text:
    CITY OF CARTERVILLE, Appellant, v. DELLA GIBSON.
    Division One,
    June 30, 1914.
    1. CONSTITUTIONAL QUESTION: Occupation: Tax: Paid in Service: Raised by Agent. In a prosecution of an agent of a telephone company for conducting a telephone business in a city without the license required by ordinance, the company not being a party, the court will not undertake to determine a constitutional question which is personal to the company, since to do so would be mere obiter.

    2. TELEPHONE BUSINESS: No City License: Liability of Agent. The agent of a foreign telephone company licensed to do business in this State, cannot be fined or otherwise punished for conducting a telephone business for said company in a city without the city license required by ordinance, unless there is an express statute, or ordinance authorizing the punishment of the agent.
    3. -: -: -: ‘Lawful Business. In the absence of a specific law to the contrary, no mere agent of a company conducting a business lawful within itself, is personally liable for the acts of the principal. If the ordinance forbid a foreign telephone company licensed to do business in this State from conducting a business in the city without having first obtained a license from the city, the company must pay the occupation .tax and procure the license, and it alone is responsible for failure to do so, and its switchboard agent or clerk cannot be punished for conducting said telephone business without such a license first issued to the company.
    4. OCCUPATION TAX: Conducting Business Without License. If the business is lawful, no person (principal or agent), in the absence of an express law to the contrary, can be punished criminally for conducting it without the payment of an occupation tax, any more than he could be for conducting it without paying a general city or school tax.
    Appeal from Jasper Circuit Court. — Hon. D. E. Blair, Judge.
    Affirmed.

      A. M. Baird for appellant.
    (1) The Legislature as well as the city is forbidden by constitutional and statutory enactment from exempting property from taxation. Secs. 6 and 7, art. 10, Constitution; Sec. 9366, R. S. 1909; State v. Railroad, 75 Mo. 208; Urana v. St. Louis, 164 Mo. 146. (2) A city cannot bind itself by an ordinance which is against public policy or abridge its legislative, police, taxing or governmental powers, by surrender or bargaining them away. Kansas City v. Corrigan, 18 Mo. App. 206; Dillon’s Mun. Corp. (4 Ed.), secs. 97, 317, 329, 457; 28 Cyc. 644, 654, 368, 276, 635; Sec. 2778, R. S. 1909; Sees. 1, 2, and 9, art. 10, Constitution; State ex rel. v. Murphy, 130 Mo. 23; Carthage v. Garner, 209 Mo. 702; Westport v. Mulhall, 159 Mo. 95. (3) The power to exempt property from taxation is not inherent in a municipal corporation. The power resides only in the Legislature unless the Constitution otherwise ordains and the city must have express charter power in order to make exemptions. State v. Railroad, 75 Mo. 210; Urana v. St. Louis, 164 Mo. 151. (4) A municipal corporation may successfully interpose the plea of ultra vires when charged with having executed a contract. State v. Railroad, 75 Mo. 213; Cheeney v. Brookfield, 60 Mo. 53; Johnson v. School District, 67 Mo. 319; Urana v. St. Louis, 164 Mo. 146; Anderson v. Ripley County, 181 Mo. 46.

      Cole & Shepherd for respondent.
    (1) The contract or franchise granted in February, 1895, by the mayor and board of aldermen of the city of Carterville was authorized by its statutory charter, to-wit, under the general welfare clauses of the statutes: R. S. 1909, secs. 9371; R. S. 1899, sec. 5957, Laws 1895, p. 65; R. S'. 1889, sec. 1589; Plattsburg v. Telephone Co., 88 Mo. App. 306; California v. Telephone Co., 112 Mo. App. 722; Lancaster V. Briggs & Melvin, 118 Mo. App. 57. (2) The contract made by the city of Carterville in February, 1895, being authorized by the general welfare clause of its charter, and having been faithfully performed for many years by the Telephone Company on its part, could not be abrogated by a new set of officers or by resolution or ordinance without any notice to the other contracting parties and without process of law, so as to have the following effects: (a), to destroy the contractual relations that had existed and the benefits of which had been enjoyed by the city for years; (2), to convert the mutual, amicable, helpful and legal contract into a nullity; and (c), be entitled to the moral and legal right to prosecute and have the aid of the State toward the imprisonment or fine of a young person who was then and there a mere clerk or helper in the performance of the duty of the 'Telephone Company under the provisions and conditions of the legal contract, the benefits of which the city had so long received. (3) The contract set out in the ordinances was not and is not an exemption. Exemption from taxation means free from liability, from duty and from service. It is a grace, a favor, an immunity; taken out from under the general rule; not to be like others that are not exempt; to receive and not to make return. Grant v. Davenport, 36 Iowa, 405; Bartholomew v. Austin, 29 C. C. A. 577. The taxes to be levied were to be legal obligations for money; the obligations were of value. On a comparing of values, the parties being competent to contract, it was concluded that the values were equal and the one- should be offset by the other. This is not “exemption.” Portland v. City Co., 67 Me. 135; Bank v. City of Arkansas, 22 C. C. A. 171, 76 Fed. 271; Bartholomew v. Austin, 29 C. C. A. 577; Water Co. v. Waterville, 49 L. R. A. 295.
   WOODSON, P. J.

The appellant is a city of the fourth class, organized and existing under the laws of this State, and the respondent is the agent of the Home Telephone Company, duly organized and incorporated under the laws of the State of----and duly authorized to do business in this State.

As I gather from the records she was the agent of the company in the city of Carterville, but not in the State at large.

The Telephone Company, through respondent, claims to have an occupation license from appellant, to construct and maintain its lines and conduct its business in said city. The consideration for the issuance of this license was, the company agreed that the city might use its poles free for stringing fire-alarm wires, that it (the company) would furnish the power therefor and furnish the latter one telephone free for general city purposes.

The appellant claims that the company has violated the terms of its license and forfeited the same by discontinuing to furnish the city a free phone, and that it is therefore doing business in that city without a license.

Predicated upon those contentions the city had the respondent — Della Gibson — the agent of the company, arrested for conducting a telephone business in Carter-ville without a license, as required by ordinance.

The respondent was tried in the city court, where she interposed the defense that she was not operating or conducting a telephone business in that city, or elsewhere, but was simply the agent of the Home Telephone Company; also that the company had a license such as was required by the ordinances of the city.

A trial was had in the police court of that city, which resulted in a fine imposed upon the respondent, from which she appealed to the circuit court of Jasper county, wherein, upon another trial, she was acquitted, and the city-appealed the case to this court.

I. Without stopping to state the various reasons assigned, the case was properly appealed to this court; and we will therefore proceecl to dispose of tiae case upon its merits, without stopping to discuss the constitutional questions properly injected into the case, but by the wrong party.

After a careful examination of the authorities and a due consideration of the evidence introduced in this case, we are fully satisfied that the Home Telephone Company is not properly before this court, and that consequently any rulings which this court might announce under the circumstances would be purely obiter, and not binding upon the city or the company.

For those reasons we decline to pass upon the constitutional question presented by counsel for respondent. She has no right, being proceeded against personally, to involve the Telephone Company in such important litigation.

We, therefore, put the company aside, and await a disposition of the questions affecting its rights until it is brought into court and given a hearing upon the questions presented ’by the respondent in its behalf.

II. This brings us to the consideration of the respondent’s case. She is charged with conducting a telephone business in the city of Carterville without a license, in violation of the ordinances thereof duly enacted.

It is common knowledge that this Telephone Company is a great corporation doing business throughout this and other States; and that the evidence shows that respondent is the agent of the company at Carterville, a city of the fourth class. But the record fails to show that she had any other interest in the company, or that she managed or controlled the business of the company in the slightest degree, outside of looking after the property and interest of the company, and putting the customers' of the company in touch with the instrumentalities by which one person may talk over that system to another.

The respondent was not conducting a telephone business within the -meaning of the ordinance mentioned, any more than an agent in charge of a railroad station located in said city was conducting a railroad business.

I understand the law to be that, in the absence of some specific law to the contrary, no agent of another, who is conducting a lawful business within itself, is personally responsible for the acts of the principal. If that was not true then every clerk in every mercantile establishment in the State and those of all railroads, telegraph and telephone companies, would be personally liable for working for them, if perchance they had not taken out their occupation license, which, as a rule, is trivial in amount. But not so in a class of business which, within, itself is unlawful, such as gambling, the sale of intoxicating liquors or any other public nuisance. There the license legalizes the business, and until the principal has been legally authorized to sell intoxicating liquors, neither he nor his employers can lawfully so do, for the simple reason that one person cannot lawfully authorize another to do a thing which he himself cannot lawfully do.

But that rule does not apply to any business which may be lawfully conducted where no law or ordinance prohibits it. In such cases, if a statute or ordinance imposes an occupation tax, then the principal must procure the license, and he alone is responsible for failure to so do, and not his clerks, or agents. The occupation tax ’ does not make the business itself unlawful, but requires the person conducting it to take out the license or to pay the tax, and if he fails so to do, he may be punished for failure to so do, but not because Ms business is unlawful, like tbe sale of liq-. uor.

It migM with equal propriety be said, that a merchant or a farmer or a railroad, telegraph or telephone company of this State could not lawfully conduct his o.r its business until they pay the general taxes due the State and county. While this has been contended for by some, yet I know of no case where that contention has been upheld by any court of last resort.

At this time, I apprehend no one would seriously insist that a farmer could not lawfully conduct his farm without first paying Ms State or county taxes. The same is true of all other lawful business, nor can he, they, or his or their employers be pnMshed for so doing, in the absence of an express statutory provision authorizing it; and in such cases if the statute should stop with the farmer or company, then clearly their employees would not be amenable to the statute. This it seems to me is self-evident.

The same principle of law applies to the case at bar; and no good reason, in the absence of an express statute or ordinance to the contrary, can be assigned why the employees of a telephone company should be fined because their principal had failed to take out an occupation license, than those of a merchant for his failure to take out a merchant’s license. Both cases are bottomed upon the same principle and are governed by the same law.

These principles are elementary — announced by all the text-writers and adjudications throughout the whole country.

No case to the contrary has been cited and I apprehend none can be found.

Entertaining these views I am of the opinion that the judgment of the circuit court should be affirmed.

It is so ordered.

All concur.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    J. A. MYERS et al., Appellants, v. ALPHONSE DeLISLE et al.
    Division One,
    June 30, 1914.
    1. PUBLICATION: Idem Sonans: Tax Sale. Notice by publication, in a tax suit, addressed to J. A. Myer, will not support a judgment against J. A. Myers, since the names are not idem sonans and there is no showing that the names Myer and Myers were a corruption of the German name Meier; therefore a sale of the land under such judgment is void.
    2. SUIT TO QUIET TITLE: Tax Sale: Action by Owner: Failure to Pay Taxes: Laches. Where a sale of land for taxes was void for lack of notice to the owner, his failure for almost twenty years to pay taxes does not constitute laches such as will prevent him from recovering the land from purchasers under the tax judgment of whose possession and improvements he had no knowledge and in whose favor the Statute of Limitations had not run.
    Appeal from New Madrid Circuit Court. — How. Charles A. Killian, Judge.
    Reversed and remanded (with directions).

      Brewer & Riley and George W. Allison for appellants.
    (1) “Myers” and “Myer” are not idem sonans. Robson v. Thomas, 55 Mo. 581; Greer v. Lumber & Mining Co., 134 Mo. 85; Graton v. Holliday-Klotz Co., 180 Mo. 322; Wheelen v. Weaver, 03 M;o. 430'; Chamberlain v. Blodgett, 96 Mo. 482; Ohlman v. Saw Mill Co., 222 Mo. 62; Weber v. Ebling, 2 Mo. App. 15; Burge v. Burge, 94 Mo. App. 15; Scarry v. Lumber Co., 233 Mo. 686; Parchman v. State, 2 Tex. App. 228; Neiderluck v. State, 21 Tex. App. 320; Humphrey v. Whitten, 17 Ala. 30; Shuck v. Moore, 232 Mo. 656. (2) Under the pleadings and proof in this case laches or estoppel does not apply. As the plaintiffs in this case did not know of the improvements being pnt on the place by defendants until long after they were finished, the plaintiffs are not estopped. Hayes v. Schall, 229' Mo. 124; Stanton v. Thompson, 234 Mo. 15; Acton v. Dooley, 74 Mr. 69; Harrison v. McReynolds, 183 Mo. 542. Mere silence on the part of the plaintiffs does not estop them. Bales v. Perry, 51 Mo. 453; 3 Washburn on Real Property (3 Ed.), 75. Plaintiffs are not es-topped for the further reason that defendants . did know or could have known that the sale for taxes was void because the file papers which have always been on file in the office of the circuit clerk of New'Madrid county since the tax suit was therein filed and the order of publication was a matter of record in said cause and showed on its face that the said sale for taxes was void. Bales v. Perry, 51 Mo. 453; Dameron v. Jamison, 143 Mo. 491.

      Brown ds Qallivan and E. F. Sharp for respondents.
    (1) Whether or not two names are idem sonans is largely a matter of proof. Ohhnan v. Saw Mill Co., 222 Mo. 63; State v. Hare, 95 N. C. 682, decides that “Fain” and “Fanes” are idem sonans; Rooks v. State, 83 Ala. 79, decides that “Geo. Rooks” and “Geo. R.ux” are idem sonans; Williams v. State, 5 Tex. App. 226, decides that “Williams” and “William” are idem so-ans; Suirr v. State, 88 Ind. 504, decides that “Myers” and “Meyers” and “Mayer” are idem sonans. (2) The plaintiffs are estopped herein by laches. Williams v. Williams, 85 Pac. 90. Where one who claims title to land is guilty of gross laches and with full knowledge of his own claim allows the opposite party to expend his money or waits until the property is largely enhanced in value either from this or other causes, he is barred by laches though not by statute.. Moorman v. Talbot, 55 Mo. 392; Loomis v. Railroad, 165 Mo. .495; Kroenung v. Gbehri, 112 Mo. 648; Kline v. Vogel, 90 Mo. 247. “Laches prevents a recovery where the plaintiff lies by for an unreasonable length of time waiting a rise in land or some future event to determine his course, or where by acquiescence or by sleeping upon his rights he creates the belief in others that those rights are abandoned, whereby he influences them to act on such belief, or where something has intervened whereby the party asking relief would obtain an unconscionable advantage if the relief were given.” Shelton v. Horrell, 232 Mo. 374; Cochrell v. Hutchinson, 135 Mo. 75; Rutter v. Caruthers, 223 Mo. 640-; Stevenson v. Smith, 189' Mo. 446; Landrum v. Bank, 63 Mo. 56; Bucher v. Hohl, 199 Mo. 330; Naddo v. Bardon, '51 Fed. 493.
   BLAIR, C.

This action was commenced April 9, 1909, to ascertain and determine, under section 650, Revised Statutes 1899, the interests of the parties in and to 200 acres of land in New Madrid county.

The answer (1) denies the allegations of the petition; (2) avers defendants own the land; and (3) pleads the ten-year Statute of limitation and (4) laches. From a judgment for defendants, plaintiffs appeal.

In 1890, Bettie and Charles St. Clair, for a recited consideration of $2000, conveyed the land in suit to plaintiff J. A. Myers, and on March 8, 1909', J. A. Myers and wife conveyed a one-half interest therein to plaintiff Allison.

Defendants claim under a deed from Seth S. Barnes, whose interest in the land depends upon the validity of a tax judgment and sale and deed thereunder, dated March 27, 1893. The tax deed is conceded to be regular on its face, but the proceedings in the tax suit were offered. They disclose that the only notice of the suit was by publication directed to J. A. Myer instead of J. A. Myers.

In connection with the question as to the sufficiency of this notice certain evidence was ‘ offered which will be noticed in the course of the opinion.

Further questions arose on the evidence on the third and fourth pleas in the answer.

I. In a tax suit was the notice by publication directed to J. A. Myer sufficient to support a judgment against J. A. Myersf It is not disputed that to bind J. A. Myers by the judgment it was necessary to malee him a party nor that notice to him was essential to that end (Chamberlain v. Blodgett, 96 Mo. l. c. 484) but it is said, and the trial court found, that the names J. A. Myers and J. A. Myer are idem sonans, and, therefore, the publication constituted notice and the judgment and deed are valid.

The clear weight of authority is that in a case like this the omission of a final “s” from a name is a fatal variance (29 Cyc. p. 276; 100 Am. St. Rep. 324; Scarry v. Lumber Co., 233 Mo. l. c. 689) though there are some decisions to the contrary.

In this State the general rule was applied in State v. Mohr, 55 Mo. App. 325, and a contrary view was taken by this court, the omission affecting the defendant’s given name, in State v. Havely, 21 Mo. 498. All other eases we have discovered out of harmony with the general rule are criminal cases, except Stevens v. Stebbins, 4 Ill. 25, in which defendant was personally served and the question arose on an objection to the admission in evidence of a note sued on.

In Gronzalia v. Bartelsman, 143 Ill. l. c. 640; the same court which decided Stevens v. Stebbins, supra, held that in an affidavit of service of notice of a tax sale “the doctrine of idem sonans cannot be made to apply to two such distinct names as Meyer and Meyers.”

In Smurr v. State, 88 Ind. l. c. 506, 507, the names Meyer, Meyers and Mayer were held idem sonans. Not a case cited in support of this holding met the exact question as to the effect of the omission of a final “s.” Further, the name Meyer was used in one count of the indictment and Meyers in another.

There are good reasons for refusing to countenance laxity in proceedings to sell land for taxes on notice by publication and they have heretofore been well stated:

“No man may judicially lose his property without Ms day in court. A day in court proceeds on notice. So, due process of law and jurisdiction depend on notice. By Revised Statutes, section 9303 (1899), it is ordained that tax suits shall be brought ‘against the owner of the property.’ By this is meant the record owner unless the fact is known, or the purchaser have notice that the record owner is not the true owner. When summons is actually served on the right individual by the wrong name, the error becomes immaterial because he has notice of the suit and may appear if he choose and plead misnomer. But absent actual notice when the law for convenience substitutes a constructive notice, the name of the individual defendant obviously becomes one of the essentials and of the very life of the notice. ... If the law tolerated slovenliness or pranks in this regard then slovenliness and pranks might ripen into a custom and. open the door to great mischief. Constructive service at best is harsh. It is service not in substance and fact, but of a sort to which the name of service is attached from necessity. That method of service, being highly technical, must be strictly pursued.” [Ohlmann v. Sawmill Co., 222 Mo. l. c. 66, 67.]

In Emeric v. Alvarado, 90 Cal. 465, it was even held that, for reasons somewhat like those just quoted, the doctrine of idem sonans does not apply to tax proceedings at all but that “different letters will make different names though the sound be the same.”

Other cases are Chamberlain v. Blodgett, supra; Troyer v. Wood, 96 Mo. 478; and Turner v. Gregory, 151 Mo. l. c. 105, 106, cited in the Ohlmann case, supra.

To the attentive ear there is no difficulty in distinguishing between Myer and Myers, and under the applicable general rule they cannot be held idem so-nans.

It is contended, however, that there was evidence that the two names were and are pronounced alike though spelled differently, and that this evidence justified the trial court’s finding.

What the court stated he found was that the names Meyer and Meyers were idem sonans, or, rather, that both were corruptions of the German name Meier. One difficulty in applying in this ease, on the evidence, the rule as to names which are corruptions of another, lies in the fact that the names found by the court to be corruptions of another are Meyer and Meyers and the names in question are Myer and Myers, and another difficulty is that there is neither evidence nor finding that these last are corruptions of any other.

The evidence actually is that in the town of New Madrid, where J. A. Myers had never been, som'e of the people were in the habit of addressing one Charles Meier as Charlie Meyers. Several of those who did so testified they did so because they thought his name was Meyers and not because they thought Meier was pronounced Meyers. There was evidence that several persons named Meters lived in New Madrid county and that they were always called Meyers and neither Meyer, Meier, Mayer nor Myer.

Properly understood there is no evidence in the record that Meier and Meyers are customarily, colloquially or otherwise, pronounced alike.

The evidence was not of a character to add anything to the question presented by the face of the notice itself. The question was as to the names Myer and Myers and none other.

II. There was no evidence of possession for the requisite time and of the requisite character to make out a defense under the Statute of Limitations. Plaintiff Alphonse DeLisle was the only witness who testified to possession at all and his testimony was that possession was not taken until some time after he received his deed in August, 1899, and his testimony is conclusive even that possession was not continuous. This suit was brought in April, 1909.

III. Finally, it is insisted plaintiff Myers was guilty of laches barring his claim and that of his co-plaintiff who claims under him. His testimony is chiefly relied upon to support this contention. He testified he traded for the land in 1890 and got an abstract showing taxes paid until that year; that he paid the taxes in 1890 and possibly in 1891; that he then and until 1894 lived at Carthage, Missouri, and owned a great deal of land in various sections of the country, and the fact that he owned the land in suit “passed from his mind” and he paid no taxes after 1891; that in 1890 he did not regard the land as of very great value; that he had not abandoned or intended to abandon the land but had let the taxes run behind. It also appears from' his testimony that the first notice he had of the tax suit was when he wrote the collector a short time before this suit was brought. This letter was prompted by an inquiry made of him by his co-plaintiff Allison as to whether he owned.the land in suit. There was no evidence that the purchaser at the tax sale took possession or made any improvements. He did have a surveyor locate the corners. Defendant Alphonse DeLisle and his brother had some timber cut and sawed in about 1900, 1901 and 1902. A gradually increasing portion of the tract was partially cleared until about eighty acres were about ready for cultivation but twenty or thirty of these acres had been allowed to grow up (in small timber) again and it is doubtful whether any of it was ready for cultivation in 1909. The trees had been deadened on part. Two small houses and fences (around eighty acres) costing in the aggregate not over $750 had been put upon the land but it does not appear just when. DeLisle testified he paid out about $15 per acre for cleaning up eighty acres. The land has increased in value.

It is insisted that this testimony makes out the defense of laches, and Shelton v. Horrell, 232 Mo. 358; Toler v. Edwards, 249 Mo. l. c. 166 et seq. and several other decisions of this court are relied upon as supporting this position.

In Shelton v. Horrell, supra, the tax sale was not void but voidable, and defendant in the tax suit had notice of it; and in Toler v. Edwards, supra, the tax suit defendant had notice of the adverse claim and brought her action a considerable time later, having made no claim for about thirty years “during all which time” the land had been claimed by defendants, improvements had been put upon it, money expended in clearing it, and it had been “successively tilled and cultivated by the agents of the grantees in the chain of title running back to the sheriff’s deed; the records of the sheriff’s deed and court proceedings had been burned, witnesses had disappeared.” Those cases are not such as that at bar. In this there was not a voidable tax sale pursuant to a judgment rendered on notice but a void tax sale pursuant to proceedings without notice. There was no judicial proceeding but merely a “judicial usurpation and oppression” (Troyer v. Wood, 96 Mo. l. c. 480), by which plaintiff Myers was in nowise affected. It is suggested be must have known taxes would be levied and if not paid bis property sold to satisfy them,, and, consequently, it is said, be must be held to have bad notice. Tbe answer to this is that the record affirmatively shows the land was not sold for taxes — the proceedings in the alleged tax suit being an absolute nullity. Myers bad the right to assume, that if a sale was attempted notice of some kind would be given and that without notice there would be no sale attempted. Express notice (by summons or publication) to Myers was essential to the validity of the proceedings in any tax suit.

To raise from the collector’s duty to sue for delinquent taxes an implication of notice of a suit that the record affirmatively and conclusively shows was, in a legal and constitutional sense, never instituted at all, is a task we will not undertake. Eather are defendants who claim under the void tax proceedings, to be charged with notice of their invalidity. [Dameron v. Jamison, 143 Mo. l. c. 491, 492.]

Properly considered, tbe evidence on this issue shows .nothing save payment of taxes, an entry under color of title and partial improvement of wild land without tbe knowledge of tbe record owner. Tbe possession might have ripened into title by limitation in due time but that period bad not elapsed.

Failure to pay taxes does not, of itself, constitute abandonment of title or of property. There was no evidence which would justify a judgment for defendant on tbe plea of laches.

There was no evidence supporting any defense made, and tbe judgment is reversed and tbe cause remanded with directions to tbe trial court to enter judgment for plaintiffs, giving defendants a lien for taxes paid as tbe petition offers. In a subsequent statutory proceeding (E. 8. 1909, sec. 2401 et seq.) defendants’ right to recover for improvements may be tested. [Dameron v. Jamison, supra.]

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

Woodson, P. J., and Lamm and Graves, J'J., concur. Bond, J., concurs in the result.


author: WOODSON, P. J.

text:
    HENRY A. HEIMEYER, Appellant, v. AUGUST A. HEIMEYER.
    Division One,
    June 30, 1914.
    FRAUD: Deed From Father to Son: Part of Consideration Omitted. Where a son agreed with his aged father and mother that if they would convey to him their eighty-acre homestead worth $800, which they had occupied for twenty years while rearing their family of six children, he would pay them $100, give them a home and support for life and one-third of the crops produced, and the deed expressed the other items of the consideration, but omitted the obligation to support them, and the weight of the evidence is to the effect that the hundred dollars was not paid, and the grantors received in two years only a few bushels of potatoes and apples, and that the son and his wife by angry mistreatment induced them to be afraid for their safety, in consequence of which they left the home place and took up their abode in the house of a neighbor, the deed will be set aside, as the result of fraud practiced by the son on his parents, and an accounting had,' charging the son with rents, and allowing him for the improvements erected by him.
    Appeal from Louglas Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and remanded (with directions).

      J. S. Clarke for appellant.
    Fraud vitiates the most formal documents. In order to set aside a deed fraudulently procured, it is not necessary that the grantee wilfully and intentionally perpetrated the fraud in procuring the deed. Derby v. Donahoe, 208 Mo. 699. In this casé there was evidently wilful fraud, and wilful misrepresentations made by defendant to secure the making and delivery of the deed to him. Under such conditions the court will apply the most rigid scrutiny, where there is a charge of fraud. Bank v. Fry, 216 Mo. 42; Freeland v. Eldridge, 19' Mo. 375; Creamer v. Bivert, 214 Mo. 473; Reynolds v. Reynolds, 234 Mo. 114. If retaining one-third of the crops grown on the land, and reserving a home by plaintiff, are not grants, but reservations, then the fee simple title did not pass to defendant. ‘ ‘ Something taken back out of that which was granted, as for instance, rents, ’ ’ this reservation would prevent fee title from passing to grantee. Myers v. Russell, 124 Mo. App. 317; Plunter v. Patterson, 142 Mo. 310; Walton v. Drumtra, 152 Mo. 489; Railroad v. Frowein, 163 Mo. 1; Moore v. Win-gate, 53 Mo. 398; O’Brien v. Wagner, 94 Mo. 93.

      A. II. Buchanan and Fred Stewart for respondent.
    (1) While this court is not bound by the finding of the trial court in all cases, it will defer to the lower court’s judgment in most instances, and where there is a conflict of substantial evidence will adopt the finding of the court below. And to divest title to land the evidence must be so clear, cogent, definite and positive as to leave no reasonable ground for hesitancy in the mind of the chancellor. Brown v. Fickle, 135’ Mo. 405 ; Forrester v. Scoville, '51 Mo 268; Johnson v. Quarles, 46 Mo. 423; Jackson v. Wood, 88 Mo. 76; Scheilds v. Hickey, 26 Mo. App. 194; Dickson v. Railroad, 168 Mo. 90; Brinkman v. Sunken, 174 Mo. 709; Investment Co. v. Ozenberger, 132 Mo. App. 409; Bolt Mfg. Co. v. Car Co., 210 Mo. 715. And the rule is not different in case of parent and child or husband and wife. McKissoek v. Groom, 148 Mo. 459; Chadwell v. Reed, 198 Mo. 359. Where there is evidence for the jury or trial court to pass upon, the weight is for the trial court to determine, and appellate courts will not undertake to weigh the evidence,' hut will affirm the decision of the trial court. State v. Wilkes, 170 Mo. App. 180; Bank v. Redfearn, 141 Mo. App. 386; Lindsey v. Stephens, 229 Mo. 600. (2) Plaintiff has alleged fraud and the burden is upon him to prove it. Shoe Co. v. Casebeer, 53 Mo. App. 640; Morgan v. Wood, 38 Mo. App. 255; Albert v. Resel, 88 Mo.151; Troll v. Spencer, 238 Mo. 81.
   WOODSON, P. J.

The plaintiff instituted this suit in the circuit court of Douglas county to set aside and for naught held a certain warranty deed executed by him and wife to his son, the defendant, conveying eighty acres of land, upon the grounds of (a) fraud, (b) undue influence, and (c) failure of consideration.

The defense as stated by counsel is couched in the following language:

“On August 25, 1906, plaintiff executed a general warranty deed to his son, the defendant, conveying the land in suit. Defendant and his family moved on the land and made valuable improvements on it. The evidence shows the land was very unproductive and in a bad state of cultivation and the fences in bad repair when defendant took possession, but after he had devoted two years of his labor and time to improving it and had erected a new house and barn and repaired the fencing, the too common occurrence happened — another son fell out with defendant — and this suit is the result.
“The case was tried at the April term, 1909. The trial court, after hearing the evidence both pro and con, found the issues for the defendant. Plaintiff appealed, but has since died, and the case has been revived by the heirs, or some of them.”

Since this is the “old, old story” often repeated, I will tell it in the exact language of the parties and the eyewitnesses thereto; it not being very long.

Plaintiff’s Evidence.

The plaintiff, a German, testified through an interpreter, not being able to speak English, as follows:

“Q. Iiow old are you, Mr. Heimeyer! A. I am eighty years old. I remember having made a deed, with my wife, to August Heimeyer, to a piece of land near town. Q. Tell how you happened to make the deed. A. For one reason I thought I couldn’t work any more. I thought I was too' old to work and thought by making out the deed to August I could have a living that way. He was to pay me $100 for the land, and one-third of the crops and he was to see I had a living that way as long as I lived, all the time. August was to see we had everything we wanted as long as we livéd, that was part of the consideration for making this deed to August. August has not paid the $100 that he agreed to pay, nor no part of it. He says ‘a share he gave me this year’ I loaned August $50 to make the deed binding, and he paid it right back at the time. August has paid nothing at all on the $100. Q. "Why is it you do not live there on the place with August? A. He says ‘I used to but August knocked me away,’ that is the words he uses in German, the same word for driving away. Q. How did he knock you away? A. The mother, the old lady, went to August’s house and wanted to get a little milk and August’s wife says yes, and gave her the milk and the mother asked August what was the reason they locked everything up on them. Q. Has August complied with his agreement with you for the transfer of the land? Defendant objects, for the reason it don’t make any difference; any contract August has had does not affect this matter; there was a deed made and it passed the title. 'Which objection was by tbe court overruled and defendant excepts to such ruling. A. No, he bas done nothing, be wanted to do everything and bas done nothing. I bad lived on tbe land twenty years, it is ray home, I want to live on tbe land but I don’t know that if I would get land back, I am afraid I would be burned up in tbe bouse. Q. Who do you think would burn it? A. I don’t know who would do it. I am afraid. I don’t know who would do it.” (He bad moved' away.)
“Cross-examination. — Q. How much money did you let August have? A. Forty-six dollars, and he counted it right back. He never paid me any more. Q. Has never paid you any more? A. Nothing more. Tes, I -was to have one-third of the crops, and a home during my life on the place, and $100. He says be got two bushels of potatoes and four bushels of apples. I did not get any corn, cattle eat it up. No, August bas not paid me the $100. I lived one year with August, one year after the deed was made. August got the deed right away. John Victor was there. I don’t know whether be read the deed to me in German or English. I stayed there on the place until the women fell out. Q. And that is the reason you left and brought this suit? A. Yes, sir, I bad to get away. Q. You brought this suit to set aside the deed because the women folks couldn’t get along, didn’t you? A. Yes, sir, the women couldn’t get along, and with him either.”

John Victor being sworn testified as follows:

“My name is John Victor, I know Mr. Heimeyer, August and all, I live near them. I am a German, I was over to bis place some time ago when a deed was made by him and bis wife to August. Mr. Pitts came out to take the acknowledgment of the deed. August Heimeyer came to my place that morning when the deed was made and said I must be a witness for Mm, and I says ‘For what?’ and he says, ‘I bought father’s land,’ and I says, ‘How much did you pay?’ and he says, ‘$400,’ and I says ‘What! that is cheap; Mr. White bought that below me for $10 an acre and that ought to be $800.’ He told me to go down to Mr. Heimeyer’s on the wagon, and I say, ‘I walk.’ I came in first and the old man and his wife was there and I says, ‘You sold your farm to August?’ and he says, ‘Yes,’ and I say, ‘You think you are doing right with your other children? I don’t think it is fair you don’t care for the children,’ and he says, ‘I am old and sick, and can’t work any more, and he gives me part of the crops and takes care of me so long as my life, so I sold it; ’ and about that time Mr. Pitts and August came in and Mr. Pitts had two deeds made, already, in his pocket, and one read for one dollar, and I says, ‘ One dollar? August told me $400’ and I says, ‘That is giving him the land, and when you give anything away there must be some consideration,’ and they stopped on it on account of what I say, and then they agree on $100, and I said that ‘August told me $400 a few minutes ago,’ and he said, ‘This is down, and I have to keep the old people and $400 is too much, but I will take it for $100,’ and he was talking between the English and Herman language, and they said, ‘Yes,’ they were satisfied with $100 and to be kept all their lifetime, and be kept on the place. They executed the deed in my presence, and then August went out and I think the old man went with Mm out, too, and pretty soon they came in and I says, ‘Where is the $100?’ Then he borrowed some money, between forty and fifty dollars, and laid it down, and I says, ‘That isn’t one hundred dollars,’ and August said, ‘I pay that to-morrow,’ and I said, ‘Is that right, old man?’ and he says, ‘Yes,’ and after a while August- says he has money in the Bank of Ava, and then they signed it and I signed it as a witness, so that was all.
Cross-examination. — I am seventy-five years old. I speak and write German language. I was present when Mr. Heimeyer made and delivered the deed to August. He was to pay him $100' and give him a home during his lifetime and paid Mm something like $40' at the time. I translated the deed to the old gentleman and explained it to both of them, and they were both satisfied. The old people lived there about a year or year and a half. Q. See if this is the deed. A. Yes, sir, this is the deed. I signed that. I saw August borrow that money there. I don’t know where he got it, he went out with his fatherland I believe his father gave him the money, maybe the mother too.”

Prank Heimeyer being sworn testified as follows:

“My name is Prank Heimeyer, I am a son of Henry A. Heimeyer, I heard about the deed after it had been made about a week. Q. What do you know, if anything, about the manner in which your father and mother were treated after you understand this deed was made? Defendant objects. I understood they done very well for a while, but it was soon that August and his wife wouldn’t talk to them, just passed around them and kicked the buckets around like they were trying to scare them. The old lady wanted me to bring her out some groceries, but she sent by Ira Sullivan to get the groceries, he gave them to me and I went in the field and met August and he asked if I had any business on the place, and I told him I had a right to go and see the old man, and I didn’t take over two or three steps until Ms wife stepped up with a shot gun and says,‘ If you take another step I will fill you full of lead,’ that was August’s wife. I didn’t take any more steps. I went over to Victor’s and tried to get them ,to take the things over to the old people, and they called Herman [Victor] over and laid the law down to them and told them not to come on the place. He didn’t get the groceries until he took them out from here [Ava] in a little red handkerchief. The first crop August made, he had a little there and the old man cut his part up, and the next crop, this last year, he had two or three acres of corn, and when he went after his part it was all gone. The old man said they brought him over a few apples and potatoes and sweet potatoes. The old people live in Mr. Trshmai’s house.
“Cross-examination. — Yes, August had a forty-acre tract of land in that neighborhood, and was building' a house and quit building that house and moved on this place he got from my father. There was not much fencing when he went on the place and not any more now. There was a barn, smokehouse and crib. August has built a barn and house. My feeling is not very good towards August. Yes, the old people lived with August about two years after the deed was made. I don’t know of my own knowledge how they got along up to the time they left the place. The next day after I had the trouble with August’s wife the old man slipped away before they got him and he and I and Chriss came to town and saw Mr. Burkhead to get him to bring the suit. I came along to do the talking for him. The eighty is a pretty rocky eighty.- There was about twenty acres in cultivation and it made good stuff when the old man had it.”

Mrs. John Victor being sworn testified as follows:

“I know Mr. Heimeyer and wife, and August Hei: meyer and wife. The old lady came over and asked me if my son would bring some groceries for her from town and I asked him and he went and said he would be willing to do it. I went to see August and he says, ‘If they fetch the money from him,’ and I promised to let her know and I went to the old people and told them. I know Frank Heimeyer came Sunday morning and had butter and tobacco and he intended to come in and I told him I would not keep it.
“Q. Cross-examination. — When, yon went np to August and asked if lie would bring tbe groceries, he said be would if tbe old man would bring tbe money? A. At first be wouldn’t answer me and I asked him again and be says, ‘If they fetch tbe money I will bring them’ and I went over and told her. She says ‘We car go down to Frank’s and be will. ’ ’ ’

Samuel Berger, a witness, being sworn, testifies as follows:

“I know Henry Heimeyer and wife. Yes, I am a German. After tbe deed was made I went up there one time, I beard they were living bard and .1 brought them some milk and they told me they hadn’t bad anything but black coffee and dry bread for a long time. I didn’t stay very long; I would have come of tener but I beard' tbe young woman and young man didn’t like to have anybody else near, and so I didn’t want no trouble. I didn’t know anything about tbe trouble until they came and wanted me to move them in that bouse. They told me they couldn’t live there, they would go out and live in a tent before they would stay there. They moved in my bouse and live there yet.
“Q. Cross-examination. — You beard they were living bard? A. Yes, sir. Q. And you have also beard they bad money in tbe bank ? A. I know they bad a little, I don’t know bow much.”

Plaintiff recalled and testified as follows:

“Q. Do you know of August or bis wife scratching your wife? A. Right in tbe neck. Q. Did she leave any blood on her neck? A. There was a little.”

Jesse Mitchell, a witness for plaintiff, was sworn and testified as follows:

‘ ‘ Q. Did August Heimeyer have any money- in tbe Bank of Ava, August 25,1906. A. No, sir, I think not. I would have to look. I don’t think be ever bad any since I have heen there.- At this time the plaintiff and the old lady had some together. Yes, there is' some there now, about $150 I believe.”

defendant’s evidence.

Paul Kreisel, a witness for the defendant, being sworn, testified as follows:

“I am a German, I am acquainted with the plaintiff and defendant. August lives on the place he bought from his father. One day August came over to my place and he said he wanted somebody to take that stuff over to him. I taken over five bushels of apples, and about a bushel and one-half of sweet potatoes, some Irish potatoes. This was after they picked the fruit in the fall. Yes, August built a house on the place, a frame house; he built a barn about twenty by thirty feet. The land is poor, thin.
“Cross-examination. — The potatoes and apples were taken to the old folks after they had moved away, after the suit was brought, along- late in September. ’ ’

Jesse Mitchell, of Bank of Ava, recalled by plaintiff, by agreement of parties says that on the date mentioned awhile ago, there was no money in the bank to the credit of August Heimeyer, defendant.

Sam Foster, a witness for defendant, being sworn testified as follows:

“I am acquainted with August Heimeyer-. I know where he lives. I was there with Paul Kreisel and delivered about five bushels of apples, and possibly four or five or six bushels of Irish potatoes and possibly a bushel and one-half of sweet potatoes, to Henry A. Heimeyer. I know he raised some corn on the new ground and he cut part of it up. I saw two rows standing; August told me he left that for the old man. I consider the land poor; I wouldn’t consider it would raise black-eyed peas. The fence was in bad shape where I saw coming to town, it wouldn’t turn stock, it is an average with country now. I saw part Sunday, it was in pretty bad shape. There is a pretty fair house, three rooms below, a frame barn.”

Maryline Burekell, being duly sworn, testified as follows:

“I am a sister of August’s wife. I live about a mile from them. I remember the time August moved there. I have'been at August’s different times since he has been there. If they ever mistreated the. old folks, I never saw it, and I was there more than anyone else. I am acquainted with the place August lives on, it is rocky and worn out, it wouldn’t produce an average crop. The fence was in bad condition. Yes, he built a frame house with three rooms; the barn is a frame barn; he repaired the fencing. I saw the Old Lady Heimeyer getting her third of the corn, pulling it off and shucking it.”

James Burekell, being sworn, says: ‘ ‘ That he was acquainted with the place, that August married his sister, that the place he got from Heimeyer is pretty well worn out. He got part of the logs on this place and some on my mother’s place to build the house. We cut a pattern for the house. There was a few come off the Heimeyer place. Fencing pretty well run down. ’ ’.

Maryline Burchell, recalled by defendant for further examination:

“I know that August’s father came in and got milk numbers of times, and butter. I do not know of them being in hard circumstances for something to eat. I was there once and twice a week and then again not so often. I saw fat hogs there before they were killed and I saw the meat after they were killed.
‘‘Q. Cross-examination. — He sold this meat to Giz Reynolds? A. I don’t know. Q. What year was that, 1907 ? A. I believe it was 1908. Q. Last year? A. I don’t know. Q. Do yon know of them buying meat last year? A. No, sir, I don’t. I didn’t go in the old gentleman’s house often.”

Joseph V. Pitts, being sworn, testified as follows:

“I am acquainted with Henry A. Heimeyer. I took the acknowledgment to the deed from Henry A. Heimeyer and wife to August A. Heimeyer. This is the deed. I took the acknowledgment at the home of plaintiff; they signed the deed there. August got John Victor to act as interpreter and he was sworn, and they signed the deed after it was explained to them. The interpreter said he asked if they signed the deed as their free act and deed and he replied they did. It took from two to three hours for them to go over the deed before they signed it; they seemed to be in an argument. The interpreter went over the deed explaining it line by line, pointing his finger, and then would stop and the grantors and grantees would argue. I don’t think there was any unwillingness to sign the deed; of course I could not understand what they were saying. I delivered the deed to August here in town a day or two afterwards.
“Cross-examination. — Yes, I took two or three deeds out with me. August was in one or two days before that; he wanted me to go out and outlined about what I understood was the deal. That in typewriting I prepared before I went out there, I left the space there, to interline. Q. What was that? A. ‘Also to furnish them homes on the lands during their natural lives.’ ”

Defendant now offers the deed in question in evidence, which was a general warranty deed, which need not be set out except the consideration clause, which is as follows:

“Witnesseth: that the said parties of the first part for and in consideration of this party of the second part, giving to said party of the first part one-third of all crops grown and raised on the hereinafter described lands, for and during the period of the natural lives of said parties of the first part, [in ink] ‘Also furnish to said parties during their natural lives a home on said lands. ’ And for the sum of one-hundred dollars to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain aiid sell, convey and confirm unto the said party of the second part, his heirs and assigns, the following described lots, tracts or parcels of land lying, being and situated in the eounty of Douglas and State of Missouri, to-wit:

August A. Heimeyér, defendant, being duly sworn testified as follows:

“I am the defendant and the son of the plaintiff:. My father came over one day to my place, and wanted to make a deal with me, and wanted to know if I would take his place, he said he wasn’t able to keep the stock out, and wasn’t able to fix the fence and wouldn’t spend money to have it fixed, and if he was to, it would take more money than the place was worth. This was two weeks before the deed was made. I was at his place the second time, about a week before the deed was made. When the deed was made there was present Mr. Victor, the old man and old lady, Mr. Pitts and me. Mr. Pitts went there with me.' There was $46 paid down. I brought the money from home. I did not get that money from my father or mother that day. It was my money. Q. Did you pay the other since then? A. Yes, sir, the third day. I did not have any money in the bank at that time. I don’t remember saying anything to Mr. Victor about having any money in the bank. I built a house, three rooms and two porches, a barn 22 by 32, fourteen feet high on the lower side, and cleared out five acres and made a quarter of mile of fence and the rest of the fence I fixed up. It is a framed barn. There was twelve or fifteen acres of land in cultivation when I went there., It was poor ground. There was no meadow on the place, I sowed some grass, about eight acres. The reason the old people are not there with me, they got mad and left. I am willing for them to live there like they was. The first year they gathered the crop themselves and the next year I sent the apples and potatoes to them. The'cane and hay and tobacco is hanging-in his own barn and house. I never said a cross word to them, I never whipped or struck them. I was to pay $100 for the land, money; I paid him the money, and furnished part of the crop as agreed. He killed four hogs the first year after I moved there, they weighed two hundred pounds each, and sold four hams and four middlings to Griz Reynolds; this was 1908'.
“Cross-examination. — He sold the meat to Griz in 1908, in February. These were hogs he had before I went there. I did not hear Mr. Victor say anything- about paying $400. I told Pitts to put the consideration $100. That was the way the old man wanted it at first. He changed his mind when I came back from town. The old man Victor did not say on the day the deed was made that I told him I was to pay $400 for the land. He never said a word about the $400, but said something about the one hundred dollars being in the deed. I did refuse to permit some of the children to visit the old folks. I did not tell or send Victors word not to come on the place. Never said anything about it to any one.Q. Isn’t it a fact that you stood by and saw your wife pestle this old lady with a club? A. No, sir. Q. Didn’t you see her scratch this old lady’s neck? A. She never touched her. I was there one day when Frank went over with something to eat for my father and mother. I didn’t see my wife draw a gnn on Frank. She did not draw one. She did tell Frank not to come another step or she would fill him full of lead. She had a gun in her hand, a musket. He left. I didn’t see anything to eat. I saw Frank coming and we went and asked him if he had any business on the .place, and he said he thought he had a right to go and see his father. I told him he had better stay away from there.
“ Re-direct examination by Defendant. — At the time I moved on this place I had started a building on my own forty aeres and I moved the frame and put it up on this place. I told Frank to stay away, because the old man said Frank and Gerber was coming to kill me out, and the next day this suit was brought.
“Re-cross examination. — He told me on Wednesday morning that they would come and kill me out. Q. Had you had any racket- with your father? A. No, sir. Q. How come him to tell you they were going to Mil you out? A. I reckon he got mad because he couldn’t kill my wife and I reckon he was trying to scare me. The old lady came up after a bucket of milk and she filled the buckets up and she began raking us for locMng up the house, my own house, I locked the house up because there was a man in the woods there that was stealing; I didn’t lock it up to keep the old lady out. I was talking to the old lady when the old man came, and he had a pick handle in his hand, and he drew up the pick handle, and I got around and took that, and he kicked here, and he grabbed a chair and I put my foot on it, my wife didn’t pay any attention to it, she kept on skimming the milk. The old man lives about twenty-five yards from me. By the Court: Q. How many brothers and sisters have you here in this country. A. There is six here. Q. Are you all mad at each other? A. No, sir. Q. How many are you mad at? A. I wasn’t mad at any of them at that time. I have never gone to see the old man and old lady since they moved away. They have been away six months.

REBUTTAL.

Henry A. Heimeyer, recalled in rebuttal, testified .as follows:

“I did not go to August to get him to come to the place; he come to me. He come the day before the •deed was made; that was the only time he came before the day the deed was made. I did not strike, nor attempt to strike, August’s wife. I did not kick her, I couldn’t do anything, August held me and held me tight. All I could- do was to stand still. I was not trying to hit anybody at the time. She (August’s wife) had a big pole five feet long and wanted to hit me on the head with it. She struck at me and August held -out his arm, and I didn’t get the blow. I would be willing to go back there if there was no trouble and fighting. It don’t look good to me. Frank didn’t have anything to do with our trouble, at all.”

This was all'the evidence, and set out verbatim, as presented by the record.

I. While counsel for appellant present three separate and distinct propositions for a reversal of this case, yet I will consider only one of them, namely: that the deed from the father to the son, the plaintiff to the defendant, was procured by fraud.

I have set out the entire evidence in this case in - Jiaee verba as preserved in the record;-and if there -ever was a case where the evidence tends to show that a son has fraudulently taken advantage of his old father and mother, and turned them out of house and home on an empty promise of support, this is that case.

The appellant and his old wife, eighty and seventy-eight years of age, respectively, not able to speak English, some twenty years ago, entered an eighty acres of land in the hills of Douglas county and procured a patent therefor and lived and reared their family thereon, some six children.

Some twenty years after the entry, when the appellant was eighty years of age, ten years beyond the -ordinary three score and ten allotted to the ordinary man, his son — the respondent — approached him, and said in substance, that he, the father, was too old to conduct the farm, and proposed to him that if he, the father, would convey the farm to him, the son, he would, according to some of the evidence, pay him $400, and according to other parts of the evidence, $100, and give the father and mother, the grantors, a home and one-third of the crops raised on the land and support them for life.

Shortly thereafter, from one day to two weeks, "the appellants executed the warranty deed, asked to be set aside in this case, for the express consideration therein stated of one-third of all the crops grown upon the land for and during the lives of the grantors to furnish them with a home during their natural lives, and $100 in cash to be paid, omitting therefrom the support of his father and mother, the evidence showed he agreed to do, before the execution of the deed, and, evidently thrown out as an inducement for its execution.

This omission, which was the real consideration of the deed, was clearly designed for the purpose of defrauding the appellant, because that, according to. all the testimony of both parties, was the real inducement held out for its execution. The appellant testified, that respondent approached him and in substance said: You are too old to manage and run the farm, and for that reason added, that if he would convey the land to respondent he would support him and his wife for life, give him one-third of the crops and pay him one hundred dollars in money.

The respondent’s testimony was to the same effect, save he said the appellant approached him upon the subject, instead of his approaching the appellant.

As previously stated this agreement, the real consideration, was entirely omitted from the deed, nor was it preserved in any other written instrument.

Regarding the payment of the one hundred dollars: No unbiased or disinterested person can read this record, without coming to the conclusion that-the respondent by a trick or deception beat the appellant out of the greater part of that sum; and as to the delivery of one-third of the crops to the appellant, if not for the seriousness of the situation it would be burlesque.

As we proceed with the opinion I will mention these matters a little more in detail.

This statement of the case alone shows that the son was a dreamer, or was trying to take advantage .of the appellant, I believe the latter for the reason that the record shows that he possessed ordinary intelligence (not needing a guardian to look after his interests) and, therefore, would not have made the contract which the evidence clearly shows he did, without it was for the purpose of inducing his father and mother to execute the deed in question, when he knew that the farm, which the evidence shows was not worth more than $800, would not, after one-third of the crops were given to the grantor, support the grantees and the father and mother, and enable him to pay $100 purchase money mentioned in the deed.

This may have had something to do with the fact that the moneyed consideration mentioned was reduced from $400 to $100, and the payment of the latter was made in chips and whetstones, if at all.

But the evidence does show that the land would do just what the respondent actually did with it, as appears from this record, namely, by taking all of the crops produced upon the land except the few bushels of apples, potatoes and corn to be presently mentioned, not to exceed eighteen or twenty bushels, all told, furnished the respondent and family a living and the means with which to construct the buildings on the farm mentioned in the evidence.

The evidence for the appellant is uncontradicted to the effect that he reared his family upon the farm, and besides saved up a little money therefrom; but according to the respondent’s theory of the case, the land was rocky, worn out and would not sprout “black-eyed peas;” and if respondent made an honest distribution of the products of the farm during even the last year of his possession before this suit was brought, it did not produce more than eighteen bushels of apples, twenty bushels of Irish potatoes, four and a half bushels of sweet potatoes and six rows of corn, the length of which is not shown. I say this, for the reason that the record clearly shows that respondent only delivered to appellant about six bushels of apples, six bushels of Irish potatoes, one and one-half bushels of sweet potatoes, and two rows of corn, the length not given.

If that is true, why does the respondent want to keep the farm and offer, as he does in his testimony, to furnish appellant and his wife a home and support them for life .and give them one-third of the crops raised on the land as long as they live, as he states in his evidence he is willing to do, if they will only return to the old homestead?

Such a contention, under the evidence and physical facts of this case, is puerile, and it seems to me to he unworthy of serious consideration.

If the land is so worthless as respondent would make it appear and he has been so grievously injured by the contract, I again ask the question, why does he so strenuously adhere to it and insist upon fulfilling the contract according to the letter and spirit thereof? There is hut one honest and candid answer to this question, and that is, the son took advantage of the' father and mother and by the means indicated relieved them of their homestead for a promise of support, etc.,, and has never furnished or paid the consideration intended at the time the promise was made.

A further consideration of this question would dignify the hare-faced fraud so boldly perpetrated upon these old people by the respondent.

In my opinion, the judgment should be reversed and the cause remanded to the circuit court with directions to set aside the deed and to take an accounting between the parties charging the respondent with the rents and profits of the farms and credit him for the taxes, if any, he has paid and the reasonable value of the improvements he has placed upon the premises.

It is so ordered.

All concur. Lmnm, Jin result.


author: GRAVES, J.

text:
    WILLIAM JOHNSON, An Infant, by HALL TAYLOR, His Next Friend, v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    June 30, 1914.
    1. JUDICIAL POWER: Preliminary Matter: Appointment of Next Friend by Clerk: Constitutional Statute. The “judicial power” referred to iu Sec. 1 of Art. 6 of the Constitution has reference to the actual and real trial and determination of “matters of law and equity,” and not to the mere preliminary steps necessary to be taken for the institution of a suit at law or in equity, such as the appointment in vacation of a next friend by the clerk of the court for a minor whose mother has been killed by a railroad train. The appointment in vacation by the clerk of a next friend for the minor plaintiff is preliminary to a suit about to be instituted, and the statute (Sec. 1740, R. S. 1909) authorizing that to be done is not unconstitutional.
    2. NEGLIGENCE: Ordinance Speed of Train: Applies to Every Part of Track. Where the ordinance forbids trains to run in .excess of eight miles per hour on unfenced railroad tracks, within the city, it applies to every part of the unfenced track within the city, and a greater rate of speed than eight miles per hour at the first cross street after the train enters the unfenced part of the track is a violation of the law. The railroad company has no right to run its trains at a rate of twenty or twenty-five miles per hour up to the point where the. track is fenced, and thereafter, in slowing down, run a part of the distance in excess of eight miles.
    3. CONTRIBUTORY NEGLIGENCE: Walking on Track: Train not Seen by Others: Presumption of Due Care. The Chicago. & Alton and defendant’s east-and-west tracks were about thirty feet apart and parallel. Deceased and others about twelve' o’clock of a dark night were walking east on the Chicago & Alton track within the city, where the tracks were Unfenced, and deceased was struck by defendant’s train where a street crossed its track. The ordinance forbade the running of a train at a greater speed than eight miles per hour, and the-evidence sustains both grounds of negligence relied on, namely, failure to give crossing signals and excessive speed, the train being run from twenty to twenty-five miles per hour. The. head-light was an oil lamp, and if burning was not seen by those who accompanied deceased, nor did they see or hear the-train until it passed them and they saw the lights in the caboose. Held, that, as others did not see or hear the train, it cannot be held, as a matter of law, that deceased was guilty of contributory negligence. Being dead and there being no evidence of what her condition was, she is entitled to the presumption of having used due care.
    4. EVIDENCE: Conclusion of Witness: From Facts Seen. If a witness was in close proximity to the track and puts himself in a position to have heard and seen, his testimony that no bell was rung or whistle sounded is not a conclusion, but a statement of a fact.
    5. NEGLIGENCE: Speed of Train: Violation of City Ordinance: Proximate Cause of Injury. Where there is positive evidence that defendant ran its train in excess of the maximum ordinance rate, and there is evidence from which it may he reasonably inferred that if the train had been run at that rate the injury to deceased would not have occurred, it is not error to instruct the jury that, if they believe that as a direct consequence of the violation of the ordinance deceased was struck by the train, their verdict may be for plaintiff, unless'she was guilty of contributory negligence.
    6. FAILURE TO WITHDRAW ABANDONED ISSUE. No harm results to defendant because of a failure to give an instruction asked by it withdrawing an issue pleaded and abandoned by plaintiff' — in this case, the failure of defendant’s servants in charge of the train which struck deceased to keep a lookout for persons on the street crossing where she was struck.
    Appeal from Audrain Circuit Court. — How. James D. Barnett, Judge.
    Affirmed.

      J. L. Minnis and Robertson & Robertson for appellant. '
    (1) Section 1740-, R. S. 1909, is unconstitutional because in conflict with section 1, article 6, Missouri Constitution, and the appointment of Hall Taylor as next friend by the clerk in vacation was void. Therefore the action cannot be maintained on account of no legal capacity to sue. A next friend is an officer of the court. Sinclair v. Sinclair, 13 M. & "W. 640; Bartlett v. Batts, 14 G-a. 539; Trahern v. Colburn, 63 Md. 99; Leopold v. Meyer, 10 _ Abb. Prac. 40; Tucker v. Dobbs, 59 Tenn. (12 Heisk.) 18; Crotty v. Eagle’s Adrnr., 35 W. Ya. 151; Yaile v. Sprague, 179 Mo. 398. The appointment of an officer or assistant of the court is a judicial act. State v. Westfall, 89 Am. St. 580; In re Janitor, 35 Wis. 410*; State v. Noble, 10 Am. St. 149. The clerk is a ministerial officer. State v. Bowen, 41 Mo. 217; Mealing v. Pace, 14 Ga. 506. The judicial power cannot be delegated. 3 Kent’s Comm. (12 Ed.), 547. The hearing and determination of the fitness of an applicant and the appointment of him as a next friend is the exercise of judicial power. In re Rookout, 21 Barb. 348-. (2) The court erred in refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiff and also at the close of all the evidence. The evidence showed that the train could be seen by the moonlight. Moore on Pacts, sec. 1188; Williamson v. Railroad, 139 Mo. App. 489. There was no evidence that there was anything to obstruct decedent’s view of the approaching train. Mockowiek v. Railroad, 196 Mo. 571; Burge v. Railroad, 244 Mo. 94; Higgins-v. Railroad, 197 Mo. 318,-Morton v. Heidorn, 135 Mo. 617; Sexton v. Railroad,. 245 Mo. 275; Chemical Co. v. Lackawanna Line, 78 Mo. App. 315; Bigelow v. Railroad, 48 Mo. App. 367; United States v. Ross, 92 U. S. 284. There was no-evidence that the headlight was not burning. Moore on Pacts, sec. 1118; Williamson v. Railroad, 139 Mo. App. 489. The court will take judicial notice- of the-fact that a freight train running up grade at the rate-of twenty to twenty-five miles an hour makes a great deal of noise. Malott v. Hawkins, 159 Ind. 127; 'Mann v. Railroad, 128 Ind. 138; Railroad v. Gunderson, 174 111. 495; D'avis v. Railroad, 47 N. Y. 403; Moshier v. Railroad, 8 Barb. (N. Y.) 431; Hentz v. Railroad, 13-Barb. (N. Y.) 658. If the plaintiff had stopped to-listen just before going into danger she would have heard the train, which was then not over 100 feet away. Railroad v. Coffman, 30 Ind. App. 462; Payne v. Railroad, 136 Mo. 562; Knox v. Railroad, 202 Pa. St. 504; Coleman v. Railroad, 98 N. Y. App. Div. 352, 90-N. C. Supp. 267; Waddell v. Railroad, 98 App. Div.. 343, 347, 90 N. Y. Supp. 239, 241; Mann v. Railroad,. 128 Ind. 138; Breeze v. Manfg. Co., 140 Mich. 372; Railroad v. West, 34 Ind. App. 95. There was no evidence that the statutory crossing signals were not sounded as the train approached the crossing. Moore-on Pacts, secs. 1188, 1190 and 1203; McGrath v. Transit Co., 197 Mo. 105; Sullivan v. Railroad, 72 Mo. 195,; Williamson v. Railroad, 139 Mo. App. 489 ; Cathcart v. Railroad, 19 Mo. App. 118; McOreery v. United Railways, 221 Mo. 26. The decedent had no right to presume that the train was running at any particular speed: 1st, because the ordinance did not apply until the train reached the east line of Walnut street, a few feet from the decedent; 2nd, because she could have known of the rate of speed by the exercise of ordinary care. Schmidt v. Railroad, 191 Mo. 215; Stotler v. Railroad, 204 Mo. 641; Green v. Railroad, 192 Mo. 131. Therefore decedent was guilty of contributory negligence in going on the track when she saw or by the exercise of ordinary care could have seen the approach of the train in time to have prevented being struck. Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Schmidt v. Railroad, 191 Mo. 215; Laun v. Railroad, 216 Mo. 563; McOreery v. Railroad, 221 Mo. 18; Burge v. Railroad, 244 Mo. 76; Green v. Railroad, 192 Mo. 139; Stotler v. Railroad, 204 Mo. 619; Porter v. Railroad, 199 Mo. 82; Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Baker v. Railroad, 122 Mo. 533; Stepp v. Railroad, 85 Mo. 229'; Donohue v. Railroad, 91 Mo. 357; Butts v. Railroad, 98 Mo. 272; Dyrcz v. Railroad,_ 238 Mo. 33. The excessive speed was not the proximate cause of the striking of decedent. The ordinance limiting the rate of speed applied only to unfenced track, and in this case the track was fenced to within five feet of the plaintiff. The difference in time if the train had been obeying the ordinance would have been only two-sevenths of one second. Excessive speed is not the proximate cause when the injury would have occurred if the train had been obeying the ordinance. Ring v. Railroad, 211 Mo. 1.

      E. S. Gantt for respondent.
    (1) The appointment of a next friend for an infant may be judicial in character; but is only preliminary or collateral to the matter in suit and does not conflict with the provisions of our Constitution which vests the judiciary power of the State in certain courts exclusively. Such powers are necessary to the administration of justice in courts that have terms and vacations, and have always been exercised by judges or clerks. State ex rel. v. Andrae, 216- Mo. 617; State ex rel. v. Woodson, 161 Mo. 444; State ex rel. v. Loan Ass’n, 159 Mo. 102; St. Joseph v. Truekenmiller, 183 Mo. 9. The appointment of a next friend is a ministerial act, even though the clerk may have some discretion in connection with the matter. State ex rel. v. Roach, 230 Mo. 410'; 5 Words and Phrases, p. 4523. The appointment of a next friend is not a judgment. It is an order. 4 Words and Phrases, p. 3838. A statute will not be declared unconstitutional unless its invalidity appears beyond a reasonable doubt. State v. Webber, 214 Mo. 272; State ex rel. v. Railroad, 215 Mo. 479; State ex rel. v. Cordon, 231 Mo. 547. The delegation of powers to clerks is common, and in most cases the duties so delegated are ministerial. 8 Cyc. 860. (2) It was not error for the court to give plaintiff’s instruction number 3. If the engine was being-run upon unfenced tracks in excess of eight miles an hour at the time it struck decedent, the defendant was liable if deceased was killed as a direct result of said act. The court placed a greater burden on plaintiff in requiring the jury to also find that the engine was being run upon unfenced tracks before and at the time it struck decedent. Therefore defendant has no cause to complain. A similar instruction was not criticised in the case of Kolb v. Transit Co., 102 Mo. App. 152. An erroneous charge which could only have operated to the disadvantage- of the successful party in the lower court is not ground for reversal. Cook v. Printing Co., 227 Mo. 471; Orcutt v. Bldg. Co., 214 Mo. 52; Howard v. Railroad; Í10 Mo. App. 574. (3) If' there can he two views of plaintiff’s conduct entertained by fair-minded men, the one condemning, the other exonerating her, she is entitled to the verdict of' a jury on the question of her contributory negligence.. Mockowik v. Railroad, 196 Mo. 567; Deschner v. Railroad, 200' Mo. 326-. (4) By its plea of contributory negliggo.ee, defendant confessed the negligence-charged. Allen v. Transit Co., 183 Mo. 411; Ramp v. Railroad, 133 Mo. App. 703. A general denial raises-no issue when followed by a plea of confession and avoidance, and is waived by such subsequent plea. State v. Jockey Club, 200 Mo. 65. Though a general denial and a plea of contributory negligence are- inconsistent and could have been stricken out, as they were-allowed to stand, the denial is waived by the latter plea. Price v. Mining Co., 83 Mo. App. 474. And the allegations of plaintiff’s petition in these circumstances are confessed under the pleadings. State v. Jockey Club, 200 Mo. 6-5; Bowen v. Kansas City, 140 Mo. App. 698. (5) Every one is presumed to be. in the exercise-of due care for his or her own safety until the contrary is shown. Goff v. Transit Co., 199 Mo. 706-; Stotler v. Railroad, 200 Mo. 146; Weller v. Railroad, 164-Mo. 198; Meadows v. Sus. Co., 129- Mo. 93 ; Davis v. Railroad, 46 Mo. App-. 189 ; Reska v. Railroad, 180’ Mo. 187; Railroad v. Gentry, 163 U. S. 366; Buesching v.. Gas Light Co., 73 Mo. 219; Petty v. Railroad, 88- Mo.. 306; Crumpley v. Railroad, 111 Mo. 152; Schlereth v.. Railroad, 115 Mo. 87; Bludon v. Railroad, 108 Mo. 439. (6) Where the evidence showed an injury at a public crossing by a train -colliding with a person walking across the track, when the bell was not rung or the whistle sounded, a prima-facie case was made, and the burden of proving non-liability was then shifted to the defendant. Weigman v. Railroad, 223 Mo. 699. (7) The law presumes, in the absence of proof to the contrary, that one crossing a railroad track within an incorporated town, acted upon the assumption that an approaching train was not being run in the excess of the rate permitted by ordinance; and in such case the court has no right to assume, as a matter of law, that his conduct is not such as might be reasonably expected of a reasonably prudent person. Riska. v. Railroad, 180 Mo. 168; Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 180; Goff v. Transit Go., 199 Mo. 694; Eckhard v. Transit Co., 190 Mo. 593; 'Stotler v. Railroad, 204 Mo. 640; Mockowik v. Railroad, 196 Mo. 571; Hutchinson v. Railroad, 195 Mo. -548. The facts of the following crossing cases are similar to the facts of this case: Railroad v. 0 ’Neill, 186 Fed. 13; Railroad v. Sharp, 63 Fed. 532; Railroad v. Spike, 121 Fed. 44.
   GRAVES, J.

Plaintiff, an infant, sues by his next friend for the death of his mother, such death alleged to be due to the negligence of the defendant. 'The negligence is thus charged in the petition:

“That the city of Mexico, Missouri, is and was at all times herein' mentioned a municipal corporation of the third class, organized under the laws of the State of Missouri. That long prior to the happening of the wrong complained of herein, the said <city had duly passed, published and put in force and effect, an ordinance by which ordinance it is made and declared to be unlawful for any railroad company or ‘its agents, servants or employees to run upon its tracks or switches within that part of the corporate limits -of said city where said railroad track, tracks or switches is unfenced, any locomotive, car or train of cars at a rate of speed to exceed eight miles per hour; which ordinance was duly passed and published in book -form and promulgated by the city of Mexico, Missouri. That said ordinance was in full force and effect at the time of the wrongs herein complained of and a penalty was imposed for its violation.
“Plaintiff further states that at and near said crossing, the tracks of the defendant are unfenced and that said crossing is in the corporate limits of the city of Mexico, Missouri, and in the heart of said city, and that said city is a large and populous city, and that, as defendant well knew, the said crossing is always and at all times used by a great number of travelers, both on foot and in vehicles; that it is and was the duty of the defendant to have its locomotives and cars under full control .and to move the same very slowly and to keep a lookout for travelers when approaching said crossing, but plaintiff says that the defendant, its agents and servants, in violation of their duty and in violation of the ordinance heretofore pleaded, carelessly and negligently ran a locomotive and train of cars up to and over said crossing at a very high rate of- speed, to-wit, twenty-five to- forty miles per hour, and carelessly and negligently failed to run said train at a slow or lawful rate of speed or to have or to keep the same under control, and negligently and carelessly failed to keep'a lookout for persons on said crossing.
“Plaintiff further says that the defendant did not within eighty rods or within any other distance of said crossing, ring the bell or blow the whistle on said engine and train of cars and keep the same ringing and blowing until said engine had passed said crossing, but negligently and carelessly and unlawfully failed and refused to give any signals at all of the approach of said train at said crossing, and negligently ran said train against Emma Taylor. Plaintiff further says that as a result of the negligence of the defendant as set forth above, the collision aforesaid was caused and produced and his said mother was struck and killed by said train, and by her death he was and is damaged in the snm of ten thousand dollars, for which sum and costs he prays judgment.”

The answer is: (1) a general denial; (2) a specific denial that there was a legal appointment of the nest friend, coupled with an averment that section 1740, Revised Statutes 1909, is violative of constitutional restrictions, in so far as it authorizes the appointment of a next friend by the circuit clerk; and (3) a plea of contributory negligence upon the part of the deceased. No reply is found in the abstract of record, but the case proceeded below as if one had been filed. From a verdict of $3000' for the plaintiff and the judgment entered thereon the defendant has appealed. Further details will he stated in connection with the points urged.

I. We are met with a preliminary question in this case. Such question is thus stated in the brief:

“Section 1740-, Revised Statutes 1909, is unconstitutional because in conflict with section 1, article 6, Missouri Constitution, and the appointment of Hall Taylor as' next friend by the clerk in vacation was void. Therefore the action cannot be maintained on account of no legal capacity to sue.”

In the instant case the appointment was made by the clerk of the court. The constitutional provision alleged to be violated by this section of the statute reads:

“The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts.”

This statute'has been upon the books for some years, but up to this time does not seem to have been questioned. In onr judgment the newness of the idea is the only thing there is in the point made. The appointment of a next friend for an infant is only a preliminary matter in the course of a judicial proceeding, but not necessarily judicial in character. This idea is fully recognized by Valliant, J., in State ex rel. v. Woodson, 161 Mo. l. c. 455, whereat he said:

“What is here said is in reference to judicial power in its strict sense. There are quasi-judicial powers conferred upon quasi-judicial bodies, and powers to do certain acts in vacation, judicial in character, but subsidiary to a suit pending or about to be instituted in court, are conferred on judges of courts; but the power to try issues in a suit at law or in equity, .and pronounce judgment or decree upon the facts found or confessed, can be conferred, under our Constitution, only on a fully organized court.”

In other words, the judicial power referred to in the constitutional provision,’ supra, has reference to the actual and real trial and determination of “matters of law and equity” and not to mere preliminary steps necessary to be taken for the institution of the suit in law or equity. In our judgment the statute •does not violate the Constitution, and this point is ruled against the defendant.

II. It will be observed that the petition counts upon at least two negligent acts: (1) running the train in excess of the*rate of speed fixed by ordinance and (2) failure to give crossing signals. Suffice it to say that the evidence for the plaintiff tended to prove a speed rate of twenty to twenty-five miles per hour, whilst the ordinance rate was eight miles per hour, and it further tends to prove a failure to sound the whistle or ring the bell prior to crossing the street named. So far as the facts were concerned both questions were properly questions for the jury.

Defendant’s contentions may be summarized shortly. The ordinance made it unlawful to run a train in excess of eight miles an hour in the city of Mexico on tracks which were unfenced. To get at the contention made, a short resume of pertinent facts is proper. Walnut street runs north and south in the eastern portion of the city of Mexico. The Wabash railroad runs east and west through said city, and parallel with it runs the Chicago & Alton railroad. At and near Walnut street these two parallel lines were about thirty feet apart. The corporate limit of that city on the east was about one-half mile to the east of Walnut street, but it would seem that up to the east line of said street the track was fenced. The west corporate line was one and one-half miles west of Walnut street, but from the east side of Walnut street on to the western city limits the tracks were unfenced. In the argument of the case, point was made that there had been no violation of the ordinance, because the defendant had the right to run in excess of eight miles per hour up to within a few feet of where the deceased was struck. This point is not well taken. Through the city was an unfenced stretch of track one and one-half miles long. The eastern end of this unfenced stretch of track coincided with the eastern side of Walnut street. This ordinance required the defendant to run from the eastern side of Walnut street to the western limits of the city at a rate of speed not to exceed eight miles per hour, and vice versa. The train doing the injury in this case came from the east and was going west. Under this ordinance it was the duty of the defendant to so approach the Walnut street crossing from the east as to have its train running within the ordinance rate when the unfenced portion of the track was reached. It could not run at twenty-five miles per hour up to the east side of Walnut street, and then begin to reduce its speed to bring it within the ordinance rate. When the law fixes boundary lines within which acts must conform to ordinance regulations, all territory within the fixed boundaries falls under the ban of the law. The law reaches from side to side and from center to circumference, and such territory must be so approached by the citizen, that compliance with the law can be accomplished at the very doorway of the regulated territory. The admissions of the train crew as to the speed of this train show a violation of the ordinance, which makes a prima-facie case of negligence. In the brief counsel for defendant says:

“The deceased had no right to presume that the train was running at any particular speed, because the ordinance did not apply until the train reached the east line of Walnut street, a few feet from the decedent.”

As above indicated the above is a misconception of the law. The deceased had a right to presume that the train would approach Walnut street at such a rate of speed, that when it (in the ordinary and usual course of handling trains) reached the east line of Walnut street it would be running at a rate not in excess of the ordinance rate.

III. It is next urged that the deceased was guilty of such contributory negligence as would bar a recovery by the plaintiff. This calls for more facts. Deceased, with others, at about twelve o’clock at night was coming up the Chicago & Alton tracks from the west. Some of the parties were with her and some behind her. According to the plaintiff’s evidence the night was dark. The headlight on the engine was not burning —at least was not seen by those who followed plaintiff up the Chicago & Alton tracks. To the east were some brick kilns which were in operation that night, and the evidence tends to show - that the lands east of Walnut street are low lands, and when there are cloudy nights the smoke settles to the ground and renders it difficult to see an ordinary oil headlight on an engine. This engine was equipped with an oil lamp. The length of the train is not given; the evidence is in fragments, showing an engine and caboose. The evidence shows that others not far behind plaintiff did not see or hear this train, until it passed them and they saw the lights in the' caboose. If conditions were such that others did not or could not see or hear this train, it can hardly be said that deceased was guilty of contributory negligence as a matter of law. Being dead, and there being no evidence of what her condition was at the point and time of injury, she is entitled to the presumption of having used due care. The evidence is not such as to so destroy this presumption and authorize the court to say that she was negligent as a matter of law. The demurrer to the testimony was properly overruled.

IV. It is next urged that the court erred in permitting the witness Spurs to testify that no bell was rung or whistle sounded by the approaching train. This witness was walking up the railroad track of the Chicago & Alton. He says he was looking toward the Wabash tracks. The objection goes to two questions, but the context of his whole statement should be considered. His testimony in full upon this question is as follows:

“Q. Where were you coming from and where were you going at that time? A. I was coming down from the restaurant; I was going home.
“Q. You were coming from, town and going towards home? A. Yes, sir.
“Q. Which way were you looking, down towards the Wabash? A. Yes, sir.
“Q. Direct east? A. Yes, sir.
“Q. As you were walking down there? A. Yes, sir.
“Q. State to the jury if you saw or heard any train? A. Well, when I was going down the railroad tracks I didn’t hear no train and I didn’t see any until- the caboose came by me, and I could tell by the lights of the caboose and knew there was a train.
“Q. Where were you walking? A. I was walking on the C. & A. tracks.
“Q. Were you walking on the O. & A. tracks east? A. Yes, sir; I was down between the switch track and the main line.
“Q,. Is there a path in there? A. Yes, sir.
“Q. The Chicago & Alton and the Wahash run along together there east of Mexico for a distance ? A. Yes, sir.
“Q.' For quite a distance? A. Yes, sir.
“Q. About how far is the O. & A. tracks from the Wabash tracks ? A. Fifteen or twenty feet, maybe further.
“ Q. That is, the main line of the O. & A. and Wabash is further than the switch, isn’t it? A. Yes, sir; further than the switch.
“Q. Now, tell the jury if any bell was rung on the engine? A. No, sir.
“Q. State to the jury if any whistle was blown or bell rung as that train came up to and over that crossing. A. No, sir, there wasn’t.”

The objections were lodged to the last two questions and the answers thereto. In view of what the witness says about his actions there at the time, these questions were proper. He puts himself in a position to hear, and says that he was looking. If I say that I was near, and watched a train pass, I certainly can say, as a fact' (not as a mere conclusion, as is suggested in the objections) that no bell was rung or whistle sounded. This witness says that he did see the caboose as it passed him, and could certainly say that no bell was being rung or whistle sounded at or about that time. His testimony does not go further, when it is all considered. The objection is without substance and is therefore ruled against the defendant.

Instruction numbered 6, as modified by the court, is criticized, but there is no substance in the objections thereto.

V. Defendant urges that the court erred in giving plaintiff’s instruction numbered 3. This instruction reads:

“The court instructs the jury that under the ordinance of the city of Mexico, it is made unlawful for any railroad company, or its agents, servants or employees to run upon the tracks or switches of any railroad company within that part of the corporate limits of said city where said railroad track or tracks are nnfenced, any locomotive cars, or train of cars, at a rate of speed exceeding eight miles per hour; and if you believe from the evidence that the locomotive engine which struck deceased was at the time and before it struck her, being run by the defendant upon unfenced tracks of defendant railroad company within the corporate limits of Mexico at a rate of speed in excess of eight miles an hour, then you are instructed that such running in excess of eight miles an hour is negligence; and if you believe as a direct consequence of such negligence the decedent was killed, you will render a verdict for plaintiff, unless you believe from the evidence decedent was guilty of negligence which contributed to her death, and you are instructed that contributory negligence on the part of decedent must be established by the greater weight of the evidence in the case and unless it is so established you cannot find for the defendant upon that ground.
“Provided you further believe from the evidence that plaintiff was a minor child of decedent, horn out of wedlock, and that at the time of her death decedent was unmarried, and that no husband survived her, and that no other child than plaintiff born to her survived her and was living when she died. ’ ’

It is urged that the violation of the ordinance was not the proximate cause of the injury, and we are cited to King v. Railroad, 211 Mo. 1. Having written the King case we are familiar with its facts — and what was there said had reference to the facts in judgment, which were wholly different from the facts here. Had .the train involved here so reduced its speed that it would have been running at eight miles per hour when it reached the east line of Walnut street, this accident might never have occurred. It was at least a question for the jury to say whether or not the violation of the ordinance occasioned the injury to deceased under the facts of this record, and the instruction is well worded to that end. This contention of defendant is without merit and is therefore ruled against it.

VI. It is further urged that the court erred in refusing defendant instructions á and 10. Instruction 4 was a peremptory instruction withdrawing from the jury the question of speed of the train. From what we have said in a previous paragraph there was no error in refusing this instruction. It was a question for the jury to say .whether or not the rate of speed was a proximate cause of the injury.

Instruction 10 reads: “The court instructs the jury that there is no evidence in this case that the decedent, Emma Taylor, was struck by defendant’s train as the result of the' failure of the agents and servants in charge thereof to keep a lookout for persons on said Walnut street crossing, and that issue is withdrawn from the jury and will not be considered by yon in arriving at a verdict.”

This theory of the case was not urged by the plaintiff, and the plaintiff did not by his instructiona predicate a right to recover upon such theory. The plaintiff having abandoned that issue, no harm resulted to defendant by the refusal of this instruction. Upon the whole this case was well tried nisi and we see no reason for disturbing the judgment.

Let the judgment be affirmed.

All concur.