text:
    CARRIE BRADLEY, Appellant, v. JAMES H. FORBES TEA AND COFFEE COMPANY.
    Division One,
    July 3, 1908.
    ' 1. APPEAL: Judgment for Right Party: Demurrer. Where plaintiff’s case in a negligence suit did not make out a prima-facie case for her, and the judgment was for defendant, and defendant’s demurrer to the' evidence, which was overruled, should have been given, the judgment will be affirmed, and other assignments of errors committed by the court in the progress of the trial will not be considered.
    2. NEGLIGENCE: Assumption of Risks. If the place which the master, an ordinary industrial corporation, furnishes his servant in which to work is reasonably safe for that purpose, then the master has performed his full duty towards the servant, and he is not liable for injuries to the servant caused by dangers created by the servant in the performance of his duties.
    3. -: -: Dangerous Place. Where the duties of the servant and his assistant were more or less dangerous, but depending solely upon the manner and care with which they were performed, and not upon any danger connécted with or incident to the place in which they were performed, and the servant’s knowledge of the dangerous situation was better than that of the master, the master is not liable in damages for injuries sustained by the servant.
    4. -: -: Falling Piles of Coffee Sacks. Coffee sacks, weighing from 200 to 250 pounds, were stored on the first floor of defendant’s building, and piled up in parallel rows'ten or twelve feet in height and extending about twelve feet from the wall, and among other duties plaintiff’s husband, who was an experienced man at the work, was to perform, was to select from the stock certain grades and kinds of coffee, and carry them to an upper floor and there mix them and make certain blends for the trade. Often when one pile was removed the one next to it would settle more or less and bulge out in the center, and if the bulge was so great as to likely result in the pile falling, he or some other employee would right it, but if the bulge was slight no attention was paid to it. For a few days prior to the accident he was in attendance upon the court as a juror, and on the day prior to his return the foreman and another employee partially removed one of the middle rows of sacks, which caused the next row to bulge or lean somewhat, but not sufficient to cause them to conclude that it would fall, and when plaintiff’s husband returned to his work he went to the row which had been partially removed, without having been informed as to the leaning condition of the adjoining row, and began to remove other sacks therefrom, when, without warning, the leaning row fell upon him and broke his back. Held, that the danger was created and arose, not because defendant furnished him an unsafe place in which to work, but solely out of the fact that plaintiff’s husband and the other servants removed the sacks from the row next to the one which fell; and there being no charge or evidence that the defendant was negligent in the selection of his co-employees, his widow cannot recover damages for his death. He assumed the risks, and the master is not liable.
    Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.
    Abbirmed.

      James M. Rollins for appellant.
    (1) The master’s position to his servant is that of a superior. The servant’s relation to his master is that of subordination. The master owes a duty of inspection to his servants. The servant owes no duty of inspection of his master’s premises. Shórtel v. St. Joseph, 104 Mo. 120; Gntridge v. Railroad, 105 Mo. 526; Scott v. Springfield, 81 Mo. App. 312; Hughes v. Fagin, 46 Mo. App. 44; Thompson v. Railroad, 86 Mo. App. 148; Devore v. Railroad, 86 Mo. App. 4291. (2) Defendant’s claim that its demurrer should have been sustained has no merit, and the case was one for the jury to consider under proper instructions. The .evidence shows that a man by the name of Fitzgerald was defendant’s foreman, and as such had charge of the employees on the different floors of defendant’s establishment. The evidence conclusively shows that Bradley was engaged as a coffee mixer on the third and fourth floors and that he obtained the coffee by going to the' stock room and selecting the desired brands from the piles of sacks of coffee therein. The piles were made under the direction of the said foreman, whose duty it was to see that the piles were kept in a safe condition. Where the place in which the servant is set to work is like the place in question, not necessarily or inherently dangerous, but of such a nature that it may be maintained in a reasonably safe condition by the master, by the exercise of ordinary care, the master, if he fails to exercise such care, in consequence-of which a careful servant is injured, is liable in all cases except one. The excepted case may be stated thus: When the master intrusts to a competent servant the arrangement, inspection and repair of a place wherein work is performed, such servant cannot recover for an injury he receives in consequence of a situation he creates or defects he fails to discover or repair. The facts in the case at bar do not call for the application of this exemption, first. The evidence affirmatively shows that deceased was not intrusted by his employer with properly arranging or storing the sacks of coffee in the stock room, so as not to endanger the safety of persons working about the same. It is true that his employment as a coffee mixer occasioned frequent visits to the stock room where he obtained the coffee and that on occasions he assisted in carrying in and storing the sacks of coffee in tiers or piles, at the direction of the foreman, but he had nothing to say about how the sacks of coffee should be arranged or stored, whether they should be arranged in piles or tiers, high or low, or otherwise. When he thus assisted he did so in obedience to the foreman, who for the master directed the work, which, therefore, when completed, represented in plan and arrangement the will of the master, second. There was no evidence tending to show that the master intrusted to Bradley the duty of inspecting and repairing the piles of sacks of coffee. On the contrary, the evidence affirmatively shows that this duty was intrusted to the foreman. If, however, there had been such evidence, it was a question for the jury. Nicholds v. Plate Glass Co., 126 Mo. 65. The fact that Bradley may have been told or accustomed to look out for leaning piles did not increase his obligation nor lessen that of the master. Covey v. Railroad, 27 Mo. App. 179'. (3) Nor can Bradley’s death be attributed to the negligence of a fellow-servant, since the duty of the master to exercise care to furnish a safe place is a positive or absolute duty, which the master owes to- the servant, and those to whom he intrusts it are vice-principals,, regardless of whether they are of high or low degree in the employment. They represent the master if intrusted with any of the master’s duties to the servant. Zellars v. Mo. W. & L. Co., 92 Mo. App. 123.

      Seddon S Holland for respondent.
    Regardless of the question of alleged errors, the judgment of the lower court should be affirmed because it is for the right party. The lower court should' have given a peremptory instruction to find for defendant. Livengood v. Joplin, 179 Mo. 229; Knopp v. Wagner, 195 Mo. 637; Henson v. Armour, 113 Mo. App. 618 ; Kelly v. Railroad, 105 Mo. App. 365; Gleeson v. Excelsior Mfg. Co., 94 Mo. 201; Schaub v. Railroad, 106 Mo. 74; Mathias v. K. 0. Stock Yards, 84 S. W. 60.
   WOODSON, J.

Plaintiff instituted this suit in the circuit court of the city of St. Louis to recover the sum of $5,000 damages for the killing of her husband, John M. Bradley, through the alleged negligence of the defendant. There was a trial before the court and a jury, which resulted in a verdict and judgment for the defendant, from which the plaintiff duly appealed. The facts are few, and are substantially as follows:

At the time of his injury and death John M. Bradley and plaintiff were husband and wife. Defendant was a business corporation, engaged in the wholesale tea and coffee business in the city of St. Louis. On and prior to November 20, 1903, said John M. Bradley was in the employ of defendant as a “laborer or foreman,” and among other duties he was to perform was the selecting from the stock certain grades and kinds of coffee, and carry them to the third or fourth floor of the building and there mix them so as to make different blends for the trade. The coffee in stock was stored on the first floor and was piled up in rows three feet wide, that being the length of the coffee sacks, and extended from the west wall toward the east a distance of some ten or twelve feet and were about twelve feet in height. The different rows were about the same length and height and were parallel with each other. The sacks of coffee weighed from two hundred to two hundred and fifty pounds each.

Bradley was an experienced coffee man, and was perfectly familiar with the manner in which the coffee was piled. For three years he had assisted in building and tearing down those piles. Frequently when one pile was removed the one next to it would settle more or less and bulge out in the center. If the bulge was so great as to endanger the pile falling, Bradley and some other employees of the company would adjust the matter, but if the bulge was only slight no attention was paid to it. A few days prior to the accident the deceased was summoned to serve on the jury in the circuit court, and while he was in attendance upon the court other employees of the company performed his duties. The day prior to his return the foreman in charge of the business and another employee of the company partially removed one of the center rows of coffee, which caused one of the adjoining rows to bulge or lean somewhat, but not sufficient to cause them to apprehend that there was any danger of its falling. It remained in that condition until the next morning, November 20, 1903, when Bradley returned to work. Shortly after he resumed his duties he went to the row of coffee which had been partially removed, without having been informed of the leaning, condition of the adjoining row, and began removing additional sacks of. coffee therefrom, when, without warning, the leaning row of coffee fell upon him and broke his back, which resulted in his death on the next day.

I. At the close of plaintiff’s case, the defendant asked an instruction in the nature of a demurrer to the evidence, which was by the court refused, and to which action of the court in refusing to give said instruction defendant duly excepted. The defendant declined to introduce any evidence, and the court submitted the issues to the jury under certain instructions given, and, as elsewhere stated, the jury found for the defendant, and plaintiff duly appealed.

The contention of learned counsel for plaintiff convicts the trial court of having committed many errors during the progress of the trial, and asks this court to review the rulings of the trial court.

In response to that request we are confronted with the assertion of counsel for defendant that the judgment is for the right party regardless of the errors assigned; and contend that the evidence as disclosed by the record does not make out a ease for the plaintiff, and that the court erred in not sustaining its demurrer to the evidence, and renews that contention in this court.

We will first consider defendant’s demurrer to the evidence, and if we find that the evidence was not sufficient to make out a prima-facie case for plaintiff, and that the demurrer should have been sustained, then the necessity of making an examination and passing upon the numerous questions presented by plaintiff will be obviated.

It is the contention of the defendant that Bradley came to his death as the result of a risk which was assumed by him and which arose in the course of his employment. In other words, it is contended that he was killed, not because the master furnished him an unsafe place in which to labor, as contended for by the appellant, but that the danger in this case was created and arose solely out of the fact that the servants of defendant were removing the sacks of coffee from one pile, which had a tendency to make the adjacent piles lean and bulge out of a perpendicular line. Some of the sacks had been removed by employees Burgin and Burchard the day before the accident, and on the morning of the accident deceased was removing additional sacks from the pile himself, and it was not until he had removed several of them that the adjacent pile fell upon and crushed him.

The law seems to be well settled in this State and elsewhere in this class of cases that if the place which the master furnishes to the servant in which to labor is reasonably safe for that purposé, then the master has performed his full duty toward the servant, and he is not liable for injuries to the servant caused by dangers created by the servant in the performance of his duties. The reason for that rule is that the master can foresee and remedy the dangers which are connected with the place in which the servant is to labor, but not so in reference to dangers which are created or caused by the servant and which arise out of the performance of his duties. In most if not in all cases of that character such dangers depend upon the care and skill of the servant himself.

For instance, the most hazardous of employments may be performed with a minimum degree of danger by a most skillful and careful operator; while, upon the •other hand, an employment however free from danger may he rendered exceedingly hazardous by the negligence or unskillfulness of the servant. In neither case •can the master foresee how the servant will discharge each particular duty. And in neither case is the master liable for the injuries so inflicted by a servant upon himself.

In Livengood v. Lead & Zinc Co., 179 Mo. 229, the plaintiff was injured while assisting a drill-man in drilling holes in a mine drift by the explosion of a charge of powder in a hole which had on the day previous to plaintiff’s employment been placed in the ■drift by the drill-man. It was the custom of the drill-man and his helper to examine every shot and ascertain whether or not they had exploded, and, if it was discovered that any shot had not exploded, it was their custom to work somewhere else. The plaintiff at the time was acting as helper to the drill-man. The court in this connection says: “The duties of a drill-man and his helper are necessarily-more or less dangerous, but they are simple, and require no great amount of skill or training. Any man of ordinary intelligence can perform them. They consist of drilling holes in the rock, putting sticks of dynamite in them, setting off the shots, removing the dirt after the explosion, and then going through the same operation again. It is not a scientific matter to ascertain whether any of the charges in any of the holes remain unexploded after the shots have been fired. Even the slightest examination will disclose that fact to even the most unscientific investigator. There is no reason in law why the ascertainment of this simple fact cannot be as well and as safely performed by the servant as the drilling of the hole and the charging of it with dynamite can be performed by the servant. In fact, the latter requires more care and skill than the former. And there is no claim in this case that the master was negligent in the selection of the drill-man, nor-that Wilkie was an unsuitable or improper person' to be employed in such work. That he was negligent in this case is apparent, but he also paid the penalty himself by losing his eyesight. . . Here it was the duty of the drill-man and of the plaintiff to examine and see whether any charge remained unexploded. They failed to do so, but proceeded with the work and the injury ensued. The drill-man was negligent and the plaintiff was negligent. The injury was caused by a risk incident to and ordinarily connected with the doing of the work the plaintiff engaged upon. The negligent manner in which the plaintiff and his fellow-servant, Wilkie, did the work, caused the injury. The work of the master was dangerous, but it was not illegal. The master had a right to conduct it in his own way so long as that way was not illegal and so long as it was not negligently done on his part. The servant assumed the risk of doing the work in that way when he entered the master’s employment. He also assumed the risk of being injured if his fellow-servants were negligent, and they, in turn, assumed the risk of being injured if he was negligent. For such injuries there can be no recovery.”

The Livengood case was followed in the case of Knorpp v. Wagner, 195 Mo. 637. There the court said: “Another thing, it is fundamental that a master can not delegate his primal duties as master by a general order or rule and thus avoid responsibility. If the courts would tolerate such ready-at-hand scheme of easy avoidance, then the employer of men might well add a new and worldly significance to the lines of the good old hymn:

This is the way I long have sought;

And mourned because I found it not;

for a cure-all for not a few of his ills lies in a stroke of his pen. With this general proposition conceded, it is asserted by respondent that appellants could not delegate the duty of inspecting drill holes so far as to relieve them from liability for negligent inspection. But is it sensible, or will it do to say that an expert servant may not have delegated to him intermediáte duties of detail pertaining to his own labor, as, for example, the duty of inspecting his own drill holes and of taking care to ascertain danger and avoid causing accidental explosions? This precise question was before this court in Livengood v. Lead & Zinc Co., 179 Mo. 229, and Fisher v. Cent. Lead Co., 156 Mo. 479, and ruled against respondent’s insistence after full consideration. Indeed, of all persons in the world, the drill-man, because of the law of self-preservation and because of his peculiar and personal knowledge of the hole, would be the most keenly alive to hidden peril and be the most likely to smell it out, i. e., would make the best inspector of Ids own drill holes. Respondent’s complaint of the method of inspection, therefore, is not well founded. His inspection of the old drill was the inspection of his master and he must not be heard to complain of the method, i. e., the spoon method, for it was in use to his knowledge; nor of the character of the inspection, for it was his own act; and he may not complain that the master did not otherwise inspect the hole, because he knew and voluntarily adopted the plan of inspection by the drill-man; and. what is more, he knew that no one had inspected the hole but himself. Again, the servant assumes the ordinary risks incident to his employment — in this case, the manifold dangers of mining with explosives. All that is required of the master is to exercise ordinary care. Now, as to one phase, at least, of the question of assumption of risks, the case is free from doubt, thus: Respondent, an expert miner, with wide-open eyes, who having eaten the fruit of the tree of knowledge of good and evil (in mining) voluntarily accepted and continued in the service of appellants in a mine having no air shaft, where none was practicable, and where, for obvious reasons, the rule was to fire no squib shots during working hours. That by his conduct he must be held, as a matter of law, to have assumed the known risks incident to that employment in that way ought to require no argument.”

In Henson v. Armour Packing Co., 113 Mo. App. 618, a carpenter was sent to reinforce the shoring of a bank of earth and while engaged in the work the bank •caved in and injured him. There the court held that the master was not liable merely because the place was unsafe or merely because the plaintiff’s foreman sent him into a dangerous place, and this because the very work he was sent to do was to render a dangerous place reasonably safe. The court says in this connection: “When the work in hand is dangerous for the reason that it is to secure and make safe an unsafe place, the rule, as generally applied, that the master must furnish the servant a safe place in which to work, can have no application. To say that a man can have a safe place to work in an unsafe place is an absurdity.”

In the case of Kelley v. Railroad, 105 Mo. App. 365, the plaintiff was injured by a defective appliance. The duty, however, was imposed upon him of looking out for defects in such appliance and reporting same. There the court says: “When it is the servant’s office to keep tools in repair, and he carelessly fails to do so, the rule that the master must use care to furnish the servant' reasonably safe tools has no bearing on-the case, for the reason that the servant’s own dereliction prevented the discharge of the master’s duty.”

If we view the case at bar in the light of what has been held in the foregoing cases, and apply the legal principles there enunciated, then there is hut little foundation left upon which appellant can stand. The ■duties of Bradley and his assistant were more or less dangerous, depending solely upon the manner and care in which they were performed, and not upon any danger connected with or incident to the place in which they were working. A person of ordinary intelligence could have performed those duties. They consisted of piling up sacks of coffee and tearing them down in selecting the different grades to be used in making the -desired blends. It requires no special degree of knowledge to do either with perfect safety to the employee. Appellant was experienced in the business and knew one of the effects of removing sacks from a row to frequently cause those of the adjoining rows to settle and lean or bulge out more or less, which could be readily adjusted by shifting the sacks back again to a perpendicular position and thereby remove all danger of falling. While that may have taken a little time and labor, yet that was a part of his duties and which he had often performed before this unfortunate accident ■occurred, and for which he was being paid..

He was hourly in contact with the situation, caused and observed the condition of the sacks, while the master had no occasion or opportunity to inspect them. If the rows bulged, it was caused by the act of the servant, and it was his duty to inspect and straighten them without waiting for orders from the master; and there is no legal reason suggested why that simple duty might not have been as well and as safely performed by the servant as by his master. In fact, the former’s knowledge of the situation was better than that of the latter, and for that reason it would have been a useless and idle ceremony for the servant to have reported that fact to the master and awaited orders from the latter to remedy the defect. And it should be.borne in mind that there is no claim advanced that the master was guilty of negligence in the selection of appellant’s co-employees, or that they were unsuitable or improper persons to perform the duties assigned to them. Bradley or his assistant, or both, were guilty of negligence in going into and removing sacks of coffee from the place where the sacks had been removed the previous day, which was nest to the leaning row. Under all of the authorities the master is not liable in damages for injuries sustained by either of them in consequence of such negligence.

It was the duty of Bradley and his assistant to keep a constant lookout to see whether or not the piles of coffee would bulge or lean when sacks were removed from the adjoining piles, and, if so, to straighten them up', and thereby prevent them from falling and thereby injuring themselves. In this instance they failed to do so, but proceeded with their work, and the injury resulted. Both were negligent, and the injury was caused by a risk incident to and ordinarily connected with the performance of the duties they were engaged in. While the work was somewhat dangerous, yet it was not illegal for the master to engage the appellant to perform it. It is not contended that the master did not have the right to conduct his business in the manner shown by the evidence; but concede such has been made, still he would have had the right to conduct it in his own way so long as that way was -not unlawful or was not a negligent mode of conducting it; and in this case there is no evidence tending to show the mode in which the business was conducted was either negligent or unlawful. Bradley assumed the risk that was incident to the mode in which it was being conducted, and he also assumed the risk of being injured by the negligence of his fellow-servant.

Suppose, for instance, instead of being employed in a house in building up and tearing down rows of coffee, as in the case at bar, Bradley had been employed in a wood and coal yard to rick np and tear down and saw cord wood in lengths to suit the trade, and while doing so he removed one rick in such a manner as to canse an adjoining one to lean and fall upon and injure him, would it be seriously contended that the mas'ter would be liable to him in damages for the injuries sustained by him in consequence of the wood falling upon him when it was shown that it was his duty to rick the wood and tear it down, and to do it in such manner as to prevent the ricks from leaning and falling, and that if perchance a rick should lean to straighten it up and thereby prevent it from falling? We think not, yet the same legal principle underlying and governing the one underlies and governs the other.

Counsel for appellant places some stress upon the fact that her husband had not been working for respondent for a few days prior to his injury, and that he did not remove or assist in removing the sacks which caused the pile of coffee to lean and fall. That is true, but it is also true the pile was still standing when he began work, and he knew that when the sacks were so removed it was liable to cause the adjoining piles to lean, and with that knowledge, when he saw the sacks had been removed, ordinary care and prudence on his part would have caused him to have looked and observed the leaning condition of the pile in question, which was as obvious to him as to the master; and had be done so, he would have seen the leaning condition thereof, and could have conducted himself accordingly. But having gone into the dangerous place without having done so, he was guilty of negligence which caused his injuries and death, and which will preclude his widow from a recovery in this case.

This precise question was made and presented to this court, in the case of Livengood, supra, and it was there held, as here, that plaintiff could not recover.

We are, therefore, clearly of the opinion that the evidence did not make a case entitling tlie plaintiff to recover, and for that reason the demurrer to the evidence should have 'been sustained, and that the action of the court in refusing it was error'.

This view of the case renders it unnecessary for us to pass upon the several questions so ably discussed in brief and in oral argument by learned counsel for appellant.

The judgment is affirmed.

[All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    THURZA CONNER, Appellant, v. JOSEPH E. SKAGGS et al.
    Division One,
    July 3, 1908.
    1. WILL: Undue Influence. The testator notified the cashier of a bank that he wished him to draw his will, and thereafter, eight years before his death, he appeared at the bank, and gave specific directions and memoranda as to how he wished to dispose of his property, and the cashier, using a form in a book or an old will as a guide, drew up the will as testator directed, disinheriting plaintiff, for that, as the will recites, “she having married contrary to my express wishes.” Before it was made testator told others that he intended to make it as it was made, and after it was made he told others that he had made it as it. turned out to be. Two years later he had the same cashier to make a codicil, changing the executor, and afterwards he told others that he had changed the codicil as it turned out to be changed. The will and codicil were left in the keeping of the cashier, and six years after the codicil was made the testator died. Held,, that the court properly instructed the jury to find that the will was not the result of the undue influence of the cashier.

      2. -: Incapacity: Erroneous Opinion: Joining Church. The fact that testator in his old age stated to a minister when his grandchild joined the church that he had never sworn an oath prior to his uniting with the church at the age of eighteen and thereafter he became very profane, and the fact that he argued, from his own experience, that joining the church tended to a lowering of moral standards, etc., is no evidence that he was incapacitated to make a will. Faulty reasoning now and then is no evidence of testamentary incapacity.
    3. -: -: Insane Delusion: Definition. This definition is approved: “An insane delusion is an unreasoning and incorrigible belief in the existence of facts which are either impossible absolutely, or, at least, impossible under the circumstances of the individual. It is never the result of reasoning and reflection; it is not generated, by them, and it cannot be dispelled by them; and hence it is not to be confounded with an opinion, however fantastic the latter may be.”
    4. -: -: -: Wrongful View of Son-in-Law: Explosive Temper. The fact that testator was violently opposed to the clandestine courtship and marriage of the daughter whom he disinherited; that he considered the man she married was “a drunkard, a gambler and a morphine fiend;” that his belief was unfounded, yet was based on statements made to him by others; that he had an explosive and violent temper, and when the daughter married, he was deeply wounded, and went into a violent rage and in the height of his bitterness determined he would disinherit her, which he did by will ten days later; that they subsequently became reconciled and she was again received into the bosom of the family, and that thereafter he caused to be added to the will a codicil, changing the executor and otherwise ratifying and confirming the will, which clause was read over to him, and that the codicil was added on the next day after he had been urged to change the will so as to restore the daughter to a child’s share, are not evidence of an insane delusion or of senile monomania, where there is no evidence that he was in a paroxysm of temper and rage when the will was made, and there was evidence that after the codicil was added he told others what changes were made by it and after his death the changes were found to be exactly as he said they were.
    Appeal from Platte Circuit Court. — No». A. D. Burnes, Judge.
    Affirmed.

      George W. Day, Anderson & Carmack, and Boland Hughes for appellant.
    (1) The defendants, or proponents of the contested instrument, not the plaintiff, were, under the law, charged with the burden of showing, among other things, testamentary capacity. This burden remained with them throughout the trial and did not, as has been sometimes supposed, shift, after the making of what is called a prima-facie case. Norton v. Paxton, 110 Mo. 456; Carl v. Gabel, 120 Mo. 283; Moore v. McNulty, 164 Mo. 119; Southworth v. Southworth, 173 Mo. 72; Lorts v. Wash, 175 Mo. 503. (2) When there are facts established from which a jury may reasonably draw legitimate inferences tending to sustain an issue, the court should not interfere. Sehr v. Lindemann, 153 Mo. 289. (3) Moreover, in passing upon the capacity of a person to make a will, the will itself and all of its provisions may be considered by the jury, and, while the fact that it is apparently unjust to some of the children is not, of itself, sufficient to invalidate it, yet it is a circumstance to be considered with other facts. Young v. Eidebaugh, 67 Mo. 574. (4) Our Statute of Descents is the legal standard, as it is also the human standard, of how property should be distributed upon the death of its owner; and where, as in this case, a testator virtually disinherits a child, such gross inequality furnishes an additional ground for placing upon the proponents of the will the onus of establishing its validity. Gay v. Gillilan, 92 Mo. 264. (5) We have no instrument by which we may assume to measure the extent of mental capacity. Bach case must be ruled according to its own peculiar facts and circumstances. Brinkman v. Bueggesick, 71 Mo. 553. (6) Where a person imagines something extravagant to exist, which really has no existence whatever, and he is incapable of being reasoned out of his false belief, he is in that respect insane, and, if an instrument, testamentary in form, is produced by such delusion, it is invalid as a will. Benoist v. Murrin, 58 Mo. 307; Knapp v. St. Louis Trust Co., 199 Mo. 688; Holton v. Cochran, 106 -S. W. 1035. (7) “Intelligent knowledge by a testator that his will would disinherit some of his children, is not inconsistent with a delusion in regard1 to them, which led to their exclusion.” Bitner v. Bitner, 65 Pa. St. 347. (8) The law does not require any particular degree of understanding in a person making a will, but such person must have sufficient capacity to intelligently know what disposition he is making of his property. Harvey v. Sullens, 56 Mo. 372. (9) It is always the province of the jury to make deductions and draw inferences from evidence that permits of more than one just conclusion, even in will cases. Walton v. Kendrick, 122 Mo. 504; Sehr v. Lindemann, 153 Mo. 276; Fulbright v. Perry County, 145 Mo. 432; Cash v. Lust, 142 Mo. 630; Tibbe v. Kamp, 154 Mo. ■545; Sehierbaum v. Schemme, 157 Mo. 1.

      Wilson $ Wilson for respondents.
    (1) Where, in a will contest, the subscribing witnesses testified that the testator was of lawful age and •of sound mind, as well as to the due execution of the will, such evidence established a prima-facie case for proponents, and shifted and rested the burden to contestants of establishing testator’s incapacity, or that the execution of the will was the result of undue in.fluence. Holton v. Cochran, 106 S. W. 1064; Harris v. Hays, 53 Mo. 96; Fulbright v. Perry County, 145 Mo. 442; McFadin v. Catron, 138 Mo. 213; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo-. 35; Carl v. Gabel, 120 Mo. 283; Tibbe v. Camp, 154 Mo. 545; Riggin v. Westminster College, 160 Mo. 579. (2) The rule in this State is that one who is capable of comprehending all his property, and all persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business and to. know what disposition he is making of his property, has sufficient capacity to make a will. Holton v. Cochran, 106 S. W. 1064; Biggin v. Westminster College, 160' Mo. 579; Jackson v. Hardin, 83 Mo. 175; Benoist v. Murrin, 58 Mo. 322; Gordon v. Burris, 153 Mo. 231. (3) When there are facts established from which the jury may reasonably draw legitimate inferences tending to sustain an issue, the trial court should not interfere. But when, as in this case, there is no substantial evidence of incompetency, it was the duty of the trial court — as it did do — to direct a verdict for the proponents of the will. Mc-Fadin v. Catron, 138 Mo. 213; Hamon v. Hamon, 180 Mo. 702; Southworth v. Southworth, 173 Mo. 59; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Riley v. Sherwood, 144 Mo. 369; Sehr v. Lindemann, 153 Mo. 290; Martin v. Bowden, 158 Mo. 393; Woods v. Carpenter, 166 Mo. 487; Catholic University v. O’Brien, 181 Mo. 68; Doherty v. Gilmore, 136 Mo. 422; Gordon v. Burris, 141 Mo'. 614; Archambault v. Blanchard, 198 Mo. 429; Farmer v. Farmer, 129' Mo. 536; Defoe v. Defoe, 144 Mo. 466; Cash v. Lust, 142 Mo. 644; Biggin v. Westminster College, 160 Mo. 570 ; Berberet v. Berberet, 131 Mo. 411; Crowson v. Crowson, 172 Mo. 691. (4) The law presumes that a testator was possessed of a sound and disposing mind, and it rests upon him who disputes the validity of a will to overcome this presumption by persuasive evidence. Jackson v. Hardin, 83 Mo. 182; Maddox v. Maddox, 114 Mo. 35; Cash v. Lust, 142 Mo. 644; McFadin v. Catron, 138 Mo. 226. (5) And when the testator comes within the rule of testamentary capacity laid down above, he has the right to make an unreasonable, unjust and Injudicious will, and his neighbors have no right, sitting as a jury, to alter the disposition of his property simply because they may think the testator did not do justice to his family connection. Maddox v. Maddox, 114 Mo. 47; Jackson v. Hardin, 83 Mo. 185; Mackall v. Mackall, 135 U. S. 171; Berberet v. Berberet, 131 Mo. 411; Tibbe v. Kamp, 154 Mo. 584.
   LAMM, J.

In a statutory proceeding contesting the will of Joseph Skaggs, deceased, wherein the issue was devisavit vel non, the trial court gave a demurrer to the evidence in the nature of an instruction at the close of plaintiff’s case. Refusing to set aside the verdict so coerced, the court rendered judgment probating the will in solemn form. Thereat, plaintiff appeals.

The will bears date of February 28, 1895. Its ' seventh item runs: “To my daughter, Thurza, wife of Wm. Conner, I give only one dollar, she having married contrary to my expressed wishes, I wish to discriminate against her.” The eleventh item nominates his wife, Harriet E., as executrix without bond. She having died, he executed a codicil on the 18th of June, 1897, whereby he changed the eleventh item by appointing his son, Joseph Edward, executor, and ratified the will in all other respects. Following that, he died on the 11th day of March, 1903. Thereupon, his will and codicil were probated in common form; and thereafter, on January 8, 1904, contest proceedings were begun by the disinherited married daughter against the beneficiaries, to-wit, testator’s children ancL certain grandchildren.

The cause was tried on an amended petition, charging in effect (1) that at the several times of signing the will and codicil the testator did not have testamentary capacity; and (2) that the will was the product of the undue influence of one Edwin Thatcher — in short, was his will and not testator’s.

Of these in reverse order.

I. Of undue influence.

It appears that said Thatcher was cashier of a bank at Smithville, a near-by town in Olay county at which testator did business, and he drew, witnessed and kept both will and codicil in the vault of his bank until produced for probating.

Plaintiff’s counsel submit the case on the theory that, because of the strength of their position on the issue of testamentary incapacity, they hesitate to discuss the issue of undue influence. Conceding that so, yet counsel might well have gone one step further and put the point on the theory as well that there was no substantive evidence to sustain the averment. The record shows there fell a time when Thatcher was notified by testator that he would need his services in drafting a will. Some later he came into the bank in pursuance of that notification. It appears that Thatcher had no interest or wish of his own to sub-serve, had no bias in favor of one heir or against another. The truth is, he had to deal with a self-willed, masterful, pragmatical old man who, in and of himself, knew what he wanted and who with no uncertain hand chalked down the line he was to follow, by giving him directions and memoranda upon which the will was to be drafted. Whereupon, using a form in a book or some old will as a model, he drafted the •will in the counting room of the bank during business hours, as directed. Under substantially like circumstances he drafted the codicil.

It is sought to support the theory of undue influence by an ingenius argument, doing credit to the forensic skill of counsel. But on this record it has not an iota of substantive testimony to stand on. To the contrary, on plaintiff’s own proof, the will is conclusively shown to be in all its provisions peculiarly the will of testator. Not only did he preside over its genesis, but he told others before it was made that he intended to make it as it was made. He told others after it was made that he had made it as it turned out to be. And after the codicil, he told others he had changed his will as it turned out to be changed.

Plaintiff’s evidence, then, putting the fact beyond question that the will assailed is her father’s will, that she was disinherited of his set purpose formed eight years before his death, ánd it sufficiently appearing that Thatcher had nothing to do with originating or nursing that purpose, the issue of undue influence is clearly not within the case made on the facts.

Accordingly, the court was justified in taking the case from the jury on that issue.

II. Of testamentary capacity.

(a) In determining the point, it is well at the outset to define the issue as sharply as the record will permit. The charge in the petition is general, to-wit, that: “He, the said Joseph Skaggs, was of unsound mind and. had not sufficient understanding to comprehend the business he was then engaged in, nor who were the natural objects of his bounty, nor what property he had, nor the disposition he was making of it by said paper writing.”

That general charge was broad and flexible enough to admit proof (if any) showing senile dementia — i. e., the recurrence of second childhood by mere coincident decay of bodily and mental powers. But nothing of the sort is within the scope of the proof educed, nor is it in the line of argument advanced by learned counsel.

Neither is there claim or substantial evidence of general derangement of mind. There was a solitary incident put in evidence that (if it had been fortified by a course of conduct) might have a little tendency that way. Shortly before his death in 1902, it seems some one had endeavored to persuade his grandchild of tender years to join the Baptist church. Mr. Skaggs was opposed to that and, in a talk with a minister, told him that he (Skaggs) had never sworn an oath until he had joined the church, when about 18 years of age. The testimony is very brief and we gather from it that the old gentleman was of opinion that his joining the church had a bad effect on him— lowered his moral tone and stamina. His language was, “I got to be one of the most profane men after that that you ever saw.” The doctrine of “falling from grace” (using the term reverentially) is stoutly maintained by one school of polemics and as stoutly doubted by another, who maintain the dogma: Once in grace, always in grace. But no school of theologians or doctrine of the law known to me assert the proposition that falling from grace is, in and of itself, evidence of entire mental unsoundness. If a man today pious, mild and kindly, a just man of discreet walk and conversation, alive to the duties and amenities of life, becomes tomorrow a sot, incontinent, impious, unjust, cruel, profane — in effect, a degenerate — such a radical revolution has been judicially commented on as evidence tending to show impairment of mind to a degree which may affect his capacity to make a valid will unnaturally disposing of his property; but the testimony here has no tendency to prove such condition. The incident under review may be dismissed with the observation that the conclusion drawn by Mr. Skaggs was quite faulty on the proposition under discussion with the good minister, but it would be an alarming proposition to assert that faulty reasoning now and then was evidence of general mental aberration. Such an arrow, shot at a venture, would hit unexpected marks. Counsel make no claim that such was the fact. To the contrary their proof was directed to establishing a form of monomama, viz., a derangement of Mr. Skaggs’s mind in regard to a single subject only — an alleged insane delusion, hereinafter considered. Contestant put upon the stand an array of witnesses who knew the father long and well. Each and all of them testified to his general soundness of mind. He was shown to be a frugal, hard-working, capable, honest man, sixty-odd years old when the will was written, owning and managing a small farm in Platte county. No one impugns his ability to attend to his business affairs with vigor and circumspection and he did attend to them without the aid of any supervision to the day of his death. The evidence allows room for no inference that he did not have his children in mind, know the nature and extent of his property and exactly what he wanted to do with it by will — unless ' plaintiff’s theory of an insane delusion, operating in the execution of the will and codicil, finds such support in the proof as would carry the case to the jury. On that sole question, the case hinges.

(b) Attending to it, the case made is substantially this: /

William Conner lived in the Skaggs neighborhood. At a certain time he was paying court to Lucy Skaggs, an elder sister of Thurza. The testimony leaves no room for doubt that the father got the notion that Conner was an undesirable son-in-law, unworthy of his daughter; and so it fell out that he vehemently opposed his attentions to Lucy Skaggs, with the result either that it shut off the courtship; or that it was brought to an end by Conner’s own wish. Indeed, there is testimony pointing to the fact that he was not sincere in his attentions to Lucy, but was secretly at the same time paying court to Thurza, then a mere child sixteen years old; and that when the father’s opposition took visible form, he, to use plaintiff’s own words, “threw her (Lucy) overboard,” and continued a sly courtship of Thurza for a long time. This, finally coming to the father’s knowledge, was deeply resented by him. As formulated, his objections to Conner were that he was “a drunkard, a gambler and a morphine fiend.” At the trial there was testimony tending to show that the father’s said estimate was erroneous. It was shown, however, that he (presumably busying himself to ascertain the character of a young man determined to become the husband of his daughter) was told that Conner had the foregoing faults. From what he was told by others he believed that Conner would not support his daughter properly and that she was marrying beneath her station in life. But this was not all that influenced Skaggs. It is plainly to be seen that he was touched to the quick in his pride and stirred to the depths of his soul with resentment over the fact that Conner and his daughter were proceeding with a clandestine courtship contrary to his will and protest. We take it, it ought not to be seriously contended, that, within reason, a father’s judgment is not worth something in “an affair of the heart.” We take it, that the road to disobedience is open to a daughter, but that road has trials and tribulations, she elects to put up with, if taken. On the other hand, this father lacked tact and gentleness. The details of his tactless and rude attempts to bend his daughter’s will to his, need not be spread of record. After four or five years,. Thurza, leaving home, married Conner on February 19, 1895, and thereafter for a time became a stranger in her father’s house. Many witnesses testified to Mr.. Skaggs’s exceeding and sore bitterness over this event, and for some time he did not speak of it without falling into a very ecstasy of rage, sometimés accompanied by such singular physical phenomena as “foaming at the mouth,” “pawing the grass,” and cursing and swearing.

The record makes it clear that in the height of his. bitterness he determined to disinherit his disobedient daughter. He told others he would do' so. Accordingly, on the 28th of February (the month of the marriage) the will in contest was executed, doing that very thing. Two years went by and the mother, long an invalid and fast nearing the end of her days, persuaded the father to allow Thurza to visit home. She did visit there and apparently resumed her old place in her father’s affections. It is plain, too-, that the fury of his anger against her husband was spent. The two-men became (at least on the surface) friends. Testator lived on his farm. Thurza with his other children often went there and ministered to the mother until she died, and afterwards to the father until he died. Shortly after the mother’s death, in 1897, and after the reconciliation, the codicil in question was made.

In this connection it is proper to say that Mr. Skaggs was afflicted with an infirmity of temper — a temper brittle and peppery to a degree and which he gave way to at times without check. "When under the influence of this (to him) master and elemental passion, it lashed him into such a crest of fury that he became literally beside himself for the time being — - “flashed like powder” as one witness put it. It is insisted that when the will was made he was under the influence of uncontrollable temper, but that when he went to make the codicil he was clothed in his right mind and that he intended to change his will so that Thurza might inherit, but that, by some unhappy inadvertence of the scrivener, that end was not reached. But we do not find such inadvertence in the record, nor d.o we find that when he made his will he was in any transport of anger. Shortly after his wife died, a Mrs. Lutes became his housekeeper and on the day the codicil was executed these two had a talk. Mr. Skaggs was sick and was taking medicine. He informed her that he was going to town to change his will. The good lady evidently knew that he had disinherited Thnrza, and, with all her might and main, she threw the weight of her advisory views in the scales in favor of a change in the will in that regard. The npshot of that talk was as follows: “Sol says to him, ‘ Y ou ain’t able to work. ’ He says, ‘I ain’t going to work, Annt Zade.’ He says, ‘ I am going to change my will. Thnrza can get her part of her mother’s estate, bnt I don’t want Will Conner to have it.’ I says, ‘Yon can fix it SO' Thnrza and her heirs will get it, bnt not Will.’ He knew Thnrza had as good a right as anybody, bnt then he didn’t want Will to have it. So finally he told me to go back to the house and tend to mg own business and he would fix this thing as he wanted it. I says, ‘Well, you mnst remember that Thnrza is yonr own child and I wouldn’t forget my own flesh and blood, ’ and then he flew off and went on to town and he wasn’t gone very long.”

On the road to' town he called at the home of his daughter, Lucy. Her deposition was taken by plaintiff and she gave this version of her conversation with her father and of a former conversation with her mother:

“Q. What did yon say to him then that night when he called yon out to the fence and told yon that he was going to change his will so that all his children would share alike? A. I didn’t say that he said he would malm it so that we would all share alike.
“Q. What did yon say he said? A. I said that he said, ‘I am going down to make the will to you children,’ and I said, ‘Yon are?’
“Q. Didn’t yon ask him on that occasion if he had not already so made it? A. I did not.
“Q. Yon understood at that time, did yon not, that he had cut Thnrza off without anything? A. I didn’t know he had a will.
“Q. Didn’t yonr mother, before she died, tell yon and yonr brother Ed that if yonr father had made a will cutting Thurza off that you and she should make it right with her? A. She did not, no, sir.
“Q. Didn’t she tell you that she had understood that your father had made a will leaving Thurza out of any part of his estate? A. She said she was afraid he had, but nothing in regard to us making it all right.
“Q. Didn’t you say to Mrs. Conner that your mother had said to you that if your father had left Thurza out of the will she requested that you and Ed should see that Thurza got her share? A. I didn’t say that my mother requested, but I said that we would, Ed and I would do all in our power, and so we have.”

Testator, as said, went to town and called on Thatcher to write the codicil. He was laboring under no excitement. The only change he requested to be made was a change from the mother as executrix to the son as executor. It seems the form book used by the scrivener contained a suggestion that when a codicil to a will was executed it was proper to ratify the original will in all particulars left unchanged. That form was followed in this instance and the codicil was read over to the testator and then signed and published by him.

There is no word of testimony indicating that he did not then know and realize that he had disinherited Thurza, or that he did not then know and realize that he had the full right to so alter his will as to eliminate the disinheriting clause'. In fact, he was in the very act of changing his will; and the question of disinheriting Thurza was freshly in mind as shown by his conversation with Mrs. Lutes. It is apparent, therefore, that, his rage over her disobedience was over and gone and that what he did at that time was done intentionally. It is apparent, moreover, that what he then did he deliberately stood by for five more years until, he died. The proof shows that shortly after he made the codicil he told one of plaintiff’s witnesses he had made it and he mentioned the particulars of the change.

The case then is presented to us on a record showing that after his hot anger cooled off and his resentment had measureably passed, his deliberate and settled judgment caused him to live up to his vows of disinheritance, by preserving his will establishing that fact — all this though it would have been far nobler to have taken another course.

Black’s L. Diet, (tit., “Delusion”), says: “An insane delusion is an unreasoning and incorrigible belief in the existence of facts which are either impossible absolutely, or, at least, impossible under the circumstances of the individual. It is never the result of reasoning and reflection; it is not generated by them, and it cannot be dispelled by them; and hence it is not to be confounded with an opinion, however fantastic the latter may be.”

That definition meets our approval. Measured by that definition, we cannot see the trace of an insane delusion leading up to either will or codicil. Testator’s opinions as to the soundness of Mr. Conner’s morals,, may have been grossly narrow and unjust, but there was no insanity about it. It is natural and usual for men to act on what they are told by others, in whom they trust. The solicitude of the father was natural. A clandestine courtship in the teeth of parental protest is a most dangerous domestic experiment. Mischief and unwholesomeness lurk in the shade of concealment. The resentment of the father was most human and natural though extravagantly exhibited. That he did not rise to the lofty and divine plane of complete forgiveness when time had healed his wounds, is unfortunate ; but is still natural and human — not insanity.

This court has so often been called upon to assert that the prime object of the Statute of Wills is to permit the owner of property, not shown to lack testamentary mind and memory, to take his property out of the Statute of Descents and Distribution and to dispose of it as a chancellor sitting on the equities of his own children and his domestic affairs, that it would seem useless to go into an extended discussion of the reasoning sustaining that elementary proposition.

In Richardson v. Smart, 152 Mo. l. c. 636, it was well said by Marshall, J., “The sum of the whole matter is that it was his property. He had a right to do what he pleased with it. He is not shown by the record to have been incapable of knowing what he was doing. He has acted, and what was said in reference to a will by the Supreme Court of Michigan applies equally as well here. ‘If a man’s acts, by reason of such incidents as have been shown in this case, make such acts the subject of post-mortem determination, dependent upon the whims or caprices of a jnry, then it may as well be said by him who wishes to convey his property, “I wish my property to go so and so, and bope that a jury will upon the subject think the same as I do, and confirm my act.” ’ [Lynch v. Doran, 95 Mich. l. c. 409.]” See remarks of Fox, J., argu,endo, in Hughes v. Rader, 183 Mo. l. c. 707, and Gantt, J., arguendo, in McFadin v. Catron, 138 Mo. l. c. 225, et seq. The writer of this opinion had occasion to consider that subject in Meier v. Buchter, 197 Mo. l. c. 86, et seq., and he can add nothing of his own to what was there said.

There being no undue influence whatever, there being no form of senile dementia, or form of monomania operative in the execution of the will or codicil, and the testator being of testamentary capacity, the court, nisi, did right in giving a peremptory instruction after the proponents of the will had made a prima-facie case and contestant had introduced her full proof on the issue of fact.

There is inferential evidence, as we see it, that the mother, when the hand of death rested heavily on her, left an injunction that the more fortunate children and grandchildren of Joseph Skaggs may find lasting happiness in remembering and obeying — an injunction meaning that they should see to. it that the unbending rigor of their father’s will should be tempered with equity and mercy. The enforcement of that tender and solemn injunction lies far beyond the jurisdiction and domain of earthly courts, but, per adventure, it is none the less a proper subject of judicial comment and judicial hope. •

The judgment will be affirmed.

All concur, except Vallicmt, P. Jwho is absent.