author: VALLIANT, J. WOODSON, J.

text:
    GILSONITE ROOFING & PAVING COMPANY v. ST. LOUIS FAIR ASSOCIATION, Appellant.
    In Banc,
    December 17, 1910.
    1. SPECIAL TAXES: Equality of Benefits. To determine by a general rule, such as a charter prescription or an ordinance in pursuance thereof, the actual benefit that each lot or piece of property will derive from a public improvement, such as paving a street, or its actual proportion of the cost as compared with the benefit to other lots, and to lay the tax so as to impose on each piece of property the burden of paying for its special benefit, is to do more than the human ingenuity has yet been able to perform. A rule by which a benefit district, in case of street improvement, is marked out, like all laws, is one which aims to do justice in a general way, but cannot be made to accurately fit every case. It would be a physical impossibility to accomplish absolute equality. But inequality does not necessarily mean injustice.

      2. -: -: Legislative Question. Whether a proposed improvement is of a character that will benefit the property charged with its cost, is, in the first instance, a legislative question, and the legislative discretion goes to the point of determining the territorial extent to which the benefit will go, and the courts will not interfere to prevent the assessments, except perhaps to prevent abuse of power.
    3. -: -: -: Area Assessment. A benefit assessment of so much per square foot on all territory in the district is not illegal because some lots are longer than others, due to a converging street, and therefore one lot. of greater depth must bear a heavier tax than another lot of a less depth. The rule must be the sáme for both, and the benefit will extend proportionately to the middle of each, and if the owner ' of one must pay more than the owner of the other, it is because the benefit to one has a larger extent than the other. The cost of the improvement is not required to be so distributed that the total area to be taxed must be drawn equally from all property within the same distance of the street to be improved.
    4. -: -: -: -: Midway Line: Unplatted Ground. In establishing the benefit district, where there is a parallel or converging street on each side of the street to be improved, the charter requires the boundary lino of the district to be drawn “midway between the street to be improved .. and the next parallel or convérging street on each side”, and an ordinance which so fixes the line is valid, and that rule applies to land which has not been platted or divided into blocks and lots.

      Held, by WOODSON, J., dissenting, that the charter provision applies only to tracts of land which have been platted and laid out into lots and blocks, streets and alleys.
    5. AREA ASSESSMENT: Midway Line: Constitutional. The charter required one-fourth of the cost of the street improvement to be assessed according to the front-foot rule, and the other three-fourths according to the area rule on all property in the district, and required the district, as to lands not divided into lots, to be defined and bounded by a line to “be drawn midway between the street to be improved and the next parallel or converging street on each 'side of the street to be improved”. Held, that this charter provision is not in conflict with either sections 20 or 30 of the Missouri Constitution or the Fourteenth Amendment to the U. S. Constitution.

      Held, by WOODSON, J., dissenting, that if said charter provision was intended to apply to unplatted land, it is unconstitutional.

      6. TAXBILL: Interest on Judgment: Not a Contract. Tlie statute provides that a judgment on a contract which hears more than six per cent interest shall bear interest at the same rate as that expressed in the contract, but all other judgments are to bear interest at six per cent; the charter provides that a special taxbill, alter the prescribed notice and alter maturity, shall bear eight per cent interest, but says nothing as to the rate of interest a judgment on the taxbill shall bear. Eeld, that a special taxbill is not a contract, and a judgment thereon can bear only six per cent. [Distinguishing Dickey v. Porter, 203 Mo. 1. c. 39.]
    Appeal from St. Louis City Circuit Court.- — Hon. Walter B. Dov,glas, Judge.
    Reversed and remanded {with directions).

      Bond, Marshall & Bond and Dmid Goldsmith for appellant.
    (1) "When properly construed, there is within the meaning of the charter no parallel street to Grand avenue on the west between 'Natural Bridge road and 'Penrose street. Louisville v. Asphalt Co., 102 S. W. 806 ; McGrew v. Kansas City, 64 Kas. 61; Charter of St. Louis, art. 6, see. 14. (2) Under the facts in this ease, the district line west of Grand avenue between Natural Bridge road and Penrose street, should have been drawn at a distance from Grand avenue equal to the average distance from Grand avenue to the district line on the eastern side. Louisville v. Asphalt Co., 102 S. W. 806; McGrew v. Kansas City, 64 Kas. 61; Charter of St. Louis, art. 6, sec. 14. (3) As construed by the trial court, the charter provides for a scheme of taxation incapable of being administered with any semblance of equality, in that it would necessarily work an inequality in all cases where the street improved abuts upon an unsubdivided tract of land, and hence amounts to a denial of the equal protection of the laws within the meaning of the Fourteenth Amendment to the Federal Constitution. Norwood v. Baker, 172 U. S. 269'; French v. Paving Co., 181 U. S. 324; Tonawanda v. Lyon, 181 U. S. 389 ; Cass Farm Co. v. Detroit, 181 U. S. 395; Detroit v. Parker, 181 U. S. 399; Martin v. District of Columbia, 205 U. S. 135; Independence v. Gates, 110 Mo. 374; Preston v. Roberts, 12 Busk 570;' Davis v. Litchfield, 172 U. S. 327; Thomas v. Gain, 35 Mioh. 155; People v. Lynch, 51 Cal. 19; Allen v. Drew, 44 Vt. 188. (4) Section 14 of article 6 of the charter as construed by the trial court assesses appellant’s land for the cost of improvements grossly in excess of any benefits which said land could possibly have received, and to that extent violates the due process clause of the Fourteenth Amendment to the Federal Constitution, and also violates section 30 of article 2 of the Constitution of Missouri. Norwood v. Baker, 172 U. S. 269'; French v. Paving Co., 181 U. S. 324; Martin v. District of Columbia, 205 U. S. 135; Tonawanda v. Lyon, 181 U. S. 389; Cass Farm Co. v. Detroit, 181 U. S. 395; Detroit v. Parker, 181 U. S. 399; Elliott on Roads & Streets (2 Ed.), sec. 566: (5) The judgment on a special taxbdll, like all other judgments in civil cases, bears interest at the rate of six per cent per annum, and not eight per cent per annum. City v. Allen, 53 Mo. 57; St. Joseph ex rel. v. Forsee, 110 Mo. App. 241; Paving Co. v. Field, 134 Mo. App. 668; R. S. 1899, sec. 3707.

      Nagel & Kirby for respondent.
    (1) Under the provisions of the charter of St. Louis as construed by this court, Fair avenue is the next parallel street to Grand avenue on the west between Natural Bridge road and Kossuth avenue, and the district line was properly drawn midway between Grand avenue and Fair avenue. Charter, sec. 14, aid. 6; Collier Estate v. Paving Co., 180 Mo. 362; Fruin-Bambrick Co. v. Shovel Co., 211 Mo: 524; State ex rel. v. St. Louis, 211 Mo. 591. (2) The fact that the street improved' abuts upon a large undivided tract of land does not prevent the application of the general rule laid down by the charter for the establishment of the taxing district. Charter, sec. 14, art. 6; Collier Estate v. Paving Co., 180 Mo. 362; State ex rel. v. St. Louis, 183 Mo. 230. (3) The provisions of the St. Louis Charter concerning taxation for street improvements do not violate the provisions of the Fourteenth Amendment to the Federal Constitution relating to “equal protection of the laws,” and “due process of law.” Collier Estate v. Paving Co., 180 Mo. 362; Meier v. St. Louis, 180 Mo. 391; Fruin-Bambrick Co. v. Shovel Co., 211 Mo. 524; Davidson v. New Orleans, 97 TJ. S. 9'2; French v. Barber Asphalt Paving Co., 181 U. S. 396; Cotting v. Godard, 183i IT. S. 79'; Railroad v. Pennsylvania, 134 IT. S. 232; Bank v. Pennsylvania, 167 IT. S. 461; Prior v. Construction Co., 170 Mo. 439; State ex rel. v. St. Louis, 211 Mo. 591; Henderson Bridge Co. v. Henderson, 173 U. S. 592. (4) The judgment on this special taxbill bears interest at the rate of eight per cent per annum. R. S. 1899, sec. 3707; Charter, see. 14, art. 6; Dickey v. Porter, 203 Mo. 1.
   VALLIANT, J.

This is a suit on a special tax-bill issued by the city to pay in part for the reconstruction of Grand avenue from Natural Bridge road to Penrose street, done under city ordinance No. 20,662, which was enacted under section 14 of article 6 of the charter of the city of St. Louis. The defendant corporation, being the owner of property abutting on the street where the improvement was made, filed an answer to the petition, averring that the taxbill sued, on was illegal because of certain facts specifically pleaded; plaintiff filed a general demurrer to the answer, which the court sustained, and defendant declining to plead further, judgment was rendered for the plaintiff for 20,190.38, and defendant appealed.

The defense pleaded in the answer was substantially as follows:

Appellant’s property consists of a tract of land of 132 acres, having a front on Grand avenue ' of 1474.88 feet, by a depth of 3895.83 feet, which has never been divided into city blocks, nor have any streets or alleys been cut through it. The land is bounded north by Kossuth avenue, south by Natural Bridge road, east by Grand avenue and west by Pair avenue. The land on the other side of Grand avenue fronting west is divided into lots and blocks by streets and alleys, and so also is the land north and south of defendant’s property fronting west on Grand avenue. In laying out the district to be assessed for the payment of the improvement the ordinance draws the east boundary, varying according to the depth and width of the lots, from 320.5 feet to 120 feet east of Grand avenue, and draws the west line through lots north and south of defendant’s property fronting east on G-rand avenue at an average depth of 202% feet, whilst through defendant’s property the west line is drawn half way between Grand avenue and Pair avenue, thereby including defendant’s property to a depth of 1947.5' feet for its whole width from Natural Bridge road to Kossuth avenue. From Grand avenue west through defendant’s property Pair avenue is the next parallel or converging street. The total frontage of the street improved, counting both sides, is 4087.73 feet, of which the frontage of defendant’s property is 1474.88 feet. The total cost of the improvement was $23,278.62, of which $16,974.51 was assessed against defendant’s property.

Section 14 of article 6 provides that one-fourth of the total cost of such improvement “shall be levied and assessed upon all the property fronting upon or adjoining the improvement, in the proportion that the frontage of each lot so fronting or adjoining bears to the total aggregate of frontage of all lots or parcels of ground fronting upon or adjoining the improvement.” One-fourth of the cost of this improvement was assessed against the fronting and adjoining property along this street in accordance with that rule and as to that there is no complaint. But the charter goes on to declare that “the remaining three-fourths of the cost so ascertained shall he levied and assessed as a special tax upon all the property in the district to he defined and bounded as hereinafter provided, in the proportion that the area of each lot or parcel of ground or the part of such parcel of ground lying within the district bears to the total area of the district, exclusive of streets and alleys. The districts herein referred to shall be established as follows: A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided, namely: If the property adjoining the street to be improved is divided into lots, the district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved. If the line drawn midway as above described would divide any lot lengthwise or approximately lengthwise, and the average distance from the midway line so drawn to the nearer boundary line, of the lot is less than twenty-five feet, the district line shall in such case diverge to and follow the said nearer boundary line. If there is no parallel or converging street on either side of the street to be improved, the district lines shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located. Provided, that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property. All of the property in the lots, blocks or tracts of land lying between the streets to be improved and the district lines established as above specified, shall constitute the district aforesaid.”

■ In establishing this benefit district the ordinance followed that clause of the rule prescribed in the charter above quoted which contemplated a parallel or converging street on each side of the street to be improved, and drew the line “midway between the street to be improved and the nest parallel or converging street on each side, ’ ’ taking Fair avenue as the nest parallel or converging street as far as concerned defendant’s property. This resulted in the inequality complained of in defendant’s answer, that is, that of a total area of 3,316,016 square feet in the district, 2,867,790 feet were taken in defendant’s property, and of a total area tas of $17,458.95 the sum of $14,874.74 was assessed against defendant’s property.

Appellant in its answer pleads that the ordinance is not authorized by the charter provision above quoted, and also that if that clause of the charter is to be interpreted as intended to authorize the result attempted to be accomplished by this ordinance then that clause in the charter is in violation of sections 20 and 30, article 2, of the Constitution of Missouri and the Four-tenth Amendment of the Constitution of the United States.

1. There is no question but that going through appellant’s property from east to west Fair avenue is in fact the first parallel street to Grand avenue, and therefore there is no question but that the ordinance conforms strictly to the language of the charter in that respect. It is also a fact beyond question that the line drawn takes in a larger area of appellant’s property than is taken of other property within the same distance of the street improved. Therefore, if the charter is interpreted to mean that the cost of the improvement mnst be so distributed that the total area to be taxed must be drawn equally from all property within the same distance of the street to be improved, then the ordinance in question does not conform to the charter. But it is not contended, that the charter must be given that interpretation. The theory on which the special tax is levied is that it is to pay for the benefit conferred. To determine by a general rule the actual benefit that each lot or piece of property would derive from the improvement, or its actual proportion of the cost as compared with the benefit to other lots, and lay the tax so as to impose on each piece of property the burden of paying for its especial benefit, is a problem that human ingenuity has not yet solved. It is one of the natural infirmities of human laws that they cannot always measure out evenhanded justice to every one; hardships will sometimes occur under the application of any general law. A rule by which a benefit district in a case of street improvement is to be marked out, like all laws, is aimed to do justice in a general way, but cannot be made to fit every case; it would be a physical impossibility to accomplish absolute equality. The sizes and shapes of the lots, the courses of the streets and other physical facts necessarily cause inequality.

The framers of this section of the city charter evidently realized the difficulty of making a general law to fit every case; they knew what the different conditions were, the different sizes, shapes and locations of the lots, and the sometimes irregular courses of the streets; they knew that in some places there would be parallel or converging' streets on both sides of the street to be improved, and they made a rule for that condition; they knew that sometimes there might be no parallel or converging street on either side, and they made a rule for that; and they knew that there might he a parallel o.r converging street on one side hut none on the other, and they made a rule for that condition. Thus they seem to have contemplated every possible condition and to have made provision for it. When we are interpreting a written law we must presume that the law-writers were cognizant of the conditions about which they were writing' and wrote with those conditions in mind; we must presume that the writers of this section of the charter knew that the benefit districts to be marked out under the rules laid down would in some cases work inequality and they knew also that they could not lay down a rule that would accomplish equality in every case. We cannot say therefore that this ordinance is not within the true meaning of the charter provision merely because it resulted in inequality. But by the use of the word inequality in this connection we do not necessarily mean injustice. The special tax to pay the cost of street improvement is based on the theory that the improvement benefits the property. Whether a proposed improvement is of a. character that will behefit the property is in the first instance a legislative question and courts will not interfere to prevent the assessment, except perhaps to prevent palpable abuse of power. The subject being in the first place within the legislative discretion, that discretion goes to determine the territorial extent to which the benefit will go. The legislative authority in this instance has said that, although on one side of the street the rule laid down may take in greater depth in area than on the other, yet the rule must be the same for both, because the benefit will extend proportionately as well to the middle of a deep lot as to a shallow one, and the street to be improved will afford an outgoing and an incoming from and to a point in the middle line of the deep> lot of the same character as from a like point in the shallow lot, the tax per square foot is the same in both lots, and if the owner of one must pay more than the owner of the other it is because the benefit to the one has a larger extent than the other.

In Collier v. Paving Co., 180 Mo. 363, this court required the boundaries of a benefit district to be corrected so as to carry the western line in property in Westmoreland and Portland Places to the midway between Kingshighway and Union avenue, because Union avenue was, in reference to those two places, the next parallel street to the street improved; whereas the property lying alongside of Portland Place on the north was assessed to a depth less than half that imposed on Westmoreland and Portland Places, because it was found that north of those two places there was a street between Kingshighway and Union avenue. In that case in the corrected boundary which this court required to be made there was a very great inequality, not so great as in the ease at bar, but too great to be passed over as unimportant if inequality were a valid objection. Appellant recognizes the force of the decision in the Collier case, but seeks to distinguish it, nof on the ground that the inequality is greater in this ease than it was in that, but on the ground that Westmoreland and Portland Places were platted and subdivided into lots, whereas appellant’s property is a solid, undivided and unplatted tract of land. Assuming that Westmoreland and Portland Places were subdivided into lots and platted (although that fact does not very distinctly appear in the report of the case), the decision does not in any degree rest on that fact. It appeared in that case that Lake avenue was a street running from Lindell avenue north through Westmoreland and Portland Places, thence on to Delmar avenue, and the benefit district had originally been established with its western boundary midway between Kingshighway, the street improved, and Lake avenue, all the way from Lindell avenue to Delmar, but it appeared in the evidence that Lake avenue, from Lindell on through Westmoreland and Portland Places, was only a private street, whereas from thence on it was a public street, and this court said that a private street was no street in the sense of that section of the charter, and therefore required the western line to be carried- out to a line midway between Kingshighway and Union avenue, but left the boundary, as it had been from Portland Place north to Delmar avenue, that is, midway between Kingshighway and Lake avenue. The decision did not notice at all the fact, if it was a fact, that those places were subdivided into lots and platted, but the decision rested solely on the ground that, as to those places, Union avenue was the next parallel street to Kings-highway.

It is contended that the reference in the charter to a condition in which there would be no parallel or converging street on either side of the street to be improved, would be meaningless unless it was intended to mean that on each side of the street to be improved there was a tract of land unplatted and undivided into lots. If that is what the charter was intended to mean, the meaning could have been expressed a great deal more clearly.

Appellant’s argument proceeds on the idea that one cannot imagine a street in the city to which there would be no parallel or converging street on either side. In the argument on the part of the respondent our attention was called to what was said to be a public street in a narrow strip of land in the.city where there was no street on either side.

. A contention very similar to this was made in Fruin-Bambrick Construction Co. v. Shovel Co., 211 Mo. 524, and ruled against the contention. In construing a statute we have no right to import into it words that convey an idea not otherwise found in it, even if without such importation we should have to leave it meaningless. A reading of this section shows that it was written with care and understanding, the language- is unambiguous and is not susceptible of the construction sought to be put on it. During the oral argument a map of the city was displayed by the learned counsel fox appellant and our attention was drawn to a large area in the southwest portion of the city that seemed to be undivided and unplatted tracts of land. There is nothing in the record before us that draws that area into this controversy and therefore nothing that is said in this opinion is intended as an indication as to what should be done when street improvement reaches that part of the city’s - territory. Whatever other criticism may be made of the section now under discussion it cannot be said that the language employed is otherwise than clear and explicit.

We are referred to a decision of the Kentucky Court of Appeals, Louisville v. Asphalt Co., 102 S. W. 806. In that case the city charter required the cost of the improvement to be taxed against the “surrounding squares,” and the court held that a tract of land of 47 acres which lay on one side of the street improved was not a “square” within the meaning of the charter. The words “square” and “block” when used to designate a piece of land in a city are synonymous terms. We find the word “square” used chiefly in southern cities and the word “block” elsewhere, but they mean the same thing; they mean a piece of land defined by streets surrounding it. A statute of Kentucky (Ky. St. 1903, sec. 2833) defines the word “square,” to be a subdivision bounded on all sides by principal streets. And the Kentucky Court in Caldwell v. Rupert, 73 Ky. 179, so defined the word as used in the charter of the city of Louisville. In State v. Natal, 42 La. Ann. 612, the Louisiana court said that the word ‘ ‘ square’ ’ used in an ordinance of the city of New Orleans was synonymous with the word “block” used in another ordinance. See 7 Words and Phrases, p. 6618. Therefore in the Kentucky case, to which appellant refers, the court was considering the word “square,” as defined by its statute and previous decisions, in reference to an undefined tract of 47 acres. There is nothing in that case against our decisions in the Collier and other eases.

As to the Kansas case to which we are referred (McGrew v. Kansas City, 64 Kas. 61), we find nothing therein contrary- to our, decisions. The Kansas court was dealing with a Kansas statute which declaimed that where the lands are platted the cost of the improvement was to be assessed on all the lots and pieces of ground to the center of the block and on the unplatted land to the depth of three hundred feet. The court said: “According to the common understanding, a block is a portion of platted ground in a, city, surrounded by streets, and the term is not ordinarily applied to a tract of unplatted land.” And so the court held that the tract of unplatted land in that ease should be assessed, hot as a block, but, as the statute required, as unplatted land. But the section of the city charter with which we are concerned is not like the Kansas statute.

The rule laid down in the Collier case above mentioned and followed and approved in Fruin-Bambrick Construction Co. v. Shovel Co., 211 Mo. 524, and State ex rel. v. St. Louis, 211 Mo. 591, has, as stated in the brief of counsel for the city, been accepted as the correct rule and followed in other cases- in establishing the boundaries of the benefit districts, and we ought not to depart from the rule even if the argument for appellant was more persuasive than it is.

II. Appellant contends that this, -section of the city charter, as we have interpreted it, is in violation of sections 25 and 30 of article 2 of the Missouri Constitution and the Fourteenth Amendment of the United States Constitution. The same contention was present in the cases above referred to. [Collier v. Paving Co., 180 Mo. 362; Fruin-Bambrick Const. Co. v. St. Louis Shovel Co., 211 Mo. 524.] And also in Meier v. City of St. Louis, 180 Mo. 391. In those cases we interpreted the section of the charter as we interpret it in this case, and we held that it was not in conflict with either of the sections of the State Constitution mentioned ox of the Fourteenth Amendment to the Federal Constitution. In the opinions in those cases we have fully expressed our views on that subject and have nothing more to say. We hold that the section of the charter in question is not repugnant to either the State or Federal Constitution.

III. According to the terms of this judgment it bears interest from its date until paid at the rate of eight per cent per annum. In that respect the judgment is in conflict with section 3707, Revised Statutes 1899, which provides that a judgment on a contract which bears more than six per cent interest shall bear interest at the same rate as that expressed in the contract, but all other judgments are to bear interest at six per cent.

According to the city charter, section 25 of article 6, a special taxbill, after the prescribed notice and after maturity, bears interest at eight per cent. But a special taxbill is not a contract; it is evidence of a burden that the taxing power of the city government has imposed on the property, to which the property owner has given no consent and as to which his consent is immaterial. Therefore, a judgment on a special taxbill is not to be treated as a judgment on a contract, and is not to bear interest at á greater rate than six per cent because the taxbill does. Respondent to sustain the judgment in this particular refers to Dickey v. Porter, 203 Mo. 1, l. c. 39, where this court affirmed a judgment on a Kansas City special taxbill which bore ten per cent interest. It appeared in that case that the charter of Kansas City not only allowed interest at ten per cent on the taxbill after maturity, but it provided also that the judgment on the taxbill should bear the same rate of interest. Counsel for appellant question the authority of a city under section 16 of article 9 of the Constitution to make a law authorizing a higher rate of interest on a judgment than that prescribed by the statute, in the face of the constitutional limitation, “but such charter shall always be in harmony with and subject to the Constitution and laws of the State.” But no point of that kind was .raised or discussed in that case. Whatever may be said as to the validity of the charter provision of Kansas City on that point, the case cited is no authority in support of the judgment now before us, because there is no such provision in the charter of the city of St. Louis.. The following cases cited in the briefs of appellant’s counsel sustain their view of the law on this point: St. Louis v. Allen, 53 Mo. 44, l. c. 57; St. Joseph v. Forsee, 110 Mo. App. 237, l. c. 243; Paving Co. v. Field, 134 Mo. App. 663, l. c. 668.

This is the only error w¿ find in the record, but for this error the judgment must be reversed. It is therefore ordered that the judgment be reversed and the cause remanded to the circuit court with directions to enter judgment for the plaintiff as of date February 18, 1907, for the sum of $20,190.38., and in all respects as the judgment from which this apjoeal was taken, except that instead of eight per cent per annum the judgment is to bear interest at the rate of six per cent per annum from February 18,1807, until satisfied. The appellant to recover costs in this court.

The foregoing opinion by Valliant, J~., in Division No. 1, is adopted as the opinion of the Court in Banc. Gantt, Lamm and Kennish, JJ., concur; Burgess, C. J., absent; Woodson and Graves, JJ., dissent in dissenting opinion by Woodson J.

DISSENTING OPINION.

WOODSON, J.

I dissent from the majority opinion in this cause for the reason that in my judgment tlie charter provision in question only applies to tracts of land which, are platted and laid out in lots- and blocks, streets, avenues and alleys.

I am also of the opinion that if said charter provision was intended to apply - to unplatted ground, then in my judgment it would be violative of both the State and Federal constitutions.

Graves, J., concurs with the foregoing views.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    LACKAWANNA COAL & IRON COMPANY, Appellant, v. ROBERT J. LONG.
    Division One,
    December 23, 1910.
    1. INJUNCTION AGAINST CONVEYANCE: Necessary Showing. Unless the vendee by his suit in equity can compel the vendor to convey to him, he cannot by injunction restrain the vendor from conveying to a third party. As a condition precedent to . such injunctive relief, the vendee’s' bill, when challenged by demurrer, must state facts entitling him to specific performance of a contract of sale; and that must be the holding, whether he may or may not have damages at law for a breach of a contract of sale.
    2. -: -■-: Pleading: Ownership. When the sufficiency of a pleading is challenged by demurrer, courts look not only to the material averments present, but to those absent. A petition by the vendee to enjoin the vendor from selling the land, should unequivocally allege that the vendor is the owner, else it does not state facts which would entitle the vendee to specific performance of his contract of sale, and therefore does not state a cause of action.
    3. -: -: -: Demurrer: Exhibits. A demurrer aims a blow at the face of the pleading and nowhere else. Exhibits attached to the petition against which a demurrer is leveled cannot be considered. So that where it is alleged that plaintiff by contract bought land from defendant, and those contracts are not set forth in full or their terms and covenants in substance, attached copies of the contracts cannot, when a demurrer is filed, be considered in aid of the petition’s allegations.

      4. -: -: -: Specific Performance: Vague Contract. Contracts for the sale of land, in order to he specifically performed by a court of equity, must not be vague and uncertain in terms and intendment, but clear, definite, certain and complete. A bill alleging that plaintiff’s assignor paid defendant $2000 down for the purchase of certain land, and agreed to pay $58,000 more “as soon as the title is perfected” — $18,000 in cash and the balance on or before five years — and no more— does not plead a definite contract — since it says nothing about abstracts of title, nothing about time for discovering and curing defects, nothing about what kind of title was to pass or what kind of deed was to be made, nothing about what was to be done if incurable defects in title were found, and nothing about security for the deferred $40,000 or interest— all of which are material in specific performance. And a supplemental agreement and a “proceeding in court” discussed in the opinion are still more defective in material terms, and the allegations in reference to them are mere conclusions of law, and not a statement of ultimate facts.
    5. -: Allegation That Title Is Not Perfect, But Vendor Claims It Is. A petition, which, in effect, alleges that defendant sold the land to plaintiff and agreed to perfect the title, but has not done so; that defendant now claims the title is perfect and threatens to sell the land to another, and prays that defendant be restrained from selling it, does not state a cause of action for injunctive relief.
    Appeal from Jackson Circuit Court. — How. John G. Park, Judge.
    Affirmed.

      Johnson & Lucas for appellant.
    The petition is good on general demurrer. Bliss on Code Pleading (3 Ed.), sec. 425a; Stillwell v. Hanson, 97 Mo. 585; Hickory County v. Fugate, 143 Mo. 79; Rodgers v. Fire Ins. Co., 186 Mo. 255; Railroad v. Adams, 62 N. J. Eq. 661.

      Peak S Strother for respondent.
    (1) The copies of the contracts mentioned in the petition and filed as exhibits with it, constitute no, part of it and cannot be used, in passing on the demurrer, to eke out its insufficiency. Curry v. Lackey, 35 Mo. 389; Robinson v. Levy, 217 Mo. 510. (2) A. demurrer admits only facts well pleaded. It does not admit the conclusions drawn by the pleader from the facts pleaded. It does not admit conclusions of law. Chemical Works v. Nemnich, 169 Mo. 395; Martin v. Castle, 193 Mo. 194; Donovan v. Boeck, 217 Mo. 83; Garner v. Meyer, 48 Mo. 319 ; Blaine v. Knapp & Co., 140 Mo. 241; Knapp, Stout & Co. v. St. Louis, 156 Mo. 352; Hand v. St. Louis, 158 Mo. 212; Kleekamp v. Meyer, 5 Mo. App. 448; Dannan v. Coleman, 8 Mo. App. 595. (3) The petition does not show that plaintiff is entitled to either an injunction or specific performance, and hence, does not state a cause of action. Ryan v. Dunlap, 111 Mo. 610; Goldthwait v. Lynch, 9 Utah 186; Taylor v. Williams, 45 Mo. 80; Wendover v. Baker, 121 Mo. 292.
   LAMM, P. J.

Cast, nisi, on a general demurrer to its amended bill in equity, plaintiff stood, suffered judgment and comes up by appeal.

The question here is single and seeks the bill. Omitting caption and description by metes and bounds of the land in question, it best speaks for itself — thus:

“The above named plaintiff for its amended petition states that it is and was at all times hereinafter named a corporation duly organized and existing under the laws of Missouri; that on the 24th day of May, 1906, one E. O. Deshler, by written contract, a copy of which verified by affidavit is herewith filed, purchased of defendant, Robert J. Long, the following described real estate in Jackson county, Missouri, to-wit:
“A part of the southeast quarter of the southwest quarter of section thirty-six, township fifty, range thirty-three more particularly described as follows : . . .
“That said Deshler paid to said Long on said contract the sum of two thousand dollars and agreed by the terms thereof to pay for said real estate the additional sum of fifty-eight thousand dollars, as soon as. the title thereto was perfected, eighteen thousand dollars of which was to he paid.in cash, and the remainder, on or before five years; that the title to said real estate was found to be defective, and said Long undertook to cure the defects thereof by a proceeding in court, and a supplementary agreement dated June 30, 1906, a copy of which is hereto attached, was entered into to that effect; that said proceeding has not become effective; that on the 20th day of September, 1906, plaintiff by deed duly recorded acquired said land from said Deshler; that said Long now claims that said title is perfect and that he hhs the right to retain said sum of two thousand dollars, so paid as aforesaid, and although said contract is still in force, and plaintiff is able, willing and ready to comply with the terms thereof as soon as said title is made perfect, and s.aid Deshler and plaintiff have done so as far as was possible, defendant threatens to sell and convey said real estate to some one unknown to plaintiff.
“"Wherefore, plaintiff prays that said Long be enjoined and restrained from conveying said real estate to any one except this plaintiff, and be required to convey the same to this plaintiff as soon as the title is perfected, and for such other and further relief as the premises may justify.”

(a). Observe, the object and life of the bill,is to tie the hands of defendant by injunction, so he cannot convey the land (assuming for the nonce he owns it) to any other than plaintiff. Now, the right of alienation, the jus disponendi, is. of the essence of a fee and a vendee may not interfere with that right in chancery unless by virtue of a contract which should be specifically enforced. Therefore, a plaintiff, as a condition precedent to such injunctive relief as here asked, must (when challenged by demurrer) show a bill stating facts entitling him to specific performance. Otherwise, the result might he that a vendor would be enjoined from selling or conveying to another than the complaining vendee, when, at the selfsame time, such vendee could not compel a conveyance to him — a proposition not in line with good conscience and good sense, opening a wide door for mischief; for a vendee by his injunction against alienation might thereby force performance on his vendor by moving in a circle when he could not have it by moving in a straight line to his goal by direct proceeding. I know of no policy of the law permitting a vendee to play such role. In equity it is no concern of his what a vendor does with his land, unless the vendee by his suit in equity can compel the vendor to convey to him. He may or may not have his damages at law for a breach of a sale contract, but it is clear that if he cannot have performance in kind, he should not tie up the land itself.

On this view of it, the bill should show the right to specific performance by pleading facts from which such right is bound to flow — he must show a contract capable of being performed. Moreover, when the question is the sufficiency of a pleading challenged by demurrer, courts look not only to the material averments present but to those absent. Judged of in that way, keeping in mind the necessity of a right in plaintiff 'to compel ultimate specific performance as a basis for the specific injunctive relief prayed, the demurrer was well ruled. This, because:

'(b). Separating the bill into those elemental facts constitutive of a cause of action (and herein of those elements absent as well as present), it is plain there is no allegation that Long owned, or had title to, the land. It alleges Deshler, by written contract, purchased it of him. Speaking loosely, when A purchases •anything from B there might be an inference that A could not purchase from B unless B owned the thing, the subject of the dicker and sale. So there are other allegations faintly smacking of ownership and title in Long, all of them more or less vague and implied — for instance, one relates to curing defects in the title; another to the claims of Long that the title was perfect; yet others to Long’s threats to sell and convey to another person, to a payment of two thousand dollars' by Ueshier to Long, to plaintiff’s acquiring the land from Deshler — so, the prayer of the bill (which we ought not to look to on demurrer) is that Long be restrained from conveying to another — from all of which, by grace of great liberality in construing the' terms and intendment of the pleading, an implication might arise that Long owned the land or had some title ■thereto and contracted to sell as owner. But a plain, bald, direct allegation of ownership, or claim of ownership or of title, or of a sale contract as owner, as- said, is nowhere found. We are not dealing here with the sufficiency of a bill after decree, but are,considering a challenge to the bill in limine, and the correct doctrine is that more grace is extended in the former than in the latter case. Now, whatever cause of action could arise to a plaintiff at law for damages for a breach of a contract of purchase and sale of land from one who did not own the land or have title- thereto, yet an allegation of ownership- and, hence, of potential ability to presently perform.seems material in a bill as a foundation to the right to specific performance; for it is dear equity that no performance will go, absent ability to perform. It would be a vain thing to do that and it is the boast of equity that it does nothing in vain.

(c). The bill is predicated on two contracts — one supplementing the other. It is not pretended either is set forth totidem verbis; neither is it charged that their terms and covenants are fully pleaded in substance. It is alleged that copies are attached as exhibits. We are not expressly invited by appellant to go to them in aid of the bill, but the trend of argument, to our mind, seems to indicate a hope or expectation we might do so. It is elementary, however, in this jurisdiction (whatever the rule elsewhere) that on demurrer the allegations of the pleading struck at may be neither impugned nor aided by exhibits. A demurrer delivers a blow at the face of the pleading and nowhere else. Therefore, that which does not appear there is the same as if it did not exist, and what is hid away in an exhibit is out of the line of judicial vision on demurrer. [Hubbard v. Slavens, 218 Mo. l. c. 622, and cases cited.]

(d). It is not necessary to cite authority to sustain the fundamental proposition that in specific performance a chancellor will not make contracts for parties. Parties must make their own, and the chancellor, moving in the orbit of a sound judicial discretion, performs them as made — not otherwise. Prom that premise is deduced the doctrine that contracts in order to be specifically performed must not be vague and-uncertain in terms and intendment, but clear, definite, certain and complete. Whatever is provided in the contract for each party to do, in due order, should be stated by the pleader, and performance by the party seeking specific-performance should be alleged and proved, unless his performance is prevented by a wrongful act or is waived in some way recognized by the law of waiver.

Testing the bill by these propositions, its insufficiency sufficiently appears. Because:

Speaking of the first contract, the bill alleges that Deshler paid Long $2000' down, agreed to pay $58,-000 “as soon as the title was perfected,” $18,000 in cash and the remainder on or before five years. Does the pleader want us to understand that the contract contains nothing about an abstract of title, nothing about time for the discovery of defects, .nothing about time in which such defects were to be cured, nothing about what kind of title was to pass, or what kind of a deed made, or which party was to take the laboring oar in perfecting the title, and nothing about what was to happen if defects found proved incurable? That nothing was said about time of completed performance, except such as may be gathered from the vague and indefinite allegation, “as soon as the title was perfected?” So, the contract involved a large amount. Eighteen thousand' dollars was to be paid when the title was “perfected,” and forty thousand dollars on or before five years. Does the pleader want us to understand there was no contract provision relating to security for deferred payment, or for providing for evidencing it in any way, or regulating interest; or, if security was to be given in the form and nature of a mortgage, that the contract was silent on the terms and provisions of such mortgage? All these things are material in specific performance. The same equity that does nothing by halves will not perform blindly. Before it acts, it must see what is contracted to- be done and do that, no more nor no less, or do nothing.

Referring to the' supplementary contract attached as an exhibit, the- bill alleges that the title “was found to be defective and said Long undertook to cure the defects thereof by a proceeding in court, and a supplemental agreement, dated June 30,1906, a copy of which is hereto attached, was entered into to that effect.” Does the pleader want us to understand that was all of the supplemental agreement? That there was nothing in it setting forth wherein the title was found defective-, or whether the defects were such as could be cured? But the pleader says Long “undertook to cure the defects by a proceeding in court.” Does the pleader want us to understand there was no limit of time placed upon this proceeding in the supplementary agreement, or no court or proceeding pointed out? But it is further alleged that “said proceeding has not become effective.” “What does that mean? Does it mean that Long brought the right kind of a suit in the right court at the right time, but failed to get a decree and was cast in the case, or does it mean that he got a decree which was void for some reason, or does it mean that the defects were found not to exist or that they were incurable, or that a decree was entered not broad or deep enough to reach all the defects? Again, it is alleged that “Long now claims the title is’perfect,’’ that the contract is ‘ ‘ still in force and plaintiff is able and willing to comply with the terms thereof as soon as the said title is made perfect and said Deshler and plaintiff have done so so far as was possible.” What do those allegations mean? Do they mean that defendant insists he has a good title and is ready to transfer it, but that plaintiff claims the title is bad and he is. not willing to receive it until it is made “perfect?” If that be the meaning, and it seems to be, then plaintiff states himself out of a court of equity; for if the title tendered by defendant is bad and the bill (as here) does not show it can be perfected, it would be droll equity that would tie up the land by a writ of injunction until ‘ ‘ such title is made perfect. ’ ’ That would give a most unconscionable advantage to the vendee; for the time might run to the Greek kalends. With his injunction in force, he could lie by for many years refusing to take the title tendered and speculating on the rise of the land, thereby doing an injury to his vendor the latter was powerless to prevent. The maxim is: Equity will not decree inequity. “A judge,” says Sir Edward Coke (3 Coke’s Inst. 147), “should have two salts — the salt of wisdom, lest he be insipid; and the salt of conscience, lest he be devilish.” A judge issuing a writ of injunction as prayed in this bill on the allegations there made, would have neither salt.

It would seem the vendee’s remedy in such event would be at law for damages. A vendee may have performance of the part that can be performed and his damages for the part not performed if he choose that course, but this bill does not run on any such theory. It runs on the theory that plaintiff refuses to perform by taking the offered title and makes no allegations upon which damages, could be predicated and hone showing the title is susceptible of being made perfect.

The word “defective,” relating to the title, and the word “effective,” relating to the court proceeding, and the word “perfected,” relating to the title, and the phrase “as soon as the title is perfected,” and the phrase “was entered into to that effect,” referring to the supplementary agreement, and the phrase “undertook to cure the defects,” without mentioning what the defects were or in what way he “undertook” the cure — ' one and all are legal conclusions. They do not purport to constitute the facts constitutive of a cause of action, but plainly import mere conclusions of the pleader and conceal rather than disclose the ultimate and substantive facts. If the facts had also been stated, such words and phrases would not have vitiated the pleading, but standing alone they do not state the substantive facts giving a cause of action.

A demurrer admits facts pleaded only when they are well pleaded and are not absurd or impossible. It does not admit legal conclusions. [Mallinckrodt Chemical Works v. Nemnich, 169 Mo. l. c. 397, et seq., and cases cited; Martin v. Castle, 193 Mo. l. c. 194.] In Donovan v. Boeck, 217 Mo. l. c. 83, we said: “It” (the demurrer) “does not admit the soundness of conclusions of law in the plea, nor mere conclusions of the pleader on the facts constitutive of the cause of action.” In Dillon v. Barnard, 21 Wall. l. c. 437, it was ruled that a demurrer does not admit matter of inference and argument, however clearly stated. “The several -averments of plaintiff in the bill as to his understanding of his rights,” says Field., Justice, “and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposition of the demurrer.”

We see no error in the ruling on the demurrer. Let the judgment dismissing the bill be affirmed. It is so ordered.

All concur.


author: GRAVES, J.

text:
    PETER DeMAET v. FIDELITY STORAGE, PACKING and MOVING COMPANY, Appellant.
    Division One,
    December 23, 1910.
    1. NEGLIGENCE: Hastening Death. Even though deceased was afflicted with certain organic troubles which would have shortly terminated her life, yet if the negligence of defendant hastened her death, it is liable for damages.
    2. -: Conjecture: Different Causes of Death: D.emurrer. There was evidence that deceased had three or four organic troubles which might have caused her death, and there was evidence that her death was due to the negligence of defendant, whose driver, in charge of a vehicle, struck her, throwing her to the pavement. In addition to those facts she was down town in apparent good health at the time she was struck by the vehicle, on the 4th of the month; she went home and took to her bed and there remained until her death on the 20th; her attending physician testified that, whilst he did not know exactly what caused her death, in his opinion it resulted either from a hemorrhage of the brain or from the shock; and'opposed to this theory, was the testimony of the physicians who held the autopsy and discovered the organic diseases. Held, that the verdict for plaintiff was not based on conjecture, but there was substantial evidence to support it, and the demurrer to the evidence was properly overruled. [Overruling DeMaet v. Fidelity Storage, Packing & Moving Co., 121 Mo. App. 92.]
    3. -: Question; Cause of Death: No Objection. A question asked of a physician, “What in your judgment was the cause of the death of plaintiff’s wife?” should be ruled out upon proper objection, because it calls upon the witness to determine the issue which is to be left to the jury; but the objection, “The witness has not qualified as an' expert,” is without force, and being the only objection, no reversible error resulted from the question.
    4. -: Expert: Physician. A witness who is a graduate of a medical college and has been a regular practicing physician in this State for eight years, and attended the deceased twelve days of the sixteen she survived the injury, is a competent expert to testify what caused her death.
    Appeal 'from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.

      Affirmed.

      Jeptha D. Hoioe, A. E. L. Gardner, Alphonso Ilowe and Henderson, Marshall & Becker for appellant.

      John A. Tally for respondent.
   GRAVES, J.

This case is certified to this court by the St. Louis Court of Appeals-. The principal opinion is written by Hon. Eugene C. Tittman, as a special judge, and concurred in by Bland, P. J. Plaintiff was the husband of Predentia DeMaet, and as such brought suit for the alleged negligent killing of his wife by the defendant. Upon a trial in the lower court the plaintiff recovered. Upon a hearing in the St. Louis Court of Appeals the judgment was reversed outright by the concurrence of the two judges aforesaid. Judge Goode, however, was of the opinion that the plaintiff had made a case for the jury and dissented, and in such dissent, asked that the cause be certified to this court on the grounds that the majority opinion was in conflict with the cases of Stafford v. Adams, 113 Mo. App. 717, and Rattan v. Railroad, 120 Mo. App. 270. Vide, DeMaet v. Fidelity Storage, Packing & Moving Co., 121 Mo. App. 92.

From the dissenting opinion of Goode, J., it appears that the case turns, upon the facts somewhat more than the law. His contention is that, under certain facts detailed in his opinion, the case was one for the jury, and under those facts the majority ruling was adverse to the two cases cited. This reduces the question here to the force and effect of the facts shown, and the further question as to whether or not the two cases mentioned go as far as Judge Goode was of the impression they did go; and it might be added that, if they did so go, whether or not the cases declared the law. The facts upon both sides are discussed and stated in the two opinions.* For brevity in this statement we refer to the opinions of the Conrt of Appeals, which should he examined for details. We, however, must go over more or less of the evidence in discussing the points made by counsel, as well as the- point made in the dissenting opinion. Having this duty imposed we leave the detailed facts to be discussed in the course of the opinion. This in a general way sufficiently states the case.

I. The principal opinion from the Court of Appeals plants itself upon the proposition that the trial court was in error in not sustaining a demurrer to the testimony. The petition charges that one of defendant’s employees, in charge of and driving one of defendant’s vehicles, negligently struck the wife of plaintiff, throwing her to the pavement, and inflicting such injuries as subsequently occasioned her death. Several disputed questions are suggested by the evidence, thus: (a) Was the driver upon that day in the actual service of defendant, or was he at the time using one of defendant’s rigs in his own private business? There is proof both ways upon this question, (b) Another question is whether the driver ran on to plaintiff ’s wife, or plaintiff’s wife ran into the vehicle. Upon this question the evidence is again conflicting, (c) Likewise the evidence tending to show negligence or no negligence upon the part of the driver is conflicting, (d) The same may be said of the evidence as to the alleged contributory negligence of deceased.

The principal opinion'does not question the propriety of the judgment nisi upon any of these questions, but says: “The most that can be said for the plaintiff is that the whole evidence taken together shows that death resulted either from the injury received from the buggy, or from one of three chronic diseases of long standing, but which of these conditions was the cause can only be a matter of conjecture. For the foregoing reasons, in my opinion, the j^idgment of the lower court should be reversed.”

The opinion in effect concedes that the effect of the alleged injury might have been the cause of the death. It says that there are four causes to which the death might have been attributed; this, upon the result of an autopsy held upon the body of deceased, and as testified to by the physicians holding the autopsy. This evidence indicated that the deceased was troubled with some three or more organic troubles which might cause death. The details are set forth in the opinion of Judge Tittman. Because the death might have resulted from these organic troubles or from the injury, it is held that the case falls within the field of conjecture, and for that reason the demurrer should have been sustained. In the dissenting opinion of Goode, J., is set forth the evidence upon which he thinks the case was one for the consideration of the jury. This evidence in its fullness can be gathered from his opinion. But beyond what he sets out in full it must be remembered that it was shown that the plaintiff was down town in apparent good health, at the time she collided with the vehicle of the defendant. It should also be remembered that she went home and took to her bed and there remained until the date of her death, which occurred within a month of the date of the collision. She was injured on the 4-th of the month and died upon the 20th. Reading the evidence for the plaintiff it appears that her attending physician said that whilst he did not know exactly what caused the death of the woman, yet in his judgment it either resulted from a hemorrhage of the brain, or from the shock. Opposed to this theory was the testimony of the physicians holding the autop-sy.

It appears clearly from the evidence that this woman was walking the streets of St. Louis in apparent health. It appears that she had done'the household work for her family, and this, too, without serious illness. Be it granted that there were certain organic troubles which would have shortly terminated her life, yet if the negligence of the defendant hastened the result, it is yet liable. [Strode v. Railroad, 197 Mo. l. c. 621.]

With evidence in the case to the effect that deceased, apparently strong and healthy before the accident, immediately thereafter took to her bed and there remained until her death, it will not do to say that the case is one falling within the rule of conjecture. The same question has been so recently gone over by this court that further elaboration is not required. [McDonald v. Railroad, 219 Mo. 468; Sharp v. Railroad, 213 Mo. 517.]

In the Sharp case the question was as to whether the death resulted from the injury or from pneumonia pure and simple. The medical testimony was much as it is in this case. Not only so, but the physical facts were much as they are ,in this case. The case is too recent to justify quotation therefrom, but the language of Lámm, J., therein, maybe read with interest in connection with the facts of the case at bar. Likewise strong is the later case of McDonald v. Railroad, supra. These cases to our minds determine this controversy. These eases were not before the Court of Appeals at the time the opinions were written herein. The doctrine of these two cases accords with the views of the two cases from the Kansas City Court of Appeals, cited by Goode, J., in his dissent.

The facts of the case at bar justified the submission of the case to the juay and the demurrer to the testimony was properly overruled by the trial court. On this question, and this is the only one passed upon by the Court of Appeals, the judgment of that court is wrong and the judgment of the circuit court is right. Other questions in the record we take up later.

II. The demurrer to the evidence was the only question considered by the Court of Appeals. The case being here it becomes necessary for us to consider the whole case. One or two other points made deserve mention. Dr. Callowitz, the attending physician, was asked to state what in his judgment was the cause of the death of plaintiff’s wife. Pie treated her from May 4th to May 16th. He was a regular practicing physician of some eight years’ standing. It would serve no good purpose to set out the question asked, because it is one which has. been condemned by this court where proper objection was made. It called upon the witness to determine the exact question which should have been left to the jury. [Roscoe v. Railroad, 202 Mo. 576.] But granting this, the objection made does not raise the question. [Longan v. Weltmer, 180 Mo. 322; Roscoe v. Railroad, 202 Mo. l. c. 595.] The objection made was, “The witness has not qualified as an expert.” With the evidence in the record that the witness was a graduate of a medical college and a regular practicing physician in this State for eight years, this objection is without force. No objection, is made as to the form of the question. Under these circumstances there is. no substance in this contention.

III. Complaint is made of the instructions given for the plaintiff, hut an examination of these instruc- ■ tions shows that they are as liberal to the defendant as the law of the case would permit. They are clearly drawn and along proper lines. To reproduce them here would but add surplusage to the opinion. The earnest opposition to the judgment is directed to the demurrer to the testimony and not to other matters.

• An examination of the whole record leaves us of the opinion that the judgment of the circuit court should be affirmed and it is so ordered.

All concur.


author: VALLIANT, J.

text:
    EVA C. HARLAN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    December 23, 1910.
    1. APPELLATE JURISDICTION: Change In Law After Transfer. Where the judgment was for $4500 damages for the alleged negligent killing of plaintiff’s husband, and it was contended on appeal to the Court of Appeals that her right of action was under Sec. 2864, R. S. 1899, wherein the amount to be recovered was fixed as a penalty at the sum of $5000, and that court therefore deemed the amount in dispute to be $5000 and transferred ,the case to the Supreme Court, but before it was submitted the statute was so changed as to increase the pecuniary jurisdiction of the Court of Appeals to $7500, the case will be transferred back to that court.
    2. -: Conflict In Decisions: Not Ground of Transfer. Where the case was not transferred to the Supreme Court on the ground that there was a conflict between the decisions of different courts of appeals on the same point, jurisdiction will not be retained or assumed because of such admitted conflict; nor, indeed, can the Supreme Court obtain jurisdiction on that ground until the Court of Appeals delivers an opinion in the case which is in conflict with an opinion of another Court of Appeals.
    3. NEGLIGENCE: Amount of Damages: Injury Prior to Amendment of 1905. A cause of action, under Sec. 2864, R. S. 1899, whereby the damages of a wife for the negligent killing of her husband is fixed at $5000, arising prior to the amendment of 1905, whereby the penalty was fixed at not less than $2000 nor more than $10,000, is not affected by that amendment, nor does the amendment have any application thereto.
    Appeal from Jackson Circuit Court. — Hon. W. B. Teasdale, Judge.
    Transferred to Kansas City Court of Appeals.
   VALLIANT, J.

This is an appeal from a judgment for $4500damages for the alleged negligent killing of the plaintiff’s husband by the defendant railroad company. The appeal was taken to the Kansas City Court of Appeals. It was contended in that court that the plaintiff’s right of action was under section 2864, Revised Statutes 1809, wherein the amount to be recovered was fixed as a penalty at the sum of $5000. In view of that contention the Kansas City Court of Appeals held that as $5000 was the sum' in dispute it had no jurisdiction, and for that reason it transferred the cause to this court. Since the cause has been pending in this court the General Assembly has passed an act raising the limit of the pecuniary jurisdiction of the courts of appeals to $7500', but at the date of that act, June 12, 1909' (Laws 1909', p. 397), this cause had not been submitted in this court, and therefore by force of the terms of that act this court was. required to transfer this cause back to the Kansas City Court of Appeals, but that was not done then because the case was not brought to the notice of the court.

In going through the briefs we discover that the point is presented that there is a conflict in two decisions, one of the Kansas City Court of Appeals and the other in the St. Louis Court of Appeals (Marsh v. Railroad, 104 Mo. App. 577, and Casey v. Railroad, 116 Mo. App. 235) on the question of whether a pers'on can recover less than $5000' under section 2864, Revised Statutes 1899. But this case was not certified to this court under section 6 of ' the Amendment of 1884, authorizing a court of appeals to so certify a cause when, in the opinion of one of the judges, the decision is contrary to a previous decision of this court or of another court of appeals. Indeed until the Kansas City Court of Appeals had decided this case there could have been no such conflict, and no such conflict as between the two cases last named can now arise, because this court'has settled that conflict. [Casey v. Railroad, 205 Mo. 721.]

The cause of action arose in 1903 and therefore the amendment of 1905 to section 2864, Revised Statutes 1899, whereby the penalty was fixed at not less than $2000, nor more than $10,000, has no application.

As the case now stands there is nothing in it except . a controversy over a money judgment of less than $7500, therefore this court has no jurisdiction of it. The cause is transferred to the Kansas City Court of Appeals.

All concur.


text:
    EUNICE E. MATHEWS v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    December 23, 1910.
    APPELLATE JURISDICTION: Verdict for $4500 Under Old .Damage Act. Where plaintiff sued for $5000 under the penal section of the old Damage Act, for the negligent killing of her husband, and obtained a judgment for $4500, defendant’s appeal is to the Court of Appeals, and that court is not authorized to transfer the cause to the Supreme Court on the theory that the amount in dispute is $5000, even though the Supreme Court has held that the amount that could be recovered in such a suit under that act is $5000, no more and no less. The judgment is erroneous in that it was entered for less than it should have been,- but that does not alter the fact that the amount in dispute (the amount for which the judgment could have been settled at the time defendant appealed) was $4500.
    Appeal from Jackson Circuit Court. — Hon. Henry L. McCune, Judge.
    Transferred to Kansas City Court of Appeals.
   GRAVES, J.

Plaintiff, the widow of George Mathews, deceased, brought suit in the Jackson County Circuit Court, against the defendant, for the alleged wrongful killing of her husband. The petition details the several alleged acts of negligence, but contains no allegation that the plaintiff was damaged by suchalleged negligence further than the statement in the prayer of the petition, which reads: “Wherefore, the plaintiff prays judgment against defendant for the sum of five thousand dollars and costs of this suit.”

Upon trial in the circuit court, the plaintiff obtained judgment for only $4500’, and from this judgment the defendant appealed to the Kansas City Court of Appeals, and that court has certified the cause here by its certificate and judgment couched in language, as follows: “Now at this day this cause coming on to be heard and the court being fully advised of and concerning the premises, doth consider and adjudge that on account of said cause being a controversy in which not less than $5000 is involved this court is without jurisdiction and therefore orders said cause certified to the Supreme Court for its determination. ’ ’

The question is, does this court have jurisdiction under the facts? At the time the cause was certified here the case was within our jurisdiction, if in fact $5000 was involved, as stated in the certificate from the Court of Appeals, and we shall discuss the case upon that theory without regard to what effect, if any, the Acts of 1900, with reference to the jurisdiction of appellate-courts, may have upon the question. Whether or not this late act would in any way affect the question we leave open.

It will be noticed that the sole ground upon which the cause was certified here' is the amount involved. The Court of Appeals says the amount involved is $5000, but does the record in the case bear out this statement? The judgment was one for only $4500, and we have always held in suits based upon a tort that where the matter of difference between the litigants has been merged into a money judgment against the defendant and he appeals, then the amount of the judgment appealed from at the date of its rendition fixed the appellate jurisdiction. [Schwyhart v. Barrett, 223 Mo. l. c. 501; State ex rel. v. Broaddus, 212 Mo. 685; Hensler v. Stix, 185 Mo. l. c. 239, and the cases therein cited.]

In the Schwyhart case, snpra, we said: “If a plaintiff brings shit for damages and states in his petition the amount for which he sues, if he is cast in his suit and appeals, we go back to the petition and say that the amount there claimed is the amount in dispute. If the plaintiff should in such- case recover judgment for a certain amount and the defendant appeals, the amount then in dispute is the amount of the judgment. The date of the dispute in the one case is that of the filing of the petition; in the other, it is that of the rendition of the judgment, and in either case the amount in dispute is the amount for which the dispute could at that date have been settled. If not settled then and interest is added, it is added by operation of law, not as a part of the amount in dispute, but as a consequence of withholding it. Interest in such case is a mere incident, a mere sequence.”

It could be surmised that the Court of Appeals examined the petition and the prayer above quoted, and reached the conclusion that the plaintiff had instituted her suit under the old penal section of the Damage Act, under which section we have held that there could be a recovery of five thousand dollars — no more and no less. [Casey v. Railroad, 205 Mo. 721.]

But if such was the construction given the petition by the Court of Appeals, and it evidently was, yet that is not the question here. Under this record the only amount involved is the amount of the money judgment. If the trial court entered an erroneous judgment for $1500, when it should have been $5000 — no more and no less — under the pleading of the plaintiff, such did ' not oust the jurisdiction of the Court of Appeals. The amount of the erroneous judgment fixed the jurisdiction on appeal in the Kansas City Court of Appeals. If that court reached the conclusion that the petition was one seeking to recover the penalty given by the penal clause of the old Damage Act, then it should have assumed jurisdiction and said that the judgment was erroneous, and made such further disposition of the case as to the court seemed proper. Because the judgment has by error of the trial court been entered for less than it should have been, does not change the situation.

As stated above, where the defendant appeals in a case of this character from a simple money judgment, the jurisdiction on appeal is fixed by the amount of the judgment nisi at the date of its rendition. It therefore appears that this cause has been wrongfully certified to this court, and should be recertified to the Kansas City Court of Appeals. It is so ordered.

All concur.


text:
    JOHN CRUM et al. v. LOUISA V. CRUM et al., Appellants.
    Division One,
    December 23, 1910.
    1. WILL: Testamentary Capacity: Test. If a person Las not mind and memory enough, to understand the ordinary affairs of life; the value, extent and nature of his property; the number and names of the persons who are the natural objects of his bounty; their deserts, with reference to their conduct and treatment of him; their capacity and necessity; and has not active memory enough to retain all these facts in his mind long enough to have his will prepared, he has not power to dispose of his property by will. A mind so afflicted with weakness and limitations is not a testamentary 'mind. And where there is substantial testimony tending to establish such a mental condition, the court cannot direct a verdict for proponents, although there is much evidence to the contrary.
    2. -:-: This Case: Demurrer. Testator was 78 years old, had been in good health, and prior to his last .sickness was not afflicted with senile dementia. He was self-willed, shrewd, money-making, a little angular in trait. His marriage six months prior to his death to a widow 58 years old, was not pleasing to his children, and their displeasure somewhat piqued him, but there was no rupture. By his will he gave his entire estate to his wife for life, and provided that at her death it should all be sold, and of the proceeds small amounts should be given to his stepchildren, and the balance equally to his own children. He had had asthma for years, about a month before his death la grippe, attended with its usual fever and affecting his head, laid hold on him, and then pneumonia ran its usual course, and about that time he made his will. The evidence for proponents concedes the fever affected his head at times, and at spells made him wander, markedly so when the fever was high at night, but it tends to show his mind was entirely clear at intervals, especially of mornings, and that on the morning he executed the will he was at himself, dictated its terms, named his children and stepchildren, had a clear and intelligent idea of what he wanted put into it and did it, and when it was read over to him carefully item by item he was asked if he wanted to add to, change or take away anything, and announced himself satisfied; he named the witnesses and asked them to sign it. The testimony for contestants was that la grippe laid a heavy hand upon his brain and seriously affected his mind, which condition grew worse to the end, which came eighteen days after the will was made; that he was unable rationally to transact or comprehend business; that he was “crazy;” mental reckoning was lost, he labored under the delusion he was mot at home and wanted to go home, called for his first wife; took the white-wash on the wall for snow, a pair of stockings for two little negroés, and the glow of the firelight for his house burning; frequently did not recognize his own children and other blood kin, mistook some of them for strangers, and was from time to time in a comatose condition. Held, that there was sufficient evidence to submit the question of his testamentary .capacity to the jury, and its weight was for them, and not for the court; and their verdict setting aside the will will not be disturbed.
    3. -; Undue Influence. ’’Where both sides asked and received instructions submitting the issue of undue influence to the jury, the court will not say that the issue should not have been submitted to them, though ic may be well argued that there was no evidence of undue influence.
    Appeal from Maries Circuit Court. — Hon. Wm. H. Martin, Judge.
    Affirmed,

      Waits on é Holmes and L. B. Hutchison for appellants.
    (1) The court erred in refusing defendant’s instruction in the nature of a demurrer offered at the close of plaintiff’s case. There is no evidence in this case that would warrant a court or jury to declare that the will in contest was not the true will of R. S. Crum. The test of a testator’s competency to make a will is that the testator understood the business about which he was engaged when he had his will prepared and executed, knew the persons who were the natural objects of his bounty, understood his relation to them, and knew what property he had and the disposition he desired to make of it. "Winn v. Crier, 217 Mo. 420'; Von De Veld v. Judy, 143 Mo. 348; Cash v. Lust, 142 Mo. 630- Sehr v. Lindeman, 153 Mo. 276 ; Jackson v. Hardin, 83 Mo. 175; Riley v. Sherwood, 144 Mo. 355; Riggin v. Westminster College, 160 Mo. 570- Couch v. Gentry, 113 Mo. 248; Wood v. Carpenter, 166 Mo. 465- Kirshman v. Scott, 166 Mo. 214; Ciowson v. Crowson, 172 Mo. 691; Maddox v. Maddox, 114 Mo. 35; Hamon v. Hamon, 180 Mo. 685; Sayre v. Trustee, 192 Mo. 95; Arehambault v. Blanchard, 198 Mo. 384; McFadin v. Catron, 120 Mo. 253. (2) Under all the evidence in the case the court should have peremptorily instructed the jury to return a verdict declaring the will in controversy to be the true will of R. S. Crum. It requires evidence of some probative force that at the time of the execution of the will the testator was not of sound mind and disposing memory. Von De Veld v. Judy, 143 Mo. 36. (3) There is no evidence in the record to prove the charge of undue influence, and the court erred in submitting that question to the jury. “The influence exercised upon a testator sufficient to invalidate his will must be of such a nature and character as amounts to over-persuasion, coercion, or force, destroying his free agency or will power, as contradistinguished from the mere influence of affection or attachment, or the desire of gratifying the wishes of one beloved, respected and trusted by him.” Winn v. Grier, 217 Mo. 420. And this influence must have operated upon the mind of the testator at the time of the making of the will. McEadin v. Catron, 120 Mo. 252; Sunderland v. Hood, 13 Mo. App. 232; Tingley v. Cowgill, 48 Mo. 291; 1 Underhill on Wills, pp. 184,185.
    Bland, Grites & Murphy for respondents.
    (1) The instructions given for the respondents are, mutatis mutandis, the instructions given and approved by this court in the case of Dausman v. Rankin, 189 Mo. 689. And the instructions given for appellant and respondent fully, fairly and correctly declared the law of the ease, as laid down by a long and unbroken line of decisions of this court. Winn v. Grier, 217 Mo. 420; Goodfellow v. Shannon, 197 Mo. 271; Aleword v. Briggs, 143 Mo. 604; Riley v. Sherwood, 144 Mo. 354; McFadden v. Carter, 138 Mo. 197; Berbent v. Berbent, 131 Mo. 397. (2) The principal contention is that the court erred in refusing the appellants’ instruction in the nature of a demurrer to the evidence at the close of plaintiffs’ case. This being a law case, this court will not interfere with the verdict of the jury if there is any substantial evidence in the record 'to support it. Winn v. Grier, supra; Roberts v. Bartlett, 190> Mo. 680; Hill v. Boyd, 199- Mo. 448; Mowry v. Norman, 204 Mo. 173; Holton v. Cochran, 208 Mo. 314.
   LAMM, P. J.

The issue below was: Will or no will — devisavit vel non. Plaintiffs are the children and heirs of R. S. Crum — defendant Louisa Y. is his widow, and her codefendant, Leslie B., is her son by a former marriage.

R. S. Crum died testate on March 24,1906, a citizen of Maries county, seized of real and personal estate, and aged seventy-eight years. After ordering his debts paid, and monuments erected to mark the final resting places of himself and former wife, Harriet, his will devised to his widow all his real estate to hold during’ her natural life,-she to have charge, and enjoy the rents and profits thereof, subject to debts and taxes. It bequeathed to her all his household and kitchen furniture, chickens, provisions on hand at his death, and a two-horse buggy. At her death the remaining real estate was to be disposed of, and the proceeds, less expenses, divided between named children and .stepchildren — the latter, children of his first wife by her former marriage. Naming his stepchildren, they were to have four hundred dollars each, provided they allowed a certain note signed by one Meyers and Gillispie, in testator’s possession and payable to his former wife, Harriet, to go into the hands of his executors and merge in the corpus of his estate — if they refused to allow the note to so merge, they were to have nothing under the will. Finally, his property of whatever kind, after his widow’s death, was to be sold and the proceeds divided share and share alike among his own children, they being made residuary legatees. His son John and defendant Leslie B., nominated executors, qualified and took upon themselves the burden of administration a day or so' after testator’s death.

On August 16', 1906', plaintiffs sued to break the will, tendering- three issues, namely, testamentary incapacity, undue influence of both defendants and their, fraud.

The answer admits the relationship and heirship of plaintiffs; that Louisa Y. Crum is widow and Leslie B. Hutchison executor as charged; that the will had been formally probated and at present stands as R. S. Crum’s will — averring it is his true will and denying the allegations of fraud, testamentary incapacity and undue influence.

. The issue of fraud was not put to the jury and drops out of the case. The other two were submitted and a general verdict came in, signed by ten jurymen, finding the paper writing submitted as the last will and testament of R. S. Crum, not to be his true will.

From a judgment on that verdict, defendants, on due steps taken in apt time and order, come up by appeal — planting themselves here on a brace of propositions, viz.:

First. The court erred in refusing an instruction in the nature of a demurrer at the close of plaintiffs’ case, and herein that the court should have instructed the jury to return a verdict sustaining the will.

Second. There was no evidence of the charge of undue influence, hence, it was reversible error to submit that issue to the jury.

Both assignments of error seek the facts, which, in. small compass, are: Marrying Mrs. Louisa Y. Hutchison, a widow, in September, 1905', and dying six months later, R. S. Crum was a self-willed and shrewd man, a little angular in trait, with an uncommonly canny knack of money making — able to neither read nor write and educated only in the world schools of experience and observation. Marrying once and possibly twice before, a large family were born to and survive him. It is singular that the whole extent and value of his own estate and the conditions in life of the natural objects of his bounty — that is, the amount of testator’s estate, together with the needs and estates of his children and wife (somewhat proper subjects of inquiry in a legal contest over an alleged unnatural will) are left dark in the record. He came down to the year 1906 attending to his affairs and fit to do so with good sense — this, although he was planning (as he thought) to throw off his burden of business care to round the end of his life with ease and dignity by acquiring a town house and renting or selling liis lands; for the record shows his years were nigh four-score and warned him of the imminent approach of that stage of human life, when, as the Preacher (doubtless, no other than the' very Solomon himself) puts it, the evil days come, days giving no pleasure, when one shall be afraid of that which is high, the grasshopper shall be a burden, desire shall fail and man goeth'to Ms long home. After his marriage he bought a town home, a four-acre tract in Vienna, in accordance with his plans. Prior to his last sickness he was not afflicted with senile dementia, general insanity or any form of monomania. His testamentary incapacity arose from his last sickness, or not at all. He lived on his farm, say, two miles and a half from Vienna, the capital of Maries county. His wife was fifty-eight years old and they had known each other for a long time. Towards the end of February, 1906, he took down sick, growing worse till he died on the 26th of March. For years he had suffered from asthma. His last sickness commenced with a severe attack of that ailment. Presently that insidious disease known as la grippe set in, attended with its usual fever, not only feeding and accentuating the asthma but affecting his head. Presently, before making his will on the 8th of March, pneumonia set in and ran its course. He does not seem to have died from the pneumonia, but from a weakened condition or depression resulting from a general disability, due to said complication of diseases lowering away his vitality and carrying him off. The record shows some faint trace of antenuptial negotiations looking to a property arrangement between him and Mrs. Hutchison, but we can make little of it. In two or three casual conversations antedating Ms last sickness, he disclosed a testa,mentary intention to carve out a life estate in all his real estate in favor of his new wife, just as he did. There is testimony showing a different testamentary disposition. There had been a former will but we know nothing of its terms. Testator, as «we gather, was living at his home with a married daughter, Mrs. Brown, at the time of his marriage. There is some testimony tendmg to show that his children did not take kindly to his marriage and that the old gentleman was a little piqned thereat. Smarting therefrom, he indicated in casual conversation with one or two. acquaintances that he might turn his- property into cash, put the money “in a sock” for ready use to meet any needs of his new matrimonial alliance, and, if pushed too far, might take the money and leave the country. However, the testimony does not create the impression there was any surface or real impairment of his parental relations with his children. They seem to have been attentive and affectionate to him, gathering about him in his last sickness with offices of love and good will. There is no indication he did not return their affection. Speaking of the genesis of the will, there is some evidence tending to show that the idea of a new will originated, during the last sickness, with his wife. Contra, there is persuasive testimony tending to show it was his own plan and had been entertained. prior to the time he was stricken down. There is some testimony tending to show he desired a neighbor, Mr. Hawkins, to do the writing and that his wife desired a son, her codefendant, an attorney in Vienna to do it, and attained her desire. .Contra, there is testimony tending to show her said son, when asked by testator to draw his will, at a certain time before the last sickness, suggested another attorney, hesitated to be his legal adviser in the premises and only consented to serve in that capacity because of testator’s persistency in finally exacting a promise from him that he would come at once on an urgent call. There is testimony having a tendency to show on one side and countervailing testimony on the other that Mr. Hutchison at some time during testator’s last sickness,' but before the visit when the will was written, drove out to testator’s house to write it but did not find testator in a satisfactory condition. The evidence differs as to when the will was written. All sides agree that Mr. Hutchison was sent for on the 7th and arrived about noon of that day. There is testimony that a consultation was then held between testator and Hutchison, at which Mrs. Crum was present, while others, relatives, present in the house were excluded. There is countervailing testimony on the point. Mr. Hutchison’s visit was prolonged from about noon of the Tth to the middle of the forenoon of the 8th. Some of the testimony indicates the will was written partly on the 7th and partly on the 8th — the greater weight, that it was, commenced about -five o’clock a. m. on the 8th and finished about half past eight or nine o’clock of that day. Two of testator’s tenants, John Crum, a brother, and Lee, son of the latter and nephew of the testator, were present part of the time (Lee being called in to witness the will); also John Crum’s wife and Mr. Parker, a sweetheart of a daughter of defendant Louisa V.; the latter herself, Mr. Hutchison, John Crum, Jr., the family . physician, Yón Gremp, also were présent, some all, some part of the time, and maybe some others passed in or out casually during that time. There is testimony another son undertook to enter but was told, by someone other than defendant Louisa, he was not wanted in there, but this is denied. One witness testified that prior to writing the will, when testator nearly smothered with a severe spasm of asthma, on getting his breatb he announced that he-had nearly “went” that time, his wife replying, “and no writings yet.” The remark is denied, but it may be said generally that there are traces of some solicitude and effort directed to procuring a testamentary writing making a property disposition in favor- of defendant, Louisa Y. Crum.

The foregoing resume of the effect of so much of the testimony brings us to the crux of the case, viz., testamentary capacity at the time the will was executed. The testimony is in sharp conflict, as, it always is in a quarrel over a dead man’s estate. If we had judicial call to pass upon its weight in an action at law, we would say it preponderates in favor of proponents.

John Crum, Jr., the son, was present, was named a coexecutor, is a plaintiff and did not testify. There is testimony that when the will was written and signed, the father spoke to his son and charged him with the duty of seeing it fully carried out. As. he stood mute at the trial, that admonition may be assumed as true. On proponents’ part the evidence concedes the fever affected testator’s head at times, and at spells made him wander and “flighty” in mind, markedly so when the fever was high at night. Their testimony tends to show that his • mind was entirely dear at intervals, especially of mornings; that on the morning he executed his will he was at himself, dictated its terms, named his children and stepchildren, had a clear and intelligent idea of what he wanted to put in his will and did it; that he referred the scrivener to his tax receipts for a description of his real estate (which was inserted in the will); that when the will was read over to him with care, item by item, he was asked if he wanted to add to, change or take anything away from it and he announced himself as satisfied, named the witnesses thereto and executors,, and asked the witnesses to sign — in other words, that the will was the rational act of a man of sound mind and memory. But there is testimony to the contrary. Some of it covers the whole period of his sickness after the first few days, and indicates that la grippe had laid a heavy hand upon Ms brain and seriously affected his mind, which condition grew worse to the end; that he wa.s unable to rationally transact or comprehend business. The evidence ranges from proof that he was in a condition denominated “crazy” to proof of those irrational wanderings, showing mental reckoning lost, w;e are all familiar with as attending on fever. He labored' under the delusion he was not at home and wanted to go home, called for Harriet, his first wife, took the whitewash on the wall for snow, the glow of the firelight for his house burning, a pair of stockings on the wall for two little negroes, frequently did not recognize his own children and other blood kin, mistook • some of them for strangers, thought one of his sons was a man named Smallwood, gave other relatives other names like “Fisher” and “Finnesey,” and was in a comatose condition from time to time. We thinic without going further into it, there was evidence from which a jury might infer, without violence to common sense, that his mind was disordered on the 7th, on the night of the 7th and 8th and in the forenoon of the 8th, when the will was in preparation, as well as before and after that time. There is also evidence that afterwards testator had a confused idea he had done something wrong or had been persuaded to do something by others that he should not have done. One witness testified that Mrs. Crum admitted he would not have made the will if she had not got him to do it, though this is contradicted.

The formal execution of the will was proved and the first question is: Should the case have been allowed to go to the jury at all? Put otherwise, should the general demurrer to the evidence have been sustained, after proponents had made a prima facie case and the evidence of contestants was in?

We think the demurrer well ruled. It was not directed to the issue of undue influence, or to the issue of testamentary incapacity, but to both; therefore, if there was evidence to carry the case to the jury on either, it was bad. If we could meddle with the weight of the evidence, we would have a different case to deal with. If the learned trial judge had sustained the motion for a new trial because he was not satisfied the verdict was supported by the weight of the evidence, we do not think we would have interfered with his discretion. But the case is here on the narrow point that there was no substantial evidence whatever to support the verdict and we decline to rule that way. There certainly was evidence, if the jury believed it, pointing to an incaparity of testator to deal with his business affairs at the time he executed his will.

Our statutes make a just disposition of property, absent the will. We are not called upon, therefore, to sustain a will because of any inherent defect or injustice in the statutory scheme for the devolution of estates. The right to make a will when of sound mind and disposing memory is a precious one jealously safeguarded by the courts; and this court has not been remiss in holding a steady and conservative voice in that regard. We have, declined to accept the doctrine that mere isolated incidents of oddities and eccentricities or acts sounding to folly, combed together without relation to each other and arrayed theatrically, indicated a mind of that degree of unsoundness importing testamentary incapacity, but we have always recognized that testamentary incapacity may be shown to exist when the mind is so disordered by the ravages of disease and so dull and torpid as not to measure up to a common-sense testan entary mark.

In Boyse v. Rossborough, decided in the House of Lords in 1857 (6 H. of L. Cas.), there fell from Lord Chancellor Oranwobth the following pronouncement, happily stating the delicacy of the inquiry when the question is: Had testator a sound mind? “On the first head” (speaking to the question just propounded) “the difficulty to be grappled with arises from the circumstance that the question is almost always one of degree. There is no difficulty in the case of a raving madman or of a drivelling idiot, in saying that he is not a person capable of disposing of property. But between such an extreme case and that of a man of perfectly sound and vigorous understanding, there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon; but at what pi'ecise moment twilight becomes darkness is hard to determine.”

Thirty years ago there was transplanted into the doctrines of this court from the text of Judge Redfield’s work on Wills (Brinkham v. Rueggesick, 71 Mo. l. c. 555) the following propositions: “We have no instrument by which we can assume to measure the extent of mental capacity. Each case will have to be decided upon its own peculiar facts and circumstances . . . .”

A general definition satisfying the judicial mind in this jurisdiction, must be deduced from many cases and we think may be' held to be that if a person has not mind and memory enough to understand the ordinary affairs of life; the value, extent and nature of his property; the number and names of the persons who are the natural objects of his bounty; their deserts with reference to their conduct and treatment of him; their capacity and necessity; and has not active memory enough to retain all these facts in his mind long enough to have his will prepared — he has no power to dispose of his- property by will — a mind so afflicted with weakness and limitations is not a testamentary mind. Such is the rule in a sister State, Indiana (Bower v. Bower, 146 Ind. l. c. 398, et seq., and cases cited), and such in effect is the doctrine of this court as gathered from a line of cases such as: Riggin v. Westminster College, 160 Mo. 579; Holton v. Cochran, 208 Mo. 314; Goodfellow v. Shannon, 197 Mo. 271; Meier v. Buchter, 197 Mo. 68; Knapp v. Trust Company, 199 Mo. 665; Harvey v. Sullens, 56 Mo. 372. In some of these cases the definition of testamentary incapacity is shortened, one judge using one form of words and another another.; but when analyzed the language imports; what we announce. To make a will a person must know what he is about and what he wants to do with' his property, and to know those things he must have a mind of the character indicated in the definition. In this case it was for the jury, not the court, to say whether Mr. Crum’s mind filled the bill. There was no error in overruling the demurrer to the evidence, nor was the court remiss in not directing a verdict solemnly probating the will. This latter for reasons aforesaid and because the court could not be put in the wrong when, as here, no mandatory instruction was asked.

There is one other proposition relating to the issue of undue influence. It is argued by appellants that such issue was put to the jury when there was no supporting proof. There is ground for that argument to travel on but we may not reverse a judgment merely because a proposition, arguendo, is tenable. The question on appeal is: Was the exception passed on below? Next, was the ruling reversible error? In this case the record shows, that contestants as well as proponents asked and got instructions submitting the issue of undue influence to the jury. In such case, the rule is that consent healed the error, if any. The trial judge may not be convicted of error in doing what both parties asked him to do in declaring the law. Participating is tantamount to precluding future objections. If proponents had not asked an instruction submitting the -question of undue influence to the jury, in the first instance, but (heading the other way) had asked one to the effect that the issue of undue influence was taken from the jury because of a failure of proof, and that instruction had been refused, then we are not called upon to say whether if in that pickle they had asked an instruction on undue influence, they would have cured or waived the error, but we do say there would have been a different case here for decision. As; the case stands on this record, in the particulars above, the question is not whether there was evidence tending to show undue influence. It is whether there is evidence to sustain either issue. If there was, we should not disturb' the verdict. There is, and we will not.

We perceive no reversible error. Let the judgment be affirmed.

All concur.