text:
    WEST, Administrator, Appellant, v. BAILEY, Administrator, et al.
    Division One,
    May 30, 1906.
    1. WILL: Construction: Gift to Trustees for Daughter: Life Interest. The will bequeathed $2,500 to named trustees, to be derived by selling certain lands, and required them to invest the sum in real estate as a homestead for testator’s daughter, “taking the title to her for and during her natural life, and at her death to the children of her body or their descendants.” Held, that a decree of the court, construing the will, which directed the administrator to sell the lands “ and from the amount derived from the sale he shall set aside the sum of $2,500, which is to be held by him as a trust fund to be paid to said daughter in whole or in part as this court in the- future may direct,” was erroneous, and in violation of the express requirement of the will, and was not justified by the fact that the persons named as trustees were also the executors.
    2. -: Trustees and Executors: Merger. The fact that the same persons who were named as executors were also named as trustees did not merge the trusteeship in the executorship.
    3. -: Construction. In construing a will the court should confine itself to that issue, and not trouble itself about the safety of a trust fund created by it.
    4. -: Administration: Trustees. An estate is to he administered according to the way the will directs, even though the court may think there is a better way. Where the will gives a fund to certain named trustees to be invested in a certain way, the court should not, in a suit to construe the will, take it out of their hands, and put it in the administrator’s hands to be invested as the court may thereafter direct.
    Appeal from Linn Circuit Court.—-Row. Jno. P. Butler, Judge.

      Reversed and remanded {toith directions).

      II. J. West and T. M. Bresnehen for appellant.
    (1) The court erred in its construction of the eighth clause of the will. This bequest creates a trust fund to be invested in a homestead for Mrs. G-raves, with title in her for life and remainder to her children and their descendants; and the judgment of the trial court directing the plaintiff to pay this trust fund to her is contrary to the plain terms of the will. The court does not direct that any part of this legacy be paid to her at this time, but reserves to itself the right hereafter to direct the payment of the whole or any part of it to her, thus not only defeating the intention of the testator that the legacy should be invested in a homestead, but depriving the children of any interest in the legacy. To so divert this fund not only violates the plain terms of the will as to how the legacy should be invested and preserved for Mrs. Graves, but actually takes from her children and gives to her the bounty that was intended and provided by the testator for them. In order to do this the court must disregard the will of the testator and substitute in its place one made by the court. The court cannot make a will for the testator; its only power is to construe and carry into effect, as nearly as possible, the will made by him. Drake v. Crane, 127 Mo. 85; Garth v. Garth, 139 Mo. 456; Women’s Christian Association v. Kansas City, 147 Mo. 103; Clotilde v. Leitz, 157 Mo. 439; RoBards v. Brown, 167 Mo. 447. (2) The court erred in undertaking to reserve to itself the right to make other and further orders, judgments and decrees in the cause with reference to the payment of the Graves legacy and the legacy to the children of Thomas E. Newkirk. The judgment ought to be final, disposing of all the matters in controversy, with nothing left for the future determination of the court. There can be but' one final judgment in a cause, and that must dispose of all the matters in issue. Deickhart v. Rutgers, 45 Mo. 132; Caulfield v. Farish, 24 Mo. App. 110; Russell v. Railroad, 154 Mo. 428; Seay v. Sanders, 88 Mb. App. 478.
   VALLIANT, J.

Plaintiff, as administrator cle honis non with the will annexed, of the estate of Cyrus Newkirk, deceased, brings this suit in equity against the widow, children and grandchildren of the testator, praying the court to construe the will. There was a decree of the court construing the will and from that decree the plaintiff has appealed. Since the rendition of the decree the widow of the testator has died, and her administrator has been made a party to the suit. The testator left surviving him his widow, two sons, three daughters, the children of one deceased son and the children of one deceased daughter. He left an estate consisting of real and personal property. It is not necessary to copy the will here in full as it is long and as there are only two clauses of it which appellant contends were not correctly construed by the decree in the circuit court. We will therefore give our attention particularly to those two clauses.

“Clause 8. To my son, Joseph G. Newkirk and my friend, Jonathan Knight, of Linn county Missouri,. I give and bequeath the sum of twenty-five hundred dollars in trust and by them to be held in trust and for the use and benefit of my daughter, Mary J. Graves, said funds to be derived from the sale of the land herein bequeathed to my beloved wife, Mary F. Newkirk, for her life, after the death of my said wife, unless my said wife and my children who by the terms of this, my will are given an interest in said lands, deem it advisable to sell said land before the death of my said wife, in which event I direct that the above legacy left in trust for my said daughter, shall be a special charge upon the money received from the sale of said lands, which said sum of twenty-five hundred dollars shall be paid to said trustees, who I direct shall invest the same in real estate as a homestead for my said daughter, Mary J. Craves, taking the title to her for and during her natural life, and at her death to the children of her body or their descendants, share and share alike.” There was no sale of the land mentioned in this clause during the life of the widow, and since her life estate has expired the land is now on hand free to be disposed of under the terms of the will. The decree appealed from directs the plaintiff, the administrator de bonis non with the will annexed, to sell this land in such manner as he may deem best and to the best interest of the estate “and from the amount derived from this sale he shall set aside the sum of twenty-five hundred dollars, which is to be held by him as a trust fund to be paid to Mrs. Craves in whole or in part as this court may in the future direct, and whatever surplus may remain over and above said twenty-five hundred dollars shall be applied to the payment of the debts and costs of administration as far as may be necessary.”

The decree in that particular is erroneous, it is in .violation of the express requirement of the will. The will bequeaths the $2,500 to the two trustees named and requires them to invest the sum in real estate as a homestead for Mrs. Craves, “taking the title to her for and during her natural life, and at her death to the children of her body or their descendants, share and share alike. ” Under the terms of the will the money was not to be given to Mrs. Craves or any part of it, but to be invested in real estate for a homestead for her in which she was to have a life estate and her children a remainder in fee. [Sec. 4592, R. S. 1899.] The trustees named in that clause were the same persons who were named in the seventeenth clause of the will as executors, one of whom, Mr. Knight, declined to qualify, and the other, Joseph C. Newkirk, qualified as sole executor, but was afterwards removed by the probate court and the plaintiff was appointed in Ms stead. Those facts may have had some influence on the mind of the court in decreeing that the fund in question he held by the administrator to be disposed of by paying it to Mrs. Graves as the court might thereafter direct. But if so, they did not justify the decree. The fact that the same persons who were named as executors were also named as trustees did not merge the trusteeship in the executorship; they were separate and distinct offices. The one might be accepted and the other declined, or the duties of one might remain to be performed after the other had been fully executed. It was not necessary for the court in this suit to require the trustees to give bond and security for the faithful performance of their duty; that may be required of them hereafter m another proceeding under sections 4582 and following, Revised Statutes 1899, if it should be adjudged necessary. The plaintiff or any of the parties in interest, either before or after paying the money over to the trustees, may institute proceedings under those sections to require the security to be given or another trustee appointed. It was the duty of the court in this suit to have construed the will and not trouble itself with the result. The testator was dealing with his own property and his own child and the estate must be administered in the way he pointed out, even though the court might think there is a better way.

By the ninth clause of the will the testator bequeathed to the same trustees the sum of $2,500 for the use and benefit of the three children of his deceased son, Thomas, two girls and one boy, in the proportion of $500 to each of the girls, and $1,500 to the boy, the fund to be invested by the trustees “on as good terms as they can obtain,” the shares to be paid over to the beneficiaries respectively when the boy became twenty-one years old; if either should die without lawful issue, his or her share to be divided between the survivors. The trustees were authorized to use so much of the legacy for the grandson as they might deem advisable in educating him for the profession of law. The $2,500 was to be raised by the sale of certain land, 160 acres, belonging to the testator in Kansas. That land has, since the death of the testator, been sold and it only realized the sum of $1,988.50, which the administrator now has in hand. The decree directed the administrator to hold that fund in trust to be paid out by him to the children of the testator’s deceased son, Thomas, “in whole or in part as the court may in the future direct.” Thatpartof the decree is also erroneous because it directs a disposal of the trust fund contrary to the will. The court doubtless proceeded on the idea that it could better secure the application of the money to the uses to which the testator designed it by having it held in the hands of the administrator subject to the court’s future orders than by turning it over to the trustees whom the testator appointed. But the court has no right to do that; the trust must be administered as the will directs, and until the trustees refuse to act or refuse to give bond and security as required in the statute above quoted (if they should be adjudged to do so under proceedings to be instituted under the statute) or for other cause be removed from their office as trustees, they have a right to the money and the authority to invest it and use it as in the ninth clause of the will specified.

Appellant complains that the trial court failed to construe clause 3 of the will: ‘ ‘ Clause 3. To my daughter Caroline Patton, I give and bequeath the following described real estate Situated in Linn county, Missouri, to-wit: Ten acres the southeast quarter of the southeast quarter of the southeast quarter of section sixteen, in township fifty eight of range tventy, to have and to hold the same for and during her natural life and at her death to become the property absolutely of the children of her body. I give nothing more to my said daughter, Caroline, for the reason that I have already provided for her, by this day conveying to her by deed for and during her natural life, the sixty acres of land on which she now resides.” The.learned trial judge doubtless thought that that clause was too plain to require construction and that is our opinion also.

Appellant assigns as error that part of the decree which requires the sale of the lands devised to Mrs. Patton and the Cherry children, and the lands charged with the legacies to Mrs. Graves and the children of Thomas, in case it should become necessary to pay the costs of the administration and debts of the estate; but as appellant in his brief says that the evidence clearly shows that the assets of the estate primarily chargeable are sufficient to pay those costs and debts, that point is immaterial.

For the errors above mentioned relating to clause 8 and clause 9 of the will the judgment is reversed and the cause remanded to the circuit court with directions to enter a decree construing those two clauses according to the views herein expressed and disposing of the case otherwise as in the original decree.

All concur except Graves, J., not sitting.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    THE STATE ex rel. PEARSON, Collector, Appellant, v. LOUISIANA & MISSOURI RIVER RAILROAD COMPANY and CHICAGO & ALTON RAILWAY COMPANY.
    Division One,
    May 30, 1906.
    1. TAXATION: Double: Allowable by Statutes. Double taxation of the same property is not favored and is never presumed. Especially should this rule prevail, both as to legislative acts and in their application, where the Constitution contains an express provision requiring equality and uniformity in the imposition of taxes upon property. And where there is such a constitutional provision, as there is in this State, it will not be held that property, liable to be taxed under one provision of the statutes, was intended to be subject to another tax under general words in a statute which would seem to imply that it may be taxed a second time.

      2. -: -: Railroads and Bridges. Where a railroad bridge has been assessed and taxed for a certain year as a part of the railroad the. bridge cannot again be taxed as separate property.
    3. -: -: -: Lessor and Lessee. And where the bridge is owned by one railroad company, and the bridge and railroad tracks, switches, etc., are leased by that company in perpetuity with a defeasance clause to another railroad company, and the entire property is assessed and taxed to the lessor, but the taxes paid by the lessee, neither the lessor nor the lessee can be held for further taxes against the bridge.
    4. -: Railroad Bridge: How Assessed. Under sections 7717 and 7718, Revised Statutes 1889, a railroad bridge owned by a railroad company, and constituting a part of the track, is taxable only as a part of the railroad’s tracks and not as a separate structure, notwithstanding it is used in part as a toll bridge.
    5. -: Joint Stock Companies: How Assessed. Section 7755, Revised Statutes 1889, says: “All bridges over streams in this State, or over streams dividing this State from other States, owned by joint stock companies, and all such bridges where a toll is charged for crossing the same . . . shall be subject to taxation.” Held, that, under section 2480, Revised Statutes 1889, which says that “the term ‘corporation’ as used in this chapter shall be construed to include all stock companies or associations having any power or privileges not possessed by individuals or partnerships,” a railroad corporation owning a bridge over the Mississippi river, and chai’ging tolls for its use, is taxable under said section 7755 for such bridge.
    Appeal from Pike Circuit Court.—Eon. D. E. Eby, Judge.
    Affirmed.
    • J. W. Jump, J. D. Eostetter, J. W. Reynolds, Ball é Sparrow, and Pearson <£> Pearson for appellant,
    (1) The bridge in question comes under both classes of structure made taxable by section 7755 Revised Statutes 1889, to-wit: (a) A bridge owned by joint stock company; and (b) a bridge where a charge is made for crossing the same, namely a toll bridge. That this particular bridge is owned and controlled by a joint stock company, within the meaning o£ the statute, was determined and adjudicated by this court in State ex rel. v. Bridge Co., 109 Mo. 257. This doctrine is reiterated, and reaffirmed, by this court, in the same case, upon a second appeal. State ex rel. v. Bridge Co., 134 Mo. 329. At the time this bridge was under consideration, in this court, in the 109th and 134th reports, the paramount title to the bridge property was in the Mississippi River Bridge Company; and the road and roadbed in connection with which the bridge was used was operated, managed and controlled by the Chicago & Alton Railroad Company. On the 29th day of April, 1895, the Mississippi River Bridge Company conveyed, by quitclaim deed, the paramount title in the bridge property to the Louisiana & Missouri River Railroad Company. At the time of the trial of the case at bar, the paramount title to the bridge property was and is in the Louisiana & Missouri River Railroad Company; and the road and roadbed is operated, managed and controlled by the Chicago & Alton Railway Company. That this bridge is and has always been used, and retained, as a toll bridge, we do not think there is any question under the evidence. Every passenger pays more for riding over this bridge, than he pays for riding the same distance over any other portion of the roadbed, used in connection with said bridge, on either side of the bridge; and this extra pay is the toll exacted and charged the passenger for the privilege of riding over or across said bridge. This bridge is also used by the C. B. & Q. Railroad Company, and it pays for the use of the same, a certain sum for every passenger it carries over this bridge. And this is practically the-same arrangement had with the bridge company when it was operated by the Mississippi River Bridge Company. State ex rel. v. Bridge Co., 109 Mo. 258. If it was taxable then as a toll bridge, it is taxable now. (2) The status of this particular bridge, as to whether it is taxable as a bridge or as a part of the roadbed, was fixed by this court years ago, in a case that was before this court twice upon appeal: State ex rel. v. Bridge Co., 109 Mo. 253,134 Mo. 321.

      Scarritt, Griffith & Jones for respondents.
    (1) If the court’s peremptory instruction given for defendants at the end of all the evidence is correct, then errors, if any, in the giving and refusal of other instructions are immaterial. The taxes in question being for the year 1900 were assessed in July, 1899, as of June 1, 1899, under authority of section 7755', Revised Statutes 1889. It appears both from the petition and from the proof that the bridge in question belongs to the railroad company and not to a joint stock company and is therefore clearly not taxable under this statute, unless it is a toll bridge. And if certain charges were incidently made and collected for crossing this bridge, it still would not be a toll bridge within the meaning of section 7755 and taxable as a separate structure, if the bridge was an integral part of the railroad, for it was then taxable as a part of the railroad line under sections 7717 to 7754,-Revised Statutes 1889. State éx rel. v. Railroad, 97 Mo. 348. (2) The bridge in question is not a toll bridge within the meaning of section 7755, Revised Statutes 1889. (a) It is not chartered as a toll bridge. (b) There is no proof that tolls are exacted for crossing the bridge in question. The evidence is that the bridge is an ordinary railway structure. It does not appear that any other vehicle than a train can cross the same nor that even a footpath for pedestrians is provided. It does not appear that there are toll gates on the bridge, or a tollkeeper; or that there are signs such as are usually found at toll bridges announcing the tolls for various vehicles; nor that trains are stopped thereon or at either end thereof, nor that the passengers on trains are counted, nor tickets taken up from them on approaching the bridge. State ex rel. v. Railroad, 97 Mo. 348. (c) The claim of plaintiff that this is a toll bridge is based solely upon some testimony to the effect that the railroad fare charged by defendant company from Louisiana, Missouri, to Pleasant Hill, Illinois, and certain other Illinois points, was greater than that charged between Louisiana and local points in Missouri. There is no proof that such excess tariff was toll for crossing the bridge in question. (d) Plaintiff does not state a cause of action for taxes against this structure as a toll bridge. It is not alleged in the petition that this is a toll bridge. Barker v. Railroad, 91 Mo. 94; People v. Railroad, 63 Cal. 392; Railroad v. Commonwealth, 92 Ky. 64; Sickle v. Belknap, 129 Ind. 558; Gras. Co. v. People, 138 111. 344. (3) The bridge in question being an integral part of the railroad line, is not taxable under section 7755, Revised Statutes 1899. (a) Article 8, chapter 138, Revised Statutes 1889 (being sections 7717 to 7754), provides for the taxation of all railroad property in this State, including the roadbed itself,, according to its mileage in each county, municipal township and incorporated city. State ex rel. v. Railroad, 97 Mo. 354. Sec. 7755, Revised Statutes 1889, should not be read so as to conflict with or repeal any part of the law just referred to. To prevent such a result the proper and.consistent construction of said section 7755 is that it does not apply to a bridge that belongs to and forms an integral part of a particular railroad, but only to a bridge that is in fact a separate structure, an entity to itself. This is expressly and clearly decided by the Supreme Court in the case of State ex rel. v. Railroad, supra, (b) The bridge in question is an integral part of defendant’s railway line. The evidence is clear, convincing and uncontradicted upon this point. State ex rel. v. Railroad, 97 Mo. 348; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Railroad v. Supervisors, 48 Wis. 666; Anderson v. Railroad, 117 111. 26. (c) Indeed, the people and the officials of the State and of Pike county are estopped from asserting or claiming that this bridge is not a part of defendant’s railway line. The evidence is clear and nncontradicted that in the same year, the 1899 assessment for the 1900 taxes, that part of this bridge which is within Pike county, and is described in the petition, was included in the mileage of defendant’s railroad, certified by the county court of Pike county, to the State Auditor; that the state authorities assessed the same as a part of the railroad and that the county and city officials collected and receipted for taxes upon this bridge and the half mile of right of way alleged in the petition to be a part of this bridge as a part of defendant’s railway property. It will not be contended that by section 7755 the Legislature intended to provide for double taxation of any property. Even when constitutional it is held that double taxation must be provided for by the Legislature in clear and unmistakable terms. Double taxation is never presumed. Sec. 4, art. 10, Const.; Rice Co. Comrs. v. Bank, 23 Minn. 280; City v. Railroad, 27 Mo. 265; Valle v. Zeigler, 84 Mo. 214. (4) Section 7755 does not in any event authorize the tax in question upon the property described in the petition. The description in the records of the Board of Equalization, “Portion of the Bridge of the Louisiana & Missouri River Railroad Company at Louisiana, ’ ’ is too vague to support a'tax. State ex rel. v. Railroad, 114 Mo. 1; City of Jefferson v. Whipple, 71 Mo. 519.
   LAMM, J.

The statement of facts furnished by the learned aggregation of counsel representing plaintiff, appellant here, seems colorless and fair as far as it goes, and is adopted pro tanto. Thus:

‘ ‘ This is the suit for delinquent taxes for 1900, on a railroad bridge across the Mississippi river at Louisiana, Pike county, Missouri. The defendant, the Louisiana & Missouri River Railroad Company, is a Missouri railroad corporation, and owns a line of railroad, in-eluding so much of the bridge in controversy as is in the State of Missouri, from the middle of the Mississippi river, at the City of Louisiana, Missouri, to Mexico, Missouri; thence to Cedar. City. It acquired title to so much of said bridge in controversy as is in the State of Missouri from the Mississippi River Bridge Company by quitclaim deed dated April 29, 1895. The remainder of its line of railroad, it has owned since the date of its construction in 1870. On August 1, 1870, said defendant, Louisiana & Missouri River Railroad Company, leased its railroad aforesaid to the Chicago and Alton Railway Company for a term of one thousand years. On April 3, 1900, said Chicago & Alton Railroad Company subleased said railroad, including so much of the bridge in controversy ás is in the State of Missouri, to the defendant, Chicago & Alton Railway Company for ninety-nine years. Defendant, Chicago & Alton Railway Company, is an Illinois railroad corporation, and, as such, operates, manages and controls a line of railroad from Chicago, Illinois, over the bridge in controversy, across the Mississippi river, and the line of road owned by defendant, Louisiana & Missouri River Railroad Company, to Kansas City, Missouri. While, the bridge in controversy is owned by defendant, Louisiana & Missouri River Railroad Company, it is leased, operated, managed and controlled by defendant Chicago & Alton Railway Company, both of which are railroad corporations.
“On July 20,1900, the State Board of Equalization proceeded to assess, adjust and equalize the valuation of that portion of the aforesaid bridge that was in the State of Missouri, belonging to defendant Louisiana & Missouri River Railroad Company on July 1, 1899, for the taxes of 1900, and fixed the value of said portion of said bridge at one hundred and fifty thousand dollars. This action of the state board was certified by the State Auditor to the clerk of the county court of Pike county. Thereafter, the county court proceeded to make a levy of taxes, on the valuation fixed by the State Board of Equalization, for .state, county, township, and for Louisiana city and school taxes. The taxes were extended in a separate railroad tax-book by the county clerk, which said tax-book was afterwards delivered to plaintiff, who was the collector, and his receipt taken therefor. Said taxes becoming delinquent, this suit was instituted to recover the same. A trial being had before the court, sitting as a jury, judgment was rendered for defendants. An appeal was taken; and this case is now before this court for. review on a complete transcript of the record and testimony.”

The cause is submitted by respondents on the theory that the taxes in question were assessed under authority of section 7755, Revised Statutes 1889 — said section having been materially amended and brought forward in Revised Statutes 1899 as section 9387—but (it is contended by respondents) said amendments did not go into effect until several months after the date as of which the assessment was made.

Appellant’s counsel, as we understand their brief in reply, concede the foregoing contention and seek to' avoid its force by planting their case on the same statute, thus: “The bridge in question comes under both classes of structure made taxable by section 7755, Revised Statutes 1889, to-wit: (1) a bridge owned by a joint stock company; and (2) a bridge where a charge is made for crossing the same, namely, a toll bridge.”

With the foregoing concession in the case, this court may be allowed to accept the theory of counsel that the old. section, 7755, is here for construction and that we have nothing to do with section 9387, Revised Statutes 1899, in passing on the pending appeal.

Section 7755, supra, passed in 1877 (Laws 1877, p. 391), was carried into the revision of 1879, as section 6901, and (improved in grammar) into Revised Statutes 1889, substantially as originally enacted, and remained the law until sweepingly amended in 1899— said section reading as follows:

“All bridges over streams in this state, or over streams dividing this state from other states, owned by joint stock companies, and all such bridges where a toll is charged for crossing the same, which are now constructed, which are in the course of construction or which shall hereafter be constructed, and all property, real and personal, including the franchises owned by telegraph and express companies, shall be subject to taxation for state, county, municipal and other local purposes, to the same extent as the property of private persons, and taxes levied thereon shall be levied and collected in the manner as is now or may hereafter be provided by law for the taxation of railroad property in this state; and county courts, and the county and state boards of equalization, are hereby required to perform the same duties, and are given the same powers in the assessing, equalizing and adjusting the taxes on the property set forth in this section, as the said courts and boards of equalization have, or may hereafter be empowered with, in the assessing, equalizing and adjusting the taxes on railroad property; and the president or other chief officer of any such bridge, telegraph or express company, or the owner of any such toll bridge, is hereby required to render statements of the property of such bridge, telegraph or express company, in like manner as the president or other chief officer of railroad companies is now or may hereafter be required to fender for the taxation of railroad property.”

It is affirmed by appellant and denied by respondents that the taxes in question were legally assessed, i. e., that the technical requirements of the law in matters of detail were complied with, and suggestions are made pro and con on that issue. The facts underlying this contention, as well as the suggestions made thereon by counsel, are immaterial in the view we take of the whole case, and hence will be put to one side.

In passing, it may be said appellant was allowed twelve ont of thirteen instructions asked, and respondents were allowed nine out of the twenty-four prayed by them. However, one of the instructions given for respondents was a mandatory instruction, as follows: “6. The court declares the law to be that under the law and the evidence the verdict must be for the defendants.”

Hid as a sting in the tail or last clause of instruction numbered 13 given for respondents was another mandatory instruction, overlooked, presumably, in the volume of literature presented to the court, since for all the practical purposes of jurisprudence one peremptory instruction seems (and usually is) effective as a coup de grace — unless we are to graft the dogma of punishment after death on the law.

The only assignments of error made pertain to the giving and refusing of instructions, and, herein, of the giving ,of the mandatory instruction, the large question being on the latter, and in connection with its consideration any other necessary record facts will appear. Was there error in giving the mandatory instruction? We think not, because:

I. Respondents filed separate answers. In that of the Alton Railway Company it is alleged that the portion of the bridge in question was returned to the board of equalization as part of the roadbed and railroad track, was assessed and its value equalized as such, the tax levied and extended thereon as such for the year 1900, demanded by the collector of Pike courn ty and paid. And it must be admitted defendants introduced evidence tending to support that allegation. A map used at the trial and put in evidence has not been presented here, and in interpreting the testimony the best we can, in connection with the explanations of this map, it would seem there was substantial evidence tending to show the approaches to the bridge, as well as that portion of the bridge itself on the Missouri side, and between two and three thousand feet of right of way, described in the petition as subject to the tax, were assessed and the taxes extended thereon as part of defendant’s railroad for the year 1900. These taxes amounted to about $5,000 and were paid, as said, by the Alton Railway Company—said last-mentioned company being bound by the contract creating its leasehold estate to pay taxes assessed against its co-respondent. It appears in this connection that the president of the owning .corporation, to-wit, the Louisiana & Missouri River Railroad Company, or the other chief officer thereof, or any other person for it, made no return of the said bridge, eo nomine, for taxing purposes as provided by section 7755 and cognate sections following; but, on the other hand, by the measurements and returns made, undertook to merge said bridge audits approaches into its roadbed and railroad track, its measurement and description being “from the middle of the main or navigable channel of the Mississippi river to the western boundary of,” etc., and there was evidence indicating that the State Board of Equalization adopted the same measurements, covering the same property, in equalizing and assessing the track and roadbed. For instance, on the seventy-first day of its session the said board, as shown by its records, “proceeded to assess, adjust and equalize the value of the roadbed and superstructure of the following railroad and railway companies on the 1st day of June, 1899, for the taxes of 1900: . . . Louisiana & Missouri River Railroad Company, $15,500 per mile; . . . ” In certifying its action to the railroad company, the State Auditor certified the same figure as the assessed valuation of the roadbed and “superstructure,” including side tracks. There was evidence that the word superstructure in the technique of railroading and in the parlance thereof means the upper part of railroad bridges. Other evidence tending to prove that the board of equalization in fact included bridge, approach.es and the right of way covered by the petition in the equalization and assessment of taxes upon the roadbed and railroad track, was introduced, but need not be set forth.

It must be said, on the other hand, that by other proceedings of the board of equalization and certificates of the auditor, and the proceedings of the county court of Pike county thereon, it was shown that said board and the county court of Pike county undertook to treat the bridge and its approaches (at least, the bridge itself) as a piece of property separable from the railroad track and roadbed, and accordingly, assessed the same as bridge property—the proceedings of the board showing, inter alia, as follows: “On motion the board proceeded to assess, adjust and equalize the valuation of bridges belonging to the following bridge companies, railroad companies and individuals on the first day of June, 1899, for the taxes of 1900 and having duly considered all the evidence in relation to the same, fixes the values as follows: “. . . . Portion of the bridge of the Louisiana and Missouri River Railroad Company at Louisiana, $150,000.” This action was followed by an assessment, a certificate from the State Auditor and a levy by the said county court.

In effect the contention of appellant on this behalf is that the legal, and, hence, the proper way to assess and levy this tax was against the bridge and its approaches as a bridge detached from the roadbed and, hence, the assessment as a bridge and the tax levied thereon, being valid, must stand; and furthermore, as we infer, appellant does not care to concern itself with whether or not the State Board of Equalization in fact (consciously or otherwise) merged bridge into roadbed and track, and, to all intents and purposes, assessed it as part thereof.

There being evidence from which the court could find the same property had been assessed and the taxes for 1900 paid in another form, we confront the question/ of double taxation.

Under one subtle form or other, duplicate taxation may edge itself, at least in a speculative way, into taxing schemes where the intent of the lawmaker is unmistakable; but double taxation is not favored and is never presumed. [Tennessee v. Whitworth, 117 U. S. l. c. 137.]

In Rice Co. Comrs. v. Bank, 23 Minn. 280, it was said: “The general policy of the law is to avoid duplicate taxation. No one subject of taxation ought to\ be required to contribute more than once to the same public burden, while other subjects of taxation, belonging to the same class, are required to contribute but once. In the exposition of any tax law, therefore, a construction leading to any such result should be avoided, unless the cogency of some express provision or unavoidable implication of the statutes compels its adoption. Says Judge Cooley, in his valuable treatise on the law of taxation: ‘It is a fundamental maxim in taxation that the same property shall not be subject to a double tax payable by the same party, either directly or indirectly; and, when it is once decided that any kind or class of property.is liable to be taxed under one provision of the statute, it has been held to follow, as a legal conclusion, that the Legislature could not have intended the same property should be subject to another tax, though there may be general words in the law which would seem to imply that it may be taxed a second time.’ [Cooley on Taxation, 165, and authorities cited in the notes.] Especially should this rule obtain in the courts of a State whose Constitution contains an express provision requiring equality and uniformity in the imposition of taxes upon property, according to a cash valuation.”

Our own Constitution (art. 10, sec. 4), provides that “all property subject to taxation shall be taxed in proportion to its value,” and section 3, Ibid., requires that “taxes shall uniform upon the same class of subjects within the territorial limits of the authority-levying the tax.”

In State v. Railroad, 77 Mo. 202, the question of duplicate taxation was under consideration "and the same conclusion reached as in the Minnesota case, supra.

An examination of the statutes of 1889, relating to the taxation of railroads (art. 8, chap. 138) and bridges (art. 9, Ibid.) discloses no legislative intent to lay upon respondents’ property a burden of double taxation, even if such doubtful power be conceded to exist; and, therefore, a mandatory instruction in this case might well have been given on the broad ground that the bridge was assessed and taxed for the year 1900 as a part of the railroad, and the taxes sued for once paid in that form.

II. Again: A close gloss and narrow construction of section 7755 would preclude this bridge, owned by a corporation, from its terms. Its dry letter, pertinent, reads thus: “All bridges over streams in this State, or over streams dividing this State from other States, owned by joint stock companies, and all such bridges where a toll is charged for crossing the same . . . shall be subject to taxation,” etc. A “joint stock company” at common law, was a hybrid midway between a corporation and a partnership; e. g., it had directors and officers, articles of association, a common capital divided into shares; these shares represented the interests of the members, were transferable without the consent of the other members, hence there was no delectus personae, and the death of a member did not dissolve the company — but, on the other hand, each member 'was liable for the debts of the concerní, 'so, that such company had characteristics of both a corporation and a partnership. [17 Am. and Eng. Ency. Law (2 Ed.), 636, 637, et seq.; Hunnewell v. Canning Co., 53 Mo. App. 245; Laney v. Fickel, 83 Mo. App. 60.]

However, a corporation is defined by the statutes of 1889, section 2480, as follows: “The term ‘corporation,’ as used in this chapter, shall be construed to include all joint stock companies or associations having any powers or privileges not possessed by individuals or partnerships,” and, construing section 7755 supra, this court, in effect, has held that the section included the corporate owner of ‘a bridge used for the purposes enumerated therein. [State ex rel. v. Bridge Co., 109 Mo. 253.] So that the matter, placed in doubt by State ex rel. Tillery v. Railroad, 89 Mo. 98, may be considered at rest.

And this brings us to the deeper question in the case, which is whether, under Eevised Statutes 1889, article 8 and article 9, chapter 138, a bridge owned by a railroad company and used as part of its roadbed and tracks, under the plan outlined in this record, should be assessed as a bridge or should be assessed as a part of the railroad itself.

III. Considering the last question stated, it may be said that the status of this identical bridge has been before this court more than once. [State ex rel. v. Bridge Co., supra; State ex rel. v. Bridge Co., 134 Mo. 321.] In the first case the bridge company was the paramount owner of the bridge, it having built the same under a contract with the Louisiana & Missouri Eiver. Eailroad Company, respondent here. When built, the bridge company leased it to the Chicago & Alton Eailroad Company (lessor of the other respondent here), who used it in connection with its lines in Illinois and Missouri. At the trial, nisi, it was held that the bridge was a portion of the Chicago & Alton railroad and should have been treated as such for taxation. But this court held that the paramount title remained in the bridge company and, therefore, the bridge was subject to be taxed as the property of the bridge company. When the case went below, an amended answer was filed setting up with particularity the claim the Louisiana & Missouri River Railroad Company had upon the property, and the cause, being again appealed, is found reported in 134 Mo. 321. It was then held, in effect, that the ownership of the bridge was in the bridge company, and having been left in that condition -for corporate reasons hinted at in the opinion, it was held that the railroad company was estopped to defeat the taxation of such bridge in the name of the bridge company, and that the lease of a bridge in perpetuity with a clause of defeasance does not constitute the lessee the owner for the purpose of taxation, and that, on the showing made, the property was taxable as a bridge and not as part of a railroad to which it was leased.

It will be seen, however, that since the decision of that case the status of this property has changed, in that the bridge company has deeded the property to the railroad company, to-wit, the respondent the Louisiana & Missouri River Railroad Company. By that conveyance, in 1895, in our opinion under the facts in judgment, the bridge became an integral part of the railroad and was taxable as such under the provisions of sections 7717 and 7718, Revised Statutes 1889. The case presented to us at this time on the facts is on all-fours with State ex rel. Tillery v. Railroad, 97 Mo. 348, and it would add nothing to the cause of jurisprudence to rediscuss the propositions there expounded and announced — the syllabi of which case are as follows:

“1. Under Revised Statutes 1879, section 6901, a railroad bridge owned by the railroad company and constituting a part of the track, is taxable only as a part of the road and not as a separate structure, notwithstanding it is used in part as a toll bridge for the passage of teams, wagons and the like.
“2. Unless a bridge comes witbin tbe bridge act, tbe State Board of Equalization has no power to assess it under that act.”

State ex rel. Tillery v. Railroad was not criticised in any of the cases referred to therein, but, on the other hand, its doctrine met acquiescence. It follows, therefore, that the mandatory instruction can be sustained on the foregoing ground.

Under these views of the case, it will not be necessary to consider other interesting questions raised and briefed by counsel.

The judgment will be affirmed.

Brace, P. J., and Valliant, J., concur; Graves, J., not sitting.


author: VALLIANT, J.

text:
    PANDJIRIS, Appellant, v. HARTMAN.
    Division One,
    May 30, 1906.
    1. FALSE IMPRISONMENT: Malicious Prosecution: Difference. The difference between unlawful arrest or false imprisonment and malicious prosecution is this: The wrongdoer in making the unlawful arrest, or causing it to be done, takes the law into his own hands and acts without a warrant from a court or magistrate, while the man who instigates a malicious prosecution puts the machinery of the criminal law into operation, causing a warrant to issue and an arrest under the warrant. In the latter case reasonable cause for believing the arrested person guilty, and that it was done without malice and on the advice of counsel, will be a defense; in the former, not.
    2. -: Right of Arrest: Private Citizen: Risk: Malice: Advice of Counsel: Justification. It is the right and privilege of any citizen knowing that one has committed a crime or is in the act of committing a crime, to arrest the offender or cause him to be arrested, without waiting for a warrant, but in doing so the unofficial citizen takes the risk, to-wit, if it should turn out that the man who had been arrested was not guilty of the crime, the citizen causing the arrest is liable in a civil action for whatever damage the arrested man sustained in consequence of his arrest and imprisonment. In such case it is no answer to the arres'ted man’s demand for damages for the citizen to say he had reasonable cause to believe the other was guilty, that he acted without malice, and took the advice of counsel. The only available plea of justification or excuse is that the other was guilty of the crime for which he was arrested.
    3. -: Damages: Instruction. An instruction should not tell the jury that they may award the plaintiff in an action for false imprisonment “such sum as they believe from the evidence he ought to recover, not exceeding,” etc. Where there is no claim for punitive damages, the recovery should be limited to a sum which the jury believe from the evidence is necessary and sufficient to compensate the plaintiff for the injury he suffered.
    4. -: Instruction: “As Charged.” The instruction contained these words: “If the plaintiff was restrained of his liberty at the instance of defendant as charged in the petition,” etc. Eeld, that the, words “as charged in the petition” should have been omitted. The jury should not be referred to the petition.
    5. -: -: Should Be Based on Evidence: Trespass. Where the defendant testified that plaintiff had appropriated some money collected by him, and on his refusal to disgorge he called an officer and ordered him arrested, an instruction is erroneous which authorizes the jury to find for defendant on the theory that plaintiff was in defendant’s store and refused to go out when lawfully requested and for that reason the arrest was made.
    6. -: Trespass: Ejection. If the store was defendant’s and plaintiff had no right there and refused to go when ordered, defendant had the right to have him ejected, but no right to have him imprisoned.
    7. -: General Denial: Affirmative Defense. Defendant filed a general denial to plaintiff’s petition for false imprisonment. Eeld, that plaintiff made out a prima-facie case when he adduced evidence tending to show that defendant caused him to be arrested and imprisoned without a warrant. It is not necessary for him to anticipate an affirmative defense and show he was not guilty of a crime justifying his arrest. When the arrest and imprisonment without a warrant are proven, the law presumes that they were wrongful until facts are shown to justify them, and those facts must be first pleaded and then proven. Hence, where defendant's only plea was a general denial, he was not entitled to an instruction to the effect that if plaintiff as an employee of defendant collected money belonging to defendant and converted it to his own use defendant had á right to have him arrested, for that was the same as saying that if defendant was guilty of the crime for which he was arrested, the verdict must be for defendant.

      8. -: Pleading: Justification: General Denial. Defendant cannot under a general denial to plaintiff’s petition charging false imprisonment, show justification, that is, that plaintiff was gulty of the crime for which arrested.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel 0. Taylor, Judge.
    Reversed and remanded.

      Max F. Ruler for appellant.
    (1) The plaintiff need not prove malice or want of probable cause to entitle him to recover in this cause. It is sufficient to show that he unlawfully was restrained of his liberty against his will, at the instance and request of the defendant. Boerger v. Langenberg, 97 Mo. 390, cited in 110 Mo. 306; Taafe v. Slevin, 11 Mo. App. 507, cited in 16 Mo. App. 16; Ahern v. Collins, 39 Mo. 150. (2) The court should have given plaintiff’s instructions offered. Boerger v. Langenberg, supra; Taafe v. Slevin, supra; Rich v. Mclnterny, 103 Ala. 345; Comer v. Knowles, 17 Kan. 441; Burns v. Erben, 40 N. Y. 463; Yenneman v. Jones, 118 Ind. 41; Ross v. Leggett, 61 Mich. 445; McGarrahan v. Lavers, 15 R. I. 302; Farnam v. Feeley, 56 N. Y. 451; Reynolds v. Price, 22 Ky. Law. Rep. 5, 56 S. W. 502. “It is well-settled law that one who procures an arrest without any legal warrant, authority or justifiable or reasonable cause, is liable for false imprisonment, although he is not present when the arrest is made.” Fknmoto v. Marsh, 130 Cal. 66; Floyd v. State, 12 Ark. 43; Hans v. Kohlar, 25 Kan. 640; Chapman v. Dyett, 11 Wend. 31; Gibbs v. Randlett, 58 N. H. 407; Gee v. Patterson, 63 Me. 49; Yaughn v. Congdon, 56 Yt. Ill; Hoffin v. Yarilla, 8 Tex. Civ. App. 417; Grohmann v. Kirsch-man, 168 Pa. St. 189; Winn v. Hobson, 54 N. Y. Sup. Ct. 330; Newby v. Gunn, 74 Tex. 455. Good faith and want of malice is not a defense. Palmer v. Railroad, 92 Me. 399; Grumon v. Raymond, 1 Conn. 40; Flack v. Harrington, Breese (111.) 213; Gelzenleucliter v. Neimeyer, 64 Wis. 316; Kinkead’s Commentaries on Torts, 474, 475. A pure, naked, unlawful detention, unaffected by any question of motive or purpose, constitutes false imprisonment. Tbe want of lawful authority is an essential element of the offense. Malice is not. Aiken v. Newell, 32 Ark. 605; Chrisman v. Carney, 33 Ark. 316; Mullen v. Brown, 136 Mass. 114. (3) The court should not have given instructions asked by the defendant ; they were not responsive to the issues. These instructions were misleading and practically authorized the jury to try issues of embezzlement, instead of those made by the pleadings.

      T. J. Rowe and Henry Rowe for respondent.
    (1) The petition fails to state facts sufficient to constitute a cause of action. (2) The instructions given at the instance of respondent properly declare the law, and the instructions offered by plaintiff and refused are erroneous. (3) The case was tried on the theory that if appellant was guilty of either trespass or embezzlement he could not recover; and the evidence conclusively established that he was guilty of both offenses. (4) The verdict of the jury is undoubtedly for the right party and the judgment of the circuit court should be affirmed.
   VALLIANT, J.

for unlawful arrest and false imprisonment. The statements in the petition are to the effect that at the request and instigation of the defendant the plaintiff was arrested, imprisoned and held in confinement for a period of eighteen hours “without reasonable cause and without right of authority to do so and against the will of this plaintiff.” The answer was a general denial.

The evidence on the part of the plaintiff tended to show as follows:

The plaintiff had been the owner of a candy store and was indebted to the defendant in the snm of $1,200, for which defendant held plaintiff’s notes, with certain securities. Plaintiff owed some other debts and the financial conditions not being entirely satisfactory the plaintiff made a bill of sale of the whole establishment to defendant, put the defendant in formal possession and his name on the sign in the place of plaintiff’s. Plaintiff in his testimony claimed that the transaction was only a conditional sale under which the business was to be run in defendant’s name until he could get the money due him and then to be returned to plaintiff, but that it took the form of an absolute sale because defendant’s attorney said it was the only way a valid transaction of that kind could be made. After the execution of this bill of sale and the ostensible transfer of the business, defendant still retained the securities he held for his $1,200 notes. Plaintiff remained (as he claimed, in charge as owner; as defendant claimed, as employee) in the establishment and collected money in the business. On February 6, 1903, a dispute arose between them about an item of $5.30 which plaintiff had collected that.day, and other items amounting to $38 previously collected; plaintiff refused to turn over the money demanded and defendant called in á police officer and told him that plaintiff had committed grand larceny and requested him to arrest the plaintiff which the officer did and further requested the officer to take the plaintiff to the prison and “lock him up” which the officer also did. Defendant went with the officer to the prison and promised the sergeant of police in charge of the station that he would sue out a warrant the next morning. Plaintiff was taken to prison and incarcerated about 5 o ’clock in the afternoon and held until 11 o’clock the next morning; on that morning defendant applied for a warrant, but the prosecuting attorney refused it. When plaintiff was brought before the sergeant of police at the Four Courts, he admitted that he had collected the money but claimed that it was his money. When the sergeant was informed that the application for a warrant had been denied he discharged the plaintiff.

The substance of the testimony for the defendant was that the sale was absolute and bona fide, that plaintiff was only an employee and as such had collected the money in dispute and converted it to his own use. That on the morning in question when defendant demanded the money, plaintiff refused; defendant ordered him to leave the store, which he also refused to do; then defendant called in the policeman, told him that the plaintiff was- a trespasser in his store, and had taken $5.30. “I ordered the officer to do his duty; he arrested him, and I accompanied them to the Four Courts. I told the man in charge that he had taken the money, $5.30, and that he refused to return it.” The foregoing is a very brief statement of the facts shown by the evidence in the case, but it is sufficient for an understanding of the law questions involved.

Plaintiff asked three instructions to the following effect:

1. If the defendant caused the plaintiff to be arrested and imprisoned, without process of law, and against plaintiff’s will and so held for a period of eighteen hours, the jury should find for the plaintiff, “and assess his damages in such sum as they believe from the evidence he ought to recover, not exceeding the sum of ten thousand dollars, the amount sued for in the petition.”

2. If the plaintiff was restrained of his liberty at the instance of the defendant without authority or process of law; then in arriving at a verdict the jury should disregard the evidence offered by defendant tending to prove probable cause and want of malice.

3. If the plaintiff “was restrained of his liberty at the instance of defendant as charged in the petition,” then it was not necessary for the plaintiff to prove malice or want of probable cause.

Those instructions were refused and exceptions taken.

At the request of defendant the court gave three instructions to the effect as follows:

1. If the jury should find for the plaintiff he could recover only the actual damages he sustained and was not entitled to punitive damages.

2. If the store belonged to defendant, and he ordered the plaintiff to leave it and plaintiff refused and thereupon defendant requested the officer to arrest him and he was so arrested, the plaintiff was not entitled to recover.

3. If defendant was the owner of the store, the plaintiff only an employee, and the plaintiff as employee collected $5 or $30 or any other sum or sums belonging to defendant, refused to pay the same over to defendant but converted the same to his own use, then defendant had a right to order his arrest and the plaintiff cannot recover.

There was a verdict for the defendant and judgment accordingly from which the plaintiff has appealed.

The difference between an unlawful arrest or false imprisonment and a malicious prosecution is this: The wrongdoer in making the unlawful arrest, or causing it to be done, takes the law in his own hands and acts without a warrant from a court or magistrate, while the man who instigates a malicious prosecution puts the machinery of the criminal law into operation, causing a warrant to issue and the arrest under the warrant.

It is the right and privilege of any citizen knowing that one has committed or is in the act of committing a crime to arrest the offender or cause him to be arrested without waiting for a warrant, but in doing so the unofficial citizen takes this risk, to-wit, if it should turn out that the man whom he has arrested was not guilty'of the crime, the citizen causing the arrest is liable in a civil action for whatever damages the arrested man sustained in consequence of his- arrest and imprisonment." In such case it is no answer to the plaintiff’s demand for damages for the defendant to say I had reasonable cause to believe the plaintiff was guilty; I acted without malice, I took the advice of counsel learned in the law. The only plea of justification or excuse is that plaintiff was guilty of the crime for which he was arrested. [Ahern v. Collins, 39 Mo. 150; Boeger v. Langenberg, 97 Mo. 390.]

But in an action for malicious prosecution, though it should turn out that the plaintiff was not really guilty of the crime charged, yet if the defendant in putting the machinery of the law into operation acted in good faith, without malice, with reasonable cause to believe the plaintiff guilty and on the advice of counsel to whom all the facts were disclosed, he would not be liable.

The facts of this case illustrate the reason of the law for holding a defendant to a more strict responsibility in the one case than the other. If this defendant had taken the care before causing the arrest and imprisonment of the plaintiff to go to the law officer and lay the facts of the case before him, as he in fact did the next day, there would probably have been no arrest, but he did not take that care; he took the law into his own hands, inflicted the plaintiff with imprisonment first, and sought the advice of the law officer after-wards.

The instructions asked on the part of the plaintiff were in accordance with the law as above expressed and should have been given. The concluding clause of the first instruction relating to the measure of damages is not entirely correct, because the only limitation given is, “such sum as they believe from the evidence he ought to recover, not exceeding the sum of ten thousand dollars.” That gives the jury free scope; it should have limited the recovery to a sum which the jury should find from the evidence was necessary and sufficient to compensate the plaintiff for the injury he suffered, there being no claim in the petition for punitive damages. That defect in the instruction is cured by the first instruction given for the defendant, but on a retrial it should be corrected in the instruction itself.

The plaintiff’s third instruction is inaccurate in the use of the words, “as charged in the petition.” The jury knew nothing about the petition and should not be referred to it. Instead of referring the jury to the petition for the character of the arrest, the instruction should have informed the jury on that point. The words, “as charged in the petition,” should be omitted from the plaintiff’s second instruction.

The second and third instructions given at the request of the defendant should have been refused.

The second instruction authorizes the jury to find for the defendant on the theory that the plaintiff was in the defendant’s store and refused to go out of it when lawfully requested, and that the arrest was made for that reason.

In the first place, there was no evidence to support that theory. There was evidence tending to show that it was defendant’s store, that he ordered plaintiff to go out and plaintiff refused, but there was no evidence that for that refusal alone the defendant ordered the arrest. The defendant’s own account of the scene was that when he called the officer in he told him that the plaintiff was a trespasser in his store and that he had stolen the defendant’s money and he wanted him arrested. This was the defendant’s testimony: “I demanded the $5.30; he refused, and I called the officer, told him that the man was a trespasser in my store, took money from me, I want him arrested. I want him put out of the place; he is always troubling, me. We came in the store; I again demanded the money from Nick; he said, ‘No, I have got it; I will not give it to you; you can’t bluff me.’ I ordered him out. He said, ‘By — I will not go.’ I ordered the officer to do his duty, he arrested him and I accompanied them to the Four Courts. I told the man in charge that he had taken the money, $5.30; that he refused to return it.” The charge of being a trespasser was coupled with the charge of stealing the money and it was not conceivable that for the mere refusal to leave the store the plaintiff would have been imprisoned.

If it was defendant’s store and plaintiff had no right to be there and refused to go when ordered, defendant had a right to have him ejected, but no right to inflict jail punishment on him.

The third instruction for defendant was to the effect that if the plaintiff as an employee of the defendant collected money of defendant and converted it to his own use, defendant had a right to have him arrested. That is, if the plaintiff was actually guilty of the crime for which the defendant had him arrested the verdict should be for the defendant.

The defendant was not entitled to that instruction, for the reason that it presented an affirmative defense to the action which was not pleaded. The only plea which defendant filed was a general denial. Under that state of the pleadings the plaintiff made out a prima-facie case when he adduced evidence tending to show that the defendant had caused him to be arrested and imprisoned without a warrant. It was not necessary for plaintiff to anticipate an affirmative defense and show that he was not guilty of a crime justifying his arrest. When the arrest and imprisonment without a warrant is proven, the law will presume that it was wrongful until facts are shown to justify it, and those facts must be first pleaded and then proven. It is in this respect like an action for slander. When the defamatory words are proven the defendant will be heard either to deny or justify; the one he may do under his plea of general denial, the other he' can do only under a plea of confession and avoidance. [Stark v. Geo. Knapp Pub. Co., 160 Mo. 529.]

In an action for false imprisonment, the defendant under the general denial may introduce evidence which tends to show that he did not cause the arrest, but he cannot prove that he was justified in doing so, unless he has pleaded the facts in justification. [Hoagland v. Amusement Co., 170 Mo. 342; Thompson v. Buchholz, 107 Mo. App. 121; 1 Hilliard on Torts, p. 212, sec. 5; 8 Ency. P. & P., 850.] Whether objections were made to the evidence of defendant tending to show justification on the ground that no such defense was pleaded, does hot appear in the abstract of the record before us, and perhaps if there was no other error in the record it would be proper to say that since the plaintiff made no such objection but allowed the evidence to go in, the giving of the instruction submitting an issue to the jury which though not raised by the pleadings yet was based on that evidence, was not reversible error, but since for the other errors above mentioned the judgment will be reversed, we have considered it proper to bring this point to the attention of the trial court for its guidance in the new trial.

For the errors in refusing the plaintiff’s instructions and the giving of defendant’s second instruction, the judgment is reversed and the cause remanded to the circuit court to be retried according to the law as herein expressed.

All concur, except Graves, J., not sitting.