Volume 292 — Missouri Reports

<p>Appeal from St. Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge.</p> <p>(1) A tax upon real estate regularly assessed is a tax against the property and not against the owner, It is a lien upon the property prior to all other liens. The land is the primary fund for the payment of taxes, and may be conveyed subject to a lien for taxes in like manner as a conveyance subject to a mortgage. Meriwether v. Overly, 228 Mo. 250; Cray v. Clement, 12 Mo. App. 579; Pomeroy’s Equity Jurisprudence, sec. 1205; Drury v. Holden, 121 111. 130; Wilbur v. Warren, 104 N. Y. 192; Fuller v. DeYold, 144 Mo. App. 93. (2) The assignee of a leasehold estate who assums the payment of a lien on the property becomes the principal debtor and the assignor stands in the relation of a surety for the payment of the lien debt, and has the same rights and remedies against the assignee as any ordinary surety would have against Ms principal; and any impairment of that right, as a valid extension of the time of payment, without the consent of the surety, would operate to relieve the surety or assignor. Wonderly v. Giessler, 118 Mo. App. 717; Or-rick v. Durham, 79 Mo. 180; Wayman v. Jones, 58 Mo. App. 318; Yank v. Waterman, 154 111. 461; Union Ins. Co. v. Hanford, 27 Fed. 588; Spencer v. Spencer, 95 N. Y. 353; George v. Andrews, 60 Md. 26; Calvo v. Davies, 73 N. Y. 211; Motz v. Todd, 36 Mich, 473; King v. Baldwin, 2 John Ch. 559; Bowling v. Garrett, 49 Kan. 504; Yank v. Livermore, 90 Kan. 395. (3) Where property is conveyed subject to a lien, the grantee assumes the payment of the lien, if it is included in the purchase price, as where the purchaser buys the equity in property when the lien is specifically mentioned in the conveyance. Pomeroy’s Equity Jurisprudence, sec. 1206; Nelson v. Brown, 140 Mo. 580; Landaw v. Cottrill, 159 Mo. 320. (4) A finding by the trial court that Dulaney did not extend the time is not binding on the appellate court when it is not supported by evidence. Hethcock v. Crawford County, 200 Mo. 170. The judgment of a court sitting as a jury, cannot be permitted to stand if there is no support in the facts for the judgment or instructions. Flynn v. Wacker, 151 Mo. 545; Henry v. Bell, 75 Mo. 194; Harms v. Long, 213 S. W. (Mo. App.) 507. If the evidence in a case at law, makes an a'greed case, the judgment may be reviewed on appeal, and upon reversal the appellate court may direct the judgment which should be rendered. Gen. Elec. Co. v. Elec. Co., 204 S. W. (Mo. App.) 933; Eckle v. Ry-land, 256 Mo. 424; State ex rel. v. Cummins, 151 Mo. 57.</p> <p>(1) The Title Guaranty Trust Company became liable under the terms of the leases by privity of estate for all taxes assessed against the property covered by the leases during the year 1914. Pleadwell v. Glass Co., 151 Mo. App. 51; MoMorris v. Real Estate Co., 147 Mo. App. 667; Tyler Estate v. Gieslér, 74 Mo. App. 543; Hynes v. Ecker, 30 Mo. App. 650; St. Louis Pub. Schools v. Ins. Co.; 5 Mo. App. 91; Fontaine v. Lbr. Co., 109 Mo. 55; Mason v. Smith, 131 Mass. 511; In re Sherwoods, 210 Fed. (C. C. A.) 754; 24 Cyc. 1078; 16-R. C. L. 817, 850; L. R. A. 1915A, 351. (2) A reassignment of the leases by appellant, while ending the privity of estate theretofore existing between it and the lessor, did not relieve appellant from the liability for the payment of taxes assessed against the real property and improvements covered by the lease which became due while such privity of estate existed. Tyler Estate v. Giesler, 74 Mo. App. 543, 85 Mo. App. 278; Hendricks v. Dickson, 69 Mo. App. 197; Met. Land Co: v. Manning, 98 Mo.'App. 248; 16 R. C. L. 818, 865; 24 Cyc. 1078; In re Sherwoods, 210 Fed. 754; L. R. A. 1915A, 352. (3) Appellant’s failure to pay the taxes for 1914 levied on the leased premises entitled the owner of the fee, both by the terms of the lease itself and by operation of law, to pay same for the protection of his property, and the owner may recover of appellánt the amount so paid. Pleadwell v. Class Co., 151 Mo. App. 64; Hendrick v. Dickson, 69 Mo: App. 1.97; Allen v. Kennedy, 91 Mo. 234; Burén v. Hubbell, 54 Mo. App. 617; Langenburg v. Dry Goods Co., 74 Mo. App. 12; 24 Cyc. 1080; Winningham v. Pennock, 36 Mo. App. 688; Millard v. Ry. Co., 240 Pá. 234; Wills, Succession, 15 La. Ann. 381; L. R. A. 1915A, 355. (4) While the assignment by the lessors to respondent of their causes of action against appellant growing out of the payment by the lessors of the taxes on the leased property for 1914 which appellant had failed to pay when due was sufficient to entitle respondent to recover in .this case; in addition thereto respondent, as trustee under the first mortgage deed of trust, had the right to pay the taxes after default in payment thereof by appellant, in order to prevent a reentry by the lessor, and thereupon could recover from appellant the amount so paid. Dunlap v. James, 34 Misc. 708, 70 N. T. Supp. 1019, 70 App, Div. 71, 75 N. T. Supp, 65; Wills v. Summers, 45 Minn. 90. (5) The issues raised by the pleadings as to -whether respondent or Atoz Realty & Investment Company, or any of the holders of bonds secured by either deed of trust, agreed to pay the taxes for 1914, as one of the considerations for the reassignment of the lease to said Realty & Investment Company by Ronayne, and the other issue as to whether an extension of time for the payment of said tax had been granted by Dulaney in consideration of an agreement by said parties, or any of them, to pay the taxes for 1914, were issues of fact determined from the evidence and not reviewable in this court on appeal if the finding of the court thereon is bottomed on substantial evidence. State ex rel. Mechanics-American Natl. Bank v. Sturgis, 276 Mo. 559; Titus v. Delano, 210 S. W. 44; Ousley v. Lambeth, 199 S. W. 594; Kennett v. Katz Const. Co., 273 Mo. 279. (6) The law of this case is settled by former decisions of this court and the courts of appeals, and respondent is clearly entitled not only to an afiirmance of the judgment appealed from but also to have damages awarded it for vexatious delay and expenses occasioned by the appeal, and because the appeal is frivolous. Sec. 2084, R. S. 1909, Sec. 1515, R. S. 1919; "Wallace v. Ins. Co., 174 Mo. App. 110; Wittenberg v. Fisher, 183 Mo. App. 347; Barr & Wiseman v. Ry. Co., 181 Mo. App. 89; Philips v. Philips, 107 Mo. 360; "Winscott v. Inv. Co., 63 Mo. App. 366; Taylor v. Scott, 26 Mo. App. 249; Bonnell v. Express Co., 45 Mo. 422 ; Mooneyham v. Celia, 91 Mo. App. 260; Watson v. Fehlig, 59 Mo. App. 275; Lindenschmidt v. Yallee,’23 Mo. App. 594.</p>

<p>1. NEGLIGENCE: Alighting from Moving Car: Open Door. A passenger had seen a notice posted in the street car requesting passengers to leave by the front entrance, the customary exit; the car slowed down as it approached the street where she wished to leave it, she stepped into the vestibule at the front end, the door opened and she stepped off, and was injured; the car was still moving, and moved a full length after she stepped off; the door was controlled by the motorman, was required to be kept closed while the car was in motion, and when it opened she supposed the car had stopped, but the evidence does not shQw who opened the door; the night was dark, she could not see objects outside, the car was running smoothly and its motion was imperceptible to her. Held, that it was a question for the jury to determine whether she was negligent in failing to discover that the ear was in motion, and a demurrer to the evidence was properly refused.</p> <p>2. -: -: -: Invitation to Alight. To alight from a moving street car is negligence unless there is something unusual in its operation. But an invitation to a passenger to leave a moving car is itself negligence, and those who obey it are not necessarily negligent. Where there was a positive rule forbidding * the front door of a street car to be opened until it had come to a full stop, a passenger knew the rule was customarily observed and there was a posted notice requesting passengers to leave the car by the front door, the usual exit, the opening of the door, whether by the motorman or some one else, was an invitation to her to alight from the car, and, the door being under the control of the motorman, the company was negligent in allowing it to be opened while the car was moving.</p> <p>3. -: Pleading: General and Special Damages: Proof of Erysipelas and Removal of Ovaries. General damages are those which necessarily and by implication of law result from the'negligent act; special damages are the natural but not the necessary result of the injury complained of, and must therefore be specifically alleged. Where the door of a street car was opened while the car was yet in motion and plaintiff stepped off, allegations in her petition that she was "thereby seriously and permanently injured and crippled; that the muscles of her left arm, leg, hip, side and shoulder were cut, bruised, torn and contused, and all her female organs and kidneys were so injured as to impair their proper functions, and rendered her permanently sick, sore, lame, nervous, weak, dizzy, debilitated and sad” are not sufficiently specific to permit proof that a short time after the injury erysipelas developed in her person, or that about a year and a half afterwards an operation was performed in which her ovaries were removed, her attending surgeon testifying that her condition rendered necessary the performance of the operation. The allegations did not expressly or impliedly indicate- a purpose to prove the development of erysipelas, and they were altogether too general to indicate that the removal of the organs was a necessary consequence of the injury, and hence proof tending to aggravate the damages on account of either was improper.</p> <p>4. -: -: -: Variance. Proof of special damages not embraced within the general allegations does not amount to a variance within the meaning of the statute (Sec. 1272, R. S. 1919), and hence the error in admitting evidence of such special damages is available to defendant without making an affidavit showing in what respect he has been misled. The question is not one of misleading, but the evidence is- inadmissible in being broader than the allegations, and therefore its admission, in that it tends to enhance the damages pleaded, amounts simply to error, and timely objection to its admission will suffice to preserve it for review.</p>

Mandamus. (1) The notice given of said election was sufficient under the law relating to such elections. Sec. 11127, R. S. 1919. (2) The proviso clause contained in Section 1 of the Act of March 31, 1921, Laws 1921, pp. 169, 170, relative to statement in notice of election of maximum amount of interest bonds should bear, is unconstitutional and void in that the proviso is not comprehended in the title of said act. Sec. 28, Art. 4, Mo.

<p>1. ERRONEOUS INSTRUCTION: No Objection: All Law of Case: Duty of Court. Under the statute (Sec. 4025, R. S. 1919) it is the duty of the court to instruct the jury on all questions of law arising in the case which are necessary for their information in giving their verdict; and where the court gave an instruction for the State which is erroneous on ■ its face, and defendant did not object to it, nor assign it as error in his motion for a new trial, yet did assign as one of the errors committed that the court failed to instruct on all the law of the case, the point is saved by said motion, and the judgment will be reversed because of the giving of said erroneous instruction.</p> <p>2. -: False Pretense: Mere Promise. Where defendant was charged with obtaining money under false pretense, and the information charged five alleged false statements, one of which was that defendant had stated that his check for $590, which he had given as the purchase price for mules, would be paid by the bank upon which it was drawn when presented, an instruction for the State telling the jury that if said representations were made, and they “or any one of them was untrue” and known to the defend: ant to be untrue, they should return a verdict of guilty, was erroneous on its face, because the statement that the check would be paid when presented was purely promissory in character and not the statement of an existing fact, and did not come within the statute relating to false pretenses; and although defendant did- not object to said instruction, or assign error as to ilj in his motion for a new trial, yet as he did assign as one of the errors the failure of the court to instruct on all the law of the case, and it is the duty of the court to instruct the jury on all questions of law arising in the case necessary for their information, the giving of said erroneous instruction was saved for review, and was reversible error.</p> <p>3. FALSE PRETENSE: Promise that Check will be Paid. Where none of the evidence offered proved any of the alleged misrepresentations except the promissory statement of defendant that his cheek, given as the purchase price of mules, would be paid when presented to the bank on which it was drawn, and that was not a false pretense within the meaning of the statute, and there was no proof of representations by defendant that he had on deposit any money 4n said bank or that he was in solvent circumstances, a conviction cannot stand.</p> <p>4. -: No Funds in Bank: Frima-Faeie Evidence: Settlement. Where defendant, in payment for mules purchased by him, drew a check in favor of the seller, which was presented to the bank on which drawn, payment refused and defendant notified, that he immediately returned the mules, and two days later agreed with the seller to make him whole by paying all the expenses and ten dollars and he afterwards complied with that agreement, he in effect complied with the statute (Sec. 3554, R. S. 1919) declaring that the drawing of a check upon a bank in which the drawer has no funds shall be prima-facie evidence of intent to defraud unless within five days after notice of dishonor the drawer shall make the drawee whole, and the drawing of the check was not primafacie evidence of intent to defraud.</p>

— Hon. E. E. Porterfield, Judge. (1) The court erred in refusing to give the requested instruction, in the nature of a demurrer, at the close of all the testimony in the case, for all of the following reasons: (a) There is, in the record, no sufficient identification of the car recovered, as the car lost by Bundy. State v. Lackland, 136 Mo. 26.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The burden of proof was upon the defendant to establish by a preponderance of the evidence the facts necessary to his fourth defense. Tested by the conceded facts of record, the transaction sought to be established by the testimony of defendant is unbelievable.

<p>1. INFORMATION: Verification. Tbe information is not defective because tbe prosecuting attorney did not in tbe verification describe bimself as prosecuting attorney.-</p> <p>2. JURORS,: Conscientious Scruples. A defendant charged with murder in the first degree is not prejudiced by the retention on the jury of persons who on their voir dire examination declare themselves possessed of conscientious scruples against inflicting the penalty at death, since it is to the interest of defendant that such persons be left on the panel. The provision of the statute (Sec. 4012, R. S. 1919) disqualifying from jury service “persons whose opinions are such as to preclude them from finding any defendant guilty of an offense punishable with death” is for the benefit of the State, and defendant cannot complain that the court overrules his challenges to such persons.</p> <p>3. DYING DECLARATION: Admissibility: Sense of Impending Death. Where the attendant physician testified that he advised deceased that he could not recover, and that deceased said he “believed he was going to die,” that deceased “thought he was going to die” and finally that deceased “said he was going to die,” and in the written declaration deceased said that “realizing that I will die I do make this my dying statement,” the declaration was admissible in evidence, although deceased lived á number of days after making it. [Following State v. Nocton, 121 Mo. 1. c. 550, and State v. Lewis, 264 Mo. 1. c. 427.]</p> <p>4. -: Fragmentary. Where the dying declaration is a terse, clear and fairly complete recital of the essential facts and circumstances attending the shooting of declarant, it is not inadmissible on the ground that it is fragmentary and does not detail all that was material to the issues stated therein.</p> <p>5. INSTRUCTION: Eliminating Self-Defense and Heat of Passion and Directing Verdict for Manslaughter. An instruction telling the jury that “manslaughter is the killing of a human being not herein declared to be murder or excusable or justifiable homicide; and-the court instructs the jury that' if you find and believe from the -evidence that the defendant killed the deceased while in the heat of passion, on a reasonable provocation, without malice and without premeditation, and under circumstances that is not justifiable or excusable homicide, but that defendant in a sudden passion, on a reasonable provocation, intentionally shot and killed the deceased, without malice or premeditation, and not in the necessary defense of her person, then the jury should find her guilty of manslaughter,” simply followed the language of the statute defining manslaughter, did not infringe the defendant’s right- of self-defense, and did. not in effect say that any killing not murder was manslaughter.</p> <p>6. -: Manslaughter: Defining Heat of Passion and Reasonable Provocation: Amended Statute. Under the statute (Sec. 4468, R. S. 1909) as it stood prior to 1919, which declared that an act “which would he manslaughter at common law,” etc., it was necessary to define the words “in a heat of passion,” since “heat of passion” was at common law a necessary element oí manslaughter; hut the Act of 1919 (Laws 1919, p. 256; Sec. 3236, R. S. 1919) • abolished all degrees of manslaughter, and declared that “every hilling of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable" or justifiable homicide, shall be deemed manslaughter,” and said statutory definition does away with “heat of passion” as a necessary element of the crime, and such element need no longer be included in an instruction enumerating the facts necessary for the jury to find in order to return a verdict finding defendant guilty of manslaughter, and it not being necessary to include the words in the instruction it is not error to fail to define them. And the same is true of the words “reasonable provocation;” it no longer being necessary to include them in an instruction on manslaughter, ■ it is not error to fail to define them.</p> <p>7. -: Self-Defense: Appearances: Great Bodily Injury: Read as a Whole. If an instruction as a whole properly defines self-defense under the facts in evidence, the giving of it will not be reversible error, although it cannot be unqualifiedly approved. Where the instruction in its first clause conditioned defendant’s right to shoot deceased on the ground that “the deceased was about to do her some great bodily injury,” it will not be condemned as reversible error, if in its subsequent clauses it clearly states she had the right to act upon appearances.</p> <p>8. -: Dying Declaration-: Comment. It is error to instruct that the dying declaration should be received with the same degree of credit as the testimony of declarant would be if he had been examined under oath as a witness, and, on the other, defendant is not entitled to an instruction that the dying declaration is not entitled to the same weight as the jury would give the testimony of declarant had he testified as a witness in court, since such instructions are an improper comment on the evidence; and an instruction ashed by defendant telling the jury that “you should consider that such statement was not made in the presence of the defendant; that the declarant was not subject to cross-examination by the defendant or her counsel; that the jury had no opportunity to observe the manner of the deceased at the time such statement was made, and that he is not subject to prosecution for perjury if such statement or any part thereof is untrue,” should be refused, both as an unwarranted comment on the evidence, and as an attempt to authorize the jury to treat lightly and to minimize the statements of facts contained in the declaration.</p> <p>9.--: -: -: Proper Instruction. An instruction on a dying declaration telling tlie jury to give to it “that weight which you think it ought to have when considered in connection with all other facts and circumstances in evidence” fully covers the law governing the weight to be given such declarations, is not a comment on the evidence, authorizes defendant’s counsel to argue fully the facts that it was not made in her presence, that declarant was not subject to cross-examination, that he was not subject to prosecution for perjury, and that the jury had no opportunity to observe his manner or condition while making the dying statement, and is all defendant- is entitled to.</p> <p>10. -: -: Admissibility. An instruction which would submit to the jury the question whether the statement of deceased was a dying declaration is properly refused.</p> <p>11. ARGUMENT TO JURY: Woman of the World. A reference to the defendant as “a woman of the world” by the prosecuting attorney in his closing argument to the jury, if the record shows that the court sustained an objection to the remark and no request for reprimand of counsel was made, is not properly preserved for review.</p>

<p>Appeal from Boone Circuit Court. — Hon David H. Harris, Judge.</p> <p>(1) The court erred in.giving instruction number two on the part of the State. State v. Kelly, 9 Mo. App. 514; State v. Wingo, 66 Mo. 181; Stale v. Bruin, 34 Mo. 514; State v. Castor, 93 Mo. 250; State v. Brew, 179 Mo. 324; State v. Scott, 109 Mo. 226; State v. Ebbeller, 222 S. W. 396; State v. Henderson, 231 S. W. 596; State v. Blocker, 231 S. W. 1062; Wharton on Crim. Ev. sec. 758; 3 Greenleaf on Evidence, sec. 32. (2) The court erred in refusing to sustain the demurrer offered by defendant at the close of all the evidence. There was no substantial evidence upon which to base the verdict of the jury. State v. Kelsay, 228 S. W. 754; State v. Nave, 222 S. W. 744; State v. Adkins, 222 S. W. 432; State v. Hollis, 225 S. W. 952; State v. Anderson, 225 S. W. 896; State v. Welton, 225 S. W. 965; State v. Ruckman, 253 Mo. 488; State v. Francis, 199 Mo. 693; State v. Jaegei*, 66 Mo. 179; State v. Packwood, 26 Mo. 363. (3) The verdict of the jury is unsupported by the evidence and is* manifestly the result of prejudice, passion and partiality. R. S. 1919, sec. 4078; State v. O’Kelly and Fitch, 258 Mo. 351; State v. Webb, 254 Mo. 414; State v. Prendible, 165 Mo. 353; State v. Primm, 98 Mo. 368; State v. Castor, 93 Mo. 243; State v. Jaeger, 66 Mo. 173; .State v. Burgorf, 53 Mo. 65; State v. Marshall, 47 Mo. 378; State v. Daubert, 42 Mo. 238; State v. Mansfield, 41 Mo. 70; State v. Brosius, 39 Mo. 534; State v. Packwood, 26 Mo. 340.</p> <p>(1) The court did not err in giving instruction number 2 on the part of the State. This instruction is a proper declaration of the law and follows the instructions approved by this court. State v. Good, 132 Mo. 125; State v. Levy, 262 Mo. 191; State v. James, 194 Mo. 277; State v. Moore, 101 Mo. 324, 330; State v. Burns, 263 Mo. 599; State v. Prunty, 276 Mo. 374; State v. Baker, 264 Mo. 355. (2) The court properly refused to sustain the demurrer at the close of all the evidence. The record discloses that there is substantial evidence upon which to submit the case to the jury. State v. Fields, 234 Mo. 626; State v. James, 216 Mo. 407; State v. Wooley, 215 Mo. 687; State v. King, 214 Mo. 390; State v. Stewart, 127 Mo. 293; State v. Concelia, 250 Mo. 420; State v. Taylor, 261 Mo. 228. (3) The verdict of the jury is supported by the evidence. State v. Rumfelt, 228 Mo. 443; State v. Taylor, 261 Mo. 228; State v. Concelia, 250 Mo. 424; State v. Rowe, 180 S. W. 884; State v. Shout, 263 Mo. 360.</p>

<p>1. WITNESSES: Indorsement on Information. The requirements of the statute (Sec. 3849, R. S. 1919) relating to the indorsement of the names of material witnesses for the State upon indictments apply to informations.</p> <p>2. - — : -: No Showing of Prejudice. The indorsement upon the information of the names of witnesses for the State after the trial has begun will not be error unless defendant shows he was prejudiced thereby.</p> <p>3. -: -: Manner of Objection. Objection to the indorsement of the names of witnesses for the State upon the information after the trial has begun, should be in the form of a motion to quash, or, if the facts warrant it, by an application for a continuance; and if not so made the objection is not entitled to consideration.</p> <p>■4. DYING DECLARATIONS: Scope: Admissibility. A dying declaration should be restricted to the identification of the accused, the act of killing - and the circumstances immediately attending the act, and to be admissible in evidence should have' been made in the presence of a realization of impending death and in the absence of a hope of recovery.</p> <p>5. -: Admissibility: Sense of Death. Where deceased said to the officer that he knew he was in a serious condition and about to die and that he made the declarations as a dying statement, the declarations were admissible in evidence.</p> <p>6. INSTRUCTION: Murder: In Connection with Robbery: Definition of Deliberately. Where the information charges murder in the first degree, and the evidence shows that the murder was. committed in an attempt to rob deceased, although not alleged, defining the word “deliberately” in the instructions is not error.</p> <p>7. -- — ; -: -: Defining Robbery. Evidence that the homicide was committed in the prepetration of a robbery is admissible under the general charge of murder in the first degree, and the charge of robbery not being necessary the instructions may designate the robbery by the term by which it is usually known and a further definition is not necessary.</p> <p>8. -: -: —-: Defining Terms. Where the homicide was committed in the prepetration of one of the felonies named in the statute (Sec. 3230, R. S. 1919), it is unnecessary, in the trial of the charge of murder in the first degree, that the instructions define the words premeditation and deliberation.</p> <p>9. —--: Consideration of Dying Declaration: Comment. An instruction defining the manner in which a dying declaration should be received, containing no statement of its sufficiency or value, is not a forbidden comment on the weight of the evidence.</p> <p>10. -: -: Admissibility: Determination by Jury. The instruction, after stating the facts necessary to render the statements of deceased a dying declaration, told the jury it was their duty so to consider and give to them such weight as they might think them justly entitled to upon their consideration in connection with all the other facts and circumstances disclosed by the evidence; that they should consider that such statements were not made in the presence of defendant; that declarant was not subject to the tests of cross-examination; that the jury were not afforded an opportunity to observe his manner, and that he was not subject to prosecution for perjury if said statements or any part of them were untrue. Held, that the court did not by said instruction leave to the jury a determination of the admissibility of said dying declaration, but itself determined the character of the statements, and restricted the jury to determining the weight and credit to be given to them.</p>

— Hon. V. L. Drain, Judge. (1) The right to trial by jury is a fundamental right and this means trial by jury selected under the forms prescribed by law. The defendant had a right to expect and the court, as a matter law, was required in selecting the jury, to exhaust first the regular panel and the substitutes therefor and to require that the special venire should be taken from the body of the county.

<p>1. CERTIORARI: No Conflict of Opinions. If the decision of the Court of Appeals in a given case does not conflict with a previous ' decision of the Supreme Court, its opinion will not be quashed on certiorari, whatever views may be entertained of the correctness of the opinion.</p> <p>2. -: -: Cause of Action: Arising Under Laws of Another State: Suit Limited to Courts of Such State. The decision of the Court of Appeals that Under a section of the Workmen’s Compensation Act of Kansas declaring that “no action or proceeding provided for in this act shall be brought or- maintained outside of the State of Kansas” an injured workman could not maintain an action for damages in the courts of Missouri, did not conflict with any previous decision of the Supreme Court, for the Supreme Court has never ruled on the exact issue.</p> <p>3. -:-: Entertaining Suits. The question whether Missouri courts will entertain an action to enforce a cause of action created by the statute of a sister state when such statute explicitly provides that the cause of action it creates can be enforced solely in the courts of such sister state, has never been decided by the Supreme Court. That was not the exact question decided in Reichard v. Ins. Co., 31 Mo. 1. c. 520, or in Bank v. White, 220 Mo. 1. c. 737, or in Lessenden v. Railway Co., 238 Mo. 247.</p>

Mandamus. ^ (1) A taxing statute is to be strictly construed. In re Estate of Clark, 270 Mo. 362; Gould v. Gould, 245 U. S. 153. (2) A statute should not be construed so as to produce an unjust result or one contrary to its own manifest intention. Darlington Lumber Co. v. Bailroad, 216 Mo. 672; State ex rel. Duller v. Seehorn, 246 Mo. 577.

Certiorari. (1) A preference shown a bona-fide creditor by an insolvent debtor will be upheld even though the transaction renders a debtor insolvent, and in finding that the Stevens Motor Car Company did not have the right to prefer its creditor, the bank, respondents have failed to follow the rule announced in the latest controlling decisions of the Supreme Court, as follows: Growney v. Lowe, 234 Mo. 696; New England Bank v. Montgomery, 192 S. W. 941; Bank v. Pry, 216 Mo.…

<p>1. CONFLICT OF OPINION: Certiorari: Petition for: Objection to Issuance of Writ. Where objection to the issuance of a writ of certiorari to review a decision of a court of appeals is made on the ground that the petition therefor does not show wherein such decision conflicts with controlling decisions of the Supreme Court, the latter court, after having issued the writ, will determine the case on its merits, notwithstanding such objection is renewed by respondents.</p> <p>2. -: -: Assumption of Facts. In a proceeding in the Supreme' Court by certiorari to review a decision of a court of appeals on the ground of conflict thereof with controlling decisions of the Supreme Court, where the court of appeals, in its opinion, assumes certain facts to exist and then proceeds to decide the case just as if an express finding on the point had been made, the1 Supreme Court will adopt the same assumption of facts.</p> <p>3. FRATERNAL BENEFICIARY INSURANCE: Misrepresentations: Return of Premiums. A foreign fraternal beneficiary insurance company authorized to do'business as such in Missouri may defend against a suit on a benefit certificate on the ground that its issuance was procured by misrepresentations, without returning the premiums paid by the insured therefor and without depositing such premiums in court, even though such certificate was issued in 1911 before the Act of 1911 (Laws 1911, p. -285) took effect, inasmuch as both Section 7109, Revised Statutes 1909, and Section 6401, Revised Statutes 1919 (Sec. 5, Laws 1911, p. 285), exempt such company from the general insurance laws of this State, and therefore Sections 6937 and 6940, Revised Statutes 1909, do not apply to such company.</p> <p>4. -: -: -: Statute: Equity. The rule requiring a life insurance company to deposit in court, in a suit by the beneficiary of the policy, as a prerequisite to the defense of misrepresentations, premiums not paid by the beneficiary and to which such' beneficiary could make no lawful claim, is purely statutory and not equitable. And such a suit cannot be converted into a suit in equity by such company by alleging fraudulent misrepresentations in the procurement of the policy and praying for its cancellation.</p>

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) The plaintiff was guilty of contributory negligence, and the court should have sustained the demurrer offered by the defendant city at the close of plaintiff’s case and later renewed at the close of the entire case. Solomon v. Duncan, 194 Mo. App. 517; Wheat v. St. Louis, 179 Mo. 572.; Coffee v. Carthage, 186 Mo. 573.; Ey an v. Kansas City, 232 Mo. 471; Sindlinger v. Kansas City, 126 Mo. 315.

<p>1. LEASE FOR YEARS: Destruction of Premises by Fire: Tenant Liable For Rent. At common law, where premises are leased for a term of years and the lessee agrees to pay rent during the term, and the lessor does not covenant to rebuild, the destruction of the premises by fire will not excuse’the lessee from the payment of the rent during the entire term of thé lease.</p> <p>2. ■— -: -: Repairs. At common law, where premises are leased for a term of years and the lessee agrees to pay rent during the term, and the lessor does not covenant to rebuild or repair, the lessor is under no legal obligation to rebuild or repair the building after it has been destroyed or damaged by fire.</p> <p>3. -: -: Case Adjudged. Defendant was’not liable to plaintiff for damages to a stock of goods, caused by rains falling through a partially burned roof of the building containing such goods, where the lease from defendant to plaintiff provided that the “lessor shall not be liable to said lessee or agents, guests or employees for any damage caused to his, her or their person1 or property by water, rain, snow, ice, sleet, fire, storms and accidents,” and that “in. case of partial destruction of said premises so as to render it or any portion of it untenantable, a pro rata proportion of said rent shall be remitted or returned to said lessee until such time as again tenantable;” even though said lease further provided that “lessor agrees to do repairing” and such damages occurred while defendant’s contractor was repairing sthe roof. The plaintiff’s property was confessedly damaged by rain and water and both parties for a valuable consideration had expressly agreed to and did exempt the lessor from all damages to the person and property of the lessee which might be caused by rain and water.</p>

<p>1. NEGLIGENCE: Humanitarian Doctrine: Demurrer to Evidence: Time to Avert Injury. In a personal injury case, submitted on the humanitarian doctrine, a demurrer to the evidence was properly overruled where there was ample evidence that plaintiff, a switch-man, was seen in a position of danger in time to have warned him - and to have stopped the train and saved him.</p> <p>2. -: -: -: Custom to Warn. The rule that switch-men are expected to look out for themselves was modified by the custom to warn which was pleaded and proved in this case and was not applicable to this case, where cars were propelled towards plaintiff by one switching crew after an agreement by its foreman, to notify plaintiff, a switchman of another crew, who was upon his knees beside the rail engaged in picking ice out of switch points and was seen in a position of peril and oblivious of danger and no warning was given nor cars checked or stopped.</p> <p>3. -: -: -: Ability to Hear Warning. Whether plaintiff could have heard a warning of danger from approaching cars, had one been given, was a question of fact for the jury under the evidence.</p> <p>4. -: -: -: Assumption of Risk. Even under the Federal rule as to assumptión of risk, which, was applicable to this case, the plaintiff, a railroad switchman, did not as a matter of law, assume the risk of having cars driven upon him without warning after he was discovered in a position of peril and condition of obliviousness to his danger, and the question of assumption of risk was properly submitted to the jury.</p> <p>5. -: -: Instructions: Length. Where a case required the predication of numerous facts before a verdict for plaintiff would be authorized, it was not a valid objection to an instruction that it was long.</p> <p>6. -: -: -: Ability to Hear Warning. An instruction for plaintiff, a railroad switchman, who was injured by being struck by cars propelled against him, w'hich required the jury before finding for him, to find the duty to warn him, the opportunity to warn him, the failure to warn, and then -that this was negligent and that his injury was a direct result of such negligence, covered the issue whether he could have heard a warning had one been given.</p> <p>7. -: -: -: Assuming Facts in Issue. An instruction which assumes the truth of controverted testimony as to the facts in issue is properly refused.</p> <p>8. -: -: -: Contributory Negligence. Under the humanitarian doctrine úpon which this case was submitted, the negligence of plaintiff, if any, in taking a position so near the rail that he might be struck by a passing car, was not any part of the efficient cause of his injury if he was,, as the jury found, seen in peril, of which, it was apparent he was oblivious, in time for an effective warning to have been given or the train stopped, and therefore it could neither defeat his action under the state law nor entitle defendant, as a matter of law, to a reduction of damages under the Federal Employers’ Liability Act.</p> <p>9. -: Weight of Evidence. Where the testimony of plaintiff in a personal injury suit is not so in conflict with physical conditions or laws of nature that it must be rejected for that reason, its weight is for the trial court, which alone has the right to grant a new trial on the weight of the evidence.</p> <p>10.-: Trial: Conduct of Counsel. Where counsel for plaintiff in a personal injury suit asked a witness for defendant a question which implied that the witness was attempting to shield defendant and the court sustained an objection to such question, it was not error for the court to decline to reprimand counsel, in view of the fact that the question came after a series of evasive answers by the witness. Nor was there error in refusing to discharge the jury after an exception was taken to a remark of counsel which was withdrawn.</p> <p>11. -: Amount of Judgment. A judgment for $10,000 entered on a verdict for $15,000 after a remittitur of $5000 required by the trial court, in a personal injury suit, is not excessive, where plaintiff, a railroad switchman, who was in his early thirties, was incapacitated for further service in his occupation, and his earning capacity had been reduced $22 per month, and he had incurred medical bills to the amount of $200 and had lost earnings up to the trial amounting to $1000 and had received severe and permanent injuries and was greatly disfigured about the face, besides having undergone great pain and suffering.</p> <p>12. -: Railroad Companies: Federal Control. Under the Act of Congress of August 29, 1916, Chapter 418 (39 U. S. Stat. at L. 645) and the proclamation of the President of December 26, 1917, of which the courts take judicial notice, the railroad of the Union Pacific Railroad Company, named as defendant in this suit, was exclusively in the control and possession of the Director General of Railroads on December 30, 1917, the date of the injury involved in this suit, such control and possession dating from 12 o’clock noon of December 28, 1917. Therefore, said Union Pacific Railroad Company, as such, was- not in any way liable for damages for injuries resulting from* the negligence of employees operating said railroad on December 30, 1917.</p> <p>13. -: -: -: Naming Railroad Company as Defendant. This suit for an injury to a railroad switchman received by reason of the negligence of other railroad employees on December 30, 1917, while such railroad was under Federal control, was begun on February 5, 1918, and the Union Pacific Railroad Company was named as defendant and service was had upon the employees of the Director General,of Railroads, as formerly upon employees of the railroad company. An answer was filed by counsel in the name of the railroad company and the trial was begun and partly heard before any question was raised as to the propriety of the procedure. Thereupon counsel for plaintiff offered to substitute the Director General as defendant, but counsel for defendant declined to consent thereto. The trial proceeded to verdict and judgment for plaintiff and appeal to the Supreme Court. Held,, that under the Act of Congress of August 29, 1916, Chapter 418 (39 U. S. Stat. at L. 645), and the President’s proclamation of December 26, 1917, and the Act of Congress of March 21, 1918, Chapter 25 (40 U. S. Stat. at hr. 451), and Order No. 50 of the Director General and Section 206 of the Transportation Act of 1920 (41 U. S. Stat. at D. 462), the Federal agent appointed by the President would he substituted as defendant and appellant in the Supreme Court, and be ordered to be so substituted on motion in the circuit court and judgment affirmed.</p>

— Hon. J. G. Slate, Judge. (1) The plat, acknowledged and filed by John Burke June 18, 1858, was a statutory dedication of the land to the appellant city.- Secs. 1, 8, Chap. 158, R. S. 1855; Otterville v. Bente, 240 Mo. 295, 296; California v. Howard, 78 Mo. 88; Sec. 9284a, Laws 1921, p. 557; Hardin v. Ferguson, 271 Mo. 415; Buschmann v. St. Louis, 121 Mo. 523.

<p>1. APPELLATE PEACTICE: Printed Eeeord: Failure to File: Motion to Dismiss. Where respondent has been served with a printed copy of the record thirty days before the date set for hearing a cause in the Supreme Court, the failure of appellant to file ten copies of such printed record in the court thirty days before such date, as required by statute, is, as to respondent, a harmless omission and his motion to dismiss the appeal will be overruled.</p> <p>2. -: —-: Another Suit: Demurrer to Petition. On appeal from a judgment sustaining a demurrer to a petition, the record before the appellate court consists of the petition, the demurrer and the judgment entered thereon; and, in the absence of any allegation in the petition as to a previous suit between the same parties, such suit cannot be considered in determining the questions before the appellate court, even though what purport to be printed abstracts of the record therein are filed in the appellate court.</p> <p>3. PLEADING: Speaking Demurrer: Foreign Statutes. A demurrer to a petition, which seeks to raise the question that the action is barred by the Statute of Limitation of a sister state and for that purpose sets forth the statute, is a “speaking demurrer” and worthless. The law of another state is a fact to be pleaded and proved as other facts, and the office of a demurrer is to raise issues of law and not issues of fact.</p> <p>4. -: Petition in One Count: Two Statutory Actions: Demurrer for Misjoinder. A petition, seeking to recover county funds from a stockholder of a bank in which they had been deposited, which, in one count sets forth two separate and distinct statutes of a sister state, one statute authorizing, a county treasurer to deposit the public funds in an incorporated bank and making such treasurer and the sureties on his bond and such bank and its stockholders liable for such funds, and the other statute providing for the selection of a county depository and requiring the county treasurer to deposit the public funds therein and relieving him of liability therefor after so doing unless they should be again paid to him, and making the bank and the sureties on the bond to be given by it "and the stockholders of such bank liable for such funds, upon failure of the bank to pay them on demand, states two separate statutory causes of action and is demurrable for misjoinder.</p> <p>5. LIMITATION OF ACTIONS: Foreign Statutes: Law of Forum. In a suit, in this State, based upon a cauee of' action under a statute of a sister state, the Statute of Limitations of this State applicable to the case will govern, in the absence of pleading and proof that the cause of action was barred by the Statute of Limitation of such sister state.</p> <p>6. PARTIES: Real Party in Interest: Foreign Statutes: County Treasurer. In a suit brought in the name of a county treasurer as such, of an Arkansas county, based on statutes of that state, seeking to recover, from a stockholder of a bank of that state which was a depository of county funds, the amount of such funds which the bank had failed to pay on demand, where the petition sets forth the statutes relied on but does not plead that the courts of Arkansas had construed them as authorizing the treasurer to sue in his own name, such statutes will be construed according to the law of this State, which is that the funds belong to the county and the suit must be brought in the name of the county as the real party in interest, and hence the petition is demurrable on that ground.</p>

Louis Circuit Court . — Hon.G. A. Wurdeman, Judge. (1) A party cannot sne npon one cause of action and recover upon another.

— Ho» E. M. Dearing, Judge. (1) The sheriff’s tax deed was regular and conveyed to plaintiff’s grantor all right, title and interest of Elpha L. Miller in and to the southeast quarter of Section 20, Township 34 north, Range 1 west.

— Eon. E. M. D earing, Judge. (1) East and Eost are not idem sonans. Myers v. • DeLisle, 259 Mo. 506; Williams v. Grudier, 264 Mo. 228; Graton v. Land & Lumber Co., 189 Mo. 322; Geer v. Mo. L. & M. Co.-, 134 Mo. 85; Scarry v. Lumber Co., 233 Mo. 690. (2) The sheriff’s tax deed is void for the reason that the tax proceedings on which it depends for its validity was not against the record owner of the land.

Louis City Circuit Court. — Hon. Victor H. FaVkenhainer, Judge. (1) The italicized allegation, contained in the fourth paragraph of the amended petition, to the effect that the defendant, “in the late summer of the year 1918, took up and removed the tracks of said railroad south from said orchards,” should not have been ordered struck out. (2) The amended petition states facts sufficient to constitute a cause of action for fraud, or deceit.

<p>Appeal from Buchanan Circuit Court. — Eon. Lawrence A. Vories, Judge.</p> <p>The trial conrt erred in refusing an appeal to the Supreme Conrt. Bingaman v. Hannah, 171 Mo. App. 186; Null v. Howell, 40 Mo. App. 329; Mnsick v. Railroad, 43 Mo. App. 326; State v. Dennisse, 41 Mo. App._ 22; In re Opening Essex Avenue, 44 Mo. App. 288; Boche v. Hammett, 61 Mo. App. 457.</p> <p>(1) The Supreme Court has no jurisdiction of this appeal. Appellant cannot confer jurisdiction upon that conrt by statements contained in its affidavit for appeal. State ex rel. v. Reynolds, 256 Mo. 710; Tobacco Co. v. Rombauer, 113 Mo. 439; State ex rel. v. Gill, 107 Mo. 44. (2) In order to give the Supreme Court jurisdiction it is necessary that the proceedings upon the trial of the ease show the facts from which the jurisdiction of that court may be ascertained. Neither the petition, evidence nor judgment in this case show the value to respondents of the relief awarded nor the expense to appellant of complying with the decree. Under such facts the Supreme Court will decline jurisdiction.' Albers v. Moffitt, 262 Mo. 645; Gast Bank Note & Lith. Co. v. Fennimore Assn., 147 Mo. 557; Bowles v. Troll, 262 Mo. 377; Foundry & Mfg. Co. v. Moulders Union, 251 Mo. 448; Clothing Co. v. Watson, 168 Mo. 142; Hernán v. Wade, 63 Mo. App. 365.</p>

Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge. (1) The deeds conveying the nine parcels of real estate in question to John Wimbush and Jane M. Wimbush, his wife, created estates by the entirety therein in them. Jane Wimbush, being the survivor, retained the entire estate therein and the will of John Wimbush did not operate on that estate.

<p>• 1. ADOPTION OF CHILDREN: Statutory Provisions: Prior to 1899: Custody. Under the statutes of this State prior to the amendment of 1899, any child could be adopted, so far as necessary to confer upon it the right to inherit from the adoptive parent, without the consent of the child’s natural parent or of any court or other authority. But the adoptive parent was not entitled, as against the natural parent, to the custody of the child by the mere act of adoption and could become so only by the legal consent of one entitled to dispose of the child’s custody.</p> <p>2. -: -: Amendment of 1899: Application. The amendment of the statutes regulating the adoption of children enacted in 1899 (See. 5250, R. S. 1899) applied only to the children therein definitely described, namely: Such as (1) had been intrusted by their parents or parent to .(a) some incorporated institution for the care of minor children, or (b) to some individual who conducted such an institution; or (2) had been received by such institution in some other way for care and custody; and then (8) had been abandoned by their parents for two years; and also (4) were less than seven years old. And such reception for care and custody, abandonment for two years by the parents and an age of less than seven years are conditions precedent to the exercise by the institution of the powers which said section confers.</p> <p>3. -: -: -: -. The amendment of 1899 (Sec. 5250, R. S. 1899) did not exclude from the operation of the general statutes of adoption (Secs. 5246-5249, R. S. 1899) children who had been intrusted to institutions for the care and custody of minor children, but who did not come within the scope of that amendment.</p> <p>4.-: -: Deed of Adoption: Recitals: Statutes Applicable: Knowledge of Law. Parties are chargeable with knowledge of the law. And where it appeared from the recitals of a deed of adoption, executed by an incorporated institution for the care and custody of minor children in whose custody the adopted child was, and by a husband and wife as adoptive parents, that the child did not come within the provisions of Section 5250, Revised Statutes 1899, such adoptive parents were charged with the knowledge that the only rights they acquired as to the custody of such child were such as they could obtain under the law exclusive of said section.</p> <p>5. -: -: -: -: Consideration. Where a deed of adoption of a child, executed by an incorporated institution in whose custody the child was, and by a husband and wife as adoptive parents, contained a recital that “by a lawful instrument in writing’’ there was conferred upon the institution the right to secure for said child a home in a good- family “including legal adoption,” and after the execution of such deed the adoptive parents retained the custody of such child during the remainder of their lives, the court was justified in finding that such writing existed and conferred the power stated, and the adoptive parents having received under such deed what they contracted for it was not void for want of consideration.</p> <p>6. -: Will Executed Before Adoption: Pretermitted Heir. Where a husband and wife executed a deed of adoption of a child, the husband having theretofore made his last will and testament leaving his entire estate (after paying debts, funeral expenses and a legacy) to his wife, and not mentioning such child, and after such adoption having died leaving such will unrevoked and leaving his widow and such child as his only heirs, the interest of such child in his estate was the same as if he had died intestate.</p> <p>7. EQUITY: Confidential Relations: Fraud: Setting Aside Conveyances. A court of equity will set aside conveyances of her property, made by plaintiff, a young woman, eighteen years of age, without business experience and with little education, who acted without full knowledge of' the facts and of the value of such property and of her rights and without independent legal advice, and who was induced to make such conveyances by one standing in a confidential relation to her, and thereby conveyed valuable property, without adequate consideration, to persons having no claim thereto and having full knowledge of the facts, and where such conveyances were made in pursuance of a purported settlement of alleged conflicting claims to an estate which were without any legal basis.</p>

<p>1. APPELLATE JURISDICTION: Cross-Appeals. Where plaintiff sued, for $18,900 and recovered judgment for $4500, and both parties appealed, appellate jurisdiction is in the Supreme Court.</p> <p>2. PARENT AND CHILD: Contract for Services: Evidence. Services rendered by a child to a parent are not presumed, as in cases between strangers, to be for pay, and to entitle a child to recover for services rendered the parent the burden is upon the child to show a contractual relation evidencing an intention upon the part of the parent to pay and a right upon the part of the child to demand and receive such pay.</p> <p>3. -: -: -: Demurrer. Where a son filed a claim against the estate of his deceased father for services as manager and foreman of the farm of said deceased and labor performed thereon during about twenty-one and a half years, and there was 292 Mo — 41 evidence that the father, who was a farmer and stock trader and frequently away from home, persuaded the son not to go to school and to remain on the farm and that he would “pay” him for his services and that the son agreed to do so and remained on the farm, acted as manager, put in and harvested crops, erected buildings, kept up fences, raised the stock, managed the hands, and worked practically every day during the whole time claimed for, except about a year when he was away, and received no compensation except his room and board, and the evidence further showed that the father said he wanted the son “to have pay out of his estate for taking care of the farm and stock and taking care of him,” such evidence justified the inference that there was a mutual understanding or agreement between the son and the father that the son was to be paid and was sufficient to submit to the jury the issue as to whether or not there was such an understanding or agreement, and the demurrer to the evidence was therefore properly overruled.</p> <p>4. -: -: -: Hearsay: Exception: Declarations of Decedent. Where a son filed a claim against the estate of his dedeceased father for services as manager and foreman of the farm of said deceased and for labor performed thereon, it was error for ■ the trial court to exclude as evidence a paper, shown to have been signed by the father and found among his papers after his death, addressed “to whom it may concern” and to the effect that he (the father) agreed that his son should take full charge of his farm and stock and should act as foreman and manager and if he remained in the father’s employ until the father’s death he should do as he saw fit with the remaining portion of the father’s property', both real and personal, after he had received compensation for his services from this date September 13, 1885, of not less than fifty dollars per month out of the father’s possessions. Such instrument amounted to a written declaration which might be characterized as an exception to the hearsay rule; and the circumstances attending it, such as the death of the declarant, the proof of his signature, the discovery of the instrument among his papers, the relevancy of the declaration to the matter under inquiry, the fact that the matters therein touched upon presumably related to things of which the declarant was personally cognizant, and that the declaration was against the pecuniary interest of the declarant, who had no probable motive to falsify or mistake the matter declared, all rendered it admissible.</p>

Louis City Circuit Court. — Hon, Fra/nk ■Landwehr, Judge. (1) The court erred in sustaining the demurrer of respondent, city of St. Louis to plaintiff’s evidence, and refusing to submit the case to the jury. O’Donnell v. Hannibal, 144 Mo.

— Eon. J. G. Slate. Judg’e. (1) Ann Ross, the widow of Carl Ross, who died in 1882, was entitled to dower, which' was a life estate. R. S. 1879, sec. 2186. (2) Ann Ross had only a life estate to convey by her quitclaim deed to Caroline Spicer, and that is all she did convey, she had no paper title whatever, neither did her husband, Carl Ross, except the declaration and disclaimer of J. P. Ross, offered by appellant and rejected by the court.

— lion. Ralph Hughes, Judge. (1) Tlie court erred in giving defendant’s instruction numbered 1. This was the only instruction authorizing the jury to find a verdict for either party.