text:
    ED ROOT v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant.
    Division One,
    November 29, 1911.
    1. NEGLIGENCE: Order of Foreman: Immediate Obedience. The plaintiff was employed, under defendant’s foreman, in rebuilding defendant’s bridge. While doing work at said foreman’s direction he was injured by the moving of a flat car and pile driver by said foreman’s order. According to' the testimony of plaintiff’s witnesses the foreman’s order to plaintiff was, “Go down and tighten it; have not time to put in another bolt.” If that was true, then, despite the facts that it was the next duty of the car to back out, that the work was rushed, and that the usual course of things was for the car to go instantly back for its next load (if that were true), the plaintiff was nevertheless warranted in thinRing that the foreman would give him time to do the work ordered before giving the signal for the car to back out.
    2. -: -: Conflict .of Evidence: Instructions. There is a conflict between the evidence of plaintiff’s and defendant’s witnesses as to whether the foreman’s direction to the plain-, tiff to do the work in the doing of which he was injured was one requiring present action and prompt obedience, or whether the order was so framed as to require obedience only- after other things had been done to make obediencb safe. The defendant had a right to have an instruction upon this last theory.
    3. INSTRUCTIONS: Composite of Evidence. It is perfectly proper for the defendant to present to the jury by an instruction a theory of the cause made up of the testimony of three of his witnesses in the light of the accuracy of the statements of two of them as to part of the testimony and the accuracy of the statement of the third witness as to the remainder.
    4. -: On all Theories Supported by Evidence. Where the evidence for plaintiff goes to show that he was injured in obeying an order of defendant’s foreman requiring immediate action, and the testimony of two of defendant’s witnesses, putting aside that of a third, is to the effect that the- plaintiff did not receive an order in the words claimed by him, but a totally different order, requiring the doing of work at a different place and of a different nature; then the defendant is entitled to an instruction based upon the testimony of these two witnesses.

      5. -: Proof of One Theory Precluding Other. This action for damages for personal injuries turns upon the form of an order given to the plaintiff hy defendant’s foreman. There was hut one order given, and it was either in the terms set forth hy plaintiff’s witnesses, or in those stated hy the witnesses for defendant. There is, then, no merit in an objection to an offered instruction of defendant, that it did not state in express terms that the language quoted in the instruction comprised all that was used hy the foreman in giving the order.
    Appeal from Grundy Circuit Court. — Row. George W. Wcmamaker, Judge.
    Reversed and remanded.

      Mall & Mall and J. G. Trimble for appellant.
    The court erred in refusing to give defendant’s refused instructions 8 and 10. Both Johnson and Comer testified that they were within a foot or two of plaintiff: at the time Johnson gave plaintiff the orders about tightening the nut, and both testified that Johnson told plaintiff to tighten the bolt while he (Johnson) went out with the pile driver to get the ties. The theory of the defense was that the foreman did not order plain-to do the work of tightening the bolt before the driver was moved out after ties, and that plaintiff was guilty of negligence in undertaking to obey the order at a time contrary to the usual method of doing the work, and without any knowledge on the foreman’s part that he intended so to do. Defendant had the right to have this theory and defense presented to the jury in definite concrete terms, as stated in these instructions, and for the court to refuse them was reversible error. Rd-dens v. Ridens, 29 Mo. 470; Cahn v. Reid, 18 Mo. App. 135; Craft v. McBoyd, 32 Mo. App. 399; Nivert v. Railroad, 232 Mo. 626; Ring v. Railroad, 112 Mo. 230; Davies v. Railroad, 159 Mo. 7. (2) The court erred in refusing to give the peremptory instructions ashed by defendant, and in overruling motion in arrest of judgment. First. The petition fails to state facts sufficient to constitute a cause of action." The allegation is that appellant’s foreman ordered plaintiff to tighten a nut on a cord bolt in one of the stringers of the bridge, and while plaintiff was tightening the nut “of said cord bolt with a cord wrench, the defendant negligently ran said pile driver toward the west and negligently ran the leads of said pile driver over and upon plaintiff and negligently dragged the plaintiff on and along the railroad track.” But the petition does not allege that defendant’s foreman told plaintiff to tighten the nut while the pile driver was being moved, or before it was to be moved. Neither does it allege any reason why plaintiff could not, or did not, get out of the way of the moving pile driver or why" he should tighten the nut at that particular time, or should sit still and let the pile driver run over Mm. There is no complaint (or charge) of negligence except in moving the pile driver. It is not sufficient to allege that the moving of the pile driver was negligently done. The petition must state the facts constituting such negligence. R. S. 1909, sec. 1794. Every fact which plaintiff must prove to maintain his action is constitutive and must be alleged in his petition. Rush v. Brown, 101 Mo. 590'; Sidway v. Missouri Land & Live Stock Co., 163 Mo. 372; Young v. Schofield, 132 Mo. 661; Curley v. Railroad, 93 Mo. 445; Sullivan v. Railroad, 97 Mo. 113; Mitchell v. City of Clinton, 99 Mo. 159'; Current v. Railroad, 86 Mo. 62; Waldhier v. Railroad, 71 Mo. 514; Edens v. Railroad, 72 Mo. 212; Harrison v. Railroad, 74 Mo. 371; Troth v. Norcross, 111 Mo. 630'; Fueh v. St. Louis, 113 Mo. 194; Rushenberg v. Railroad, 109 Mo. 112; Willis v. Railroad, 44 Mo. App. 51. Second. The evidence fails to show any negligence on the part of appellant or its foreman, Johnson. Chandler v. Gas Co., 174 Mo. 321; Fnchs v. St. Louis, 167 Mo. 645; Beasley v. Linehan Transfer Co., 148 Mo. 413; Paden v. Yon Blarcomb, 181 Mo. 127; Smith v. Railroad, 113 Mo. 70; Roseoe v. Railroad, 202 Mo. 588. Third. Plaintiff’s injury was the result of his own negligence in placing himself in the way of the leads at the time he knew, or ought to have known, that the pile driver was to be moved. Sissel v. Railroad, 2.14 Mo. 528. The plaintiff had no right to become so engrossed in his work as to become heedless of his danger and as not to take proper precaution to observe the approach of the pile driver; Clancy v. Transit Co., 192 Mo. 655; Davies v. Railroad, 159 Mo. 1; Evans v. Railroad, 178 Mo. 514; Sharp v. Railroad, 161 Mo. 235; Tanner v. Railroad, 161 Mo. 510; Loeffler v. Railroad, 96 Mo. 267; Loring v. Railroad, 128 Mo. 359; Eréis v. Railroad, 148 Mo. 333; Moore v. Railroad, 176 Mo. 543; McGrath v. Transit Co., 197 Mo. 104; Wheat v. St. Louis, 179 Mo. 580; Ca: hill v. Railroad, 205 Mo. 407; Brockschmidt v. Railroad, 205 Mo. 444; Degonia v. Railroad, 224 Mo. 587; Yan Dyke v. Railroad, 230 Mo. 282.

      A. G. Knig'kt and Hubbell Bros, for respondent.
    (1) The plaintiff’s petition states facts sufficient to constitute a cause of action. Cody v. Longyear, 114 N. W. 735; Barrett v. Reardan, 95 Minn. 425; Berneche v. Hilliard, 101 Minn. 366; Dizonno v. Railroad, 114 N. W. (Minn.) 738; Haynie v. Tenn. Coal, Iron & R. Co., 175 Fed. 56; Womack v. Hicks Locomotive & Car Works, 172 Fed. 217; Egan v. Railroad, 115 Pac.'940; Borden v. The Falk Co., 97 Mo. App. 569; Gessley v. Railroad, 32 Mo. App. 419; Purcell v. Railroad, 26 S. E. (N. C.) 161; Rolling Mill Co. v. Johnson, 29 N. E. 186; Ayers v. Railroad, 5 S. E. (Ya.) 582; Ragland v. Railroad^ 22 S. 366; Snyder v. Railroad, 54 N. E. 475; Strong v. Railroad, 94 Iowa, 380; Porter v. Stockyards Co., 213» Mo. 372; Koerner v. .Car Co., 200' Mo. 141. (2) The court did right in refusing defendant’s instructions 8 and 10. Zanders v. Transit Co., 206 Mo. 445; Stetzler v. Railroad, 210 Mo. 714; Huff v. Railroad, 213 Mo. 515; Frazier v. Smelting and Refining Co., 1501 Mo. App. 430'.
   BOND, C.

Plaintiff alleges that he was a member of a “pile driver crew,” employed by defendant to rebuild a portion of its bridge over the Chariton River, which had been burned; that he was under the orders and control of the foreman of said crew,. Walt Johnson, and while so engaged was directed “to tighten the nut of a cord bolt” at a point on the south rail of defendant’s railroad track, about half way between the trucks of the flat car containing the pile driver and the outward projection of the “leads” of the pile driver, which were two posts about thirty-seven feet high and were a part of the machinery of a pile driver, and at the time projected about fourteen feet in front of the truck of the car on which the- pile driver was constructed. This pile driver with its block and tackle were used to bring piling, stringers and cross ties from the place where such material was deposited to the points where it was used in rebuilding the bridge. The bottom of these leads was about five inches above the cross ties when laid on the track. Plaintiff states that while obeying said directions and while engaged in tightening said bolt at a point midway between the front of the car carrying the pile driver and between the outward projection of the leads, “the defendant negligently ran said pile driver over and upon the plaintiff and negligently -dragged plaintiff on and along the railroad track,” thereby inflicting great and painful injuries and causing him to be permanently disabled. Plaintiff claimed damages for $30,000.

The answer was a general denial and plea of contributory negligence.

The undisputed'' evidence showed that plaintiff " was a member of a pile driver crew of which "Walt Johnson was the foreman; that said crew and its foreman were employed- by the defendant to reconstruct the main span of its bridge over the Chariton Eiver, which had been destroyed by fire a few days before the 10th day of July, 1907; that on said day the flat car on which the pile driver was erected was operating from the west side of the river- across which defendant’s railroad ran in an easterly and westerly direction; that the ear containing the pile driver was moved by a locomotive and was used to transport, first, piles to be sunk in the river; secondly, caps and stringers to place on them; thirdly, cross ties to place on the stringers to serve as a support for the metals over which the trains were run.

The plaintiff was injured at a time when the flat car and pile driver had brought up and laid a stringer on the north side of the track and when it had started to back out in a westerly direction to get ties to be put across said stringer and a like stringer which had already been laid on the south side of the track. The testimony of the plaintiff and his witnesses as to the manner in which the injury happened is to the effect that plaintiff told -the foreman, Walt Johnson, that the bolt which had been put in through a stringer on the south side of the track was too short for an O' Gr washer, and that the foreman answered: “Go down and tighten it up; have not time to put in another bolt.” That plaintiff picked up a wrench and proceeded to tighten said bolt and had only made about two half-turns on the nut when the backing out of the flat ear caused the foot of the leads to run upon his thigh and inflict the injuries sued for; that the backing ont of the car was in obedience to a signal given by the forenaan.

There is no conflict in the evidence as to the situation of the plaintiff when he was injured. He was at a point equally distant between the front of the car trucks and the lower end of the projecting leads. He was about seven feet from the leads when he sat down on the ties to do the work. Neither is there any conflict in the evidence that the injury was caused by the backward movement in a westerly direction of the ear under a signal made by the foreman immediately after his conversation had with plaintiff. There is a direct conflict in the evidence as to the words and substance of the conversation between the foreman and the plaintiff which immediately preceded the injury. -As to this, the foreman and other witnesses for the defendant testified that when the car carrying the pile driver had landed the north stringer, and after the crew had “snubbed” or “tied.it with a rope,” then the car was ready for its next task, which was to go back and get ties to be laid across the stringer in question and the one which had been previously landed on the south side of the track; that plaintiff then asked the foreman, who was standing within eighteen inches of him, ' ‘ ‘ Shall I help get the ties ? ’ ’ That the foreman replied, “No, Ed, you help Comer put the bolt in and I will get the ties. ’’ The foreman- testified that he told plaintiff to do this “when we get in the clear.” When asked questions about this, the witness said: “Q. Well, when you told Root to help this Comer put this bolt in as soon as you got in the clear, what did you ■ mean by getting in the clear? A. Getting the machine out of the way. Q. That is, moving the pile driver where? A. Back off of the bridge. • Q. That would mean toward the west? A. Yes, sir.” And again made answer: “Q. What was it you told Root to do to the best of your recollection? A. I told him to help Comer put his bolt in there when he. got in the clear— this stringer had. just been landed at the time. I said I would help get the ties. Q. You didn’t tell him to tighten that nut? That is not what you said? A. No, sir.” And again: “Q. Root ashed you if he should go out with the driver and get the ties, did he? A. Yes, sir. Q. And you answered him saying that you would get the ties and for him to help Comer put the bolt in as soon as you got in the clear? A. Yes, sir. Q. That was your language as near as you can remember? A. Yes, sir. Q. What did you do immediately after you told him that? A. Turned out to the south and walked back on the south side and gave the engineer a signal to back up and walked ahead and climbed on the car. Q. How soon after you gave the signal was it until the driver started to move? A. It was just an instant. ’ ’

As to this conversation, the witness Comer testified: “Q. How far were you from those two men? A. I don’t suppose we was over eighteen inches apart. We was right close together. Q. You do know that ■you heard those words spoken between those two men at that time? A. Yes, sir; Root asked the question and Johnson he said, ‘No, I will go and get the ties and you help Comer put the bolt in as soon as I get the train out of the road. ’ Q. Then immediately after that Johnson stepped to the south, and, facing the west gave the back-up signal with his left hand? A. Yes, sir.” Afe to this conversation witness N. S. May testified, that he was holding the leads and expecting the driver (locomotive propelling the flat car and pile driver) to back up at any time; that he heard Johnson, the foreman, say, “Ed Root, tighten up the bolt and I will get some ties;” that when he saw Root tightening the bolt, the driver was moving upon a signal which had been given by the foreman; that at the time of the conversation between Johnson and Root the pile driver was standing still.

Among the instructions given for plaintiff by the court was one which submitted the case to the jury upon the hypothesis that the foreman gave the order to plaintiff in the exact terms testified to by him and his witnesses, i. e., “to tighten the nut on a cord bolt,” and that plaintiff while obeying’ said order was injured by the backing out of the pile driver upon a negligent signal given by the foreman. This instruction purported to cover the case and directed a verdict for the plaintiff upon the suppositions therein contained. The court gave another instruction for plaintiff which also purported to cover the case and direct a verdict, and which contained a substantial restatement of the acts hypothesized in instruction numbered two, but was prefaced by a statement of the law making it the duty of the servant to obey the master and trust his judgment about things upon which reasonable men might have different opinions. The court gave some instructions for defendant, but none of them submitted to the jury the version of the order or direction given by the foreman to the plaintiff preceding the injury as it was testified to by defendant’s witnesses. Defendant requested the following instructions on these points, which the court refused to give; and defendant duly excepted.

“8. If the foreman'told the plaintiff to tighten up the bolt when the pile driver got ‘into clear,’ and plaintiff knew, or on account of his experience in working on and about the pile driver he should have known, that the words used meant that it was the foreman’s intention to move the pile driver immediately, the direction to tighten up the bolt did not constitute a command to do so at once and plaintiff was guilty of such negligence in sitting down on the bridge in a place of danger from the moving pile driver as would preclude a recovery and the verdict must be for the defendant.

“10. If plaintiff asked the foreman if he (plaintiff) should go with McDaniel to get ties and the foreman answered, ‘No, you help Comer put in the cord bolt and I will get the ties’ (or used words to the same effect) and if you believe the words used would, under the circumstances, have put an ordinarily prudent person on his guard and have caused him to think the intention was to move the pile driver at once, such direction to put in the cord bolt did not amount to an order to plaintiff to tighten up the bolt at once regardless of the other work to be done in the usual way of doing such work and without care on his part to ascertain whether the intention of the foreman was to depart from the usual manner of doing the work; and if by the exercise of proper care and caution on his part,, plaintiff would have known the intention of the foreman was to move the pile driver in the usual way, and he (plaintiff) did not use such care and caution as an ordinarily prudent person would have used in his circumstances, and on account of his failure to do so he was injured, the verdict must be for defend - ant. ’ ’

There was a verdict for $12,000, from which this appeal was taken by defendant, who assigns for error, first, the refusal of the court to give a peremptory instruction in his favor; second, the rulings of the court in giying instructions requested by plaintiff and refusing the foregoing and other instructions requested by defendant.

OPINION.

I. There was no error in the action of the trial court in refusing to give the peremptory instruction to find for it which defendant requested at the end of the trial. If the defendant’s foreman gave the order to plaintiff in the terms set forth in the testimony of witnesses for plaintiff, then it was clearly susceptible of the meaning which plaintiff’s conduct shows he gave to it — that plaintiff should instantly set about tightening the bolt on the south stringer, and that the foreman would give him time to do that work before causing the flat car on which the pile driver and its apparatus were carried to be backed out in order to bring up ties for the two stringers on the north and south sides, both of which had then been laid. The fact that this was the next duty of the flat car and the further fact that all of the work was being rushed to enable-the running of trains were not conclusive information to the plaintiff that he would not be expected to obey the order until the car had backed away from the spot where the bolt, was lqcatecl. Neither would the fact (if it were a fact) that the usual course of things was for the flat car to go instantly back for its next load after laying the parallel stringers, make it the duty of plaintiff to construe the order of his foreman to mean that he should await the retiracy of the car before obeying the command. The order given to plaintiff, according to the testimony, on his behalf, was a clear and positive direction for present action and prompt obedience. Hence, plaintiff’s mere knowledge that the work might be dangerous if the flat car moved and that such work had been customarily done when the track was clear, would not make it his duty to disobey the specific command of his superior, expressed in the present tense, unless the danger of present performance was so glaring, imminent and threatening as to deter any man of ordinary prudence from so doing. [George v. Railroad, 225 Mo. l. c. 412.] Plaintiff might well have supposed that an order requiring immediate action on his part would not have been given unless the foreman intended to make obedience safe by waiting until the work was done before causing the pile driver at a height of only five inches above the surface to pass over the place to which plaintiff had been ordered.

Our conclusion is that there was nothing in the situation nor in the usual course of work nor in the terms of the order (as testified to by plaintiff) which made it his duty to refuse obedience on the ground that the danger facing him was so imminently threatening to life and limb that no man of ordinary prudence would assume it. The assignment of error, that there was no case for the jury, so earnestly pressed in the argument, is overruled.

II. The decisive question presented on this appeal arises upon the refusal- of the court to give two instructions (numbered 8 and 10) requested by defendant and set forth in the foregoing statement of the facts. The two phases of the evidence mentioned in these instructions were not- submitted to the jury in any of those given by the court in this case, although there was substantial evidence tending tcf prove the truth of the facts hypothesized. [Murray v. Railroad, 176 Mo. l. c. 191; Wren v. Railroad, 125 Mo. App. l. c. 606-607.] The theory of facts in instruction numbered 8 was supported by a composite of the testimony of all the witnesses for the defendant — -two of whom stated that the order given by the foreman was to “put in a cord bolt” after the track was clear; and the third witness (N. S. May) who stated that the words used were “Ed Eoot, tighten up the bolt, and I will get some ties.” It was perfectly proper for the defendant to present to the jury (as was done in instruction numbered 8) a theory of the case made up of the testimony of his three witnesses in the light of the accuracy of the statements of two of them as to part of their testimony and the accuracy of the statement of the third witness as to the remainder; for example, the jury'might believe that the witness N. S. May was correct in his testimony as to the specific terms of the order in so far as the use of the words ‘ ‘ tighten up the bolt,” and that the other witnesses (Johnson and Comer) were correct in their testimony in so far as they stated that the command given was only to be executed by plaintiff after the pile driver got “into clear.” The pith of this defense was, that even if the order was given in the language which plaintiff stated was used, yet the fact that it included an express statement that it was not to be obeyed until the track had been cleared, left no excuse or justification for acting' before that time; and hence, by acting contrary to the terms of the order, plaintiff directly caused the injuries suffered by him. We think the defendant had a right to predicate an instruction upon that- conjunction of the testimony of all of its witnesses.

Again, defendant was also entitled by its instruction numbered 10 to submit to the jury the theory of the case based only on the testimony of two of its witnesses (Johnson and Comer) and leave out of view the testimony of its third witness (N. S. May). According to the testimony of these two of defendant’s witnesses, the order given to plaintiff by its foreman was couched in the words quoted in said instruction. These words meant the doing of an entirely different thing from what plaintiff claimed he was ordered to do. If the words quoted in this instruction were used, then plaintiff had no direction to do the work in which he was actually engaged when he was injured, and could not recover on the cause of action stated in the petition. The gist of instruction numbered 10' was, that plaintiff did not receive an order in the words claimed by him, but that he was given a totally different order, which, by its terms, required the doing of work at a different place and of a different nature; and' hence, that it afforded no authority whatever for plaintiff to undertake the work which the record shows he was engaged in when injured. The terms of the order so hypothesized were directly repugnant to those stated by, plaintiff’s witnesses. If the statement of defendant’s witnesses was true, then the statement of plaintiff’s witnesses was nntrne. It was simply this alternative testimony as to the one order which was sought to he submitted to.a finding by the jury in instruction numbered 10. The idea underlying this instruction was that if .plaintiff disregarded the plain directions of his foreman, and without the authority or knowledge of his foreman engaged in other work and was injured thereby, he would not be entitled to recover as for negligence of defendant.

The terms in which the order given by the foreman to plaintiff was expressed, and the natural import of the language used in that direction, were of the very essence of plaintiff’s right to recover in the present action and of any possible defense thereto on the part of defendant. The testimony of the two sets' of witnesses on this subject was vital to a proper solution of the issues joined, and should have been submitted according to the theory of law applicable to the defendant’s testimony as well as that applicable to plaintiff’s testimony. The court did this at the request of plaintiff but refused to do so at the request of defendant. This was erroneous and necessarily prejudicial since it took away from the jury any eonsid-. eration of the proof adduced by defendant to show a want of negligence on its part, and that the direct cause of the injury was the contributory negligence of plaintiff.

It is insisted in a typewritten appendix to the brief of counsel for plaintiff that instruction numbered 8 should not have been given because no witness had testified that the order given by the foreman to plaintiff was to tighten up the bolt when the pile driver got in the clear. As has been shown, this supposition of fact in this instruction is supported by the congruous parts of the testimony of the three witnesses for defendant.

Objection is also made that instruction numbered 10 should not have been given in the form presented, because it was not stated in express terms that the language quoted in this instruction comprised all that was used by the foreman in giving the order. The ydiole record discloses but one order was given in this ease, and that it was either in the terms set forth in the testimony of plaintiff’s witnesses, or in the terms stated by the witnesses for defendant. If it was contained in the terms stated by defendant’s witnesses, it could not have been given as claimed for plaintiff, for the language ascribed to the foreman by defendant’s witnesses was opposite in meaning" to that referred to in the testimony for plaintiff.

If, therefore, instruction numbered 10 was subject to a verbal omission in failing to expressly submit to the jury whether the alternative form of the order quoted in it was the only one given, still it was free from substantial defect, since a finding of the facts as predicated in it, by necessary implication involved a finding by the jury against the contention made by plaintiff. [Flaherty v. Railroad, 207 Mo. l. c. 334-5.] Besides, the whole record shows, whatever may have been its nature, only one order was given.

For the refusal of the court to -submit the theories of defense arising upon the evidence adduced by defendant under the issues in this case, the judgment is reversed and the cause remanded.

Brown, G., concurs.

PER CURIAM.

The foregoing o id inion of Bond, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: BOND, C. PER CURIAM.

license: Public Domain

text:
    W. P. TARRANT v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILROAD COMPANY, Appellant.
    Division One,
    November 29, 1911.
    1. INSTRUCTIONS: No Evidence to Support: New Trial: Ejecting Passenger. In this action for damages for wrongful ejectment from the defendant’s train, the plaintiff’s evidence tended to show that, soon after he hoarded the train, his ticket to St. Louis was taken up and nothing given him in return; and that long before reaching St. Louis h© was ejected from the train because he refused to produce another ticket or again pay fare. Defendant’s servants testified, that the plaintiff gave them a ticket to Benton, Arkansas, a station much nearer the point of departure than St. Louis, and the auditor “checked his hat” to that station; that the auditor took up that check before they reached Benton; and that, when they found plaintiff still on the train after passing Benton, and found that he was unable or refused either to pay fare or produce a ticket, they ejected him. The jury found for defendant. It is held, that, under this evidence the trial court rightly granted plaintiff a new trial on account of the giving of an instruction which told the jury that if the auditor gave plaintiff a “check,” and when thereafter he demanded this check plaintiff failed to exhibit it, then the auditor had the right to eject plaintiff if he refused to pay his fare. That plaintiff had a “check” at that time is positively disproved by the testimony of both sides.
    Appeal from St. Louis City Circuit Court. — Ho». Virgil Rule, Judge.
    Aeeirmed.

      Robert T. Railey and James F. Green for appellant.
    There was no error in the instructions given on part of defendant. 2 Hutchinson on Carriers (3 Ed.), see. 1036; Hibbard v. Railroad, 15 N. Y. 455; Stephen v. Smith; 29 Yt. 160; Nutter v. Railroad, 78 S. W. 470; White v. Railroad, 107 Mich. 681.

      C. B. Williams and grands M. Gurlee for respondent.
   BOND, C.

This action was brought by plaintiff in the circuit court of the city of St. Louis to recover damages for his ejection from one of the trains of defendant, on the 30th of September, 1907, at McAlmont, a station a few miles north of Little Rock, Arkansas. Plaintiff alleged in his petition that he had purchased a ticket from the Kansas City Southern Railroad from Lake Charles, Louisiana, to St.. Louis, Missouri, for which he paid $23, and which entitled him to passage over that road to Texarkana, Arkansas, and thence over defendant’s road to. St. Louis, Missouri, which ticket he delivered to the person collecting fares for defendant on said train shortly after taking passage on defendant’s railroad; that when in the course of transit he had arrived a few miles north of Little Rock, Arkansas, the train auditor of defendant again demanded plaintiff’s fare; that the plaintiff explained that the fare had been paid, whereupon defendant’s agent, known as the conductor of said train, refused' to carry plaintiff unless he again paid fare, and put him off at the station above mentioned in a rude and wanton and malicious manner, and without just cause, and subjected him to humiliation. For all of which plaintiff asked judgment in the sum of five thousand dollars actual damages and five thousand dollars punitive damages. To this petition defendant’s answer comprised a general denial and a further defense, that whatever injury to his feelings or expense were suffered by plaintiff on the occasion mentioned “were the direct result of his own misconduct and wrongdoing in failing and refusing to produce and present to defendant’s employees in charge of the train on which he was riding á ticket authorizing him to ride beyond Benton, Arkansas, and in-failing to pay or tender to said agents or employees of defendant his fare from Benton, Arkansas, to St. Louis,” and in re-entering the train without a ticket or money wherewith to pay his fare after he had disembarked at Benton and again after he had-left it at Little Rock, and insisting on riding farther without presenting a ticket or paying his fare, and in being in an intoxicated condition, and failing to conduct himself in a decorous and lawful manner. The train in question was traveling at the time mentioned from Texarkana, Arkansas, northwardly, to St. Louis, Missouri. The testimony of the plaintiff, in substance, is that he purchased a ticket to St. Louis in the manner stated in his petition, and was carried thereon in the manner stated in his petition until he was ejected at McAlmont, Arkansas. In referring to what took place at the time of his expulsion from the train, he said that after the train had passed Little Rock, the auditor again called on him and demanded his ticket, and the following conversation took place: “I glanced up at him and said, ‘You have my ticket. I suppose you have. I have given it up to you or to someone. I think it was you. ’ He said ‘Ño, I haven’t got it.’ I said, ‘Well, if I have it, or any receipt for it, I will certainly be glad to give it to you, but I know that I have given it up.’ He said,, ‘Well, see if you have got it — I will be back’ — no, he didn’t tell me he would be back, but he did come back. I knew full well that I did not have the ticket but I thought it possible I had some slip or receipt that they had given me. I looked through my pocketbook for that, and didn’t find anything of the kind. He said, ‘Well, have you got that ticket?’ I said ‘I told you once I have given up my ticket. No, I haven’t the ticket.’ He said, ‘Oh, you didn’t have any ticket when you got on this train, and you knew you didn’t. Now, you will either have to pay your fare or get off.’ I answered to that, that I had paid my fare once and refused to pay it again. Then he said, ‘Well, you will have to get off. We are going to stop in a few minutes, and you be ready to get off.’ And he passed on out of the front end of the car.” He testified further that he was put off the train within a few miles after this conversation at the station mentioned, and after waiting a couple of hours rode back at an expense of fifi teen cents towards Little Rock, but stopped at Argenta, a town on the north side of the river, where he spent the night, and went over next morning to Little Rock, where he got the money to pay his way home, which was about seven dollars; that he was a law stenographer and his time lost by this detention was of value ten dollars; that at the time he was put off the train he called the attention of the conductor to that fact, and the conductor replied, “I will stand for it, that the train crew put you off.” In speaking of what happened after he entered the train at Texarkana, he said the ticket collector came through the car and he surrendered it to him, gave up the whole thing — he took it all and gave Mm nothing back.

For the defense there was evidence tending to show that the plaintiff embarked .on its train at Texarkana on the date above stated, and soon thereafter the train auditor went through the train for the purpose of taking up the tickets of the passengers; that when he came to the plaintiff he received from him a ticket reading to Benton, Arkansas, a station some twenty-five miles south, of Little Rock; that in return for the ticket, the auditor gave the plaintiff a check, “cheeked his hat to Benton, Arkansas;” that before the train arrived at Benton the auditor went around0 and took up the hat check he had given plaintiff, who got up and came out and went down the steps and got on the platform; that the auditor holloed “all aboard;” that when he got back in the train he discovered that plaintiff had gotten back on the train, whereupon he asked him for a ticket; that plaintiff replied, “I have no ticket,” and searched his pockets, and said, “I can’t find my ticket.” The auditor said, “Go ahead and find yonr ticket — I will be back after while and get yonr ticket;” that after a while he came back and said, “Well, Cap, did you get your ticket.” Plaintiff answered, “No I can’t find my ticket.” The auditor said, “Well, you will have to pay forty-eight cents to Little Rock, that is the first stop.” Plaintiff replied, “I have no money.” The auditor said, “What did you want to get back on the train for if you had no money?” That plaintiff said, “I had a ticket.” That the auditor said, “Find a ticket, otherwise you will have to get off at Little Rock.” The plaintiff answered, “I have no money or any ticket.” That the auditor rejoined, “You will have to get off at Little Rock — Little Rock is our nest stop; ’ ’ that after passing Little Rock, he (the auditor) went through the car. again to collect fares; that the first man he met, sitting in the same seat, was the plaintiff, to whom he said, “Fares please,” and added, “I thought I told you to get off at Little Rock; ’ ’ that plaintiff then replied, £ ‘ I gave you a ticket to St. Louis,” and the auditor said, ‘£ Brother, you did not give me any ticket to St. Louis; I certainly would have checked you to St. Louis if you had given me a ticket to St. Louis.’-’ He said, “I gave you a ticket to St. Louis and I am going to St. Louis.” the auditor said, “You will have to get off at the first stop; ’ ’ that when they reached McAlmont the plaintiff was conducted off the train.

There was other testimony in the record not material to the point presented by this appeal.

The case was submitted to a jury, who returned a verdict in favor of the defendant. Plaintiff filed a, motion for a new trial which was subsequently sustained by the court for the assumed error in one of the instructions given by it at defendant’s request.- The instruction in question is, to-wit:

“The court instructs the jury that, if you believe from the evidence that defendant’s train auditor gave plaintiff a check to indicate 'the destination of his ticket, when he took it up, and thereafter demanded said check of plaintiff and plaintiff failed or refused to exhibit or surrender said check to him, then defendant’s train auditor had the right to eject plaintiff from the train at the time and place he did eject him, if he refused to pay his fare beyond Little Rock, and you will find your verdict for the defendant.”

Prom the order granting a new trial, defendant perfected an appeal to this court.

OPINION.

I. The only question presented by this appeal is as to the propriety of the instruction given by the court on behalf of defendant, for the giving of which a new trial was granted.

Counsel for defendant insisted, and cites authority to that effect (2 Hutchinson on Carriers [3 Ed.], sec. 1037), that a carrier’s rule requiring its passengers to show their tickets to conductors when called upon so to do and making it the duty of the conductor to remove from the train any person who refuses to do so, or to pay proper fare, is a reasonable and just measure of protection against the use of one ticket as a passport for more than one person, and that this principle applies equally to the right to call for a substitute for an original ticket in the form of a rebate or train check or other slip given to the passenger when his ticket is taken up. However, in this State it has been distinctly held that a passenger who fails to purchase a ticket and who does not tender a proper fare upon request of the conductor, may be lawfully ejected from the train under the safeguards provided by statute. [Holt v. Railroad, 174 Mo. 524, adopting opinion of Court of Appeals in the same case, 87 Mo. App. 203.]

The defect in instruction numbered 6 is not that it embodies an incorrect statement of the law in the abstract, but that it submitted to the jury a hypothesis which not only had. no support in the evidence hut was positively disproven by the testimony of the witnesses on both sides. One of the theories of this instruction is, that plaintiff might be ejected from the train if he failed to produce at a point on his journey north of Benton, Arkansas, “a check indicating the destination of his ticket,” or to pay fare beyond such point. There is not a scintilla of evidence in this record tending to prove that plaintiff was furnished with a “check” showing his right to travel on its train to any point farther north than Benton, Arkansas. On the contrary, the plaintiff testified positively that when his original ticket was taken up, after leaving Texarkana, he received nothing whatever in lieu thereof, and all of defendant’s witnesses (the conductor and auditor) who testified on this subject stated that when said ticket was taken up the plaintiff was given only a “hat check” which read to Benton, Arkansas. Plainly, therefore, it was out of the power of the plaintiff, •under this undisputed evidence, to produce any form of a ticket after the train had passed the station known as Benton, Arkansas; and the instruction in question submitting that issue to the jury was wholly unsupported by any evidence, was misleading and prejudicial, and should not have been given, and the court did not err in granting a new trial on account of that misdirection.

If the instruction under review had submitted the issue of the refusal of the plaintiff to tender a ticket showing a destination north of Benton, Arkansas, or to pay a proper fare thenceforward, it would have presented a defense amply supported by the testimony adduced by defendant, and which the defendant was clearly entitled to have submitted to the jury. According to the tenor of the proof on behalf of defendant, plaintiff’s ride was ended when he reached Benton, Arkansas. Hence, it is clear, if plaintiff insisted on being transported beyond that point, he should have provided himself with a ticket for his further journey, or should have tendered proper fare. The infirmity of the instruction under review is that it was not so expressed. Its error consisted in the inaccurate use of the word £ £ check, ’ ’ instead of some term, descriptive of a ticket for passage in original form.

According to the record, new trial was granted in this case solely because of the inaccuracy of the instructiton as applied to the conceded evidence. That will doubtless be corrected on a new trial.

- The order of the circuit judge granting a new trial herein is affirmed,,-and the cause remanded.

Brown, G., concurs.

PER CURIAM.

The foregoing opinion by Bond, C., is adopted as the opinion of the court.

All the judges concur.


author: GRAVES, P. J.

text:
    JAMES G. BROWN et al., Appellants, v. JOHN W. BROWN et al.
    Division One,
    November 29, 1911.
    1. CONVEYANCE: Coercion: Finding: Deference to Chancellor. The Supreme Court would not disturb the finding of the chancellor on the issue of coercion if the evidence were evenly balanced. B!ut where the grantor conveyed her home place to a son, reserving a life estate and rented the place to tenants for $500 a year, and for seven years lived in respectable families apart from the son, and told her tenants to consult him about the improvements, as the farm belonged to him, there does not seem to be any room for a finding that the son obtained the deed through coercion.
    !2. -: Undue Influence: Fiduciary Relation: Presumption. A fiduciary relation between the grantor and grantee raises the presumption of undue influence. But such presumption may be rebutted by the evidence, including the facts and circumstances. Presumptions as to facts always take flight upon the appearance of the facts themselves.

      3. -; -; -; -¡ parent and Son. Good, treatment of a son towards an old mother is not an influence which the law condemns. Nor does it have much weight with a court when it is asked, to set aside a deed to him, by her other children who had become estranged to her and did not visit her for the seven or eight years she lived apart from that son.
    4. -: -: -: Rebutting Facts. The grantor was of sound mind, was strong-willed, and well treated by the two younger boys who remained with her for several years after her husband’s death, and utterly ignored by her older children, who charge that her deed to them, by which she reserved a life estate for herself, was the result of undue influence. She was fifty-seven years of age when the deed was made, and lived twenty-one years thereafter, and the last seven or eight years of- her life in reputable families apart from the grantees. She had been urged by the other children, from whom she had become estranged, to make an equal division between all the children. The deeds were recorded, and she made no attempt to have them annulled, but told the tenants that the lands belonged to the sons, and that they should be consulted about the improvements. Behf, that, assuming that a fiduciary relation existed between her and them, any presumption of undue influence was overcome by the facts.
    Appeal from Randolph Circnit Court. — Hon. E. W. Hinton, Special Judge.
    Aeeirmed.

      B. R. Dysart, J. H: Whitecotton and W. P. Cave for appellants.
    (1) The court should have sustained plaintiff’s hill and set aside and declared null and void the deed in controversy, under all the evidence in the ease. The law of the State recognizes no principle of law with more certainty than that where one stands in the relations of trust and confidence with another who is old and failing in mind and body, the law will presume a contract between them to have been the result of undue influence emanating from the stronger party. And when a deed is made under such circumstances as the deed was made in this case, the same, in a court of equity, will and should be set aside. If in such case any advantage, is gained by the grantee,'undue influence on his part is presumed and this must be overcome by testimony in rebuttal or the deed must * fail. Cadwallader v. West, 48¡ Mo. 483!; Martin v. Baker, 135 Mo. 495; Dingman v. Romine, 141 Mo. 466.

      Aubrey B. Hammett for respondents.
   GRAVES, P. J.

Benjamin Brown died on May 27, 1884, leaving surviving him his widow, Rachel Catherine Brown, his children, James G., John W., Sam B. Brown, Janairia I. Stokes, Millie K. Gaines, and his grandchildren, Ben and Cooper Sims and Catherine Haines, children of a deceased daxighter.

In his lifetime, Benjamin Brown owned in fee 200 acres of land in Randolph county. He and his wife as tenants by the entirety owned 327 acres more adjoining, and this last mentioned tract is the one involved in this suit. Prior to the death of Benjamin Brown all of his children had married and moved to their own homes, with the exception of John and Sam, the two youngest boys. In about three years- after the death of the father the son Sam married and moved away. During the first three years succeeding the death of the father, Sam and John purchased the interests of the other heirs in and to the 200L-acre tract above mentioned. The interests of the several heirs were fixed by the will of Benjamin Brown. On the 20th day of March, 1887, Rachel Catherine Brown conveyed the home place of 327 acres to defendant John W. Brown, retaining to herself a life estate therein. At about the. same time John W. Brown conveyed to Sam B. Brown all his interest in the 200-acre tract. The widow, Rachel Catherine Brown, likewise at the same time made a deed to Sam B. covering the 200-acre tract. Under the will of the husband she had a life estate in this tract. The estate of Benjamin Brown, although not done promptly, was finally administered upon by the widow-as executrix under the will. After John W. moved from the farm the widow remained there some two or three years and then moved to a near-by town, where she boarded for five years and until the date of her death in 1908.

The plaintiffs, who are the heirs of Rachel Catherine Brown, before mentioned, with the exception of John and Sam, who are defendants, by bill in equity seek to have the deed of March 21, 1887, conveying the home place to John, set aside and cancelled and also ask that the said John be required to account for the rents and profits of the land from and after the death of their mother. The grounds upon which the bill seeks the cancellation of this deed are (1) mental incapacity, (2) false and fraudulent representations,. (3) undue influence and (4) coercion. The pleader in the bill clusters around these grounds a mass of supposed facts, stating them in detail, but the gist of the bill is covered as above stated. John Brown answered denying all material allegations of the bill. Sam Brown did not answer.

Trial in the circuit court resulted in a finding of the- issues for the defendants, and the dismissal of. plaintiffs’ bill. After the filing and overruling of motion for new trial, plaintiffs duly perfected their appeal to this court.

The only assignment of error urged is that the court erred in deciding the issues in favor.of the defendant and in dismissing plaintiffs’ bill in equity.

I. It is urged that the grantor was mentally incapacitated to make the deed in question. The plaintiffs ’ evidence upon this question tended to show that in 1881, the grantor in this deed, Mrs. Brown, suffered from a paralytic stroke, and was thereafter physically and mentally weak. This evidence, with but slight exceptions, comes from plaintiffs alone. Their testimony is quite damaging upon all the grounds stated. In many instances it is so strong as would excite suspicion as to its verity. By the plaintiffs, Mrs. Brown is made a nervous wreck after this alleged stroke of paralysis. On the other hand, however, her neighbors and friends of many years’ standing were called. Her several attending physicians were called, and none of them observed any evidence of a paralytic stroke. The overwhelming evidence is that whilst physically Mrs. Brown was not what might be called a robust woman, but on the contrary was rather frail, yet she was a woman possessed of a sound business mind, and rather inclined to hold out to the last for her views of a situation. Upon the question of mental capacity, the chancellor nisi could not have done otherwise than find as he did. He was, under the evidence, forced to find that she was possessed of full mental capacity at the making of this deed.

II. Upon the question of coercion the testimony is, to say the least, conflicting*. Defendants testify positively that there was none, and plaintiffs testify to some circumstances which might be said indicated that there was such action upon the part of defendants. In this, too, their testimony would appear to be largely overdrawn. The whole family seemed to be possessed of some temper, and plaintiffs appear much overwrought in their demeanor, upon the witness stand. None of them visited their mother after the year 1887. About that time an inventory was taken of the father’s estate by the mother, and the plaintiffs openly charged the mother with making a false inventory. The father had by his will cut out the grandchildren for the reason, as stated in a codicil to the will, that he hád given their mother all of his estate that he intended to go to her. The plaintiffs insisted on their mother ignoring the will and dividing the estate between them all equally. Tt would seem that at least part of the plaintiffs were of the impression that the whole 527 acres of land belonged to the estate, bnt on the taking of the belated inventory the real situation was discovered. This seemed to be a source of irritation. The chancellor nisi could observe the witnesses much better than we, and we would be loath to disturb his finding even upon evenly balanced testimony. We are not prepared to say that upon the question of actual coercion the testimony is evenly balanced. On the contrary we think not. The conduct of their mother afterward does not bear out such an idea. E’or at least seven years prior to her death she lived to herself. She boarded in reputable families, and had she been forced to make a. deed, she could easily have taken steps to have had it annulled. Instead of doing so, she rented her farm year after year for $500' per year, and several times told the tenant that the farm belonged to John W. at her death, and that the tenant should consult him as to how the farm should be worked. This and many other circumstances in the record do not bespeak coercion. Defendants contend that plaintiffs so harassed their mother about selling the farm and dividing the proceeds, that she finally-concluded that it was best to do as she did do for her own good. They say that what was done was done upon the initiative of the mother. That the mother suggested that if John W. would deed his interest in the 20-0-acre tract to Sam B., she would make John W. a deed to the 327 acres, reserving to berself a life estate for her own independent support and maintenance. But, be that as it may, for the point now under consideration it must be said that the evidence is ample to sustain the finding of the lower court upon the question of coercion. And what is said of this ground may with equal propriety be said of the alleged false representations. There is even less basis in the record for that charge.

III. Nor was there error upon the part of the trial court in finding that the deed in question was not the result of .undue influence exercised over the mind of the -grantor by the defendants or either of them. The evidence is not as clear as it might be as to the business relations between the mother and the two defendants whilst they were running the farm during the three years that intervened between the death of the husband and the making of the deed involved in this suit. We shall discuss the case upon the theory that a fiduciary relation is shown by the testimony, and thus obviate a review of the fragmentary evidence bearing upon that question. Such fiduciary relation only raises the presumption of undue influence. This presumption can be rebutted by the evidence, including the facts and circumstances in evidence. We are cited by the plaintiff to the cases of Cadwallader v. West, 48 Mo. 183; Martin v. Baker, 135 Mo. 495, and Dingman v. Romine, 141 Mo. 466. We are familiar with the doctrines announced in those cases. In fact, the writer was of counsel in the latter case. These cases announce the general rule of law in this as well as other jurisdictions upon the question of fiduciary relations, but as said above, we shall not only recognize the rule, but shall conclude that there was such a relation in this case. We then have left the question, whether the evidence for the defendants was such as to overcome the casé made by the plaintiffs, including’ the presumption. Presumptions as to facts always take flight upon the appearance of the facts themselves. Was the chancellor nisi, the Hon. E. W. Hinton, sitting specially in this case, justified in his conclusions of facts as to the non-existence of undue influence? We think so. First, the great weight of proof shows (1) that the grantor was of sound mind, (2) that she was a strong-willed woman, and (3) that she was well treated by the two boys who remained with her for some years, and utterly ignored by the plaintiffs. It is true that plaintiffs say that they did not visit tbeir mother because of the unseemly and harsh conduct of the two younger brothers, but this story is not plausible when we consider that the latter seven or eight years of her life the mother lived alone, and yet they visited her not. It is clear from the evidence that these parties were estranged, and it is as likely due to the conduct of the plaintiffs as to any other cause. They accused her of making a false appraisement of their father’s estate. They urged her not to accept the will as made by the. father, and after the sale of the father’s property in the course of the administration of his estate, they made no attempt to visit the mother even though they knew she was away from defendants, and according to their testimony weak both physically and mentally.

Under the law, the land in question was the mother ’s. She had a right to do with it as she pleased. It is more than probable under the facts that she had been well treated by the younger boys and felt closer to them. Good treatment from a son toward an old mother is not an influence which the law condemns.

But going further the acts of undue influence are denied and the circumstances seem to rebut them. First, the deed was made and immediately recorded, so that there were no dark-lantern steps upon the part of John W. Brown. Likewise were the brother’s deeds made about the same time recorded. The deed had stood for twenty-one years when the grantor died. She was fifty-seven when she made it and seventy-eight when she died. The last seven or eight years of her life she was not living with either of the defendants. She attended to her own business up to the time of her death. During these years her physicians and her neighbors say she was all right mentally. Had she been wronged into the making of this deed, she would have no doubt attempted to rectify it, and especially is this true when it is further considered that, the plaintiffs had urged an equal division of the property. To her tenants she declared truthfully what had been done. She was far from being in the situation of the parties named in the cases to which we are referred by plaintiffs’ counsel. She was neither mentally nor physically as were those parties. She had evidently reached the conclusion that she had been wronged by plaintiffs. She no doubt smarted under the accusation of being false to her trust as executrix of her deceased husband’s estate. Upon the whole, the record amply justifies the finding of the learned chancellor nisi, as to the absence of undue influence.

This covers the questions of the case. The judgment of the circuit court is for the right party and is therefore affirmed.

All concur.


author: BROWN, C. PER CURIAM.

text:
    THE STATE ex rel. R. G. RANNEY v. SCHOOL DISTRICT OF CAPE GIRARDEAU and FRED L. MacCHESNEY, Appellants.
    Division One,
    November 29, 1911.
    1. MANDAMUS: Pleading: Demurrer: Appeal. In an appeal by respondent from an order adjudging tbe issue of a peremptory writ of mandamus, where the cause was decided upon the pleadings alone, the only question is whether upon those pleadings taken together the trial court was wrong in its decision. The trial court’s action upon a demurrer to respondent’s return has no significance except as a guide to the theory upon which the case was decided.
    2. -: -: Judicial Notice. When the respondents in mandamus fail to demur to the alternative writ, and plead specially in avoidance in their return, they assume that their rule governing the admission of pupils to their schools is not one. of the reasonableness of which judicial notice can be taken.

      3. -: Performance of Act: Costs. When the specific act commanded hy an alternative writ of mandamus is performed after the issue of the writ, the proper practice is to refuse to make the writ peremptory, respondent to pay the costs.
    4. JUDGMENT: Appeal. Although the judgment in this action in mandamus affected no substantial right-of appellants, merely ordering them to do something they had already done, yet, since a final judgment should he for the one appearing to he the right party upon the whole record, said judgment is reversed.
    • Appeal from Cape Girardeau Circuit Court. — Ron. Henry G. Riley, Judge,
    Reversed and remanded {with directions).

      Benson G. Hardesty for appellants.
    (1) “The board shall have power to make, all needful rules and regulations for the organization, grading and government in their school district.” R. S. 1899, sec. 9761. (2) The rule in question is reasonable. In re'Rebenack, 62 Mo. App. 8; King v. Jefferson City School Board, 71 Mo. 628; Deskins v. Gose, 85 Mo. 485; State'ex rel. v. Hamilton, 42 Mo. App. 31; Blue v. Beach, 50 L. R. A. 72; Burdick v. Babcock, 31 Iowa, 562; Sewell v. Board of Education, 29 O. St. 89; Bourne v. State, 35 Neb. 1; Churchill v. Fewkes, 13 111. App. 520; Kinzer v. Toms, 3 L. R. A. (N. S.) 496.

      R. G. Rdnney for respondent.
    Relator’s son, being six years of age, free from contagious diseases, having never been exposed to the same, and never having been guilty of - any breach of discipline of the school, was entitled to enrollment and admission into the schools when he applied therefor. 1 Blaekstone’s Com., 475, sub-div. II, par. 5, also p. 480; State ex rel. v. Cartwright, 122 Mo. App. 257; Roach v. St. Louis P. Sch.; 77 Mo. 484; Dritt v. Snodgrass, 66 Mo. 298; State ex-rel. v. Jones, 155 Mo. 571; Board of Education v. Bolton, 85 111. App. 92; State ex rel. v. Jones, 155 Mo. 576; State ex rel. v. Penter, 96 Mo. App. 419; State ex rel. v. Osborne, 24 Mo. App. 309; King v. Jefferson City Sch. Bd., 71 Mo. 630.
   BROWN, C.

This is an application on behalf of the relator for mandamus to compel the defendant school district and its codefendant, the principal of one of its public schools, to receive and enroll in said school, Ralph Gr. Ranney, the infant son of the relator, six years old. The alternative writ, issued upon the relator’s petition on the 13th day of November, 1905, states that on the sixth, seventh and eighth days of November of that year he and his said son, who was then of school age and entitled -to enrollment as a pupil in the said school, demanded of respondents that he be enrolled and instructed therein, but that the said principal of the school and the president and directors of the school district wrongfully and wilfully, .in abuse of their authority and without just cause or excuse, refused so to enroll him, and on each of said days ordered him to return to his home; and that they then and there refused and still refuse to instruct him or in any manner recognize him as a pupil in said school for the following reason and no other: “That said Ralph Gr. Ranney had neglected or failed to apply for enrollment in said school on the first day of the term thereof, and that said president and directors of said school district, respondent, had made a rule by which pupils are not enrolled in the first grade, except at the beginning of each half-term, or during the first week of the same.” The writ further stated “that said rule is arbitrary, unreasonable and oppressive, and made without authority of law, and is in derogation and contravention of the rights of relator and Ms said cMld under section 1, article 11, of the Constitution of the State of Missouri.”

That said writ, following the petition therefor, commands the respondents to “receive and enroll in the public school of the city of Cape Girardeau the said Ralph G. Ranney whenever requested so to do by the said Robert G. Ranney, his father; and . . . at all times during the terms of school and during the school hours thereof to teach and instruct the said Ralph G. Ranney in all the branches of learning taught in said school, or that you appear before the Cape Girardeau Circuit Court, at the city of Jackson, on the first day of January, 1906, at two o’clock p. m., to show cause for your refusal so to do.”

The writ was served on the day of its issue. The respondents appeared on the return day, and after-wards, on August 27, Í906, filed their return. It states that relator’s son was only six years old at the time of his application, and admits all the allegations of the writ except that the rule pleaded “is arbitrary, unreasonable and oppressive and made without authority of law, and is in derogation or contravention of the rights of the said relator and his child under section 1, article 11, of the Constitution of the State of Missouri,” and “that in enforcing the said rule as aforesaid they acted wrongfully, illegally, oppressively, wilfully and in abuse of their authority and contrary to law and without just cause and excuse;” all of which they expressly deny.

They then plead with sufficient detail substantially that during the five years next preceding November, 1905, the population of the city of Cape Girardeau increased from about five thousand to about ten thousand. The population of the said school district was practically doubled during that- time; that the schools of the district were very much crowded; that the first grade room in the Lorimier School, which the relator’s child was entitled at proper times to enter, had a seating capacity of fifty scholars; that the enrollment of said grade in that room for the school month beginning October 30, and ending November 24, 1905, was fifty-five, with an average attendance of forty-eight; that the same crowded condition existed in the other schools; that the school year in that district consisted of thirty-six weeks, divided into four terms, and that relator and his son failed to apply for the admission of the son at the beginning of any half term, or during the first week thereof; “that the relator’s said child was admitted to the first grade of the said Lorimier School soon after the granting of the alternative writ of mandamus herein and then and there enrolled and has ever since been instructed and treated in all respects exactly like other children of the first grade in the said Lorimier School.”

The relator demurred to all that part of the return constituting the plea in avoidance above set out in substance, including the averment that relator’s child had already been admitted to and was, attending the school, on the following grounds: • “That said part of said answer does not state facts sufficient to constitute a defense to relator’s cause of action; that the allegations of said part of said answer are inconsistent with each other.”

The.demurrer was sustained by the court, and all of that part so demurred to was stricken out; and thereupon, the respondent declining to plead or otherwise proceed further, the court, without hearing evidence, adjudged that the writ be made peremptory.

This cause having been tried and decided upon the pleadings alone, the only question raised by the appeal is whether or not upon those pleadings, taken together, the trial court was wrong in its decision. Its action upon the demurrer to the return of the respondents, which it seems to have considered as a motion to strike out parts of that pleading, has no significance except in so far as it informs us of the theory upon which the case was disposed of. It stands here the same as if the final judgment of the court had been, entered upon a motion to make the writ peremptory upon the coming in of the return.

The alternative writ, issued and served November 13, 1905', after stating the exclusion of the relator’s child from the district school on the sixth, seventh and eighth days of the same month, sets out the rule of the board of education under which it was attempted to justify this action, and states “that said rule is arbitrary, unreasonable and oppressive and made without authority of law and is in derogation and contravention of the rights of relator and his said child under section 1, article 11, of the Constitution of the State of Missouri.” The power of the hoard of education “to make all needful rules and regulations for the organization, grading- and government in their school district,” is expressly given by the statute (R. S. 1899, sec. 9764), by which its nature and extent must he judged; with the qualification, however, that neither the Legislature, nor the hoard by its authority, can make or enforce any rule inconsistent with the constitutional requirement that these schools shall he maintained for the gratuitous instruction of all persons in the State between the ages of six and twenty years. From this constitutional mandate it necessarily results that the Legislature has power to authorize, and that the school authorities have power, to the extent of such authorization, to make such rules as shall he needful for the orderly conduct of the schools and to guard the moral and physical health of the pupils, so as to make them available to all alike who may he entitled to their advantages. These rules may, and some of them necessarily will, deprive some pupils tempor* arily of the' right to avail themselves of the facilities for instruction which they afford, hut all must he adapted to the promotion and accomplishment of the paramount object contemplated by the Constitution. They cannot arbitrarily and unnecessarily deprive any beneficiary of the Constitution of any part of the right guaranteed to him. Por example; a rule that no person should be enrolled in the public schools who had not attained the age of six years and one month would be evidently void, because tending only to defeat that object. On the contrary, a rule forbidding the attendance of persons afflicted with, smallpox would be evidently valid because it would tend to promote that object. Between these extremes lies a vast field for the exercise of this rule-making power, which depends, in some instances, upon local or temporary conditions of which the courts cannot take judicial notice, and to which their attention must therefore be directed by pleading and evidence. The fact that by their failure to demur to the alternative writ, and by the special plea in avoidance in their return, the respondents assume this case belongs to the class last mentioned, relieves us from any further consideration of that feature, and we may, and will, so far as is necessary, indulge the same assumption.

The wrong alleged in the alternative writ is the refusal of respondents to enroll relator’s son as a pupil in the school on the sixth, seventh and eighth days of November, 1905, and continuously up to the issue of the writ on the 13th day of the same month. It also states that such refusal was “for the following reasons and none other, to-wit: That said Ralph Gr. Ranney had neglected or failed to apply for enrollment in said school on the first day of the term thereof, and that said president and directors of said school district, respondent, had made a rule by which pupils are not enrolled in the first grade, except at the beginning of each half-term, or during the first week of the same. ” '

Upon service of the writ the respondents could obey it, or, in default of obedience, they might show cause against it (1) by demurrer, or (2) by return tendering issues of fact in justification of tbeir disobedience. In this case they made, nearly nine months after service, a return setting forth facts which they insist would have justified them had they chosen to disobey the writ, and also pleading “that the relator’s said child was admitted to the first grade of the said Lorimier School soon after the granting of the alternative writ of mandamus herein, and then and there enrolled, and has ever since been instructed and treated in all respects exactly like other children of the first grade in the said Lorimier School.” This averment is plain. It refers to the writ, and says that soon after its issue the respondents did the very act which it commanded. That it amounts to a return of unqualified obedience there can be no question. Even the rule, which only related to the initial step by which persons become pupils of the schools, their enrollment in the first and lowest grade, became functus officio as to relator’s child, and the controversy not only, but the subject of the controversy, ceased to exist. There was nothing in the mandate that respondents receive and instruct the child “at all times during the terms of school” which could prevent his exclusion for any cause thereafter accruing, or which gave it any additional force. The object of the peremptory writ of mandamus being to compel the performance of a specific act, when that act is performed the writ would be fruitless and should not issue. "When the performance is subsequent to the issue of the alternative writ the proper practice is to refuse to make it peremptory at respondent’s cost (State ex rel. v. Lafayette County Court, 41 Mo. 38), and that is the.judgment which should have been entered. Instead of doing this the trial court made the writ peremptory.

While this judgment affected no substantial right of the respondents, ordering them, as it did, merely to do something which they had already done, we think that its entry was such an error as we ought to correct on this appeal. The due and orderly conduct of judicial proceedings requires that a.final judgment should be for the one appearing to be the right party upon the whole record, notwithstanding any defect or error in the pleadings or proceedings which shall not affect the substantial rights of his adversary, and we see nothing in the terms of section 1850', Revised Statutes 1909, which requires that a judgment for the wrong party ought to remain upon the records of the court when properly questioned by appeal. Nor do we think there is anything in section 2553 which requires that costs be given one who obeys an alternative writ of -mandamus rightfully sued out against him.

For the reasons stated, and without expressing any opinion upon the force and effect of the rule of the respondent board of education in question otherwise than as to the effect given it by the pleadings for the purposes of this case only,, the judgment of the circuit court is reversed, and the cause remanded with directions to the circuit court to set aside its order striking out that part of the return stating that relator’s child had been enrolled and was being instructed in its school, and to enter judgment refusing to make ■ the alternative writ peremptory, and thát the costs in said court be adjudged against respondents in that suit, except the costs accruing upon the demurrer, including the setting aside of the order sustaining the same and the entry and vacation of the judgment appealed from, which shall be adjudged against relator. The costs of this appeal are adjudged against the relator.

.Blair, G., concurs.

PER CURIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


text:
    MISSOURI CENTRAL BUILDING AND LOAN ASSOCIATION, Appellant, v. JOHN B. EVELER et al.
    Division One,
    November 29, 1911.
    1. LIFE ESTATE: Mortgage: Money Invested in Improvements: Equitable Lien. The life tenant has power hy a deed of trust to encumber his life estate, but he cannot encumber the estate of the remaindermen; and even though he represents himself to the mortgagee to be the owner in fee simple of the lots, and upon the faith thereof the mortgagee lends him money and tabes from him a deed of trust, and he uses the money in building a house thereon, the mortgagee, after his death, cannot have a lien on the lots or the house for the amount of the-loan or any part thereof, if the remaindermen are minors, or being adults did nothing to estop themselves.
    2. -: Improving Estate: Equitable Lien. The life tenant has no power to charge the corpus of the estate with improvements; and if the remaindermen are minors, no charge upon the lands or the inheritance or .the improvements can be made for improvements made by the life tenant.
    Appeal from Cole Circuit Court. — Hon. Wm. H. Martin, Judge.
    Aeeirmed. ’

      W. 8. Pope and A. T. Dumm for appellant.
    Appellant concedes that it has been unable to find a decision of the appellate courts of this State which will determine the issue involved in the case at bar. It concedes, further, the general rule that a life tenant cannot make improvements and claim compensation for same from the reversioner or remainderman. But in this case the money loaned by plaintiff was loaned in good faith, and on the representation of the owner of the life estate (which plaintiff believed to be true) that he had a fee simple title to the property. The petition alleges, and the demurrer admits, that every dollar of the money so loaned by plaintiff to the life tenant was spent by the latter in making permanent .improvements upon the property, which greatly increased its value. The remaindermen who, on the death of the life tenant, became the owners in fee simple of the property, have received all the benefits of this increased value. Plaintiff is remediless a.t law, and it is submitted that the equity power of the court can be invoked to grant it relief by subjecting the property to the payment of the debt, and this without in any way prejudicing the rights of the present owners.

      Hazell, Edwards é Lay for respondents.
    (1) A life tenant cannot bind the estate, even though the improvements he places on it are of benefit and result in an enhancement of its value., Reyburn v. Wallace, 93 Mo. 326; Waldermeyer v. Loebig, 183 Mo. 363; Fredericks, Jr. v. Fredericks, Admr., 31 Ky. Law Rep. 583; Hall v. French, 165 Mo. 438. (2) There is no equity in plaintiff’s bill. This is a case where the maxim that “equity follows the law” strongly applies. Not having, any standing in a court of law, they are in no better position in one of equity. Plaintiff was charged with notice of the terms of the -will of the father of Herman Eveler, the life tenant, and it could not bind the land of these minor defendants, simply because, as charged in the petition, it believed and relied on the false representations of Herman Eveler that he had an absolute estate in fee in the property. As between itself and these minor defendants appellant must stand the loss incurred, due to their mistake and confidence in the misleading and false statements made by the father, the life tenant, as to his title to the land. Waldermeyer v. Loebig, 183 Mo. ■373. (3) As to what the law is as to binding contracts of infants, even when made by themselves and beneficial to themselves and their .property, the court’s attention is respectfully called to these cases: Valle v. Fleming, 19 Mo. 454; Beck v. Kallmeyer, 42 Mo. App1. 563; Tatum v. Holliday, 59 Mo. 422; Horstmeyer v. Connors, 56 Mo. App. 115; Maupin v. Grady, 71 Mo. 278; Paul v. Smith, 41 Mo. App. 275; Dillon v. Bowles, 8 Mo. App. 419, 77 Mo. 603; Ridgeway v. Herbert, 150 Mo. 606; R. S. 1890, sec. 3423.
   GRAVES, P. J.

Cást upon demurrer below, the plaintiff stood upon its petition and after such adverse judgment upon the demurrer brings the case here by appeal. Learned counsel for the plaintiff has made a very concise statement of the case, which statement is adopted in the brief by learned counsel for the defendants. We shall likewise adopt such statement. In words, it is as follows:

“The petition alleges, and the demurrer admits, that in the year 1901, Herman Eveler, being in possession of a part of certain inlots in Jefferson City, Missouri, described in the petition, applied to plaintiff for a loan of $800 on said property, representing himself to be the owner thereof in fee simple; that in the year 1903, under the same representations, he applied to plaintiff for a further loan of $600 on°said property, and in the year 1904, under like' representations, he applied to plaintiffs for a further loan of $400, on said property; that plaintiff, believing said representations of ownership to be true, and believing that the said Herman Eveler was the owner, in fee simple, of the property, granted the loans thus applied for, amounting in all to $1800, and took the said Eveler’s notes for said amounts of $800', $600 and $400, said notes being secured by deeds of trust on said property, executed by the said Herman Eveler and his wife, defendant Nellie A. Eveler; that all of the money so loaned by plaintiff to the said Herman Eveler was used by him in making lasting and permanent improvements on said property, which, resulted in greatly increasing the rental and market value thereof; that the improvements so made consisted in the building of another story on the two-room brick house theretofore standing on the land, and in erecting on the same land a seven-room,' frame, two-story building, the former being occupied by the defendants as a home, and the latter being rented by defendants at $29’ per month. ‘
“The petition further alleges that Herman Eveler died in May, 1907, leaving as his only children the minor defendants, and his widow, defendant Nellie A. Eveler, and that since his death defendants have enjoyed the rents and profits of all the buildings erected with the money so borrowed from plaintiff as aforesaid. That no payments have been made on said loans since the death of the said Eveler, and that there is now due plaintiff on said loans the sum of about $1380.70. That it now appears that the said Eveler’s representations of fee simple title in himself were untrue; that by the terms of his father’s will, under which he was in possession and claimed said property, the said Herman Eveler never had the fee simple title to said property, but had only a life estate therein, and that on his death the fee simple title to said property vested in Eveler’s children, the minor defendants herein. The petition further states that defendants refuse to make any further payments upon the loans, that plaintiff is remediless at law and prays the court, in the exercise of its chancery powers, to ascertain the amount yet due plaintiff, to declare such’ amount a lien upon the improvement's, and to adjudge that the frame building now standing upon the minor defendants’ land be subjected to the payment of plaintiff’s debt in such way as to the court may seem best; and-for such other proper and equitable relief as to the court may seem proper.
Defendant Nellie A. Eveler demurred to the petition on the ground that she was not a necessary party defendant, and the minor defendants demurred on the ground that the petition did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrers, and on plaintiff’s declining to plead further, rendered judgment for defendants, whereupon plaintiff duly appealed to this court.”

The facts disclosed by this record show a hard case for the plaintiff, but has it any redress in a court of equity? We think not. The good faith of plaintiff in loaning this money may be conceded, and by the demurrer is conceded, yet that does not avail the plaintiff in a case environed as is this case. With the money borrowed, the deceased life 'tenant made valuable improvements upon the lands, but under the facts this cannot avail as against these remaindermen. The father, the life tenant, could not by trust deed encumber the estate of these minors. His conveyance conveyed no more than the estate which he held, i. e., the life estate. This is the legal status, and in our judgment equity cannot relieve the legal situation. If life tenants could borrow money, whether upon deeds of trust or otherwise, with which to improve the estate of remaindermen, and the parties loaning the money could show that it went into actual improvements, and for that reason be adjudged a lien upon the property or any part thereof, estates in remainder would certainly be left in a precarious situation. Remainder-men would be at the mercy of the life tenant. Such would be a dangerous precedent and one which we do not feel called upon to set.

When the plaintiff loaned these sums of money to the life tenant, it did so with the constructive notice imparted by the will of the life tenant’s father. That' the title was defective could have been ascertained and this law suit averted is evident. The situation is harsh, but was not made by these defendants. The widow of the life tenant has no interest in the controversy and as to her the demurrer was certainly well taken.

Going* now to the remaindermen, we take it as well settled that a life tenant cannot charge the corpus of the estate with improvements. What he himself cannot do, cannot be done by those from whom he borrows money for that purpose.

In a recent Kentucky case, Frederick, Jr. v. Frederick’s Adm’r, 31 Ky. Law Rep. l. c. 584, it is said: “It is a familiar rule that the life tenant cannot charge the corpus of the estate with improvements, and that he is not entitled to compensation for the enhancement of the property by reason of his improvements. [Henry v. Brown, 99 Ky. 17.] We do not see that there is anything in this case to take. it out of the rule. If the improvements had been made by Mrs. Frederick, the life tenant, they would not be a charge upon the estate. They are certainly no more a charge upon the estate when made by her husband. . . .

It is a sound rule of public policy which denies the life tenant the power to charge the estate for his improvements, although they may enhance the value of the property.”

The above case is also reported in 13 L. R. A. (N. S.) at page 514, where it is made the subject of a very lengthy note in which are collated numerous authorities. The learned annotator thus announces the general rules:

“It is the general‘rule that a life tenant has no right to recover from the remainderman for improvements made during the continuance of the life estate.
“And it is also the well established law that no charge upon the lands or the inheritance can be made for such improvements.
“The court, in Caldwell v. Jacob, 16 Ky. L. Rep. 21, gives two reasons for this rule: First preventing the life tenant from consuming the interest of the remainderman' by making* improvements that the remainder-man cannot pay for, or that lie does not desire; second, improvements are made for the immediate benefit of tbe life estate, and usually without reference to tbe wishes of the remainderman.”

In 16 Cyclopedia Law and Procedure, p. 631, tbe rule is thus stated: “If tbe life tenant himself makes permanent improvements it will be presumed that they were for bis own benefit, and be cannot recover anything therefor from tbe remainderman or reversioner. Exceptions to this rule have been made in tbe case of a life tenant who completes a dwelling bouse begun by tbe donor of tbe estate, or who makes improvements upon mining'property to prevent its forfeiture. A life .tenant who makes .improvements believing- himself to be tbe owner in fee is not entitled to tbe benefit of tbe betterment or occupying claimant laws.”

There are exceptions to these general rules as will be disclosed by tbe collation of cases under tbe Frederick case, supra, in 13 L. R. A. 514, et seq., but tbe facts of this case do not bring it within tbe exceptions found in tbe cases there cited. In tbe case at bar tbe remaindermen were all infants. They could not assent to tbe contract made by. their father, tbe life' tenant, and they are in no way estopped by their own conduct.

It is also tbe general rule that one bolding under tbe life tenant is entitled to no more consideration than tbe life tenant. [Vide authorities collated in note to tbe Frederick case, supra, 13- L. R. A. (N. S.) l. c. 516.] Among tbe cases there cited is tbe case of Schorr v. Carter, 120 Mo. 409. In tbe Schorr case, the action was one in ejectment by a remainderman. Defendants bad possession and claimed title through a conveyance from tbe life tenant. It was urged that defendants were at least entitled to recover for repairs made to tbe property and have such offset against tbe damages for tbe unlawful bolding. This court said: “Defendants were not entitled to a reduction of damages for outlays expended in the preservation of the property, and the court committed no error in excluding’ all evidence with respect thereto.”

With the general trend of the authorities as we find them we are unwilling to establish a precedent in this State, by which the interests of minor remainder-' men may be frittered away by a life tenant. Plaintiff, by the exercise of that care which is required of one taking a conveyance of real estate, could have discovered the. exact status of the title to this property. Defendants did nothing to induce action upon the part of plaintiff. They were minors and could do nothing which would bind them.

The judgment of the trial court is right and is therefore affirmed.

All concur.