Volume 293 — Missouri Reports

<p>Appeal from Stoddard Circuit Court. — Hon. W. S. G. Walker, Judge.</p> <p>(1) Time is of the essence of a contract of insurance and the failure to pay premiums when due works a forfeiture, if the policy so provides. AsKbrook v. Life Ins. Co., 94 Mó. 72; Suess v. Life Ins. Co., 193 Mo. 564; G-aterman v. Life Ins. Co., 1 Mo. App. 300; Sick v. Life Ins. Co., 79 Mo. App. 609. (2) The court admitted evidence immaterial and irrelevant and prejudicial to appellant. (3) The instruction of the court given at the request of the plaintiff was erroneous, because there is no evidence in the record to support the submission to the jury of certain questions of fact. "Dakan v. Mercantile Co., 197 Mo. 264. (4) The death of Samuel E. Darby did not render appellant’s agent incompetent to testify to conversations and transactions between himself and deceased. Clark v. Thias, 173 Mo. 628; Inv. Co. v. Lead Co., 251 Mo. 721; Wagner v. Binder, 187 S. W. 1152; Allen v. Jessup, 192 S. W. 720; Prindle v. Fid. & Cas. Co., 233 S. W. 252. (5) There is no evidence in the record that appellant waived the forfeiture or any of the provisions of the policy. Nelson v. Life Ins. Co., 190 Pac. 927; Clark v. Life Ins. Co., 106 Mich. 160; Hoyle v. Life Assur. Assn., 183 N. W. 50; G-ould v. Life Assur. Soc., 231 N. Y. 208; Realty Co. v. Kelly, 278 Mo. 472.</p> <p>(1) The acceptance of the payment of the premium on a life insurance policy after it is due, and after the expiration of the days of grace, waives the failure to pay such premium within the allowance of time. Andrus v. Ins. Co., 168 Mo. 151; Jaggi v. Ins. Co., 191 Mo. App. 384; Spencer v. Life Ins. Co., 200 S. W. 80; James v. Life Assn., 148 Mo. 1; Thompson v. Ins. Co., 104 U. S. 252; Andre v. Modern Woodmen, 102 Mo. App. 377; Codwin v. K. L. S., 166 Mo. App. 297; Nichols v. Ins. Co., 170 Mo. App. 437; Wichmann v. Ins. Co., 120 Mo. App. 51; Reed v. Bankers Union, 121 Mo. App. 419; Francis & Hunter v. A. O. U. W., 150 Mo. App. 347; Manning v. Ins. Co., 176 Mo. App. 678; Wright v. Life Ins. Co., 204 Mo. App. 124. (2) If the agent of an insurance company takes a note in payment of a premium and treats the same as a payment of the premium, this constitutes a payment of the premium so as to bind the company issuing the policy. Berryman v. Surety Co., 227 S. W. 96; Kimbro v. Life Ins. Co., 134 Iowa, 84; McG-ee v. Felter, 135 N. Y. Supp. 267; Clark v. Ins. Co., 61 S. E. 80; Life Ins'. Co. v. Hairston, 108 Ya. 832; Ins. Co. v. Norton, 96 U. S. 234; Malone v. Life Ins. Co., 202 Mo. App. 499. (3) The law abhors a forfeiture and where there is substantial evidence of facts from which it may be found that an insurer has waived a forfeiture clause in -its policy, the matter is one to be referred to the jury under appropriate instructions. Barber v. Lis. Co., 279 Mo. 331; Jaggi v. Ins. Co., 191 Mo. App. 391. (4) If the evidence is sufficient to show waiver on the part of the one against whom it is invoked, it is not necessary that the. insured even know of it. Watkins v. American Yeomen, 188 Mo. App. 636; Calvin v. Knights, 169 Mo. App. 511; Stiepel v. Life Assn., 55 Mo. App. 233; Equitable Life Ins. Co. v. Ellis, 147 S. W. 1152.</p>

— Hon. V. L. Drain, Judge. (1) Undue influence such, as will justify the setting aside of a will, is such influence as amounts to over-persuasion, coercion, or force, destroying the willpower of the testator and substituting therefor the will of the actor. It is not merely the influence of affection, nor the desire of gratifying the wishes of one beloved or trusted by the testator.

— Hon. Almon Ing, Judge. (1) The plaintiff before instituting the present suit to set aside the fraudulent conveyance from Mollie Dunky to .Barron did not have to exhaust his legal remedies. ■Plaintiff would not be denied redress in a court of equity, simply because, if such be the fact, he had an adequate remedy at law against some party other than the defend-' ant Dunky. Simpson v. Smith, 196 Mo.

Dunklin Circuit Court. — Hon. W. 8. C. Walker, Judge. (1) The court erred in admitting incompetent, immaterial and irrelevant evidence. Development Co. v. Clayton, 219 S. W. 601; Bell v. Brinkman, 123 Mo. 270. (2) A court cannot partition land unless all the heirs and all parties interested in the land are before the court.

— lion. L. A. Vories, Judge. (1) It was error on the part of the lower court to grant plaintiff a new trial on the ground assigned by the court; that is, that the court erred in giving on behalf of the defendant Instruction 14. That is the instruction as to the measure of damages in the event they should find for the plaintiff.

<p>1. CONSPIRACY: Proof of. A conspiracy may he shown by acts and circumstances indicating a joint purpose between defendant and other parties to aid each other in the commission of a crime.</p> <p>2. --: Liability of One for Act of Another. Where it is sought to hold one person criminally responsible for the act of another, it should be shown that he authorized such act or in some way aided or directed it; and usually a prima-facie case as to such conspiracy must first be made out before the declarations or acts of the co-conspirators, are admissible against one another.</p> <p>3. -: Felonious Assault with Intent to Kill: Demurrer to Evidence. Where defendant and two others were jointly indicted for feloniously assaulting four police officers with intent to kill, there was a failure of proof where the evidence shówed that de- . fendant had lost his left arm and that, on the night in question, • he was driving a Ford motor car, thirty miles an hour, over a slippery street and had four passengers in his car, and when pur- ■ sued by the police officers in another car some one in his car fired three shots at the police car, hut there was no evidence that defendant fired them, or participated in the act, and the evidence was that a one-armed man could not, at the same time, have driven a Ford car and fired the shots under the circumstances. The most the evidence tended to prove was an attempt to escape the pursuing officers, but proof of a common design to commit another offense was not proof of a conspiracy to commit the crime with which defendant was charged.</p>

<p>1. MURDER: First Degree: Deliberation. Where there is no pretense of killing by poison, by lying in wait or in the perpetration of any of the crimes designated by statute, a verdict of guilty of first degree murder can be sustained only by evidence of a wilful, deliberate and premeditated killing.</p> <p>2. -: Second Deigree: Intentional Killing with “Deadly Weapon: Presumption. From an intentional killing of a human being by another, where a deadly weapon is used by him and at a vital part of the body, there arises a presumption of murder in the second degree, absent proof of other facts tending to show deliberation to raise such killing to first degree murder or to show want of premeditation and malice to reduce such killing to manslaughter or to show such killing was excusable or justifiable.</p> <p>3. -: Deliberation: Evidence, Deliberation as an' element of \urder in the first degree need not be proved by direct evidence, it may be proved by facts and circumstances sufficiently evincing its existence.</p> <p>-j — : -: -: Instructions. In this case there being no evidence of deliberation, it was error for the trial court to instruct upon murder in the first degree, and inasmuch as .defendant was convictéd of that offense such error was clearly and necessarily prejudicial.</p> <p>5. -: Deadly Weapon: Poker. Where the evidence in a prosecution for murder showed that deceased died from a fracture of the skull, just above the left ear, caused by a blow from some blunt. instrument, and that defendant admitted that he killed deceased with a poker, and that a poker was found in defendant’s house, but there were no marks of blood upon it, nor did it appear that it was the poker referred to in defendant’s admission, and the ■ record was entirely silent as to its size or shape and also as to the size or shape of any other poker defendant might have used, it was error to assume that the poker used by defendant was a deadly weapon or that it was intentionally used by defendant as such.</p> <p>6. -: —=-: Question for Jury. Unless under the proof, in a prosecution for rntflider, there can be no difference of opinion that the instrument of death was of a deadly character or that, as used, it was intentionally used as a deadly weapon by the assailant, its character, as such deadly weapon, is one for the jury to determine under appropriate instructions.</p> <p>7. -: -: Intent to Kill: Presumption. In a prosecution for murder where there was proof that death was caused by a blow from some blunt instrument and that defendant admitted he killed deceased with a poker, the jury would be warranted in finding that the poker was used by defendant in such manner as to be a deadly weapon, without proof of its actual character, and if they found that such poker, as used, was such deadly weapon and was intentionally used by defendant as such at a vital part of the deceased’s body, they would be justified in finding defendant intended to kill deceased; and if they so found, then they would be authorized to find defendant guilty of murder in the second degree, under the permissible indulgence of the presumption of intent to kill arising from the intentional use of a deadly weapon at a vital part, absent proof of other facts explaining and characterizing the acts and conduct of defendant.</p> <p>8. -: -: Manslaughter. In this case, there being no evidence authorizing an instruction on murder in the first degree, if the jury, under appropriate instructions, did not find that the poker as-used was a deadly weapon, then there was no evidence of murder in the second degree, and the jury should have been instructed as to. manslaughter under Section 3236, Revised Statutes 1919.</p>

<p>1. PRINCIPAL AND AGENT: Contract by Agent: Authority: Burden of Proof. One who sues another as principal upon a written contract purporting to be made by an agent for such principal, where the authority of the agent to make the contract is put in issue by verified answer, has the burden of proving the agent’s authority.</p> <p>2. -: -: -: Holding Out: Single Transaction. Where there is no evidence that an agent ever did another act involving his principal such as the one in suit, which latter was beyond the apparent scope of his duties as such agent, there is no basis for holding the principal liable on the ground of having held out the agent by a course of dealing as having authority to do the act in question.</p> <p>3. -: -: -: Corporation Secretary and Credit Man. A , corporation is not liable upon a contract signed in its name by its secretary, who was also its credit man, purporting to bind it in effect to pay the debt of a third party, where such contract was signed without the knowledge or consent of any other officers of the corporation and had been concealed from them and was repudiated by the corporation’s president as soon as he had knowledge of it, and where the evidence showed that the secretary had never made a similar contract on behalf of the corporation, and the by-laws prohibited the signing of such an obligation without the concurrence of some other officer of the corporation.</p> <p>4. -: -: -: Inquiry. One who ¿leáis with another acting as the secretary and credit man of a corporation and making a contract whereby, in effect, he undertakes to bind the corporation to pay the debt of a third person, and who has had no prior dealings with such person or corporation and has no knowledge of any former similar transactions by him, is put upon inquiry as to his authority to bind the corporation.</p>

<p>Appeal from Jackson Criminal Court. — Hem. Edward E. Porterfield,-Judge.</p> <p>(1) There is no evidence that appellant participated in the rohhery charged in the indictment. His every act was consistent with innocence, and not guilt. There was no evidence of any connection between the robbery and appellant. State v. Hammons. 226 Mo. 604. (2) Inadmissible and prejudicial evidence was admitted át the trial, and improper comments and argument were made before the jury by the assistant prosecuting attorney, and the court. State v. Wright, 161 Mo. App. 597; State v. Doerries, 168 Mo. App. 324; State v. Drew, 213 S. W. 106. (3) The honorable discharge of appellant from the army was admissible in evidence to show previous good character, it being an official statement, executed pursuant to law. State v. Anslinger, 171 Mo. 600; Kelley’s Crim. Law & Prac., sec. 252, p. 208; Davis ’ Mil. Law, p. 6; United States v. Freeman, 3 How. 556; Gratiot v. United States, 4 How. 80.; United States v. Eliason, 16 Pet. 291; Kurtz v. Moffitt, 115 U. S. 487; 39 Stat. at. L. 650-670; 3 Wigmore on Ev. secs. 1630, 1632, 1633, pp. 1976, 1977, 1980-1983; 22 C. J. 809, sec. 922;' 2 Ency. Ev. 963; Davis Mil. Law, p. 275; Gurnó v. Admrs. of Janis, 6 Mo'. 330; Evanston v. Gunn, 99 U. S. 660; Priddy v. Boice, 201 Mo. 309; State v. Salmon, 216 Mo. 466; Reynolds v. Ins. Co., 88 Mo. App. 679; Levels v. Railroad, 196 Mo. 606; Camors v. Gomila, 9 Mo. App. 205; St. Louis v. Arnot, 94 Mo. 275; Moore v. Mfg. Co., 113 Mo. 98; United States v. Cross, 20 D. C. 365'; Mclnerny v. United States, 143 Fed. 729; Buckley v. United States, 4 How. 251; Can Co. v. United States, 240 Fed. 903; State v. Blaisdell, 33 N. H. 388; United States v. Kelly, 15 Wall. 34; United States v. Landers, 92 U. S'. 77; Com. v. Mertz, 27 Ind. 103; Fitchburg v. Lunenburg, 102 Mass. 358; Matthew v. Bowman, 25 Me. ‘157; State v. Leonard, 6 N. H. 435; Shattuck v. Gilson, 19 N. H. 296 ; Gray v. Mossman, 94 Conn. 430; Cundiff v. State, 226 S. W. 412; Mobley v. State, 232 S. W. 531; Com. v. Crowley, 26 Pa. Super. Ct. 124; State v. Austin, 113 Mo. 538. (4) Instructions 2 and 3 were erroneous. Sec. 3698, R. S. 1919; State v. Britton, 183 S. W. 295. It was error to refuse to permit appellant’s army discharge to be read in evidence, after same had been admitted. (5) It is unconstitutional to delegate to courts or juries unlimited power to punish, and hence the maximum punishment for robbery is five years. Secs. 3.310, 3698, R. S. 1919; Sec. 30, Art. 2, Mo. Const.; Young v. Railroad, 227 Mo. 317, 318; State v. Williams, 77 Mo. 310; Morgan, v. Ward, 224 Fed. 698; State v. Griffin, 87 Atl. 138; Harris v. Nixon, 27 App. Cas. 94; Board v. Eedwood Co., 26 Pac. 375; In re O’Shea, 11 Cal. App. 568; Sheldon v. Hoyne, 261 111. 222; Árnett v. Cardwell, 135 Ky. 14; Stimpson v. Pond, 2 Curtis, 502'; Eegina v. Smith, 16 Ont. 454; State v. Fackler, 91 Wis. 420; Ex parte Cain, 93 Pac. 974; Town of Central v. Madden, 61 S. E. 1028; In re Bonner, 151 U. S. 259; Hankins v. The People, 106 111. 628; State v. Williams, 146 N. C. 618. (6) The sentence in the instant case was cruel and unusual, and hence void. Art. II. sec. 25, Mo. Constitution; People v. Murrey, 72 Mass. 17.</p> <p>(1) The appellant has failed to indicate in his motion for new trial and brief the particular testimony complained of, hence same is not properly presented for review by this court. State v. Holden, 203 Mo. 584; State v. Whitsett, 232 Mo. 529. (2) The remarks of the assistant prosecuting attorney as preserved in the record are within the range of legitimate discussion of the evidence and his conclusions were properly deducted therefrom, and therefore permissible. The remarks must be prejudicial to defendant to warrant a reversal of judgment. State v. Harvey, 214 Mo. 411. (3) The court properly refused admission in evidence the honorable discharge from the Army of appellant, which was offered in proof of his previous good character. The numerous authorities cited by appellant are not in point. People v. Eckman, 72 Cal. 582; State v. Keyes, 199 Pac. 362; Taylor v. State, 120 Ga. 858; Mobley v. State, 232 S. W. 535; Cundiff v. State, 226 S. W. 413. (4) Instruction 2 properly declares the law applicable to the' evidence in this case. Instruction 3 was withdrawn from the jury. This was not error as there is no evidence in the case on which to base same, and the reading of same to the jury and then withdrawing it does not constitute reversible error. (5) The triers of fact may determine the punishment within certain limits. Sec. 4047, R. S. 1919; Ex parte Dusenbury, 97 Mo. 508; State v. Williams, 77 Mo. 312; Young v. Railroad, 227 Mo. 318. (6) Sentence in this case is not cruel and unusual. Sec. 3307, R. S. 1919; Art. 2, sec. 25, Mo. Constitution; State v. Williams, 77 Mo. 312. (a) The sentence of twenty years in the penitentiary for an accessory before the fact to a burglary was held not to be excessive. State v. Snyder, 263 Mo. 664. (b) An act providing for imprisonment for life on account of second conviction is not a cruel and unusual punishment. State v. Moore, 121 Mo. .514.</p>

Louis City Circuit Court. — Hon. Gran-ville Hogan, Judge. (1) The uneontradicted evidence in this case shows' .that defendant’s street car was going from twenty-five to thirty miles an hour, in violation of the ordinance introduced; and as there is no evidence of contributory negligence oh the part of plaintiff, the verdict of the jury is against the law, the evidence and the weight of the evidence.

<p>1. FEDERAL CONSTITUTION: Interstate Commerce: Sale of Natural Gas by Local Company. Tbe retail sale of natural gas in a Missouri city, under a franchise granted by it to a Missouri corporation, is not interstate commerce, even though such gas is bought by said corporation from a corporation of another state and is delivered by the latter corporation at the .city limits, in its own pipe line, which is permanently connected with the pipes of the Missouri corporation through which the latter distributes such gas to the local consumers and for which gas the latter company pays the other two-thirds of the amount received therefor from the local consumers.</p> <p>2. -: -: -: City Ordinance Prohibiting Booster Pumps. An ordinance of such city prohibiting the use, by local gas consumers in such city, of gas pumps and other devices, designed to increase the flow of gas into their private pipes beyond that normally due to the pressure in the pipe through which the local gas company furnishes gas to such consumers, is not invalid as an interference with interstate commerce, in violation of Section 8 of Article I of the Federal Constitution.</p> <p>3. PUBLIC SERVICE COMMISSION LAW: Gas Companies: City Ordinance Prohibiting Booster Pumps. The ordinance of Kansas-City, Missouri, prohibiting the use, by local gas consumers in such city, of gas pumps and other devices, designed to increase the flow of gas into their private pipes beyond that normally due to the pressure in the pipe through which the local gas company furnishes gas to such consumers, is not invalid as an interference with the powers of the Public Service Commission, with respect to gas companies, as defined in the Public Service Commission Act (Article IV, Chapter 95, Revised Statutes 19-19), inasmuch as said ordinance applies to and regulates the actions of the individual gas consumers, whose conduct endangers the life, limb and property of others, and does not apply to, or attempt to regulate, the gas company.</p>

<p>1. EJECTMENT: Estoppel: Pleading: Burden of Proof. In an ejectment suit by a landowner to recover possession of a strip of land, claimed by the defendant as a railroad right of way, the defense that plaintiff is estopped from asserting a right to the possession of such strip, is an affirmative one, Which defendant is . required to plead specially, and the burden is upon defendant to prove such defense, unless it is conclusively made out by plaintiff’s evidence.</p> <p>2. -: -: Submitting Issue as One of Fáct: Plaintiff Bound Thereby. In such case, there being a plea of estoppel, if plaintiff submits the question of estoppel as an issue of fact, to be determined from the evidence offered, and makes no objection at the trial that there is no substantial evidence to prove estoppel and asks no instruction in the nature of a demurrer to the evidence or direction of a verdict on that issue, he cannot thereafter, on appeal, be heard to say that estoppel was not an issue of fact to be determined on the evidence.</p>

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The Inheritance Tax Law of 1917 is a law levying a tax on the transfer by will or inheritance of property from one person to another person, association, institution or corporation.

Louis City Circuit Court. — Eon. Karl Kimmel, Judge. (1) If the concurrent or successive negligence of two persons, combined together, result in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury. Newcomb v. Railroad, 169 Mo. 409; Bassett v. St. Joseph, 53 Mo. 290; Brennan v. St. Louis, 92 Mo. 482; Vogelsang v. St. Louis, 139 Mo. 131.

Thomas B. Buchner, Judge. (1) There may be dower in a public use, or, more properly, in land used as such, where the property out of which the use is claimed has not been acquired in one of the ways pointed out by the law or decisions. (2) Donnell took the fee subject to plaintiff’s dower, as did also the Water Works Company and the city. The two latter did not take a mere easement, and therefore the idea that there is no dower in an easement has no application here.

— Now. Thomas N. Allen, Judge. (1) The court erred in refusing, to give defendant’s instruction in the nature of a demurrer, offered at the close of the evidence, (a) The deceased had no duty requiring him to alight from a moving train; on the contrary, his duty required him to remain on the train until it stopped.

— Eon. Daniel E. Bird, Judge. (1) The safety appliance act is not applicable. That act creates a liability irrespective of negligence and irrespective of the fact that the employer has exercised ordinary care. Its effect is to create and impose a penalty. To allow recovery under it would be to inflict a penalty upon the Director General of Railroads and the Federal Government, and this cannot be done. Iron Mountain Railroad Co. v. Taylor, 210 U. S. 281; Mo. Pac. Ry.

.. — Hon.' Thad B. London, Judge. (1) The railroad switch track involved in this case, constructed under grant of public authority, and operated and maintained by a common carrier, is a ‘ ‘ railroad ’ ’ within the provisions of Sec. 14, Art. XII, Mo. Constitution. Dietrich v. Murdock, 42 Mo. 279; Brown v. Ry. Co., 137 Mo. 529; Union Line Co. v. Railway, 233 U. S. 211-222; Railroad Co. v. Coal Co., 161 ¡Mo. 288.

— Hon. R. A. Brener, Judge. (1) An executor or administrator is a trustee, and when he purchases property with funds of the estate he holds the property in trust for the estate and those entitled thereto; and it makes no difference whether the deed be to him as executor or administrator or not. Harney v. Donohoe, 97 Mo. 144; Hynds v. Hynds, 274 Mo. 123; Patterson v. Booth, 103 Mo. 402; 24 C. J. 200-1.

Circuit Court. — Hon. A. W. Walker, Judge. (1) Where the only defense is that the parties agreed to a division line and that, defendants acted on that agreement without protest from plaintiff and for that reason, plaintiffs are estopped, that is the only issue that can he tried. And where the court finds there was no agreed line, the defense fails. Swinehart v. St. L. Sub., 207 Mo. 423.