secs. 1063,1068, R. S>. 1919; State ex rel. v. Cordon, 251 Mo. 311. (4) There must be a levy of an annual tax sufficient to pay the interest on such indebtedness and also to provide a sinking fund for payment of the principal. Section 12, Art. 10, Mo. Constitution; Secs. 8316, 8656, R. S. 1919. (5) There should be proper showing that the claims and amounts against the city for which judgments were rendered had been properly presented in writing and verified by all of the claimants or their agents, since their claims did not arise ex delicto. Sec. 8313', R. S. 1919; Haggard v. City of Carthage, 168 Mo. 129. There was no valid judgment against said city because process should have been served upon the Mayor of said city and not upon the clerk as was done in this instance. Cloud v. Pierce, 86 Mo. 357. (7) There was a vacancy in the office of city attorney because of the absence of the elected city attorney from May, 1917, to January, 1919, and the purported acting city attorney was without authority to bind the city. See. 18, Art. 2, Mo. Constitution; Sec. 1.1, City Ordinance.</p>

<p>1. LIFE INSURANCE: Misrepresentations as Defense: Tender of Premiums. Section 6401, Revised Statutes 1919, found in the article relating to fraternal beneficiary associations and declaring that “such societies shall be governed by this article and shall be exempt from all provisions of the insurance laws of this State, not only in governmental relations with the State, but for every other purpose,” exempts such associations from the requirements of Section 6940, found in the general insurance law and declaring that in suits brought upon life policies “no defense based upon misrepresentation in obtaining or securing the same shall be valid, unless the defendant shall, at or before the trial, deposit in court for the benefit of the plaintiff the premiums received on such policies.” The beneficiary association, when sued by a certificate holder for physical disabilities, can interpose the defense of misrepresentations on his part in obtaining the policy, without having' returned or tendered the premiums received.</p> <p>2. -: -: -:. Contrary Ruling by Court of Appeals: Exception to General Statute. The Supreme Court had ruled in State ex rel. Garesche v. Roach, 258 Mo. 1. c. 552, that the general provisions of a statute must yield to special provisions where there is a conflict and where the general provisions of one part of the statute are inconsistent with the more specific provisions of another part; the Court of Appeals, therefore, contravened said previous decision in holding in Wilson v. Brotherhood of American Yeomen, 223 S. W. 992, that Section 6940, Revised Statutes 1919, found in the general insurance law, prevents a fraternal beneficiary association, when sued by a certificate holder, from interposing, as a defense, misrepresentations by the holder in. obtaining the certificate, unless it' has returned or tendered the premiums paid, since Section 6401 relates specifically to such societies and exempts them, for every purpose, from the operation of said general law. The Court of Appeals, in so ruling, further contravened the previous decision of the Supreme Court in Han-ford v. Mass Ben. Assn., 122 Mo. 50, wherein, in discussing the applicability of the general insurance law in reference to misrepresentations interposed as defenses to actions upon policies issued by assessment companies, it was ruled that corporations doing business under the assessment statute are not subject to any other provisions of the general insurance law except as therein distinctly set forth.</p> <p>3. CERTIORARI: To Court of Appeals: Conflict in Opinions. A court of appeals is vested with power to authoritatively construe a statute, and mere erroneous interpretation thereof does not warrant a quashing of its opinion in any case; but .where its construction contravenes prior decisions of the Supreme Court its opinion, will be quashed upon certiorari, for the Constitution gives the Supreme Court supervisory jurisdiction, where .the court of appeals has not followed its last previous ruling.</p>

— Hon. Ernest 8. Gantt, Judge. (1) The evidence in this case does not prove that appellant violated any law or his oath as an attorney at law by interviewing the witnesses in the case pending against the Klick brothers. The testimony does not show that the appellant tried to obtain these witness to change their testimony or to get them to swear falsely in the Klick cases.

<p>1. CITY INDEBTEDNESS: Maximum Limit: Last Previous Assessment. The assessment mentioned in Section 12 of Article 10 of the Constitution limiting the indebtedness that a city of the third class may incur in any year to “five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness,” means a complete assessment, and the words “previous to the incurring of such indebtedness” mean previous to the authorization of the indebtedness at the election held by'the voters of the municipality. So that where the election was held on September 16, 1919, and the State Board of Equalization had not completed the equalization of the 1918 assessment and certified its action thereon previous to said September 16, 1919, the assessment of 1916 was the “next before the last assessment,” and must be used as the measuring rod in determining whether the bonds authorized at such election, added to the city’s then existing indebtedness, exceeded five per cent of the value of the taxable property therein.</p> <p>2. -: -: Existing Indebtedness: Tor City Waterworks. In determining whether bonds authorized at an election to be issued by a city exceeds the five per cent of the value of the taxable property mentioned in Section 12 of Article 10 of the Constitution, existing indebtedness due to the issuance of bonds for the construction of municipal' waterworks is not • to be considered. In view of Section 12a and the amendment of said Section 12a adopted in 1920, the indebtedness authorized by said Section 12a for the purpose of constructing or purchasing waterworks, electric or other light plants, to be owned exclusively by the city, is not to be treated as a part of the existing indebtedness in determining the validity of a subsequent issue of bonds under the authority of Section 12 of Article 10. [Overruling State ex rel. Columbia v. Wilder, 197 Mo. 1.]</p> <p>3. CONSTITUTIONAL CONSTRUCTION. The rules laid down by the courts for the construction of constitutional provisions are the same as those governing the construction of statutes.</p> <p>4. -: Adoption of Judicial Construction: Subsequent Legislative Construction. It is a mere legal fiction that when the people adopted an amendment to a section of the Constitution they adopted the construction previously placed upon it by the Supreme Court; hut the necessity of adopting that legal fiction is avoided by a legislative act, passed prior to the adoption of the amendment, which places a meaning on the constitutional provision different from that previously placed upon it by judicial construction.</p>

— Hon. J. G. Slate, Judge. (1) The proceedings are based upon Section 92;37a of the Act of 1919, Laws 1919, p. 572. This act repeals the Act of 1915.. Laws 1915, p. 359. The Act of 1915 provides for only sprinkling and oiling.

<p>1. NEGLIGENCE: Board of Education: Liability. On the ground of its legal character alone as a quasi-corporation, the Board of Education of the City of St. Louis is not answerable in damages for negligence in the matter of keeping school grounds in a reasonably safe condition for pedestrians.</p> <p>2. -: -: -: Governmental Function. In the exercise of the duty conferred upon it by statute of erecting and maintaining . public schools for the education of children, a school district, and especially the Board of Education of the City of St. Louis, performs a public or governmental power, and not a special corporate or administrative duty, and is not liable in damages for the negligent acts of its officers or agents in maintaining or repairing school buildings or grounds.</p> <p>3. -: -: -: Trust Funds. School funds are collected from the public to be held in trust by boards of education for the specific purpose of education, and an attempt to otherwise apply them is without legislative sanction and finds no favor with the courts. Such funds are similar to the funds of a charitable hospital, which, being devoted to a specific purpose, cannot be diverted or absorbed by claims arising from the negligence of its trustees or employees.</p> <p>4. -: City: Injury to Pedestrian. Unless.the ground upon which a pedestrian was walking at the time she fell down a series of steps was a public highway, she cannot recover damages from the city</p> <p>5. -: -: -: Steps on School Ground. ' The space between a school building and a theatre was paved with granitoid and used as a thoroughfare by pedestrians passing from the street in front of the buildings to the next parallel street. The space was school ground, and in it was a series of four or five granitoid steps leading down to an entrance to the theatre. The grounds were unlighted, and plaintiff, walking along the paved passageway at night, fell down the steps and was injured. Held.,' that the liability of the city is dependent upon whether the space can be classed as a public highway, and it could become a public highway only by condemnation, formal dedication or adverse user.</p> <p>6. -: Highway: School Grounds: Condemnation. The land on which the steps were located where plaintiff fell and was injured being the property of the Board of Education, it could not be condemned as a highway, having already been devoted to a public use.</p> <p>7. -: -: -: Adverse User. The statute providing that statutes of limitation shall not extend to lands given, granted, sequestered or appropriated to any public, pious or charitable use, nor to any lands belonging to the State, a strip of lana belonging to the Board of Education and used as a necessary appurtenance to one of its school buildings cannot become a public highway by adverse user. Besides, even if by adverse user it could become a public highway, there was no showing of such continuous use for a term of years as caused it to ripen into a prescriptive right to use the passageway as a highway.</p> <p>8. APPEAL: Errors Against Respondent. Only adverse rulings of the trial court can form the basis of a complaint by an appellant. Upon an appeal by plaintiff alone from a judgment in her favor, assignments by defendant of errors based upon alleged improper admission and exclusion of testimony and the giving and refusing of instructions are not matters for consideration.</p> <p>9. VERDICT: Unreasonably Small: Inadequacy. An appellant has the right to have set aside a verdict for personal torts either excessively large or ridiculously small, where the result indicates passion, prejudice or misconduct on the part of the jury. In determining whether it is such, the presumption is in favor of the good conduct of the jury; and if upon the whole record the case predominates in favor of the defendant or the evidence is evenly balanced, the courts will refuse to interfere with a nominal verdict, although at first view it may appear illogical. Inadequacy of the award is not alone a sufficient basis for setting aside the verdict.</p> <p>10.-; -.- -: Liability of Defendant. And where there is no evidence that the space between the school building and the theatre was in control of the theatre owner, and the trial court might for that reason have sustained a demurrer to the evidence, the verdict of $250 for a pedestrian, who was directed by said defendant’s employee to enter the theatre from said passage- ' way,- will not be disturbed upon plaintiff’s appeal alone.</p>

<p>1. IMPRISONMENT: Parole: Subsequent Conviction: Penalties Cumulative. The terms of imprisonment of a person who has been convicted of a felony, has been paroled and again convicted of another felony and whose parole, after he has been again committed to the Penitentiary under the second conviction, has been revoked by the Governor, are cumulative and not concurrent; and under the statutes, his term of imprisonment under the second conviction does not begin until he has served out his sentence under the first.</p> <p>2. —--■: -: -: Error in Bookkeeping. And the fact that Prison Control show that, upon the reseption of the convict under Prison Control show that, upon the reception of the convict under his second conviction, he was held and continued to serve under said second commitment and that he was discharged therefrom under the three-fourths rule for good behavior, does not affect the legality of his imprisonment under the first commitment for the balance of the term remaining after his parole was revoked. That was a- mere error of bookkeeping, although the second commitment began before the parole under the first was revoked.</p>

<p>1. PLEADING: General and Specific Injuries: Resultant Damages: Natural and Necessary. When the petition alleges special damages in a personal injury case, the proof must he limited to the special damages pleaded. Where a specific result necessarily follows from an alleged injury it is not necessary to plead it, hut where it is the natural hut not the necessary result of the injury it must he pleaded in order to admit evidence of it. Also if an allegation of damage contains a general term in describing what follows the injury, then any result coming within the content of that term may he proved without specific allegation: and if the petition contains any allegation of a general nature which may he said to embrace within the general term a resulcant damage sought to be proven, and defendant is not satisfied with the general allegation, he should move to make more specific.</p> <p>2. -: -: -: -: Injury to Pelvic Cavity: Impaired Functions: Child Birth. Where the petition alleges that the bones surrounding the pelvic cavity were broken and crushed, and the organs within the cavity were crushed, and after describing the broken condition of the bones and the dislocation and rupture of the ligaments alleges that “the functions of all of which organs have been seriously and permanently impaired,” it contains ail allegation of an injury in such general terms as to authorize proof of plaintiff’s inability to give birth to a child, since one of the functions of the organs so impaired was child-bearing, and inability to bear children is a necessary result of a permanent impairment of those organs.</p> <p>3. DEPOSITION: Absence from State: How Proven. The facts which will authorize the reading of a deposition may be established by the testimony of deponent or the certificate of the officer taking the same, or if deponent is gone out of the State, by additional proof that his present duty kept him in another State.</p> <p>4. -: -: In Military Service. The deposition of a citizen of this State who deposed that at the time it was taken he was in the military service of the U. S. Army and stationed in another State, had been for six months and had not been discharged, and knew not when he would be able to return to his home in this State, although its date is not so stated as to determine how long it was taken before it was offered, in evidence, is properly admitted in evidence, especially where the attorney for the party offering it testified that he had had correspondence with deponent at the military camp and was willing for opposite counsel to see the correspondence.</p> <p>5. -: -: Present at Place of Trial. After a deposition of a witness was admitted in evidence on the ground that he was absent from the State, it was discovered that he was at the place of trial, and he was then sworn for the .purpose of allowing the opposite party to cross-examine him, and such offer was declined. Held, that there is no reversible error in allowing the deposition to stand, because said opposite party was not harmed by it.</p> <p>6. ARGUMENT TO JURY: Comment on Evidence. Where evidence to • show plaintiff’s physical condition in a certain particular is competent under the pleadings, comment upon such condition in the argument of her attorney to the jury is not improper.</p> <p>7. -: -: Mental Suffering. Mental suffering as an incident to personal physical injury is always an element of damage to be considered by the jury, -and it is unnecessary to make specific proof of mental suffering, because it necessarily arises when the nature and extent of the physical injury is shown; and where such injury is shown, it is not error for plaintiff’s counsel, in his argument to the jury, to comment on her mental suffering.</p> <p>8. NEGLIGENCE: Res Ipsa Loquitur: Passenger. In determining whether the doctrine of res ipsa loquitur applies to a case, it does not matter whether the injured party was a passenger on defendant’s street car which injured her.</p> <p>9. -: -: When Applicable: Case for Plaintiff. When the instrumentality which causes an injury is within the control of and operated by defendant, and moves or is operated in such a way that such motion or operation would not have happened except for some defect or negligent act, and injury results, the doctrine of res ipsa loquitur applies, and a plaintiff suing for an injury so caused has only to show control of the instrumentality by the defendant and its usual movements. It is then for defendant to explain, if it can, the casualty, so as to exclude negligence on its part.</p> <p>10.-: -: -: -: Erratic Street Car. As a street car was being backed, the hind wheels went as they were intended to go and the front wheels veered off by reason of a split switch and caused the front end of the car to swing around and strike plaintiff standing on a sidewalk, the movement being one that could not have happened except for some defect in the car or track or some negligence in its management, and the machinery and all the appliances being peculiarly within the knowledge of defendant. Held, that the defendant was charged with the burden of explaining the casualty; and if by its testimony it only showed that the track, the car and the wheels were in good condition, but made no showing of what caused the split switch and the consequent erratic movement of the car, an instruction authorizing a recovery by plaintiff, if technically incorrect because it made reference to plaintiff as a passenger, is not reversible error.</p> <p>11. EXCESSIVE VERDICT: $20,000. Where plaintiff’s injuries were unusual in severity and painfulness, rendering her a cripple for life and incapable of normal activities and life’s most fruitful enjoyments, a verdict for $20,000 is not excessive.</p>

— Hon. James A. Oooley, Judge. (1) The court erred in refusing the offer to prove by Anderson that he held the deed and notes as agent for the grantor. (2) The court erred in refusing plaintiff’s declaration of law. The deed was incorporated in the memorandum, and was testamentary. Shulsky v. Shulsky, 98 Kan. 69; Goodale v. Evans, 263 Mo. 219; Bryan’s Appeal, 68 L. R. A. 354, note. (3) The court erred in refusing plaintiff’s declaration of law No. 2. This is an action at hnv.

<p>1. EVIDENCE: Statement Called For by Memorandum. Where a so-called declaration of trust recites that the maker has this day rendered the beneficiary and her daughter “a statement setting forth in full all assets of the estate, including the amount which appears in the probate court,” such statement, submitted with the declaration of trust, is of equal value as evidence.</p> <p>2. -: -: Common Experience. Where the executor of his father’s will, which gave to the widow a life estate in all the property, had made four annual settlements which showed he had paid the widow an average of $1391.10 annually, and at the time of the final settlement, made eighteen months after the fourth settlement, he gave to her a written memorandum which recited he had received from her a receipt for $4,241.10, to be" filed with the final settlement, “yet as a matter of fact I have not paid this amount of money to her, and have obtained her receipt simply for the purpose of closing up the administration in the probate court,” and further recited that he had “this day rendered” to her and her daughter “a statement setting forth in full all the assets of the estate, including the above amount which appears in the probate court,” reason and common sense must be allowed their common functions, if resort must be had to evidence outside the probate court to impeach the final settlement, and it is contrary to reason that the executor should have paid his mother nothing to live on during said eighteen months, and the “statement” mentioned in the declaration showing that during about six months of the eighteen he had paid her $762, the presumption must be indulged that he paid her a corresponding amount during the other twelve months, and there being no other evidence that he. 287 Mo. — 17 appropriated the $4,241.10 mentioned in the memorandum, his executrix cannot, after his and his mother’s death, and nearly forty years after the final settlement, be charged, in a suit for an accounting brought on the theory that he was a trustee of an express trust, with the whole of said $4,241.10.</p> <p>3. -: Sale of Trust Property: Consideration Recited in Deed. A consideration recited in the trustee’s deed conveying property to a purchaser is prima-facie evidence of the real consideration, and holds until the contrary is shown. But where the property in 1875 rented for about $1000 a year, which indicated a value of about $17,000, evidence that by 1890 the neighborhood had become bad, that the rents had decreased to $250 a year, and that it was in 1897 traded for other real estate, is some evidence that the recited consideration of $17,000 was not the real consideration, for it is a well known fact that, in trading real estate, the consideration mentioned in the deed is often not the cash value.</p> <p>4. TRUSTEE: Accounting to Cestui Que Trust A trustee in charge of trust property must account to his cestui que trust, and he is accountable on the termination of the trust at her death; and in a suit for an accounting brought against his executrix, it is significant that there is no showing that he did not account at the death of the cestui que trust, although he survived her four years; without such a showing, it is a matter of grave doubt whether plaintiff makes out a prima-facie case.</p> <p>5. LACHES: Unreasonable Delay. Where a party rests upon his rights, and fails to bring a suit when he might have done so, for a period short of the period of limitations, in a proceeding in equity, relief may be denied on the ground of unreasonable delay, where circumstances intervene to work hardship upon defendant m «making his defense. Where, by reason of delay, evidence becomes unavailable, or important witnesses have died and it becomes impossible to ascertain the facts, laches will bar recovery.</p> <p>6. -: -: Accounting by Trustee. Where the administration of the estate closed in 1877, and the trustee, who was executor, if he appropriated any of the life estate, began to do so during that administration, and the cestui que trust, then sixty years of age, made no complaint; there was no complaint during the subsequent thirty years, but letters were introduced breathing the greatest confidence in him on the part of the cestui que trust and her daughter; there was no intimation that the mother during said thirty years was not entirely satisfied with his management of the estate; after her death in 1907, and his in 1911, all that remained to show the state of the account were the pub ic records and such statements as he had rendered his mother during her lifetime; such statements in detail rendered during several years of his trust were produced in evidence, which indicates that other statements covering the rest of the time were rendered; her daughter had possession of all papers her mother possessed relating to the estate, and she testified that she destroyed most of those papers; no account book was presented; the suit for an accounting was brought by the administrator of the eestui que trust four years and 364 days after her death, and at the instigation of her daughter, who was disappointed in the provisions of the trustee’s will, and was brought more than a year after his death; by the suit it is attempted to charge him with the consideration mentioned in a deed for real estate exchanged for other property, and the trustee alone could explain whether such named sum was the real consideration, and the only evidence that he had not accounted in full for the trust estate is the fragmentary papers which his sister had neglected to destroy when she destroyed the other statements rendered, it will be held that the suit is barred by laches.</p>

<p>APPELLATE JURISDICTION: Amount in Dispute: Demand. In a suit in equity to restrain defendants from transgressing upon plaintiff’s property rights, in which it is alleged that defendants have “damaged the plaintiff in a sum in excess of $10,000” and praying that the court “award the plaintiff such damages as it has sustained in the sum of $7,500,” the plaintiff’s appeal, upon a finding in the trial court for defendants, is to the Court of Appeals. Plaintiff, under the prayer, could in no case recover in excess of $7,500, and that is the amount in dispute upon its appeal.</p>

<p>Appeal from Linn Circuit Court. — Hon. Fred Lamb, Judge.</p> <p>The judgment was absolutely void as to Alice Horn-beck-Reynolds. She was only fifteen years old. McMurtry v. Fairley, 194 Mo. 502. Lack of service made the judgment open to collateral attack. McClanahan v. West, 100 Mo. 309; Winningham v. Trueblood, 149 Mo. 572.</p> <p>(1) The judgment as to Martha J. Little is valid and binding, but if not it is only voidable and cannot be attacked in this collateral proceeding. Chrisxnan v. Divinia, 141 Mo. 122; Charley v. Kelley, 120 Mo. 134; Cochran v. Thomas, 131 Mo. 258; Townsend v. Cox, 45 Mo. 401; Fulbright v. Cannefox, 30 Mo. 425; Bailey v. McGinniss, 57 Mo. 362; Weiss v. Coudrey, 102 Mo. App. 69; Shaffer v. Detie, 191 Mo. 388; Baker v. Kennett, 54 Mo. 88. (2) And a judgment against an infant is valid until set aside in same direct proceeding. Smith v. Perkins,. 124 Mo. 50. (3) The service on Alice J. Hornbeck (now Little, although by misspelled name, being personal was good. Roberts v. Stone, 99 Mo. App. 431; Turner v. Gregory, 151 Mo. 103; Corrigan v..Schmidt, 126 Mo. 311. (4) The judgment as to Alice Hornbeck Avas not void but voidable, she and all defendants having as shoAvn by the record appeared by attorney and asked for time to file ansvver. Christman v. Divinia, 141 Mo. 122; Cochran v. Thomas, 131 Mo. 258; Townsend v. Cox, 45 Mo. 401; Bailey v. Mc-Ginniss, 57 Mo. 362; Fulbright v. Cannefox, 30 Mo. 425; Charley v. Kelley, 120 Mo. 134; Weiss v. Coudrey, 102 Mo. App. 69; Shaffer v. Detie, 191 Mo. 388; Baker v. Kennett, 54 Mo. 88.</p>

Louis City Circuit Court. — Hon Charles JB. Davis, Judge. (1) The “waiver” is void, (a) Because it attempts to permit the damage of private property for public use, contrary to the Constitution of Missouri, Article 2, Section 21. (b) Because there is no consideration mentioned therein to support the promise of the grantor in the deed of dedication to waive the contemplated damages.

<p>1. JURISDICTION: Appointment of Guardian: Collateral Attack. An allegation that plaintiff minor and his mother were not residents of a- certain county in Oklahoma, but of an adjoining county, and that therefore the county court of the particular county had no jurisdiction to appoint a guardian for him, is a collateral attack, and cannot succeed, when made in a suit in this State to annul the guardian’s sale of the minor’s lands.</p> <p>2. GUARDIAN: Married Woman: Competent to Sell Real Estate. A married woman, competent under the laws of the foreign state of her residence to be guardian of a minor child' residing there, may he permitted by the probate court of this State to sell the minor’s lands. The statute (Sec. 411, R. S. 1919) do<es not require*the foreign- guardian to possess the qualifichtions required of a resident guardian, but only requires that the non-resident minor shall have “a guardian in the state or territory in which he resides.”</p> <p>3. GUARDIAN’S BOND: Signed by Attorney: Civil Action. The statute of Oklahoma prohibiting licensed attorneys from signing bonds as surety “in any civil or criminal action” has no application to a guardian’s bond filed in the probate court of this State. It was not given in a “civil action.”</p> <p>4. SALE OF NON-RESIDENT MINOR’S REAL ESTATE: For Reinvestment. Section 411, Revised Statutes 1919 (Sec. 49, R. S. 1855), says that “when a non-resident minor, owning real estate in this State has a guardian in the state or territory in which he resides, the probate court in the proper county may authorize his guardian to sell such real estate and receive the proceeds thereof;” and that and the preceding sections do not confine the sale to the sole purpose of supporting and educating the minor, nor is the power to sell limited to a sale for any stated purpose; nor is a sale by the foreign guardian invalid because the petition and the order say a sale and reinvestment in the State of the guardian’s and minor’s residence would be to the best interest of the minor, for those things are not required by the statute to be stated in either.</p> <p>5. -: Contingent Remainder. A contingent remainder in lands is a vendible interest by a person sui juris or under execution, despite the fact that the person or persons who will ultimately take cannot be determined until the death of the life tenant; and if the apparent remainderman is a minor, his contingent interest can be sold by his guardian when properly authorized by the probate court.</p> <p>6. -: Payment of Purchase Price: Dissipation. The failure of the guardian to account in the proper court for the purchase price of the minor’s land, or the dissipation or embezzlement, of it by the guardian, does not concern the grantee if the sale was otherwise good; and a recital in the probate record, repeated in the deed, of .the receipt of the purchase price in cash cannot be disproved to defeat the title of an innocent purchaser, without notice and for value, from the purchaser at the salel</p> <p>7. -: Appraisal of Contingent Remainder. Where the life tenant’s interest was computed at a sum substantially less than its value when computed by the statutory tables, and the minor’s contingent interest was appraised at a sum in excess of the value of an indefeasable and vested remainder, the appraisal furnishes no basis for an attack upon the sale by the guardian of the minor’s contingent interest.</p> <p>8.' -: Sale to Guardian. Under the statute, and in the absence of a statute, a purchase by the guardian of the minor’s real estate, directly or indirectly, even though approved by the probate court, and even though the sale is at a fair price, is ground, in itself, upon which the interested party may avoid the sale; and whether the deed be held void on its face, or only voidable, is immaterial in a suit in equity in which all the facts showing plaintiff’s right to avoid the sale are set up in the petition.</p> <p>9. -: Sale to Guardian’s Husband. A sale of the minor’s land by the guardian to her husband is voidable in a suit by the minor to set it aside, under the statute and at common law, even though it was at the appraised value and confirmed by the court. And although she had a life estate which would preclude dower vesting in her, yet whatever interest her husband took by her guardian’s deed she would have been entitled to share by election under our statutes had she survived him; and on the ground of prospective interest, and on the additional ground which arises out of the nature of the marriage relation, she should be considered a purchaser “indirectly.”</p> <p>10.-: -: Innocent Purchaser. The relation between the guardian and vendee may be shown by the records through which defendant derains title; and where the decree in partition recites that the guardian and W. E. Shenk are “husband and wife” and says that she has a life estate and her minor child a remainder in the land set off to them, and she as guardian of the minor sells the minor’s interest to “William E. Shenk” and Shenk’s deed to defendant contains a recital of the relationship of William E. Shenk and his wife (the said guardian), the defendant purchased with notice that the grantee in the guardian’s deed was her husband.</p> <p>11. -: Allowance for Improvements. Where the trial court held that the guardian’s deed conveying the land should be set aside, and the plaintiff did not file a motion for a new trial nor appeal, he cannot he heard to complain in the appellate court of the amount allowed to defendant for improvements.</p>

— Eon. Thomas J. Seehorn, Judge,. Where plaintiff in his suit to quiet title tenders the issue of fee simple title, by alleging that he is the owner thereof, he must show a complete title from the patent, or must show a common source of title. The plaintiff made no prima-facie case and the- demurrer to the evidence should have been sustained, and judgment should have been for defendants.

<p>1. INSTRUCTIONS: Duplications. If instructions offered by opposing parties are counterparts of each other, it is not necessary to give both. If one be given it will sufficiently present the opposing theories of the case.</p> <p>2. -: Railroad Consolidation: Assumption of Debt. Where one corporation was merged into another by consolidation, the merged company transferring to the other all its property except its franchise to be a corporation and going entirely out of business, and the other assuming to pay all its debts, in an action against the surviving corporation to recover for services rendered in relation to the affairs of the merged corporation, if the only evidence of the value of the services covers the entire period, and nothing shows separately the value of those rendered before the consolidation, there is no basis for an instruction authorizing recovery; the assumptions of debt did not cover the after-rendered services.</p> <p>3. -: Nominal Damages. Where there is no evidence from which the value of services for which suit is brought can be estimated, the plaintiff is not entitled to recover more than nominal damages.</p> <p>4. NOMINAL DAMAGES: Definition. By nominal damages is meant those awarded where, from the nature of the case, some injury has been done, the amount of which the proofs fail entirely to show; or, differently expressed, a trifling sum awarded where a breach of duty or an infraction of the plaintiff’s’ right is shown, but no serious loss is proved to have been sustained.</p> <p>5. EVIDENCE: Relevancy. It is not error to exclude evidence which is not relevant to the issues in the ease.</p> <p>6. -: Colloquy. Where the matter excluded consisted partly of testimony but mainly of colloquy between counsel, the court and the witness, looking toward an adjournment of the case in order to enable the witness, offered as an expert, to inspect certain books and give an opinion based on such inspection, the matter was not responsive to any question, and it was not error to exclude it.</p> <p>7. CONTINUANCE. The granting and refusing of continuances is largely a matter of the discretion of the trial court, and unless a clear abuse of its discretion is shown its action will not be interfered with.</p> <p>8. HYPOTHETICAL QUESTION: All Material Facts. A hypothetical question which does not embody substantially all the material facts relating to the subject upon which the opinion of the witness is sought is objectionable and should be excluded.</p> <p>9. JUDICIAL KNOWLEDGE: Value of Services. The employment of an auditor of a railroad construction company is not such a common thing, and the reasonable value of the services that may be performed by such an official is not so within the common knowledge of all men, that courts and juries may be presumed to know their value without proof.'</p>

— Hon. Allen C. Southern, Judge. (1) The case was tried in the court below as one in equity; all parties are bound by that theory. Harwood v. Toms, 130 Mo. 225; Roselle v. Beckmeir, 134 Mo. 380. (2) The motion for ne-w trial was filed in time.

— Hon. Lawrence A. Vories, Judge. Contracts facilitating actions for divorce are void and illegal and any promise founded on such an agreement is not enforceable. Blank v. Nohl, 112 Mo. 169; Hudson v. Hudson, 176 Mo. App. 69; McDonald v. McDonald, 175'Mo. App. 513; Banner v. Banner, 184 Mo.

Louis City Circuit Court. — Hon. ' Rhodes E. Cave, Judge. (1) Plaintiff cannot recover on the bond and contract, in an action on contract, because the contract was ultra vires of the Poultry & Game Company as defined in its articles of incorporation, and the constitutional provision and statute governing the powers of corporations. Sec. 7, Art. 12, Mo. Constitution; Sec. 2990, R. S. 1909; Ue La Yergne Co. v. German Sav. Instn., 175 IT.

Louis City Circuit Court. — Hon. Moses Hartmann, Judge. The trial court did not err in granting plaintiff a new trial -and setting aside the involuntary nonsuit as to defendant William Purcell. The plaintiff was not guilty of contributory negligence as a matter of law. That question was for the jury. Grote v. Hussmann, 223 S. W. 131; Noack v. Williams, 175 Mich. 15; Barfoot v. White Star Line, 170 Mich. 349; Colorado Inv.

— Hon. - W. O. Thomas, Judge. (1) The court acquired no jurisdiction over the defendant, and had no authority to enter judgment against it, because no copy of plaintiff’s petition was served with the writ of summons. R. S. 1909, sec. 1760; 32 Cyc. 449; Peurt v. Caster, 174 Mo. 289. (2) Defendant being a foreign corporation, as the return to the writ of summons shows, should have been served according to Section 1760, R. S. 1909.

<p>1. CONTRIBUTORY NEGLIGENCE: Definition. Contributory negligence rests on tort, and is the lack of that ordinary care on the part of a plaintiff which directly contributes to cause, or causes his injury.</p> <p>2. ASSUMPTION OF RISK: Definition. Assumption of risk is gen. erally limited to the relation of master and servant, and rests upon contract, either express or implied. It is a separate and distinct defense from contributory negligence, and is differently applied.</p> <p>3. PERSONAL INJURIES: Negligence: Failure of Proof. Where the specific act of negligence charged in the petition was that defendant failed to furnish plaintiff with goggles to protect his eyes while chipping iron -with a cold chisel, and the proof was that plaintiff was an experienced workman, knew the use of goggles, saw other men about the premises at the same kind of work using goggles, had been told by the foreman that defendant had in the tool room everything that pertained to the job, had in fact for four months been getting his tools from that room, but had never asked for goggles, held, that the proof did not support the charge and the plaintiff was properly non-suited.</p> <p>4.--: Assumption of Risk. Where the plaintiffs’ own evidence showed that the flying of chips or particles of iron from castings when excrescences were chipped off with a chisel was a usual and obvious risk incident to the business, and that plaintiff, an experienced workman, knew this and knew the danger to his eyes, held, that he assumed the risk when he entered and continued in the employment of the defendant, and could not recover damages for the loss of an eye.</p>

— How. W. 8. G. Walker, Judge. (1) The deed under which plaintiff claims did not convey -any present vested interest in the real estate, was not to become effective until after the death of the grantor, and was, therefore, testamentary in character and void. Murphy v. Gabbard, 166 Mo. 596; Aldridge v. Aldridge, 202 Mo. 572; Griffin v. McIntosh, 176 Mo. 392; Goodale v. Evans, 263 Mo. 219.; Dawson v. Taylor, 214 £>. W. 852; Hudspeth v. Grunke, 214 S. W. 867; 18 C. J. 149.

— Hon. Edgar B. Woolf oik, Judge. (1) No contract of insurance was ever consummated. The application clearly provided when and under what conditions the insurance was to take effect. The policy was never accepted by the applicant, nor were the conditions precedent performed, (a) Lafferty never accepted the policy sued upon. As he never became liable for any premium, there is correlatively no liability on the part of the defendant. Kilcullen v. Met. Life Ins. Co.,-108 Mo.

Louis City Circiut Court. — Hon. William T. Jones, Judge. (1) The will of Louis Bernero should be construed so as to confer testamentary power of disposition upon Theresa Bernero only in case Manuello died before her and left no issue; and in order that the manifest and true intention of the testator may be effectuated the court will supply the words omitted so that the part of said will granting the power of appointment to Theresa Bernero shall read: “If, however, my said…

<p>1. CERTIORARI TO COURT OF APPEALS: Application for: Suf- ■ ficiency of. An application for a writ of certiorari to review an opinion of a Court of Appeals on the ground of conflict with a controlling decision of the Supreme Court does not comply with Rule 34 of the Supreme Court, when the application itself does not “set out the issue presented to the Court of Appeals or show wherein and in what manner the alleged conflicting ruling arose,” hut merely states that the decision of the Court of Appeals is in conflict with the last reported decisions of the Supreme Court on the point in issue and refers to the opinion of the Court of Appeals and suggestions in support of the application filed with the application.</p> <p>2. -: -: -: Waiver. The respondents having waived the insufficiency of the application for the writ, and the writ having been granted and return made, the Supreme Court will consider the suggestions made by relator.</p> <p>3. -: Conflict of Opinions: Guarding Dangerous Machinery: Statute. The Supreme Court has never construed Section 7828, Revised Statutes 1909 (Section 6786, Revised Statutes 1919), to mean that if the appliances provided to safely and securely guard dangerous machinery should, without any negligence of the master, suddenly get out of repair or fail to function then, in such case, there was a failure to comply with the statute.</p> <p>“i. -: -: -: -. The Court of Appeals reversed a judgment for relator against his master for personal injuries sustained while working at a planing machine, which relator’s petition alleged was operated without having any safe and secure covering, guard or protection to prevent workmen coming in contact with the rotating knives of said machine and which it was alleged the master carelessly and negligently failed to safely guard. Th.e facts showed that a guard was provided which could be adjusted by a thumbscrew to any required height. For some unexplained reason this guard suddenly and unexpectedly failed to work when relator attempted to lower it and so he tightened the thumb-screw to hold it in place and proceeded to use the machine with it in that position. It was relator’s duty to adjust the guard. While using the machine to plane a heavy board with the guard as stated his foot slipped on a loose piece of gas-pipe lying on the floor and covered with shavings and his arm and hand were thrown against the knives and he was injured. Held, the decision of the Court of Appeals was not in conflict with any decision of the Supreme Couri.</p>

Certiorari. There was no delay by relators to work a denial of the writ herein, (a) Taking np the point referred to in the paragraph, that the mandate had been.delivered to the circuit court and judgment rendered as directed therein, and which respondents claim as a reason for the denying of this writ, certainly nothing was done in the circuit court in making a clerical entry under the judgment and mandate of the Court of Appeals which should be appealable or which in any…

Louis City Circuit Court. — Hon.-Rhodes E. Cave, Judge. (1) The acts of the widow under the will, such acts being' inconsistent with any other theory.

Certiorari. (1) The decision of the Kansas City Court of Appeals both in its literal language and by construction' of its meaning is a holding that the bond contemplated by the city ordinance is a bond, the whole penalty of which would be forfeited if the work of constructing the sewer was not completed within ninety days, and in this respeet is contrary to the following decisions of this court.

Certiorari. (1) The St. Louis Court of Appeals affirmed the judgment of the trial court. Considering the errors assigned by relator in that court, the necessary effect of its decision is that it held the converse of all of the propositions outlined in the six points which follow, while it expressly decided against relator in respect to the first four points. (2) The petition in this case wholly failed to state facts- sufficient to constitute a cause of action.