Volume 289 — Missouri Reports

<p>1. WILL: Attestation: Becitals: Witness to Mark. The statute requiring that “every will shall he in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator” does not require that a statement of all these things shall appear on the face of the will, or that the word “attest” or that anything whatever shall be written thereon other than the name of the testator and the names of the witnesses. If the maker signed the will by making his mark, and three other competent persons signed it as “witness to mark,” and testify that the mark was made before they signed it, and that he declared it to be his last will and they signed it at his request as witnesses and in his presence, it was sufficiently attested.</p> <p>2. -: German Testator: Bead to Him in English. The testator could, with difficulty, speak a few words in English and make his wants known in making purchases, but could not write or read the English language, and said he could not talk it well enough to dictate his will in English; the scrivener could not understand German, hut the testator told two witnesses who could understand both German and English just what different amounts of money he wished to give to each of his children and what land he wished to devise r.o a certain daughter, and those witnesses translated and repeated his requests to the scrivener in English, who wrote them down in English, and after the will was completed it was read to him in English, and he thereupon signed it and asked the witnesses to attest it, but one of them before he signed it talked with him and he told them the paper was his last will and testament and wanted them to sign it; and the evidence is clear that he comprehended the extent of his property and the disposition he wished to make of it, and the oral testimony is all to the effect that the instrument disposed of it as he desired. Held, that the instrument was his will and testament.</p> <p>3. -: Undue Influence: Peremptory Instruction. Where there is no evidence of coercion having been exercised at or prior to the time the will was executed, and the only approach to proof of undue influence is the testimony of parties in interest that the testator subsequently to the execution of the will cried and said they made him change his will, it is the duty of the court to direct a verdict for the proponents.</p> <p>4. -: Testamentary Incapacity: Old Age: Paralysis. Where the only evidence of testator’s testamentary, incapacity is that he was between eighty-five and eighty-six years of age, and had for sometime been paralyzed and unable to walk or use his hands, but his digestion and assimilation were good, and the paralysis had no tendency to affect his mind, there is no evidence of mental incapacity, and a peremptory instruction directing a verdict for proponents on that issue is proper.</p>

<p>1. NEGLIGENCE:' Using Crippled Locomotive Engine: Escaping Steam. The evidence showed that the engineer was the superior officer of the fireman; that it was the general railroad practice that when an engine became crippled not to proceed with the train until another was obtained from the nearest terminal shop; that after the train was under way on a regular run, it was discovered that steam in large quantities was escaping from the front end of the low-pressure cylinder on the left (or fireman’s) side; that this steam enveloped the cab, and the working place of the fireman between the cab and coal tender; that after the train had run about twenty miles and had stopped at a principal town, the engineer notified the dispatcher that the engine was crippled, but it does not appear that anything further was done towards getting another engine, although at a station thirteen miles away the company maintained terminal shops and a round-house for engines; that it was dangerous to passengers to operate such art engine, and dangerous to the engineer and fireman because escaping steam would prevent them from seeing ahead; and that the train proceeded on schedule time, and the fireman’s clothes were thoroughly wet by the escaping steam. Held, that these facts tended to show negligence on the part of the defendant; and tea timony on the part of the engineer that the engine could be safely run, that the steam did not wet him and that the fireman did not complain of being wet wheu they took off their working clothes at the end of the run, is of no value in a consideration of a demurrer to the evidence.</p> <p>2. -: - — : -: Proximate Cause of Pneumonia. Evidence . that the clothing of the fireman of a train was thoroughly wet on November 28th by the steam escaping from the engine; that he removed his overalls in the cab at the end of the run, put on dry outward clothing and went home, and his underwear was then so wet that by twisting it water ran out; that he began coughing on the 28th, and a deep-seated cold followed just after that date until the full development of pneumonia on December 6th, and that on December 13th he died from lobar pneumonia, and testimony of physicians that pneumonia often developes eight or ten days after exposure, where there are prodromal symptoms, and their testimony connecting the exposure to the steam with the pneumonia which caused his death, are evidence from which the jury could find that the superinducing and proximate cause of the pneumonia and his subsequent death therefrom was the negligence of the railroad company in failing to provide a safe engine.</p> <p>3. -: Patent Defect: Crippled Engine. Whether steam escaping . from a running engine and enveloping the cab was so patently dangerous to the fireman, obeying the directions of his superior, the engineer, that a reasonably prudent man would not undertake to work thereon, is a question for the jury, and not a matter of law for the court to determine.</p> <p>4. -: -: Assumption of Risk. ' Where steam was escaping from a running engine and enveloping the cab, and the evidence conflicts as to the duties of the fireman, and the engineer testifies that the engine could .have been safely operated, the fireman will not be held, as a matter of law, to have assumed the risk of further operation, after the danger was discovered, but assumption of risk, under such circumstances, is, at most, a question for the jury.</p> <p>5. —-: Federal Employers’ Liability Act: Invoking Safety Appliance Act: Contributory Negligence. A plaintiff who, by her petition, plants her action, for the recovery of damages for the killing of her husband while engaged in interstate commerce, upon the Federal Employers’ Liability Act, is not precluded from the benefit of the several safety statutes, if they are called into play by the facts. Said act by express reference makes the safety statutes applicable under stated circumstances by providing that “no employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee and the Boiler Inspection Act is especially applicable where plaintiff’s' husband was a fireman and was injured by steam which escaped from the defective engine and enveloped the cab in which he was at work, for Section 2 thereof is made to “apply to and include the entire locomotive and tender and all parts and appurtenances thereof,” and under such circumstances contributory negligence is not even a partial defense.</p> <p>6. -: -¡ — : -: Assumption of Risks: Contributory Negligence: Instructions./ Section 2 of the Boiler Inspection Act made it “unlawful for any common carrier, its officers or agents,” to use a locomotive in interstate commerce, unless such engine and all parts thereof were in proper condition and safe to operate in the service to which put, without unnecessary peril to life or limb, and this section is by express reference made applicable to an action based on the Federal Employers’ Liability Act; and where the facts show that the piston rod on the left low-pressure cylinder of the locomotive engine was broken off and the front end of the left cylinder had burst, and from said opening steam escaped when the train was running fast, and enveloped the cab in which plaintiff’s husband as fireman was at work, and that the use of said engine was negligently continued in the operation of the train after its defective condition became known to the engineer, who was the fireman’s superior, and such defective condition and negligent act were the proximate cause of the fireman’s death, the instructions to the jury, in an action by the fireman’s widow planted on the Federal Employers’ Liability Act, should eliminate the defenses of contributory negligence and assumption of risks.</p> <p>7. -: Measure of Damages: Diminution by Contributory Negligence. And where, under the Boiler Inspection Act and the facts, contributory negligence is eliminated from a case brought under the Federal Employers’ Liability Act, an instruction on the measure of damages which excludes any diminution of damages on account of the alleged contributory negligence of the deceased fireman, is not erroneous.</p> <p>¡5. -: -: Conscious Physical Sufferings. Since the amendment of 1910 to the Federal Employers’ Liability Act, the plaintiff may recover for the conscious bodily sufferings of the deceased fireman after his exposure to danger and before his death.</p> <p>’ 9. ARGUMENT TO JURY. Where counsel for plaintiff in their argument to the jury went outside the record and made unduly inflamatory remarks, but the trial court, upon objection, directed the jury not to consider them, and the size of the verdict indicates that they were not influenced thereby, the judgment will not be reversed.</p> <p>10. -: Reading From Medical Book. Counsel for plaintiff, in cross-examining physicians offered as witnesses by defendant, used several medical books, and got one of the physicians to admit that a certain passage in one of them was correct doctrine and to say that he would adopt it as an expression, of his own views, and this passage counsel for plaintiff, in his argument, was reading to the jury when the trial judge stopped him and told him he had no right to read from the book, as it had not been offered in evidence. Held, that the conduct of counsel was not reversible error.</p>

— Hoto. Guy D. Kirby, Judge. (1) A deed, regular on its face, with acknowledgment formally correct, found in possession of the grantee, is prima-facie valid, and the burden is upon plaintiffs to show its invalidity. R. S. 1909, sec. 2818; Bohan v. Casey, 5 Mo.

<p>Appeal from Pike Circuit Court. — Hon. E. B. Woolfolk, Judge.</p> <p>The record in this case is fatally defective in that there is no showing from the record proper of the filing or overruling of a motion for a new trial, the rendition of a final judgment, the allowance of an appeal, or the allowance of the signing or filing of a bill of exceptions. Tracy v. Tracy, 201 S. W. (Mo.) 902; Squares v. Peters, 202 S. W. (Mo.) 530; Livasy v. Jackson, 204 S. W. (Mo.) 186; Fleiger v. U. R. Co., 204.S. W. (Mo.) 182; O Tiara v. Berthold, 204 S. W. (Mo.) 1089, 1090; Harding v. Bedoll, 200 Mo.'625, 634; Bower v. Daniels, 198 Mo. 289, 317; St. Charles ex rel. v. Deemar, 174 Mo. 122; State ex rel. v. Woods, 234 Mo. 16.</p>

— Ho». Clarence A. Burney, Judge. . (1) The court erred in failing* *and refusing to grant defendant a new trial for the reason that venireman C. (Charles) G. Green did not fully, accurately, and truthfully answer all questions propounded to him on the voir dire examination, particularly concerning any present or previous feeling of bias or prejudice against defendant growing* out of litigation against ■ defendant, resulting in prejudice in that defendant was caused to…

— Hon. Harris Robinson, Judge. (1) The court erred in overruling the demurrer interposed at the close of plaintiff’s evidence and renewed at the close of all the evidence, (a) The petition fails , to state facts sufficient to constitute a cause of action against defendant. 1st. This accident occurred in Kansas, therefore, the laws of Kansas govern. Newlin v. Railroad, 222 Mo. 391; Chandler v. Railroad, 127 Mo. App. 34; Rahn v. Railroad, 129 Mo. App. 686. 2nd.

<p>Appeal from Jasper Circuit Court. — How. Joseph D. Perldns, Judge.</p> <p>(1) The power of a married woman to make a will devising land is not absolute and unconditional. It is “subject to the rights of the husband, if any, to his curtesy therein.” Sec. 536, R. S. 1909. (2) Presumptions as to facts always take flight upon the appearance of the facts themselves. Brown v. Brown, 237 Mo. 668. (3) “Gross inequality in the dispositions of the property, where no reason for it is suggested, either in the will, or otherwise, may change the burden, and require explanation on the part of those who support the will to induce the belief that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind.” 1 Redfield on Wills, 537, 516; Lynch v. Clements, 24 N. J. Eq. 431; Gay v. Gillian, 92 Mo. 250, 264. (4) “The fact that the will in question displays an entire change from former intentions is strong evidence of undue influence in its procurement.” 1 Jarmon on Wills (5 Ed.), p. 139. (5) A'will procured by lying is no less invalid than a will procured by violence. Smith v. DuBoise, 78 Ga. 413; In re Budlong’s Will, 126 N. Y. 423, 7 N. Y. Supp. 289. (6) If decedent did not know the contents of the will the court will direct a verdict rejecting the will. Bradford v. Blossom, 207 Mo. 228. (7) The rule that “a mistake of law, pure and simple, is not an adequate ground for relief is confined to mistakes of the general rules of law; it has no application to the mistakes of persons as to their own private legal rights and interests.” 1 Jones’ Commentaries on Evidence, p. 151, sec. 24 (21); Burton v. Haden, 108 Ya. 51, 15 L. R. A. ,(N. S-) 1038. (8) A mere capacity to understand the will is not under the pleadings and circumstances of this case all that was required of the testatrix; under the pleadings in this case the burden was upon proponents to show that testatrix did in fact understand “the meaning of the instrument” executed as a will. Carlson v. Lafgran, 250 Mo. 527, 533; Cowan v. Shaver, 197 Mo. 203, 212. (9) If an attending witness attested only one sheet of paper, believing at the time that the whole will was contained on that sheet of paper, and was not advised or informed that other sheets of paper contained other portions of the will, or even if so informed and the other sheets were not within sight of the attesting witnesses, the attestation is not good under the' statute. The identification is not complete. The statute is mandatory. McGee v. Porter, 14 Mo. 611, 55 Am. Dec. 129; St. Louis Hospital Assn. v. Williams, 19 Mo. 617; Northcutt v. Northcutt, 20 Mo. 268; Simpson v. Simpson, 27 Mo. 288; Catlett v. -Catlett, 55 Mo. 341; Gordon v. Burris, 141 Mo. 602; Chafee v. Baptist Convention, 10 Paige (28 Chancery) 85; Cabett on Appeal, 8 Watts & Seargeant, 21, 40 Am. Dec.' 225. (10) The motion notwithstanding the verdict must be sustained in the ease at bar on the pleadings and the evidence. Dezell v. Casualty Company, 176 Mo. 253, 293; 2 Bouvier’s Law Dictionary (Rawle’s Third Revision) p. 1719. (11) If proponents themselves show that the paper offered is not what the testator was made to believe it was when he signed it, it cannot be adjudged to be his will, even in the absence of any averments to that effect in the petition of the contestants. ’ Cowan v. ' Shaver, 197 Mo. 203, 212. A contest is in the nature of an appeal from the probate court, and when instituted by a party in interest vacates the interlocutory judgment (of the probate court).... The institution of such contest imposes upon the circuit court the duty of determining the question of will or no will. ’ ’ State ex rel. v. Mc-Quillin, 246 Mo. 688; Dickey v. Malechi, 6 Mo. 177; Benoist v. Murrin, 48 Mo. 48; Cash v. Lust, 142 Mo. 637; Hogan v. Hinchey, 195 Mo. 527; Teckenbrock v. McLaughlin, 209 Mo. 533. (12) The burden of proof is upon the proponents of the will. State ex rel. v. McQuillin, 246 Mo. 674, 689; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 461; Teckenbrock v. McLaughlin, 209 Mo. 533.</p> <p>(1) The validity or effect of the provisions of a will cannot he determined in a will contest, but the only issue is whether the will sought to be established was the will of the deceased. Cox v. Cox, 101 Mo. 168; Cordon v. Burris, 141 Mo. 602; Tingley v. Cowgill, 48 Mo. 291'; Lilly v. Tobbein, 103 Mo. 477. (2) The only burden that rested on the proponents of this will was to prove its due execution, proper age, sound mind, and all this was abundantly done. Card v. Cabil, 120 Mo. 283; Maddox v. Maddox, 114 Mo. 35. (3) It is not necessary that the witnesses attest every sheet of a will ’ or that it shall he shown to them. It is sufficient if all the sheets were in the room at the time of the execution and the attestation, and in the absence of proof to the contrary such is the presumption, and sheets which are hound together and constitute the will after the testator is dead are presumed to have been bound together at the time of attestation. 30 Amer. & Eng. Ency. Law (2 Ed.), 603. (4) The petition in this case charged that the beneficiaries of the will unduly influenced the testatrix in the execution thereof plaintiff is concluded by these statements and her proof should he confined to the persons charged, and she is not now permitted to urge on. her part that she was misled by her attorney as to her husband’s rights by curtesy. Jackson v. Hordin, 83 Mo. 175. (5) A will contest being a law action the finding by the jury based on sufficient evidence as to due execution, mental capacity, etc., is conclusive on the appellate court. Butler v. Assn., 73 Mo. 242; Benoist v. Murrin, 58 Mo. 307. (6) If the husband takes under this will, he waives his curtesy rights and there is no allegation in the petition that he has not accepted the provisions of the will, which he is by answer and otherwise trying to sustain; hence, no one is injured and the property is being distributed exactly as the deceased wanted it. Caster v. Gray, 159 Mo. 588.</p>

<p>1. JUDGMENTProcured by Fraud: Knowledge of Suit Pending. A plaintiff should be held responsible for any fraud in law, fraud in fact, deception or mishap, which was occasioned by his acts or the acts of his counsel. Where a plaintiff employed one attorney to bring suit by personal service against a non-resident and another attorney to bring suit by publication for the same land in the same court at the same term and the order of publication was published in an obscure paper away from the county-seat, and to the first suit the defendant appeared, filed a motion requiring plaintiff to give bond for costs, which being sustained and no bond being filed, the suit was dismissed, the judgment rendered by default in the second suit, the defendant having no knowledge thereof, should be set aside at the suit of said defendant or his grantee. Although the attorney in the one suit knew nothing about the other suit having been brought, the plaintiff in both must be held responsible for everything either of them knew, for in law he knew whatever they knew, and his act was not only a fraud upon the defendant, and tricked him out of his defense to the second suit, but was a fraud upon the court who rendered the default judgment therein.</p> <p>2. CONVEYANCE: Patent Clerical Error: Recognition in Suit to Quiet Title: Omission of Word Quarter. The recognition of a patent clerical error or omission in the construction of a deed is not a reformation of it; and where the judgment in a tax suit properly described the land as the southwest quarter and the northeast quarter of Section 36, and the sheriff’s deed recites that the judgment described the southwest quarter and the northeast quarter of Section 36, and then says that named persons were the highest bidders for the “southwest quarter and northeast of Section 36’’ and that said last above described tracts were stricken ■ off and sold to said named persons, it is clear that the omission of the word “quarter” after the word “northeast” was a patent clerical error, and that said deed, when read as a whole, conveyed 320 acres to said purchasers; and their subsequent grantee, in his suit to quiet title, is, without bringing suit in equity to reform the deed, entitled to judgment for the 320 acres, and not simply to 160,. as the trial court ruled.</p> <p>3. TAX SUIT: Trust Estate: Sale of Legal Estate. Where the will, fairly construed, contemplated that the executors should divide the property between the widow and two sons, and that one of the sons should hold his brother’s share until he became of age; there is nothing to show when said brother became of age; the will does not show when i^ was made; the testator died in 1883 and the administration of the estate closed in 1887; in 1891, after the death of the wife, suit for taxes was brought against both brothers, they were personally served, and in their answers asserted they were the owners of the land, and made no claim to a trust estate, it will be held, in a suit to quiet title, that the title passed to the purchaser at the sheriff’s sale under the tax judgment, and that a subsequent purchaser from said brothers took nothing by his deeds.</p> <p>4. -: -: Estoppel. Defendants in a tax suit, after filing their answer in which they assert they are the owners, will not be heard, on the ground of estoppel, to urge that the judgment in the tax suit was void and did not bind them because the property was held by one of them as trustee for the other. Inconsistent positions cannot be taken where they work injury, and the purchasers at the tax sale had a right to rely upon defendant’s answer filed in the tax suit, in which they alleged they were the owners. And a subsequent purchaser from said defendants stands in no better position than they do.</p>

— How. Willard P. Hall, Judge. .(1) The sheriff’s deedt in the suit and under the judgment for the taxes and enforcing the lien thereof and the proceedings in such suit are regular and sufficient and are so predicated and recognized in the allegation of plaintiff’s petitions, and conveyed to Matilda Kinney in such suit against all parties who could possibly he interested in the land including the present plaintiff and J. B. Kinney, who were personally served with summons…

<p>1. PLEADING: Departure: Negligence: Cause Under Kansas Statutes. A petition which states the ultimate fact of a cause of action for negligent personal injuries under Sections 4218 and 4219, Revised Statutes of Missouri of 1919, also states a cause of action under Sections 7323, 7324 and 11829 of the Kansas statutes; and where the petition states a cause of action under these Missouri statutes, an amended petition in which these Kansas statutes are pleaded for the purpose of showing that under them plaintiff had a right to sue, and that they create a cause of action for negligence committed in Kansas, is not a departure. The ultimate fact of negligence being alleged in both petitions, the character of proof required, the measure of damages and the judgment Lo be rendered upon a finding for plaintiff are the same.</p> <p>2. -: -: Explanatory Amendments. A petition which states a cause of action, but states it imperfectly, may be amended so as to cure the defect. The addition by way of an amended petition of allegations which maintain, explain, fortify and strengthen the cause of actjon stated in the original petition, does not constitute a departure. Whether a change from law to law is a change of the cause oj action depends on whether the facts essential to constitute a cause of action are the same or different in the two pleadings, rather than whether the pleader intended the one law or the other to apply. Where the original petition states the facts essential to a cause of action for damages based on unpleaded Missouri statutes, for negligent personal injuries inflicted in Kansas, an amended petition, containing the same essential allegations, to which are added others showing plaintiff’s right to sue and that the same facts constitute negligence under the statutes of Kansas, which are for the first time pleaded as an amendment, is not a departure.</p> <p>g. -: -: Amendments Liberally Allowed. Under the Missouri statute (Sec. 1274, R. S. 1919), amplifying and liberalizing the right to amend pleadings, and limiting the right only by the sound judicial discretion of the court applicable to the facts of each particular case, the proper rule is to allow amendments and the exception to refuse them, and not to refuse them unless the opposite party will-be injured by the amendment; and where the amended petition does not require a different character of evidence from that necessary to support the original petition, the measure of damages -and the identity of the subject-matter are the same in both, and a judgment rendered upon either will constitute a complete bar to an action on the other, the amendment should be allowed, and not held to be a departure.</p> <p>4. -- — :-: Amendment Required by Answer. Where an amended petition is made necessary by an issue tendered in defendant’s answer, filed by leave of court upon the eve of the trial, defendant is in no position to complain of an amendment which controverts or avoids the new matter set up by way of defense.</p>

<p>1. APPELLATE JURISDICTION: Transfer by Court of Appeals. Where a case has been transferred to the Supreme Court for the reason that one of the judges of the Court of Appeals believes its decision therein is in conflict with a decision of another Court of Appeals in another case, it is the duty of the Supreme Court to hear and determine the case as it would any other case in which it had obtained jurisdiction by ordinary appellate process, and the question of conflict drops out of the case.</p> <p>2. NOTICE BY PUBLICATION: Two Consecutive Weeks. The statute required that the resolution authorizing a street improvement ' should be published in some newspaper “for two consecutive weeks; and if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days from the date of the last insertion of said resolution, file with the city clerk their protest against such improvement, then the board of aider-men shall have power to cause such improvements to be made and contract therefor.” The resolution was adopted on May 3rd, and was published in a weekly newspaper on May 7th and 14th, and on May 25th an ordinance requiring the improvement to be made and the contract to be entered into was adopted. Held, that the statute required that the resolution should be published for full two weeks, or fourteen days, and as ten days intervened between its last publication on May 14th and the adoption on May 25th of the ordinance requiring the improvement to be made and the contract to be let, the requirements of the statute were met. Where the statute requires the resolution to be published for “two consecutive weeks,” and allows property owners ten days thereafter in which to protest, it is not necessary, in order to constitute two consecutive weeks, that the resolution be inserted for three weeks in the weekly newspaper, but where the resolution is inserted the second time ten days before the council passes an ordinance authorizing the improvement, that is sufficient publication. [Overruling Munday v. Leeper, 120 Mo. 417,]</p> <p>3. STREET IMPROVEMENT: According to Established Grade: Specification. A resolution adopted by the board of aldermen reciting that “the surface of the roadway when said work is completed shall be at the established grade thereof, all according to plans, profiles and specifications therefor filed by the proper officer with the city clerk of said city,” and profiles showing the cuts and fills necessary to bring to the established grade the part of the street to be graded and paved, duly filed, sufficiently comply with the requirements of the statute (Sec. 9411, R. S. 1919) requiring the resolution to include and describe the work of bringing the street to the established grade.</p> <p>4. -: Notice to Begin Work: Waiver: Completion of Work. Where the ordinance provided that the street improvement should begin within one week from the delivery to the contractor of written notice, said notice can be waived, and where no' notice is given the time for completing the work is to be counted from the date he actually began work.</p> <p>5. -: Not Completed Within Required Time: Void Tax Bill. Where the ordinance provided that the street improvement should begin within one week from the delivery to the contractor of written notice, and be fully completed within sixty days, and no notice was given, but he began work on June 28th and completed the improvement on November 10th, a period of 135 days, no extension being granted or requested, the tax-bills issued to the contractor in payment for the improvement were void.</p> <p>6. --: -: Provisions for Interference. Time is of the essence of a contract requiring a street improvement to be completed within a specified time, and material; and where no cause appears for the delay and for aught that appears the .work was needlessly delayed, any provision in the contract that days lost on account of injunction suits, bad weather and strikes should not be counted, not being invoked or if invoked wholly inapplicable, does not relieve against the requirement for a completion of the improvement within the prescribed time.</p>

<p>1. DEDICATION OF STREET: By Grantor’s Conveyance. A dedication of a street to public use may be made in a deed from one individual to another, if sufficiently explicit in terms to indicate the grantor’s purpose. Where the owner sells property within the limits of a city, and in the deed bounds it by certain designated streets, not only does the grantee acquire an easement by the grant, but the deed constitutes an offer of the use declared.</p> <p>2. -:-: Call For Street: Estoppel: Available to Public. While the rule is that an estoppel by deed, including an implied covenant, can operate only in favor of the grantee or his privies in estate, and estoppel in pais can operate only when representations have been made to a legal person, who has relied upon them to the . extent that it would be inequitable to allow them to be withdrawn, a call for a street in a deed from one individual to another is more than a mere description, for it is an implied covenant that there is such a street, and where such individual has accepted the deed and acted on it in reliance upon such covenant the general public can avail itself of an estoppel in his favor.</p> <p>3. -: -: -: Aided by Other Facts. A deed from the owner of land in a city to an individual grantee designated Glades Avenue as the northern boundary of the property sold and ended the description by metes and bounds as “on the south line of said avenue;” ten days thereafter a survey, made twenty years previously by the grantor’s husband, which declared Glades Avenue to be the northern boundary of the property and designated it as a proposed highway, was filed, and the presumption is reasonable that it was filed at said owner’s instance; said survey remained on record unchallenged for seven years before the suit was brought to open and widen said avenue, and the grantee in said deed testified that Glades Avenue had been open for more than ten years and that 'he had several times driven through it. Held, that the deed, aided by the other facts, constituted a dedication to public use of that portion of the owner’s property designated therein as Glades Avenue, and a formal acceptance was unnecessary.</p> <p>4. -: -: Subsequent Revocation. After the dedication oi land to a public use by the deed of the owner, an agreement between the owner and grantee, in which the former, for á consideration, agre.es to sell to the latter ground described in the deed as ' a street, will not effect a revocation of the grant, nor be construed as indicative of another purpose than that expressed in the deed. And after the dedication has become absolute, the grantor cannot change its character by a deed of another lot to another grantee in which she describes the avenue so dedicated as a private street.</p> <p>5. -: Fee in Dedicator. The fact that at common law the fee in the soil over which a public highway is established remains in the owner does not affect its common law dedication to public use, which is absolute until the highway is vacated.</p> <p>6. --: Opening Street: Damages. Where the owner of property has parted with the fee, she is not entitled to damages for its appropriation by the city in a proceeding to open and widen a street over the same.</p> <p>7. -: Nominal Damages. Where the area included within a proposed public street is burdened in favor of adjacent lots with easements in the nature of a street, public or private, the owner, upon condemnation for the formal establishment of a highway thereon, is entitled to recover only nominal damages.</p>

— lion. O. A. Lucas, Judge. (1) The evidence should have been .confined to the issues: (a) Were the notes altered in the respects asserted by defendant, and (b) did the indorsements upon the back of them, evidence an actual payment thereon?

Certiorari. (1) With, reference to whether the opinion predicates waiver upon alleged knowledge of Brown, we quote from the opinion of the respondents, as follows: “It (appellant) knew of the claim or change of ownership certainly a few weeks after issue of the policy.” Since the status of the parties as of the date of the fire must have been in contemplation, and the adjuster learned nothing, according to the opinion of the respondents, until after the fire, this ruling in…

<p>1. CANCELLATION OF DEED: Undue Influence: Parent and Son: Burden of Proof. The simple relation of parent and child is not sufficient to justify the cancellation of a deed or lease from the parent to the son, but in order to authorize such cancellation there must be a further showing of the exercise of undue influence by the son, or the existence of fraud practiced upon the parent by him, or that some advantage was taken by the son of the parent’s weak condition of mind; and where there is no evidence tending to show any relation of trust and confidence between the parent and son except that which exists between parent and child, the burden of showing fair dealing and the absence of undue influence does not shift to the son in her suit to set aside* a conveyance of her farm to him.</p> <p>2. -: -: -: Utmost Fairness. Where the evidence shows that the utmost fairness characterized the dealings of a son with his mother and manifests a desire on his part to secure to her an adequate income from her farm, which she, because of old age and physical infirmities, was unable to operate, and to preserve the estate intact for himself and her other children, and further shows that, in pursuance to said desire, he took upon himself a burden that he alone of all her children was able to carry, which required the advancement of considerable sums of money and his personal attention for ten years or more before he could be reimbursed, there is no room for the contention that, in her suit to set aside the conveyance, the burden of showing fair dealing and the absence of undue influence shifted to him.</p> <p>3. CONVEYANCE: Incapacity of Grantor: Expert Testimony: Exploded by Her Own. In a suit to cancel a deed and lease’ made by a mother to her son, testimony of the mother at the'trial, eight months after the instruments were executed, in which she clearly relates the conversations and agreement between herself and the son at and prior to their execution, is of itself sufficient to explode the testimony of medical experts to the effect that at the time the instruments were executed she was of unsound mind and incapable of entering into such contractual relations.</p> <p>4. -: To Several Children: Acceptance by All. Where the mother did not write in her deed to her children, intended as an advancement to each of them, that it should be void unless all of them accepted it, the law will not imply a condition of defeasance in case one or more of them fail to accept it; but as to the grantee to whom it was delivered and as to those who do accept it, it will be a valid conveyance, and as to those only who refuse to accept it will it be held void.</p> <p>5. -: -: Lease: Ratification. Where a voluntary deed to a farm by a mother to her children was made subject to a cotemporaneous lease to one of them for ten years at an annual rental, her demand and acceptance of a part of the rental is an affirmance of the contract with said grantee and lessee, subject to the correction of mutual mistakes, and cannot be avoided as to him because four of the six children refused to accept the deed.</p> <p>6. DEED: Lease: Mutual Mistakes: Reformation. Where the agreement between a mother and her son was that her farm should be leased to the son for ten years at a named annual rental, and in addition he was to pay the taxes and make needed improvements on the dilapidated farm and pay the interest on two existing mortgages and advance her whatever sum above the rental was necessary for her comfort, and he was to be reimbursed for all said outlay above the annual rental by an extension of said lease at the same rental for such a time as would reimburse him, and that a deed should be made to all her children as equal grantees, subject .to said lease, and said agreements were not incorporated in either of said cotemporaneous instruments, and the son, in his answer to the mother’s suit to have the deed and lease cancelled, asserts that such were the agreements and prays that the instruments be reformed to include them, the court should reform the deed so to make it subject to the lease and the mother’s life estate, and reform the lease so as to extend it for such period as will meet the other terms of the agreement.</p>

<p>1. ELECTION BALLOTS: Evidence in Criminal'Prosecution: Constitutional Provision: Power of People. The people have power, by a constitutional provision, to prohibit the use of ballots cast at an election as evidence in a criminal prosecution, and if they have so prohibited their use no argument to the effect that the Constitution should not be permitted to stand in the way of a prosecution for crime can be indulged by the courts.</p> <p>2. -: -: -: Governmental Policy: Province of Courts. The question whether election ballots can be used as evidence ■ in a criminal prosecution was determined by the convention which framed the Constitution and by the people who adopted it, and with that policy the courts have nothing to do. The whole power of the courts in reference thereto is to decide what policy was adopted, and if the policy is written in the Constitution, whether good or bad, the courts will not displace it and substitute another.</p> <p>3. -: -: Secrecy. The proposition that a simple provision in the Constitution that “elections shall be by ballot” introduces absolute secrecy, is established by the decision of the courts, the views of text-writers, and the history of the origin of voting by ballot and the nature of the evils it was intended to remedy.</p> <p>4. -:--: -: One-Sided Policy. At the time the Constitution of 1875 was adopted, it was settled beyond doubt that election by ballot meant an election by secret ballot; and the question of policy was not one-sided, but the convention made choice between policies, and the choice is expressed in Section 3 of Article VIII of the Constitution the people adopted.</p> <p>5. -: -: Constitutional Provision: Modification: Election by Ballot. Words used in the Constitution cannot be modified or affected by anything outside of the Constitution; they cannot be changed by the Legislature or the courts or by any other than the people. The words of the first clause of Section 3 of Article VIII that “all elections by the people shall be .by ballot” had a definite and settled meaning when they were written into the Constitution, ' and if they stood alone and unqualified by other words therein it would' have to be ruled that ballots cast or counted at an election cannot be used in a criminal prosecution.</p> <p>6.-: -: -: Secrecy: Removal by Numbering. The provision in the Constitution requiring the ballots to be numbered removes the veil of secrecy to some extent, but does not destroy it entirely; it does not uncover the ballot of any voter, nor does the provision authorize any action by any one which would, of itself, disclose the character of the ballot.</p> <p>7. -: -: -: -: -: Comparing Ballots. Except in cases of contested elections, no permission is given by the Constitution to compare the ballots with the list of voters; and the fact that such permission is expressly given in election contests is no reason for saying that such a comparison may be made in proceedings which are not election contests, such ás a criminal prosecution growing out of alleged frauds at an election.</p> <p>8. -: -: Election Officers: Permission to Testify: Ballots as Evidence: Wisdom. Section 3 of Article VIII of the Constitution permits election officers to ’testify in judicial proceedings concerning the way in which a voter voted, .but that provision has nothing to do with the use of the ballots in evidence. And the use of the ballots cannot be authorized on the theory that it is absurd to permit such secondary evidence and exclude the primary evidence, for the question is not the wisdom or consistency of the provisions, but what they declare.</p> <p>9.--: -: Comparison in Contests: Inapplicable to Other Proceedings. The proviso that “in all cases of contested elections, the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law,” does not authorize the use of ballots in proceedings other than cases of contested elections. It has no pertinence to any proceeding except cases of election contests, and cannot be extended to such other proceeding. The proviso does not of itself expressly prohibit the use of ballots in other proceedings, yet the very fact that special provision was deemed necessary in cases of election contests makes applicable the well known canon of construction that expressio unius exclusio alterius est.</p> <p>10.-: -: -: -: As Interpreted by The Constitutional Convention. That the proviso to Section 3 of Article VIII of tho Constitution does not apply to judicial proceedings is further made plain by a rejection by the Constitutional Convention, by a vote of 42 to 23, of a proposed, substitute which declared that “all ballots shall be subject to inspection and examination in all cases of contested elections and judicial proceedings.”</p> <p>11. -: -: Ballots as Evidence: Statutory Authority. In so far as a statute (Sec. 5403, R. S. 1919) conflicts with the Constitution it is without force, for the Legislature has. no authority to authorize what the Constitution prohibits.</p> <p>12. -: -: -: -: Primary Elections. Section 3 of Article VIII of the Constitution does not apply to primary elections, and the Legislature is not restrained by said section from enacting a law pertaining to them.</p> <p>13. -: -: -: Exposure by Contest: Vote for Other Officers. Where other officers were voted for in the municipal election, and in a contest instituted for the office of mayor a comparison of the ballots with the lists of voters is being made, it is unlawful to make public how said voters voted for such other officers, and if their ballots have thereby been exposed and the veil of secrecy destroyed it would be still further unlawful to use them as evidence in a criminal prosecution.</p> <p>14. -: -: -: Statutory Prohibition. Section 5403, Revised Statutes 1919, declaring that ballots shall “in no way be used or any information disclosed that would tend toward showing who voted any ballot,” while invalid in so far as it relates to cases of election contests, is not otherwise prohibited by the Constitution, and foi-bids the use of ballots as evidence in a criminal prosecution.</p> <p>15.--: -: -: Governmental Policy: Power of Courts. If the State of Missouri has tied her hands by her Constitution, it is not within the power of the courts or of the Legislature to untie them. Furthermore, if one court can open ballot boxes in any proceeding other than an election contest, all courts can do likewise and the ballot would no longer be a secret ballot.</p> <p>16. DENTAL OF WRIT IN ANOTHER CASE. The denial of a writ in another similar case by merely marking the word “denied” on the application cannot be considered as overruling previous decisions. Writs are frequently denied for reasons which do not arise out of substantive law.</p>

<p>1. MANDAMUS: Payment of Salary. Mandamus is an appropriate remedy to compel a public official, whose duty it is to pay another official his salary, to pay such salary, where its amount is fixed by law; for then no discretion is left as to the amount, and where the only question is what is the amount the law fixes as the salary, it is purely a legal one.</p> <p>2. COUNTY ENGINEER: Salary: Por Ex Officio Duties Only. The words of the statute (Sec. 10556, R. S. 1909) providing that in counties containing fifty thousand inhabitants, etc., “the’■county-surveyor shall be ex officio county ’ highway engineer, and his salary as surveyor and ex officio county highway engineer shall be not less than two thousand dollars and not more than three thous- and dollars, as fixed by the county court,” in view of the history of the statute preceding such' proviso, has reference to ex officio duties and ex officio salary only; the proviso did not mean that the county court could fix the salary of the officer hoth as county surveyor and ex officio county highway engineer at less than the statutory salary of the surveyor, but the term “as surveyor and ex officio county highway engineer” had reference to the office of engineer, and not to that of surveyor.</p> <p>3. -: -: Amendment of 1919. Likewise the amendment to such statute made in 1919 (Sec. 10787, R. S. 1919) providing that in such counties “his salary as surveyor and ex officio county highway engineer shall be not less than three thousand dollars and not more than five thousand dollar's, as may be fixed by the county court,” meant that the salary of the ex officio county highway engineer, for the performance of the duties of that office, should be not less than three thousand dollars, in addition to his salary as county surveyor. The statute did not mean that the- court could fix his salary for the performance of the duties of both offices at not less than three nor more than five thousand dollars, but it meant that the court could fix his salary for his ex officio duties as highway engineer at not less than three nor more than five thousand dollars, and did not give the court power to fix his salary as surveyor at all. In such counties, he is entitled to at least three thousand dollars a year, in addition to his statutory salary as county surveyor-.</p>

Mandamus. (1) The five-year limitation provision, if applied to the mortgage contract in question, is unconstitutional, null and void and constitutes no defense for the failure of the Commission to grant the authority in reliance thereon because (a) such provision so applied impairs the obligations of the mortgage contract, and (b) deprives the company of its property, i. e., its vested right to issue these bonds and receive the proceeds thereof, without due process of law.

<p>1. CONSTITUTIONAL LAW: Deceptive Words. A legislative act US not made an inspection law by the frequent use of the word inspection; mere words do not determine its character, but that is to be ascertained from the language employed, the legislative intention indicated by such language, and the object and purpose of the act considered as a whole.</p> <p>2. -: Carbonated Waters: Grounds for Inspection. The extensive manufacture and general use of carbonated waters, commonly known as “soft drinks,” and other like preparations having no merit other than the creation of a pleasant but fleeting gustatory sensation, are the mo'ving cause of legislation providing for their inspection.</p> <p>3. -: Police Regulation: An Inherent Legislative Power. The police power is inherent in the State as a sovereignty, and needs no organic grant for its exercise by appropriate legislation. It can always be used in the interest of the general welfare to restrain one man from so using his property as to injure another.</p> <p>4. -: -: Inspection Laws: Police Regulation. Laws providing for the inspection of foods and drinks, if they relate to the purity of the article inspected and are designed to promote the public health by prohibiting the use of deleterious substances in their preparation, are the exercise of the police power. A prohibition may be placed by law upon the making and sale of any article deleterious to the user, and that may be accomplished by a reasonable inspection law.</p> <p>5. -: -: Inspection or Revenue Act: Provisions. An act providing for the inspection of carbonated waters which defines the duties of an official who is charged with its execution, provides specifically for the products to be inspected, prohibits the manufacture and sale of such products as are not pure and wholesome, requires samples of such products to be submitted for inspection, requires labels showing the nature of the beverage and that it has been inspected as to character and purity to be-placed upon all packages, prescribes a penalty for the misuse of the labels and for-*.the failure of the inspector to' perform his duties, prescribes the fees for inspection and directs that records of the inspection work shall be kept, is an inspection measure, whose purpose is to promote the public health, and, unless it can be shown that its operation is onerous and the result of its enforcement alien to the purpose of its enactment, will not be held to be a mere revenue measure, but a reasonable exercise of the police power.</p> <p>6.-- — : Title: Inspection Law. The title to an inspection law need not expressly show that it is not a revenue measure. Section 28 of Article 4 of the Constitution does not require that the title of an act shall particularize the items it contains or does not contain. It simply means that the title shall unmistakably indicate the contents of the act.</p> <p>7. --: Inspection: By Sample. Inspection of carbonated waters by sample, instead of the entire product, does not render the law invalid as a police regulation.</p> <p>8. -: -: No Penalty for Manufacture. An inspection law which affixes a penalty to the sale of an article unless it has been inspected and labeled is not invalid because it prescribes no penalty for the manufacture of impure products. It is the sale of impure products that the law strikes at, for it is by their sale that injury to the public is made effective.</p> <p>9.-: -: Excessive Fees: Revenue Measure. Inspection feeg are hot restricted to the mere expense of the inspection. It is impossible for the Legislature, in enacting an inspection law, to determine the exact expense of its execution or to nicely gauge the charge that should be required. What is a reasonable ftee depends largely upon the sound discretion of the Legislature. An inspection law will not be held to be a revenue measure merely because in the first years of its operation the fees collected amount to more than three times the expenses; especially should this be the ruling where the Legislature, after discovering such excess, made very substantial reductions in the fees to be thereafter charged.</p> <p>10. — -: -: -2 — : Presumption of Legislative Reduction. An inspection law being otherwise valid and the amount of the fees to be charged being largely within-the sound discretion of the Legislature, the presumption is that the Legislature, upon discovering that the fees authorized to be charged and collected largely exceed the probable costs of inspection, will reduce the fees, and the courts do not interfere, immediately upon application, upon a showing that the fees collected for the first two years after the enactment of the law largely exceeded the expense.</p>

Certiorari. (1) The ruling of the Court of Appeals that, although deceased, who was sui juris, knew the train was approaching, yet, since the engineer testified that when his train was a quarter of a mile distant he saw a group of persons leaving the depot and knew they intended to cross the track, they were from that moment in the danger zone, and it was his duty at that time to stop or slow up his train so as to prevent the accident, and that as there was evidence tending…

Louis City Circuit Court. — Hon. Thomas C. Hennings, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. A plaintiff must prove the cause of action on which he sues. He may not allege one cause of action, wholly fail to prove it, recover upon an entirely different one, and uphold his judgment. Henry Co. v. Citizens Bank, 208 Mo. 209; Canaday v. U. Bys. Co., 134 Mo. App. 282; Marr v. Zeidler, 145 Mo. App. 199.

Certiorari. (1) The trial court had jurisdiction as a court of equity to appoint a receiver for a corporation that was without… Held: First, that the circuit court had no jurisdiction to appoint a receiver, because the petition showed on its face that the stockholders had failed to make any effort to remedy the condition they complained of; that if they had so acted, being the majority stockholders, they could have remedied the condition without applying to a court…

Mandamus. (1) Mandamus is the proper remedy to insure relator the relief sought. State ex rel. Hagerman v. Drabelle, 191 S. W. 694; State ex rel. McCleary v. Adcock, 206 Mo. 550, 105 S. W. 271. (2) The law now being-considered, except and only as to Section 5493 and Section 5495, Laws 1917, has never been construed or considered by any appellate court.

<p>1. BOULEVARD: Shifting Cost by Widening Street: Cancellation of Tax Bills: Corruption. Charter provisions requiring the expense of opening a boulevard to be borne in part by the city and in part by property abutting thereon cannot be evaded by the enactment of an ordinance for widening a street but in fact establishing ra boulevard, and thereby shifting the city’s part of the expense of its construction upon property not subject to assessment for boulevard purposes; and where the city’s part of such expense has by the subterfuge of enacting a widening ordinance been shifted to property not abutting on the street and therefore under the charter not subject t'o assessment to pay the cost of constructing a boulevard in such street, the owner of such property may maintain a suit to cancel the tax bills; and such a suit may be maintained without an allegation or showing that there was bribery or corruption in connection with the enactment of the widening ordinance and the proceedings thereunder. [Following Albers v. St. Louis, 268 Mo. 1. c. 357 et seq.]</p> <p>2. -•: -: -: Notwithstanding Judgment in -Condemnation: Collateral Attack. Notwithstanding the fact that the circuit court had rendered judgment in the condemnation proceeding es- . tablishing the boulevard and approving the assessments against the owner’s property, such owner can maintain a suit to'cancel the tax bills issued to pay such assessments, if they were made contrary to charter provisions.</p>

<p>1. FRAUD AND DECEIT: Scienter: Allegation Tantamount to Knowledge. Scienter means knowledge on the part of the person making representations, at the time they are made, that they are false, and in actions of fraud and deceit it is necessary to allege and prove the scienter; but it is not necessary to expressly allege that the defendant knew his representations upon which the action is based were false; it is sufficient if the language used is tantamount to an allegation of knowledge that they were false; it is sufficient if the petition charges that the representations were false, were made by defendant himself, and therefore necessarily known to him, that they were “knowingly” made and done for “the fraudulent purpose of deceiving the public,” and especially should such allegations be held to be a sufficient plea of the scienter after verdict, where no demurrer to the petition was filed and its insufficiency was first raised by an objection to the introduction of testimony.</p> <p>2. -: Several False Representations: Proof of One. Where several false representations are charged to the defendant, any one of which is sufficient to constitute an action for fraud and deceit, substantial proof of any one of them is sufficient to carry the case to the jury.</p> <p>3. -: Sale of Stock: Fictitious Sale of Railroad. Evidence that the president of a trust company sold its stock to plaintiff at $190 per share with the assurance that its book value was $200, at a time when the company was insolvent, the result' of happenings through years, carefully concealed by fictitious and imaginary profits and the payment of dividends never earned; that the said president told plaintiff, prior to purchase of the stock, that the company had sold for subsequent delivery a railroad, financed and built by it, at a profit of one million dollars, whereas in fact he had only given an eighteen months’ option on the road; and that this railroad was one of the chief factors in the ultimate wreck of the trust company, is sufficient, in an action of fraud and deceit, to submit to the jury the issue whether the sale of the stock to plaintiff was induced by the false representations of its president that the company was in'a solvent and prosperous condition and the book value of its stock was worth what he said it was, these facts being sufficiently pleaded.</p> <p>4. -: -: Evidence: Value at Time of Sale: Subsequent History of Corporation. In an action of fraud and deceit based on the fraudulent sale of the stock of a corporation at a false and fictitious value, the value of the stock at the jlate of the purchase is the value to be considered in determining the damages, but. the subsequent history of the corporation and, the conditions and rapid fall in the price of i'ts stock thereafter may be shown as throwing light upon the value at the time of the purchase, especially where there was no radical change in the real assets and liabilities of the company during the subsequent months up to the time of its failure, and the defendant had in writing represented to plaintiff that he had “inside knowledge of the company’s affairs.” And such evidence being proper, it is not error to instruct the jury that the real value at the time of the purchase may be ascertained “in the light of the subsequent events in the history' of the company.”</p> <p>5. -: —-: Presumptive Knowledge of Directors. In an action for fraud and deceit brought against the president of a trust company for fraudulent representations in the sale of its stock, at a price far above par, at a time when it was in fact insolvent and its stock had been given a fictitious book value,-it is not erroneous to instruct the jury that “it is the duty of a director of a trust company to ascertain the value of its assets and the amount and extent of its liabilities, and the law presumes that a director is familiar with the surplus and profits and the intrinsic value of its assets and the amount of its liabilities.” The statute (Secs. 1131, 1133, R. S. 1909) imposes upon directors of trust companies the duty of knowing their exact status, and the law presumes that they perform that duty. Besides, in this case, such instruction, if technically erroneous, was harmless, because defendant in a letter to plaintiff, prior to the sale of the stock, said he had “inside knowledge of the affairs of the company.”</p> <p>6. -: -: Trust Company. It is the duty of directors of a trust company, made so by statute, to know its financial condition, the value of its assets and the extent of its liabilities at the time they offer its stock for sale, or induce others to buy it from other stockholders.</p> <p>7. ■ — -•: -: Reliance Upon Statement of Directors: Access to Books. A stockholder of a trust company, employed in its place of business, with a legal right to examine its books, has a right to rely upon the statements and representations of its officers and directors, and is not bound to examine the books for himself before purchasing its stock.</p> <p>8. -: -: Printed Circulars. Directors of a trust company are liable to a purchaser of its stock for false representations of its financial condition contained in printed pamphlets and circulated with their knowledge for the purpose of inducing people to purchase.</p> <p>9. -: -: Representations of Fact. Positive statements concerning the present or past earnings of a corporation, or the value of its stock, or the value and soundness of its assets, or the amount of its liabilities, made by its officers and directors, are not mere expressions of opinion, but representations of fact upon which a prospective purchaser of its stock has a right to rely.</p> <p>10. -: -: Measure of Damage. The measure of damages, in an action of fraud, and deceit, based on a sale of the stock of a corporation, induced by the false representation of its president as to its value, is the difference between the value it would have had if such representations had been true, and the real value at the time of the purchase. Nor is it error to instruct the jury that such real value may be ascertained “in view of the subsequent events in the history of the company” where the subsequent history of the company is properly admitted in evidence.</p> <p>11. -: —-—•: Expressions of Opinion: Refusal to Withdraw From Jury. Statements made by defendant, the president and director of a trust company, sued for fraud and deceit based on false statements as to the value of stock sold to plaintiff, that the company could continue indefinitely to pay a four per cent quarterly dividend, that if plaintiff bought its stock at $190 per share he could sell it in six months at a profit or advanced price, that the stock would by the next January be worth $300 per share, and that the company could be liquidated in twelve months and the sum of $200 per share paid to the stockholders, if they stood alone, would be mere expressions of opinion, but made in connection with representations as to the value of the stock and the condition of the company and its assets and made for the purpose of strengthening those representations and as a part and parcel of them, it was not error for the court to refuse to give instructions withdrawing them from the jury’s consideration; and in view of the fact that the court in other instructions told the jury what statements were statements of fact and not mere opinions, and further told them explicitly what representations would authorize a verdict for plaintiff, in which no mention was made of these statements, the refusal to withdraw them even if considered mere expressions of opinion, was at most harmless error.</p> <p>12. -: Action At Law: Weighing Evidence on Appeal. An action of fraud and deceit, brought by the purchaser of stock of a corporation for damages, based upon the false representations of the defendant as to its value, is an action at law, and if there is sub-, stantial evidence to support the verdict of the jury, its weight is not for the consideration of the appellate court, however sharp are the issues of facts presented; but, the case being without error committed in the trial, the judgment approved by the trial court will be affirmed.</p> <p>13. INSTRUCTION: Assumption of Fact. An instruction beginning, “If you find false statements were knowingly made,” does not assume as a fact that such statements were made.</p>

<p>1. DOWER: Homestead: Re-marriage: Limitations. Where the widow conveyed her interest in the homestead property and then married again, her right to dower accrued on her re-marriage, and the right of her grantee to maintain suit to have assigned and to recover dower is barred in ten years after her re-marriage, and said grantee being barred her right to have her deed cancelled as fraudulent and to have dower assigned to her is likewise barred in ten years.</p> <p>2. - — -■: -: -: Ejectment: Equitable Defense. The widow conveyed her “life interest” in the homestead property, and then r re-married, and more than ten years thereafter her grantee brought ejectment to have dower assigned and admeasured and to recover the same. To this action she, being in possession and all the householder’s children having reached their majority, filed a cross-bill, alleging that her deed, made nineteen years prior thereto, was void for fraud perpetrated upon her by the grantee, and asking that said deed be cancelled, and claiming that she was entitled to exclusive possession by virtue of her statutory quarantine. Held, that the court having adjudged that the action of her grantee to recover dower was barred by limitations, and 'that judgment being affirmed on appeal, that holding put the plaintiff out of the case, and it likewise settled the entire controversy, for the only use she could then make of a judgment annulling her deed would be to aid her in procuring an assignment of dower as against the children of her husband, and the pleadings make no such issue between her and them.</p>

<p>Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.</p> <p>(1) The court committed reversible error in directing a verdict for the defendant at the close of the plaintiff’s case. The plaintiff’s proof abundantly showed that the defendant was negligent in .running its train at a speed not only in violation of the ordinance, but at a speed that would be dangerous at such a crossing within the city limits in the absence of an ordinance; that the defendant’s servants failed to give warning or signal of the approach of the train by ringing the bell or sounding the whistle. ’(2) The engineer admits that his fireman bv the most casual watch could have observed the plaintiff after he passed out from behind the bill-board, a distance of eighty feet from the track, and that no alarm was sounded and no effort made to bring* the train to a. stop or even slacken its speed, until the moment of impact, when he started to set his brakes. The plaintiff’s proof shows conclusively that his automobile was traveling* at a rate of speed not to exceed twelve miles per hour, The engineer ' says that he was running better than twenty-five miles per hour, but that if he had been going at the ordinance rate of twelve milep, and his fireman had warned him of plaintiff’s approaching the track, with the appliances at hand, he could have slackened the speed of the train to six miles an hour by the time it reached the crossing. With these facts conceded and abundantly proved in this record, there can be no two views in this case, but that if the train had been running* at the ordinance speed, the plaintiff would have passed across the track and passed beyond the zone of danger before the engine would have reached the crossing. In approaching the crossing he had the right to indulge the presumption sthat if a train should be approaching the crossing it would be running in compliance with the ordinance fixing the speed. He had the right to indulge the presumption that if a train were approaching the crossing the bell would be rung, because the crossing was within the corporate limits of the city. In indulging these presumptions he was merely proceeding* in the course of a man of reasonable prudence and according* to the course of the law, without forfeiting his rights for damages resulting from the defendant’s negligence. The* plaintiff was not guilty-of contributory negligence as a matter of law. The question of the plaintiff’s contributory negligence was one for the jury. This position is abundantly sustained by the adjudicated cases of this State. Monroe v. Chicago & Alton Railroad Co., 219 S. W. 68; Maginnis v. Railroad, 268 Mo. 667,* Lagarce v. Railroad, 183 Mo. App. 85; Jackson v. Railroad, 189 S. W. 381; Stotler v. Railroad, 200 Mo. 107; Weigman v. Railroad, 223 Mo. 699; Underwood v. Railroad, 190 Mo. App. 417; Donohue v. Railroad, 91 Mo. 357. (3) Under the statute it is the-imperative duty of railroads to have the engine equipped with a bell and to keep the same ringing continuously for 80 rods before reaching the crossing. They do not have, in cities, the alternate of ringing the bell or sounding the whistle, the bell must be rung and continuously, in order to comply with the statute. Mitehel v. Railroad, 122 Mo. App. 50; Donohue v. Railroad, 91 Mo. 357. (4) Contributory negligence to prevent a recovery cannot be imputed to a person because he did not look for the train when his view in the' direction it was approaching was obstructed by a row» of houses or other obstructing objects. Donohue v. Railroad, 91 Mo. 357; Weigman v. Railroad, 223 Mo. 699; Mitehel v. Railroad, 122 Mo. App. 50. (5) Where the defendant’s servants and agents in charge of its train, before the injury, discovered, or by the exercise of ordinary care might have discovered the plaintiff’s position of peril, although caused by their concurring 'negligence, and neglected to use the means at their command to prevent the injury, the defense of contributory negligence is not available. The violation of a municipal ordinance, which regulates the speed of trains, is negligence per se, and every person traveling in a public street in a city has a right to presume that the railroad will obey such ordinances, he has a right to rely upon the fact that no train would be run by the railroad at a greater rate of speed than that fixed by the ordinance. It is as much the duty of the railroad’s servants to look out for him on the track, or approaching the track, as it is his duty to look out for a train approaching such crossing. Kellney v. Mo.-Pae. Ry. Co., 101 Mo. 67, -77.</p> <p>(1) The evidence shows conclusively a clear ease of contributory negligence on the part of the appellant, in that after he had passed the obstruction of the billboard on his right, had he looked he could have seen the approaching train in ample time to have stopped his car and avoided his injury. He is, therefore, precluded from recovery, and the trial court was right in so instructing the jury. McCreery v. Railway, 221 Mo. 31; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Huggart v. Railroad, 134 Mo. 679; Kries v. Railroad, 148 Mo. 330; Underwood v. West, 187 S. W. 84; Green v. Railroad, 192 Mo. 131; Mockwick v. Railroad, 196 Mo. 550; Tannehill v. Railway Co.,. 213 S. W. 818. (2») Mere looking and listening do not suffice. The traveler must exercise care also to make the act of looking effective. He must not approach the track at such a rate of speed that when he reaches the point where he could see the approaching train it is too late to protect himself. 3 Elliott on Railroads, secs. 1164, 1165, 1166;.2 Sherman & Redfield on Negligence, secs. 476, 478; Greer v. Harvey, 195 Mo. App. 11, Hook v. Railway, 162 Mo. 585; Dey v. Railway, 140 Mo. App. 473. (3) The obligation to look is a continuing one and is not discharged when one takes a look at a place from where he cannot see. If there is another position from which he can get a view of the track for his own protection he must avail himself of it. This the plaintiff did not do. Kelsay v. Railway, 129 Mo. 372; Mc-Creery v. Railway, 221 Mo. 31; Walker v. Railway, 193 Mo. 481; Sanguinette v. Railroad, 196 Mo. 494; Tannehill v. Railroad, 213 S. W. 818. (4) The rule of contributory negligence is not abrogated by an ordinance limiting a rate of speed, and the fact that respondent’s train was running in excess of the ordinance limit did not relieve the appellant of the duty to look and listen for his own protection, nor entitle him to go to the jury on the theory that he might have crossed safely if the train had been observing the ordinance limit of speed. Weller v. Railroad, 120 Mo. 635; Turner Railroad,-74 Mo. 602; Burge v. Ry., 244 Mo. 76; Stottler v. Ry., 204 Mo. 639; Hunt v. Ry., 262 Mo. 275; Moore v. Ry., 176 Mo. 544; Laun v. Railroad, 216 Mo. 579; Green v. Ry., 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215. (5) Neither can the last chance doctrine be invoked to aid appellant’s case. There is no testimony showing the train could have been stopped in time to have averted the collision. The absence of such showing is fatal to appellant on this proposition. Burnett v. Railway, 172 Mo. App. 51; Hamilton v. Railroad, 250 Mo. 722; Sites v. Knott, 197 Mo. 684. (6) Besides, with the train going twenty-five miles an hour and the automobile ten or twelve miles, after the automobile reached the side track only four seconds would elapse until the collision. Too short a space' of time in which to evoke the last chance rule. McGee v. Railroad, 214 Mo. 530, 542; Degonia v. Railroad, 224 Mo. 596; Burge v. Railroad, 244 Mo. 102. (7) Appellant cannot evade the consequences .of his contributory negligence or excuse his negligent failure to see the approaching train by the attempt in his brief to invoke the presumption that he relied upon the train observing the ordinance as to the rate, of speed. He was on the witness stand and testified, but he failed to state that he relied upon such presumption. He testified that he was looking and listening for the train; that he was in this instance, as he had always been, vigilant. He thereby raised the conclusive presumption that he was not relying upon the train being restricted to the ordinance limit of speed. Moekowik v. Railroad, 196 Mo. 571; Reno v. Railroad, 180 Mo. 483; Nixon v. Railroad, 141 Mo. 439; Bragg v.'Railroad, 192 Mo. 321. Neither could he in any circumstances raise the presumption that although he might have actually seen the train approaching, he could have assumed.that the engineer was obeying the law; and proceeded on his way on that presumption, because he testified that when he did see the train he could tell that it was coming thirty miles an hour and his witness who had just passed over the track and saAV it coming and was in the same relative position to it, testified that it was coming thirty miles an hour. What this witness saw, he could have seen, and what he testified himself to having seen rebuts any presumption. Green v. Mo. Pac. By. Co., 192 Mo. 131; Laun v. Railroad, 216 Mo. 563. Neither can he be heard to say that where there were no obstructions to his view he looked and did not see, or that it was useless to look because he could not have seen. Knorpp v. Wagoner, 195 Mb. 664; Dean v. Transit Co., 192 Mo. 485; Latson v. Transit Co., 192 Mo. 466.</p>

Appeal'from St. Louis City Circuit Court. — Ron. Frank . ■ Landwehr, Judge. (1) Any person, and particularly a contractor who creates an excavation in a public highway, is hound at common law to keep suck place so guarded and in suck a condition tkat pedestrians using tke highway will not be injured. Williamson v. Mullins, 180 S. W. 395; McDonald v. Transit Co., 108 Mo. App. 374; Wiggins v. St. Louis, 135 Mo. 566.

Mandamus. The Secretary of State refused to accept these referendum petitions for the sole reason that Senate Bills Nos. 4, 5, 6, and 7 contained the “peace, health and safety clause.” Relator contends that this action was arbitrary, and that this court must determine from the entire bills whether the peace, health and safety is involved.