text:
    ESTELLE CHADWICK v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    March 30, 1906.
    1. NEGLIGENCE: Electric Car: Running into Curve: Excessive Speed. Defendant’s electric railway extended from St. Louis to Creve Coeur Lake in St. Louis county; on the line of the road is a curve, the approach to which was indicated hy a signpost, on which were the words, “Slow up.” Defendant’s summer car, on which plaintiff, a young woman twenty-one years old, was a passenger, after eight o’clock on the evening of August 21st, struck this curve with such force and violence as to extinguish its lights and throw the plaintiff and other passengers out of the car, and to shock or throw down and around other passengers within the car. The plaintiff was rendered unconscious by the fall, and after the car was stopped she was found in a ditch under a barbed wire fence and was greatly and permanently injured. Sold, that the court did not err in overruling a demurrer to the evidence.
    2. -: -: -: -: Instruction. The petition charged that the summer car from which plaintiff was thrown as it entered a curve was being run “at a rapid, excessive and dangerous rate of speed,” and plaintiff’s instruction did not in so many words require the jury to find that the car was being so run, but defendant’s did. Besides, the petition also charged that the defendant’s servants “negligently caused, suffered and permitted” the car to strike the curve “with sudden, violent and unusual force,” and upon this act of negligence plaintiff’s instruction was predicated. Held, that plaintiff’s instruction in failing to duplicate in so many words the requirement that the car was being run “at a rapid, excessive and dangerous rate of speed,” was not erroneous.
    3. -: -: -: -: Passenger: Connection Between Injury and Negligent Act. In an action for damages against a street railway by a passenger, for an injury received in consequence of the car’s “striking a curve with sudden, violent and unusual force,” it is not incumbent upon the plaintiff to show affirmatively the immediate connection between the injury and the misconduct of the carrier, it appearing that the car was under the control of the carrier’s servants, and that the accident -was such as, under the ordinary course of things, would not have occurred had those in charge of the car used proper care.
    4. -: Excessive Verdict. It is held in this case, where a young woman’s nervous system has been permanently injured by the negligence of a street railway company while she was a passenger on one of its cars, and there is nothing in the record suggesting partiality or prejudice on the part of the jury, that a unanimous verdict for $5,500 was not excessive.
    Appeal from St. Louis City Circuit Court.— Eon. Daniel D. Fisher, Judge.
    Affirmed.

      Boyle & Priest, Geo. W. Easley and Robert E. Maloney for appellant.
    (1) The demurrers to plaintiff’s evidence and to all the evidence should have been sustained, (a) Be■cause she failed to prove any substantial negligence whatever, (b) Because she failed to prove the allegations of negligence contained in her petition. Godfrey v. Railroad, 107 Mo. App. 193; Edwards v. Ins. Co., 100 Mo. App. 712; Hook v. Railroad, 162 Mo. 569; Hyde v. Railroad, 110 Mo. 272; Spiro v. Railroad, 102 Mo. App. 250; Timms v. Railroad, 66 N. E. 797; Railroad v. Os-horn, 63 N. E. 604; Burnes v. Railroad, 66 N. E. 418; Railroad v. Lohe, 67 N. E. 161; Francisco v. Railroad, 78 Hun 13; Railroad v. Clowes, 24 S. E. 833. (2) The damages awarded hy the jury are inordinately excessive, and out of all proportion to what plaintiff really sustained, and the verdict hears the impress of passion and prejudice on its face. Stolze v. Railroad, 87 S. W. 517; Sawyer v. Railroad, 37 Mo. 265 ; Kaeltz v. Relckman, 46 Mo. 320; Stoltzell v. Swearinger, 90 Mo. App. ■594; Doty v. Steinberg, 25 Mo. App. 328; Sheedy v. Press Brick Co., 25 Mo. App. 527; Reynolds v. Railroad, 189 Mo. 408. (3) The court committed reversible error in giving to the jury, over defendant’s ■objection, plaintiff’s instruction 1. (a) Because said instruction authorizes a recovery for plaintiff if they find that defendant “caused, suffered and permitted said car to run into and strike the curve on the defend•ant’s railroad, mentioned in the evidence, with sudden, violent and unusual force,” when neither sudden, violent, unusual nor forceful movements of an interurban electric ear in rounding a curve constitutes negligence. Railroad v. Clowes, 24 S. E. 833. (b) It is further erroneous in that it authorizes the jury to find a verdict for the plaintiff, if they believe from the evidence that defendant’s car was “carelessly and negligently” permitted to run into the curve, etc., without stating what act or acts were negligent or what constituted negligence. Duerst v. Railroad, 163 Mo. 624; Allen v. Railroad, 183 Mo. 435. (c) It is further erroneous in that it permits plaintiff to recover if the .jury find that the car ran into and struck the curve with “sudden, violent and unusual force,” whereas plaintiff’s allegations of negligence in her petition are that the defendant caused said car to enter into the curve “at a rapid, excessive and dangerous rate of speed.” In other words, it permits plaintiff to sue on one cause of action and recover on another. Railroad v. Clowes, 24 S. E. 836.

      Lyon <& Sivarts for respondent.
    (1). The demurrers to plaintiff’s evidence and to all the evidence were properly overruled. Redmon v. Railroad, 185 Mo. 1; Magrane v. Railroad, 183 Mo. 119; Gidionsen v. Railroad, 129 Mo. 392; Dougherty v. Railroad, 81 Mo. 325; Ilges v. Railroad, 102 Mo. App. 529; Dixey v. Railroad, 180 Pa. St. 401; Clow v. Railroad, 154 Pa. St. 410; Railroad v. Thalheimer, 37 Atl. 132; Samuel v. Railroad, 124 Cal. 294; Bassett v. Railroad, 65 Pac. 470; Lavis v. Railroad, 54 111. App. 636; Halverson v. Seattle Electric Co., 35 Wash.* 600. (2) Plaintiff’s instruction 1 was properly given, and was more favorable to the defendant than it should have been. Authorities above cited. (3) The verdict is not excessive. Wood v. Railroad, 181 Mo. 433; O’Neill v. Kansas City, 178 Mo. 91; Luckel v. Century Bldg. Co., 177 Mo. 608; Barr v. City of Kansas, 121 Mo. 22; Hanlon v. Railroad, 104 Mo. 381.
   BRACE, P. J.

— This is an appeal by the defendant from a judgment of the St. Louis City Circuit Court in favor of the plaintiff for the sum of $5,500 for personal injuries.

Plaintiff’s cause of action, as stated in the petition, is as follows:

“For her cause of action herein the plaintiff states that on .the twenty-first day of August, 1903, at night, she entered and was received as a passenger on a westbound car of the defendant at Garrison avenue and Olive street on its said line of .railroad in the said city of St. Louis, for the purpose of being carried and transported as such passenger' to her destination at Creve Coeur on the defendant’s said line of railroad in the said county of St. Louis, and that the defendant thereby promised and agreed, and it was the duty of the defendant, to carry and transport the plaintiff well and safely to her said destination; that'while the plaintiff was a passenger on said car as aforesaid the defendant, and its agents and servants in charge of said car, carelessly and negligently caused, suffered and permitted said car to enter and run into a curve on the defendant’s said line of railroad, being the first westward curve for west-hound cars on the defendant’s said line of railroad north of Delmar avenue or Bonhomme road in the said county of St. Louis, at a rapid, excessive and dangerous rate of speed, and to strike said curve with sudden, violent and unusual force, whereby the plaintiff was thrown from her seat in said car to the ground with great force and violence, her head, body and limbs were scratched and bruised, her pelvic organs were injured, her nervous system was shocked and seriously impaired, and she was otherwise internally and greatly injured; that by reason of her injuries received as aforesaid the plaintiff has suffered, and will continue to suffer, great pain in mind and body, has lost, and will continue to lose, the earnings of her labor, has been compelled to expend, and has expended, large sums of money for medical treatment and medicines, is permanently injured, and has been actually damaged in the sum of fifteen thousand dollars.”

The answer was a general denial.

At the close of the plaintiff’s evidence the defendant demurred thereto, and its demurrer was overruled. A like demurrer was interposed at the close of all the evidence and overruled.

The main issue in the case was submitted to the jury on the following instructions:

For Plaintiff :
“1. If the jury find from the evidence that on the 21st day of August, 1903, the defendant was a carrier of passengers for hire, and used and operated the railroad and car mentioned in the evidence for such purpose, and if the jury further find from the evidence that on said day the defendant’s agents and servants in charge of said car received the plaintiff as a passenger thereon; and if the jury further find from the evidence that while the plaintiff was being carried as such passenger on said-car, the defendant’s agents and servants in charge of said car, carelessly and negligently caused, suffered and permitted said car to run into and strike the curve on the defendant’s railroad, mentioned in the evidence, with sudden, violent and unusual force, and that the plaintiff was thereby thrown from said car upon the ground and was injured; and if the jury further find from the evidence that the defendant’s agents and servants in charge of said car could, by the exercise of that degree of care, prudence and caution which very careful and prudent persons would use' and exercise in a like business and under like circumstances, have prevented said car from so running into and striking said curve, and failed to do so, and if the jury further find from the evidence that the plaintiff was exercising that degree of care which would be exercised by persons of ordinary prudence under the same or similar circumstances, then the verdict of the jury must be in favor of the plaintiff.”
For Defendant :
“1. The jurors are instructed that negligence cannot be presumed, but must be proved, and the burden of proof is upon the plaintiff to prove by the preponderance or greater weight of the evidence that her injuries, if you believe she was injured, were the result of the negligence alleged in plaintiff’s petition, to-wit: That while the plaintiff was a passenger on one of defendant’s cars the defendant’s agents and servants in charge of said car, carelessly and negligently caused, suffered and permitted said car to enter and run into a curve on the defendant’s said line of railroad, being the first westward curve for west-bound cars on the defendant’s said line of railroad north of Delmar avenue on Bonhomme road in the said county of St. Louis, at a rapid, excessive and dangerous rate of speed, and to strike said curve with sudden, violent and unusual force, whereby plaintiff was thrown from -.her seat in said car to the ground. In considering the question as to whether the defendant was negligent, you are confined to the specific charges thus made, and unless you find that the defendant was negligent in this particular respect your verdict will be for the defendant, even though you may believe from the evidence the defendant may have been negligent in some other respect. ’ ’

The verdict was for the plaintiff for $5,500.

The errors assigned for reversal of the judgment are: the overruling of the demurrers to the evidence, the giving of instruction numbered 1 for the plaintiff, and that the damages are excessive.

The facts disclosed by the evidence for the plaintiff, briefly stated, are as follows:

The plaintiff, at the time she was injured, was a young woman about twenty-one years of age, in good health, and in the employ of a dry goods establishment, •earning ten dollars a week. About eight o’clock on the evening of the 21st of August, 1903, she, in company with her mother, two sisters and some other friends, took passage on one of the defendant’s west-bound •summer cars on Olive street, at Garrison avenue, in ■St. Louis, for Creve Coeur lake, in the county of St. Louis. On the line of defendant’s road between the •city limits and Oreve Ooeur lake in St. Louis county, there is a curve, the approach to which is indicated by a signpost on which are the words, “Slow up.” On the evening in' question, the defendant’s car in which the plaintiff was a passenger, together with some twenty or thirty other persons, struck this curve with such force and violence as to extinguish its lights, throw the plaintiff, one of her sisters and another passenger, Judge Pollard, out of the car, and to shock and throw down and around many other passengers within the car. The plaintiff and her sister and Judge Pollard were rendered unconscious by their fall, and, after the car was stopped, were found by some of the other passengers, the plaintiff in a ditch under a barbed wire fence. She was assisted up to the track, placed upon a returning car and brought back to the city. A physician, Dr. R. M. Her ley, a general practitioner, making a specialty of diseases of women, was at once called to treat the plaintiff for her injuries. He testified, in substance, that he found her injured all over, particularly in the pelvic organs; that he found scratches and bruises all over the body — the pelvic organs, evidently the ovaries and the womb itself and appendages, were disturbed. She was bleeding, flowing all the-time from the womb, conscious at times and completely nervous at other times. There was a condition of neurasthenia, in fact, she remained in that condition for three weeks or more and never moved on the couch, and she still suffers more or less up to the present time (November 10, 1903); that he is still treating her and has been in attendance upon her ever since her injury; that his bill for services to date is $226, and that the charges are reasonable; that he is of the opinion that the neurasthenic condition in which she is will be permanent, but she might improve; that she can stand on her feet for only a short time, can walk around the house a little and that is all that she can do. She has fallen off at least twenty-five pounds since the accident. She is as nervous as she can be, and is a complete neurasthenic.

Like testimony as to the injuries, suffering and condition of the plaintiff was given by several lay witnesses. The evidence of many witnesses' who were passengers in the ear with plaintiff tended to prove that the ear was going at a very rapid and unusual rate of speed Avhen it struck the curve, and that the shock on striking the cuiwe was of great violence.

To meet the case thus made, the defendant introduced one witness who was a passenger on the car, who testified in substance that neither he nor the young lady with whom he was sitting fell; that he didn’t pay any particular attention to the rate of speed at which the ear was going — it seemed the same as usual to him, hut that it struck the curve suddenly with a jolt. Also a statement by the conductor and motorman that the car was running at the usual and ordinary rate of speed at the time the accident happened. And two physicians who visited the plaintiff at the instance of the defendant a few days before the trial — one of whom testified that he was of the opinion that she would get well hut that it would take some time — the other that she would get well in a few months.

I. The overwhelming weight of the evidence was that the defendant’s servants in charge of the car negligently caused, suffered and permitted said car to enter and run into the curve on defendant’s line of railroad “at a rapid, excessive and dangerous rate of speed,.” time, place and circumstances considered, “and to strike said curve with sudden, violent and unusual force, whereby,” etc., as charged in the petition, and there is no ground whatever for the contention that the court erred in overruling the demurrers to the evidence.

II. The objection urged to the plaintiff’s first instruction is that it did not in totidem verbis require the jury to find that the car was being run “at a rapid, excessive and dangerous rate of speed.”' On the evidence — time, place and circumstances considered— the jury could hot well have found otherwise, and they were expressly required to so find in the defendant’s instruction, and there is no reason to believe the verdict would have been other than it was if this requirement had been duplicated in the plaintiff’s instruction. However that might have been, this contention leaves entirely out of view the fact that the petition charged another act of negligence, i. e., that the defendant’s servants “negligently caused, suffered and permitted” the car to strike the curve “with sudden, violent and unusual force,” and upon this act of negligence the plaintiff’s instruction was predicated, as it might well have been.

In Dougherty v. Railroad, 81 Mo. 325, we held that, “In an action for damages against a street railway by a passenger, for an injury received in consequence of a sudden jerk of the car, it is not incumbent upon the plaintiff to show affirmatively the immediate connection between the injury and the misconduct of the carrier, it appearing that the car was under the control of the carrier, or its servants, and that the accident was such as, under the ordinary course of things, would not have occurred had those who had the management of the car used proper care. ’ ’

The principle of that case has been frequently recognized and affirmed by this court. [Clark v. Railroad, 127 Mo. 197; Och v. Railroad, 130 Mo. 27, 51; Redmon v. Railroad, 185 Mo. l. c. 13.] As was said in the last case, “Where the thing is shown to be under the management of the defendant or its servants, and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. ’ ’

While the thing itself in this instance spoke loudly of a rapid and dangerous rate of speed, and that fact was established by a great preponderance of the evidence, yet, eliminating it from the petition, a good cause of action was therein stated, upon the evidence sustaining which the plaintiff’s instruction could be and was predicated. Negligently “striking the curve with sudden, violent and unusual force” was the immediate and proximate cause of the plaintiff’s injuries.

We find no error in the giving of this instruction calling for a reversal of the judgment.

III. No objections are urged to' the instruction of the court on the measure of damages, and with it no fault can be found. The verdict of the jury was unanimous. There is nothing in the record suggesting the least partiality or prejudice on their part. The amount did not shock the sense of justice of the learned judge before whom the case was tried, and before whom were plaintiff and all the witnesses who testified as to her injuries; and we find nothing in the record or in the amount of damages awarded the plaintiff for her serious injuries and impaired health that calls for our interference with the verdict.

The judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    ANNIE HOGAN, Appellant, v. HINCHEY et al.
    Division One,
    March 30, 1906.
    1. WILL: Effect of Contest: Dismissal: Written Stipulation. A suit once properly instituted in the circuit court to contest the validity of a will has the effect to vacate the action of the pro- ■ hate court admitting it to probate, and is so far beyond the control of the contestant that he cannot dismiss it, nor can it be dismissed by his failure to prosecute, for the institution of the contest throws on the proponents the burden of proving in the circuit court its due execution. Therefore, a written stipulation that the plaintiff will no longer contest and that he concedes the validity of the will, does not obviate the necessity of due proof of its execution.

      2. -: -: -: -: Reversal on Appeal: Erroneous Evidence: No Motion for New Trial, But if.the contestant, after making such written stipulation, takes part in th© trial, and the verdict on the evidence is against him, he is not entitled, so far as he alone is concerned, to a reversal of the judgment for alleged error in admitting testimony, unless the record in the appellate court shows that the point was properly presented to the trial court and preserved in the bill of exceptions. And, if from the abstract it does not appear that there was a motion for a new trial, the judgment sustaining the will will not, on his appeal, be reversed.
    3. -: -: -: -: Error Induced by Appellant. A contestant in a will contest cannot on appeal complain of an error which he himself produced or aided to produce. He cannot at the trial enter into a written stipulation in which he concedes the validity of the will, and then on appeal complain that the validity of the will was adjudged on testimony erroneously admitted.
    4. APPEALS: Abstract: Preserving Motion for New Trial. A recital in the bill of exceptions that a motion for new trial was filed and overruled, is not sufficient. The filing of such a motion and the ruling of the court thereon can be shown only by the record proper.
    Appeal from Clinton Circuit Court. — Eon. A. D. Burnes, Judge.
    Axeermed.

      John J. McAnaiv for appellant.
    (1) The Statute of Wills relating to the execution, publication and attestation of wills is mandatory and not directory merely. Walton v. Kendrick, 122 Mo. 504; McGee v. Porter, 14 Mo. 611; Miltenberger v. Miltenberger, 78 Mo. 27. (2) In proof of wills the common law disabilities of parties and witnesses are in force. R. S. 1899, sec. 4655; Miltenberger v. Miltenber'ger, 78 Mo. 27.

      F. B. Ellis for respondents.
    (1) The will was sufficiently proved by Hardigan and Roney. Their evidence was sufficient to prove the will. It is not necessary for the relator to make a formal request for the attesting witnesses to sign the will. It is sufficient if they understand that it is at the request of the relator and that enough takes place to infer that he understands what is going on. Martin v. Bowdem, 158 Mo. 379. (2) Besides, Father O’Riley was a competent witness. He took nothing under the will, nor does the will give him anything. He was therefore a competent witness and was not disqualified as a witness. It is very certain that the instrument was attested at the request of the relator. The mere fact that he was the executor does not disqualify him. The fact that he was made a party to the suit does not disqualify him as a witness. Grimm v. Tittman, 113 Mo. 56. As Father 0 ’Riley got nothing under the will and claims no interest in the will, he was a competent witness. Grimm v. Tittman, supra; Murphy v. Murphy, 24 Mo. 526. (3) 'Besides, plaintiff admitted that the paper introduced in evidence was the last will and testament of John Hinchey, deceased. It seems to us that she is bound by this admission, in this as well as any other case. While we are mindful that a judgment of the probate court is only interlocutory and that all parties in interest are entitled to have a judgment of the court ■sustaining or rejecting the will, yet notwithstanding this, we do not see why a person cannot bind himself by contract and admission in a will case the same as in any other. Munford v. Wilson, 15 Mo. 540; State ex rel. v. Merriam, 159 Mo. 660; Hinkle v. Keer, 148 Mo. 48.
   VALLIANT, J.

— This is a will contest. The petition states that John Hinchey died leaving no widow or descendant and that his only heirs at law are his brother, the defendant Patrick Hinchey, and the plaintiff, who is a daughter of a deceased sister; that after his death a paper writing purporting to be the last will of John Plinchey was presented to the probate court and admitted to probate on November 5, 1898. The petition then goes on to state that the paper is not the will of John Hinchey, was never executed by him in the manner required by law and that it was the result of fraud, duress and undue influence exerted by the defendants on the alleged testator. The defendants are Patrick Hinchey, the surviving brother, and James O’Riley, who is named as executor.

The suit was filed to the January term, 1904, of the circuit court, only a few days before the expiration of the five-year limit prescribed by the statute.

Each defendant answered by general denial.

The abstract of the record proper shows the petition, the answers, that there was a trial resulting in a finding and judgment that the paper in question was the last will and testament of John Hinchey, deceased, from which judgment the plaintiff appealed, leave to file bill of exceptions at next term of court and that the bill of exceptions was filed during that next term; it does not show that a motion for a new trial was filed or that the court made any ruling on such motion.

The bill of exceptions shows a stipulation filed by the parties, plaintiff and defendants, and read in evidence in these words:

“It is hereby agreed and stipulated by and between the parties to the above-entitled cause of action as follows, to-wit:
“First. The plaintiff agrees that she will not further prosecute said action or make any further costs therein; and plaintiff further concedes that the will of John Hinchey, deceased, is valid and that the same is the last and true will of the said John Hinchey, deceased.
“Second. The defendants in consideration of the foregoing promise and agreement of the plaintiff, and the above concession made by the plaintiff, do hereby agree that they will make no further or additional costs in said action except such as may be necessary to the formal proof of said will in the circuit court, of Clinton county.”

At the trial the defendants called as witnesses the two subscribing witnesses to the will. Their testimony was to the effect that they happened to call at the residence of the deceased, who they knew was then quite sick; as they entered the house they were met by defendant James'O’Riley who is a Catholic priest, and who said to them, “You are just the men we want,” or some such words, and led them in to where the sick man was in bed; after they had spoken to him the priest asked him if he was then ready to sign that paper, to which he replied he believed he could if he was raised up in bed; one of the witnesses assisted him to rise in bed and held him in that position while he signed the paper. After that the priest said to the witnesses, “If you will sign this it will be all that we ask of you.” Then they signed it as subscribing witnesses. They both testified that when they were doing what they did, they understood that the paper was the will of the sick man, but just what was said they did not quite remember. One of them being asked if Father O’Riley did not say to the testator, “Mr. Hinchey, do you want these gentlemen to sign this as witnesses?” answered, “I believe that is about the words that took place and he nodded his head or indicated in some way and. we felt like —. ’ ’ They said that as it was four or five years ago they could not remember the words used, but Father 0 ’Riley in the presence and hearing of the testator said, “We are waiting for you to witness Mr. Hinchey’s will,” or some such words; he also referred to the paper as bequest. The testator was about sixty years old and was of sound mind.

The will was read in evidence. By it the testator devised all his real estate to his brother, the defendant Patrick Hinchey; he made no bequest of his personal estate except that he directed and empowered the defendant James O’Riley “to take charge of all notes belonging to and payable to me and defray all expenses connected with my last illness and funeral expenses and to carry out the instructions I have given verbally unto him. ’ ’ James 0 ’Riley was named as sole executor without bond.

Defendants called defendant O’Riley as a witness. Plaintiff objected on two grounds: first, that the ■stipulation read in evidence “bars eut further witnesses;” second, the witness was incompetent because he was a beneficiary under the will. The objection was overruled and exception taken. The witness testified that he wrote the will at the request of the testator and as he dictated; that at the execution he distinctly asked the testator, in the presence of the subscribing witnesses, if he declared it to be his last will and testament, to which he answered, ‘Yes,’ that he was then held up in bed by one of the witnesses and signed it, then the witnesses signed it at the testator’s request. Defendants rested. Plaintiff offered no evidence.

Appellant’s contention now is that the testimony of the subscribing witnesses was not sufficient to prove the due execution of the will and that Father O’Riley was not a competent witness.

The plaintiff’s attitude is peculiar. After inaugurating the contest, she enters into a stipulation with the defendants in which she concedes that the paper in question is the valid will of the alleged testator and that she will not further prosecute the suit.

A suit of this kind is peculiar. When a will' has been admitted to probate in the probate court, a suit in the circuit court to contest its validity brought within the period prescribed by the statute (five years), by a party in interest, has the effect to vacate the action of the probate court and leave the question devisavit vel non to be tried anew in the circuit court. The suit once properly instituted is so far beyond the control of the contestant that she cannot dismiss it, neither can it he dismissed by ber failure to prosecute.' Tbe institution of tbe contest throws on tbe proponents of tbe will tbe burden of proving in tbe circuit court its due execution. [Cash v. Lust, 142 Mo. 630; McMahon v. McMahon, 100 Mo. 97, and cases in the last case cited.]

Therefore tbe stipulation that tbe plaintiff will no longer contest and that she concedes the validity of tbe will, does not obviate tbe necessity of due proof of its execution. But if she does take part in tbe trial and tbe verdict on the evidence is against ber, so far as she is concerned, she is not entitled to a reversal of tbe judgment for alleged error in admitting testimony unless tbe record in tbe appellate court shows that tbe point was properly presented to tbe trial court and preserved in tbe bill of exceptions.

In tbe abstract of tbe record proper in this case it does not appear that there was a motion for a new trial or that such a motion was overruled. There are recitals to that effect in tbe bill of exceptions, but that is not sufficient; tbe filing of such motion and tbe ruling of tbe court upon it can be shown only by tbe record proper.

Besides, a party in a will contest case can no more be beard to complain of an alleged error which she herself induced or aided to produce than can a party in any other kind of case. A contestant cannot by an act of omission or commission in the progress of tbe ease impair tbe rights of any other interested party, but may impair ber own rights.

In this case tbe plaintiff stood before tbe trial court admitting in solemn form that tbe paper writing in question was tbe last will and testament of John Hinchey, deceased, and when tbe formal proof bad been beard she offered no evidence to tbe.contrary. If, then, tbe trial court, in view of tbe lack of certainty or positiveness of tbe subscribing witnesses, after tbe lapse of five years, as to tbe particular words that were used on the occasion of the execution of the will, had at first hesitated to say that it was sufficient, yet taking into account the solemn admission of the only party interested to the contrary had finally concluded that the proof was sufficient, ought that party he heard to complain? Did she not herself induce the court to come to that conclusion?

The mere fact that the defendant James O’Riley was named as executor in the will did not render him incompetent (sec. 4637, R. S. 1899), hut the fact that the will directed and empowered him to collect certain notes and after payment of certain debts apply the remainder according to verbal instructions known only to himself gave him a substantial interest in sustaining the will and we are not prepared to say that he was a competent witness (Miltenberger v. Miltenberger, 78 Mo. 27); but so far as this appellant is concerned and to the extent that her interest is involved it would be to rob the trial of the dignity of a serious proceeding to allow the plaintiff in one breath to solemnly admit the fact and in the next offer objection to the competency of evidence tending to prove the same fact.

If the interests of other persons should appear, a different question might arise.

There is no error in the record of which the appellant can complain.

The judgment is affirmed.

All concur.


author: BRACE, P. J.

text:
    MORRISON, Appellant, v. BOMER et al.
    Division One,
    March 30, 1906.
    'LIMITATION: Question of Fact. Where the only question raised - hy the appeal is one of fact, namely, -whether or not plaintiffs had been in continuous adverse possession of the land for ten consecutive years after the land had been sold for taxes under proceedings admitted to he legal and regular, before defendant went into possession, and the finding of the trial court, sitting as a jury, that they were not, may reasonably have been reached upon the evidence produced, the judgment will he affirmed.
    Appeal from Stoddard Circuit Court. — Eon. J. L. Fort, Judge.
    Affirmed.

      Robert L. Wilson for appellant.
    To entitle plaintiff to recover in an action of ejectment on the ground of having acquired the title to the demanded property hy adverse possession, it is not necessary to allege adverse possession for the statutory period. Under an averment of ownership in fee and of right to the possession at the commencement of the -action, plaintiff may prove any facts which would entitle him to recover at that time. The same rule applies to pleading of defendant, where adverse possession is relied upon as a defense to an action at law to recover the possession of land; it need not be specifically pleaded, hut may be shown under a general denial. Bird v. Sellers, 113 Mo. 580; Stocker v. G-reen, 94 Mo. 280; Fairbanks v. Long, 91 Mo. 628; Gillespie v. Jones, 47 Cal. 259; Sullivan v. Dempsey, 4 Mont. 499; McQuerny v. Irwin, 90 Ala. 275; Donahue v. Thompson, 60 Wis. •500; Missouri Eiver Co. v. Wickham, 44 S. W. 1023; 1 Cycl. Law and Proc., 1140. The deed from Eobert Morrison to E. J. Malone clearly shows that he was asserting title to the land, and taking title from Malone is sneh an act as would tack the possession. The improvements made by Morrison were such as to make his possession notorious, open and adverse for more than ten years. During all that period defendants never asserted claim to the land. If plaintiff’s possession of the land had been adverse to defendants, open, notorious and under claim of right thereto for ten years prior to the time that defendant Bomer entered into the premises in 1901, it vested title in the plaintiff whether defendant knew of the fact or not. Wilkerson v. Eilers, 114 Mo. 254; Scruggs v. Scruggs, 43 Mo. 142; Hunnewell v. Burchett, 152 Mo. 614; Hunnewell v. Adams, 153' Mo. 444. The Supreme Court will reverse a verdict when the finding of the triers, whether a jury or a judge sitting as a jury, clearly indicates that the trier of the fact either did not weigh the evidence at all or was clearly mistaken as to the applicatory law. "Whit-sett v. Ransom, 79'Mo. 258; Ogelsby v. Railroad, 150-Mo. 224; May v. Crawford, 150 Mo. 52; "Watson v. Pehlig, 59 Mo. App. 275; Chitty v. Railroad, 148 Mo. 78. It has been held that the Supreme Court would look into the evidence and would reverse the judgment below where apparent injustice has been done. McCartney v. Finnell, 106 Mo. 445; Cornet v. Bertelsmann, 61 Mo. 118. So careful has this court been that no wrong shall be done a litigant, that it will look into the weight of evidence, and if the weight of evidence is of a cogent character, and the finding of the trial court is adverse to that ■ evidence, the appellate court will reverse the judgment. Garrett v. Greenwell, 92 Mo. 125;. Spohn v. Railroad, Ú7 Mo. 74.

      Mosley & Wammaclc for respondents.
    The trial court heard, the witnesses, noted their lack of knowledge of material facts, observed their demeanor on the stand, and correctly decided that plaintiff had not máde ont a ease of adverse possession, and this is the only error complained of by appellant. To entitle plaintiff to recover on the ground of adversépossession, he must show ten years’ actual, open, notorious, hostile, continuous possession in himself, or those under whom he claims, under claim and color of title. Hunnewell v. Adams, 153 Mo. 440-; Hunnewell v. Burchett, 152 Mo. 611. And the proof of the possession required by the statute should be clearly made. Shumate v. Snyder, 140 Mo. 88; Gaines v. Fender, 82 Mo. 509. In an action at law this court will not disturb the finding of the trial court as to the facts if there is any substantial evidence on which to base that finding. Smith v. Royse, 165 Mo. 658; Hahn v. Cotton, 136 Mo. 225. The sufficiency of the evidence to support the finding of the circuit court on the question of adverse possession cannot be questioned on appeal. Bartlett v. Kauder, 97 Mo. 356.
   BRACE, P. J.

— This is an action in ejectment to recover possession of a tract of land in Stoddard county, described in the petition.

The petition is in common form. The answer is a general denial.

The trial was before the court without a jury, finding and judgment for the defendants, and plaintiff appeals.

By patent, dated May 2, 1860, and duly recorded July 30, 1867, one Andrew J. Bruff acquired the legal title to the premises. On the 20th of December, 1873, by mesne conveyances from him, all duly recorded, John W. Myers, and Cassander Myers, his wife, acquired Bruff’s title. By sheriff’s -deed, dated the 13th day of September, 1887, duly executed, acknowledged and recorded, made in pursuance of a sale on execution under a judgment of the circuit court against the said John W. and Cassander Myers for back taxes for the years 1879, 1880,1882, 1884 and 1885, one Ligón Jones acquired the record title of the said John W. and Cassander Myers to the premises, and by mesne conveyances from him, all duly executed, acknowledged and recorded, the defendant Thomas J. Beardsly acquired the record title of the said John W. and Cassander Myers, under which the defendants claim, and under which they went into possession of the premises in October, 1901.

This suit was instituted on the 30th of January, 1902. The plaintiff introduced a chain of mesne conveyances from Myers and wife to him, made after the date of the sheriff’s deed aforesaid. But as no attack is made on that deed, and the plaintiff’s sole reliance is upon title by adverse possession, and as they are important only as showing color of title, and as it is undisputed that ever.since the defendants and their grantors acquired title by the sheriff’s deed until the institution of this suit, the plaintiff and his grantors claimed title to the premises under such conveyances, they need not be set out.

The only question raised on this appeal is: were the plaintiff and his grantors in continuous adverse possession of the premises for ten consecutive years since the defendants and their grantors acquired title by the sheriff’s deed, and prior to October, 1901, when the defendants went into possession? It devolved upon the plaintiff to show such adverse possession by a preponderance of the evidence. The only evidence on the subject was introduced by the plaintiff — the defendants introduced none. The plaintiff contends that his evidence was sufficient to prove the fact — the defendants contend that it was insufficient. The question was one of fact, to be determined by the trier of the facts. In this instance the court was that trier, and he determined that the plaintiff’s evidence was insufficient to prove such continuous adverse possession. This determination is conclusive upon us, if it might reasonably have been reached upon the evidence presented. And after a careful consideration of that evidence, we cannot say that it might not.

The judgment of the circuit court is therefore affirmed.

All concur.


author: BRACE, C. J.

text:
    THE STATE ex rel. ELY & WALKER DRY GOODS COMPANY v. SWANGER, Secretary of State.
    In Banc,
    March 30, 1906.
    CORPORATION: Increase of Capital: Preferred Stock: Erroneous Statement: Second or Amended Certificate. Where stockholders of a corporation have, in conformity to the statutes, authorized the capital stock to he increased to a certain amount, the increase to he preferred stock, and the statement filed with the Secretary of State recites the action of the stockholders as to the increase hut omits to recite that the stock was to he preferred, and the Secretary of State issues a certificate in accordance with that statement, making no mention therein that the increased stock is preferred stock, and on the discovery of the omission and error, the corporation files with him a new statement in conformity to the real facts, there is no reason why he should not recall and cancel the former certificate and issue a new one in confprmity to the facts.
    Mandamus.
    Peremptory writ awarded.

      W. B. & Ford W. Thompson for relator.
    Relator is entitled to the relief prayed for because of alleged failure on the part of the respondent to perform a specific duty enjoined on Mm by law: (1) Because tbe action of the stockholders at the meeting of January 10, 1906, constituted an amendment of relator’s charter, and this amendment was authorized by an act entitled: “An act to amend sections 1312, 1332 and 1333 of article 9, of chapter 12, of the Revised Statutes of Missouri of 1899,” approved April 11,1901 (Laws 1901, pp. 91 to 93). (2) Where the duty of the ministerial officer is plain and unequivocal, the courts will, at the instance of one who has a right to have the duty performed, issue a.writ of mandamus to compel him to do it. (a) Section 2 of the act of 1901 makes it his plain duty to accept and file a statement of the amendment of the charter of a corporation as to its increase of stock, (b) The act of 1903 makes it his plain duty to file a certified copy of that statement in his office and to issue, a certificate thereon, and until these two acts are done the amendment does not take effect. (3) Where a question of fact is involved in a mandamus proceeding, which must be decided before the duty of a ministerial officer can be ascertained, the officer will be compelled to solve the question if he can, but where he is powerless to command evidence necessary to ascertain the correct solution of the question, courts will make judicial examinations and ascertain the fact for him. In this case he admits that the evidence was presented to him and which comprised the entire act of the stockholders at the meeting and the entire amendment, and there could be no question of doubt. "State ex rel. v. Garesche, 3 Mo. App. 539, 65 Mo. 480; State ex rel. v. Laughlin, 75 Mo. 359; State ex rel. v. Williams, 95 Mo. 159; State ex rel. v. Mc-Gann, 64 Mo. App. 230; State ex rel. v. Chase, 42 Mo. App. 343; State ex rel. v. Higgins, 76 Mo. App. 316.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent.
    (1) It is insisted by respondent that there is no provision of our statute which authorizes him to cancel the certificate of increase of stock and issue a new one with the desired amendment. Section 1329, Revised Statutes 1899, makes it the duty of respondent to issue a certificate of increase of stock, when a statement to that effect, duly acknowledged and certified, shall he filed with him. Section 1332 (as amended by Laws 1901, p. 92) makes it his duty to issue a certificate of increase of stock and showing the preferred stock, etc. And section 1333 (as amended by Laws 1901, p. 93) provides that the statement required by section 1329, Revised Statutes 1899, shall also set forth the preference, priorities, classification and character of such stock. There may be, therefore, two kinds of increase of stock: •one where there are no preferences, priorities or classification, and the other where there are perferences, priorities and classification. The only way by which respondent can determine in which class the stockholders •desire to have the increase stock placed is by examining the statement filed with him. As the law requires that this statement shall contain an account, and'a true account, of the meetings of the stockholders, as it must be ■duly sworn to by the chairman and secretary of said meeting, recorded in the office of the recorder of deeds, and a certified copy sent to respondent, it is presumed that the Legislature supposed that said statement would be correct, and also that the Legislature intended that the respondent could and would rely on same. If they had certified that the stockholders decided to increase the i?tock to four million seven hundred thousand, instead of four million five hundred thousand, and also ■certified that the money had been,paid in; and, if respondent had issued a certificate of increase in that sum, it can hardly be argued that he "could cancel the certificate and issue a new one. So, if the stockholders had decided to decrease the stock, and the chairman and secretary had made a mistake as to the amount of the decrease, respondent could not correct that; neither can he correct many other mistakes that might occur. In •other words, when a proper statement, duly verified and duly certified, was filed with respondent, and he, following the letter of the statute, issued a certificate thereon, lie exhausted his powers. Relator has a remedy; it will have to proceed de novo. If respondent can cancel a certificate for one reason, why may he not also cancel a certificate for other reasons? If he can cancel same, who are the proper persons to make a request for such cancellation? (2) Again, respondent insists that he can only act in one way, and at one time; he has no option and no discretion. If the officers of the stockholders ’ meeting present a statement to him, duly verified and duly certified, with a tender of fees, he is bound to accept of same and bound to issue a certificate in accordance with said statement. He knows nothing of the facts, except as he gathers them from said statement. If, after he acts on said statement, an amended statement can be filed with him and a correction demanded in the course of ten days, why may not parties wait ten months, or ten years, and ask for a correction, even after the rights of innocent third parties have intervened?
   BRACE, C. J.

— This is a proceeding by mandamus instituted by the Ely & Walker Dry Goods Company, a business corporation, of the city of St. Louis, to compel the Secretary of State to receive and file a certified copy of a statement of. the increase of its capital stock, and to issue a certificate thereon as required by statute.

At a meeting of the stockholders of said corporation, duly held on the 10th day of January, 1906, in pursuance of notice duly given and of the statutes in such cases made and provided, and at which all the stockholders were present in person or by proxy, all of the stock of said corporation was voted in favor of the following proposition, duly submitted, to-wit: “To increase the capital stock of said company from three million dollars to four million five hundred thousand dollars,” and “that all of the capital stock so increased, that is, one million five hundred thousand dollars, of the par value of one hundred dollars per share, should be second preferred stock, bearing cumulative dividends at tbe rate of six per cent per annum, payable semiannually out of tbe net earnings of the company in any one year after tbe payment of cumulative dividends at tbe rate of seven per cent per annum on tbe first preferred stock of tbe company and before tbe payment of any dividend on tbe common or general stock of tbe company, and that upon dissolution or liquidation of said corporation said second preferred stock should be paid out of its assets at tbe face value to tbe holders thereof, after tbe payment of tbe first preferred stock of said company at its face value and before any payment is made of tbe common stock of said company.”

On the same day a statement of tbe proceedings of said meeting, showing a compliance with tbe provisions of article 9, chapter 12, Revised Statutes 1899, was made out, as required by sections 1329 and 1333 of said article, signed and verified by tbe affidavit of tbe chairman and countersigned by tbe secretary, was duly acknowledged by tbe chairman and recorded as provided by section 1329 of said article, and, thereafter, on tbe 11th day of January, 1906, a certified copy of said statement was filed in tbe office of tbe Secretary of State, and the tax for said increase, amounting to $750, and tbe fees ’of the Secretary of State for issuing thereon tbe certificate required by said section 1329, was paid into tbe state treasury; and thereupon tbe respondent issued a certificate to tbe relator, setting forth that on that day there was filed in tbe office of tbe Secretary of State a duly certified copy of tbe proceedings of a meeting held for tbe purpose of increasing tbe capital stock of tbe Ely & Walker Dry Goods Company, and that said corporation bad in all things complied with tbe law made and provided for tbe increase of capital stock, and bad increased its capital stock from three million dollars to four million five hundred thousand dollars.

Tbe statement aforesaid omitted from tbe proposition adopted tbe following provision, “that upon dissolution or liquidation of said corporation said second preferred stock should be paid out of its assets at the face value to the holders thereof after the payment of the first 'preferred stock of said company at its face value and before any payment is made of the common stock of the company. ”

Immediately upon the discovery of the said error in said statement, the chairman and secretary of said meeting, on the 13th of January, 1906, made a new and amended statement of the said increase of the capital stock of said company, which was duly verified by the affidavit of the said chairman, and acknowledged by the chairman and secretary of said meeting, setting forth correctly and in full the proposition adopted at said stockholders ’ meeting, which said statement of increase of stock was filed in the office of the recorder of deeds of the city of St. Louis on the 13th day of January, 1906, and a certified copy thereof made by said recorder of deeds on said 13th day of January, 1906, which said certified copy was delivered to the respondent, Secretary of State, on the 16th day of January, 1906, with the request that it be filed in his office in accordance with the statutes in such case made and provided, and that a new certificate be issued thereon by said respondent, Secretary of State, of the said increase of the capital stock of relator, in accordance with the statements in said certified copy of the statement of increase of stock so delivered to him, and at the same time there was tendered to respondent, Secretary of State, a check for one dollar and twenty-five cents, payable to the order of J. F. G-melich, State Treasurer, for the fees of the Secretary of State for the issuance of a certificate of increase of stock, in accordance with the statutes in such case made and provided.

The Secretary of Sta,te declined to receive and file this amended statement and issue a certificate thereon, and a like request accompanied by a return of the first certificate by relator for cancellation having been again refused on the 18th of January, 1906, the alternative writ herein was sued out, for return to which the respondent demurs to the petition and the writ.

By an act of the General Assembly, approved April 9, 1901 (Laws 1901, p. 91), section 1332, supra, was amended, so that it became necessary in increasing the relator’s capital stock that the stockholders should not only determine whether the increase should be preferred stock, the amount, number of shares, the price per share, and the character thereof; as required in the original section, but that they should also determine whether dividends “shall be cumulative or not, and what priority, if any, any class of such perferred stock shall have over the common stock or other preferred stock out of the assets of the corporation in case 'of its ■dissolution or liquidation. ’ ’

And section 1333, supra, was so amended that the statement required by section 1329 shall set forth not only the amount and number of shares, the price per share of such preferred stock, and the rate of dividend to be paid thereon, as required in the original section, but also “the preferences, priorities, classification and character thereof.”

All the requirements of section 1332 as thus amended were complied with and appeared upon the face of the record of the proceedings of the stockholders ’■ meeting, and such compliance was made manifest to the Secretary of State by the statement delivered to him on the 16th of January, 1906, duly authenticated and recorded in the office of the recorder of deeds of the city •of St. Louis on the 13th of January, 1906; and having theretofore fully paid the tax on the increased stock and the fees therefor, the relator was entitled to have that statement filed and a certificate thereon issued. The fact that a prior certificate had been issued upon a partial and insufficient statement ought not to deprive the relator of rights acquired by the action of its stockholders in strict conformity to the law, and such would be the effect of the Secretary of State’s refusal; for, unless his certificate was based upon a statement showing that the requirements of the statute had been complied with, no lawful increase of the relator’s capital stock would appear, and such lawful increase could not take effect until such certificate was issued. [Laws 1903, p. 123.] Hence, the peremptory writ should go, as prayed for, and it has been so ordered.

All concur.


text:
    HUTCHINSON et al., Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY.
    In Banc,
    March 30, 1906.
    1. NEGLIGENCE: Failure to Ring Bell: Train Seen. A failure to ring the bell of a train approaching a crossing, though an act of negligence, is immaterial, if the traveler saw the train.
    2. -: Contributory. A traveler, knowing & train was approaching and in close proximity to her, stepped upon the track in front of the engine when it was but a few feet from her, and while pausing there for a moment to pick up something she had dropped was struck and killed. Held, that she was guilty of such contributory negligence as authorized a verdict for defendant, notwithstanding defendant’s negligence is undisputed.
    Appeal from St. Charles Circuit Court. — Eon. E. M. Hughes, Judge.
    Affirmed.

      A. JR.. 'Taylor for appellants.
    (1) On the undisputed evidence the verdict should have been for plaintiffs. This court has repeatedly held that where there is no evidence to support the verdict, the court will set it aside. Sharp v. Railroad, 161 Mo. 236; Tanner v. Railroad, 161 Mo. 511. In each of these eases'the court, in the face of the jury’s verdict that there was no contributing negligence, found that there was such contributing negligence and set the verdicts aside. In this case there was, we submit, a total absence of evidence of contributory negligence. The deceased was at the station of the defendant, where it received passengers, having already bought her ticket entitling her to be a passenger on defendant’s train. She, was a passenger and entitled to the high care due a j)a"ssenger from the carrier whilst passing from the /Waiting room across the tracks to the place where the defendant invited its passengers to take its trains. Hutchinson on Carriers of Passengers (2 Ed.), sec. 557, citing Railroad v. Perry, 58 G-a. 461. Even if waiting at a station to become a passenger and before purchasing a ticket, a party is a passenger and entitled to the care for his safety owed by the carrier to a passenger. Hutchinson on Carriers of Passengers (2 Ed.), sec. 559, citing Caswell v. Railroad, -98 Mass. 194; Ray on Neg. and Imp. Duties, p. 5; Weller v. Railroad, 164 Mo. 199. (2) Negligence and contributory negligence have the same identical elements. To run a train past a station where passengers should be expected to be gathering has been declared by courts of high respectability to be gross negligence. Terry v. Jewett, 84 N. Y. 338; Brassfield v. Railroad, 84 N. Y. 241. A failure to anticipate a violation of the ordinances, as to speed and bell, cannot be imputed as negligence. Every citizen has a legal right to expect obedience to the law by every other citizen, including railroads, and to act on this assurance. This is a rudimental condition of civilization. No one is negligent for failing to anticipate that another will violate the law. Petty v. Railroad, 88 Mo. 319; Eswin v. Railroad, 96 Mo. 295; Shearman & Red-field, Negligence (3 Ed.), see. 31; O’Connor v. Railroad, 94 Mo. 157; Crumpley v. Railroad, 111 Mo. 158; Kilny v. Railroad, 101 Mo. 77; Gf-ratiot v. Railroad, 116 Mo. 464; Sullivan v. Railroad, 117 Mo. 222; Hutchinson v. Railroad, 161 Mo. 256; Weller v. Railroad, 164 Mo. 199.

      Henry G. Herb el and Martin L. Clardy for respondent.
   BRACE, C. J.

— The plaintiffs are minors suing by their next friend to recover the statutory damages of $5,000 for the death of their mother, who was a widow, and whose death, it is alleged, was caused by the' negligence of the defendant. '' v

The verdict and judgment below was for the de\ fendant, and the plaintiffs appeal.

This is the second appeal in this case. On the first trial a demurrer to the plaintiffs’ evidence was sustained in the trial court, and the plaintiffs appealed. On that appeal we held that the instruction in the nature of a demurrer to the evidence ought not to have been given, and for that error reversed the judgment of the circuit court and remanded the case for retrial in accordance with the law as declared in the opinion then handed down. [161 Mo. 246.] The case was retried on the same pleadings and on substantially the same evidence as before. A full and accurate statement of the case will be found in the former opinion and need not be repeated here. Ou the retrial all the evidence offered for the plaintiffs was admitted and all the instructions asked for them given, and of those given for the defendant the only one excepted to is the following:

“The court instructs the jury that the purpose of the law in requiring the bell of the engine to be sounded is to warn persons of the approach of the train; when they see or hear a train approaching, then the fact that they do not hear the engine bell, or the fact that such bell is not sounded, is immaterial. In this case, the jury are instructed that the evidence shows that Mrs. Hutchinson knew the train was approaching when she attempted to cross the tracks, and, therefore, the fact, if it he a fact, that the hell was not sounded cannot be considered by the jury.”

In the first paragraph of the former opinion it was expressly ruled that “the fact, if it be a fact, that the engine bell was not rung as the statute requires, is immaterial under the other facts of the case. The object of ringing the bell is to give notice of the approach of the train; but in this instance that was unnecessary, because Mrs. Hutchinson heard and recognized the whistle and saw the headlight; she knew the train was coming, and required no further warning. The failure to ring the bell, though an act of negligence, could not have contributed to the catastrophe.”

The instruction was not only in strict conformity .to the- ruling on the former appeal in this case, but to the rulings in many other like eases. [Moody v. Railroad, 68 Mo. 470; Rine v. Railroad, 88 Mo. 392; McManamee v. Railroad, 135 Mo. 440.]

There was no error in giving this instruction, and, as this is the only error assigned in the trial of the cause, it would seem that in finding there was no error in this respect, in the ordinary course of things the end of the case would have been reached and nothing would remain to be done except to affirm the judgment.

Nevertheless, it is stoutly insisted by counsel that the judgment ought to be reversed and a judgment for the plaintiff directed, notwithstanding the verdict, for the reason that the uncontradicted evidence showed gross negligence on the part of the defendant and there was not a scintilla of evidence tending to prove contributory negligence upon the part of the deceased.

In view of the history of this case, this is a remarkably proposition. The negligence of the defendant through the whole of that history has been practically undisputed. The sole bone of contention has been the contributory negligence of the deceased. It was so palpable and overwhelming to the mind of the learned judge who first tried the case that he sustained a demurrer to the evidence. It was so manifest to the mind of three of our associates when that ruling came before us on the first appeal that they were of the opinion that the trial judge correctly sustained the demurrer. Nine of the twelve jurors who tried the case below found the fact so to be and the judge before whom it was last tried sanctioned their verdict. And yet according to this contention there was not a scintilla of evidence upon which these numerous minds of different experiences and varied accomplishments based their conclusion. The proposition is, however, still more remarkable in face of the undisputed facts that this unfortunate lady, knowing that the train was approaching and in close proximity to her, stepped upon the track in front of the engine and when it could have been but a few feet distant from her, and, while pausing there for a moment to pick up something that she had dropped, was immediately struck and killed. To say under such circumstances there was not a scintilla of evidence that she was guilty of contributory negligence is preposterous. In the light of these facts and in view of the history of the case, a review of the specious reasoning that attempts to sustain such a conclusion is unnecessary.

The judgment of the circuit court is affirmed.

All concur.


text:
    THE STATE ex rel. McANALLY v. GOODIER et al.
    In Banc,
    March 30, 1906.
    1. PHYSICIAN: Certificate: Revocation. Under the act of 1883 a physician who had been practicing medicine for a period of more than five years before the law was enacted, was not required to have a certificate from the State Board of Health to entitle him to practice medicine. But if such physician, of his own volition, applied for and obtained such a certificate, he may be cited by the board to appear and show cause why the certificate should not be revoked. And if the board finds him guilty of unprofessional or dishonorable conduct, it may revoke the certificate, leaving him in full possession of what the law gives him independent of the certificate.
    2. -: -: -: Witnesses. The State Board of Health is not a judicial body, and can.issue no subpoenas for witnesses nor compel their attendance upon a hearing held to determine whether or not the certificate of a physician authorizing him to practice medicine shall be revoked. But the board cannot- revoke the license except for cause and after the accused has had an opportunity to be heard.
    3. STATE BOARD OF HEALTH: When Courts Will Interfere. The duties of the State Board of Health are of an administrative or ministerial character, and as long as its acts are within the scope of the exercise of a reasonable discretion it is free to act.
    4. -: -: Prohibition. The writ of prohibition cannot be used to compel such a ministerial body as the State Board of Health to keep within the lines of its statutory duties. That writ goes only against a court or a tribunal exercising judicial functions. The writ of mandamus is the one usually employed to right the wrongs of a ministerial body.
    Prohibition.
    Writ denied.

      Hensley & Bevelle for relator.
    (1) Relator having registered under the act of 1874, and the provisions of all subsequent regulation having been made by express statutory provisions not applicable to physicians who registered under the act of 1874, the statute subsequently enacted, conferring on the State Board of Health the power to revoke certificates, cannot apply to relator. Laws 1874, p. Ill; Laws 1877, p. 343, sec. 1; Laws 1883, p. 115, sec. 2; Laws 1901, p. 207, sec. 1; State v. Morgan,. 96 Mo. App. 343; State v. Hathaway, 115 Mo. 37; State ex rel. v. State Board of Health, 136 Mo. 633. (2) The power of the State Board of Health to revoke certificates according to the present statute is bottomed upon a condition precedent, that condition being that they first give the accused an opportunity to be heard in his defense, and yet the statute does not provide any means for the board’s fulfilling this condition. The statute is therefore incomplete and uncertain, and the power to revoke is unenforcible. (3) If by implication the board has the means and power to perform this condition and give the accused an opportunity to be heard in his defense, subpoena witnesses and compel their attendance and convict or acquit relator of the charges filed, then they are exercising judicial power, and the statute under which they operate is in violation of section 1, article 6, of the Constitution of Missouri. State ex rel. v. Ryan, 182 Mo. 349. (4) If respondents have the power under the statute to revoke relator’s authority to practice medicine without first giving him an opportunity to fully defend himself against said charge, then the statute is obnoxious to section 4 of the Bill of Rights. (5) Respondents, in threatening to revoke relator’s authority to practice medicine in Missouri and not having this power, are acting in excess of their jurisdiction, and prohibition is the proper remedy. State ex rel. v. Elkin, 130 Mo. 90; State ex rel. v. Talty, 166 Mo. 529; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Eby, 170 Mo. 525; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Walls, 113 Mo. 42.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondents.
    (1) Judge Cooley says: “No one has any right to practice law or medicine except under the regulations the State may prescribe.” Cooley on Torts, pp. 289 and 290; Tied, on Lim. on Police Power, sec. 87; Wharton on Medical Jur., sec. 434. Our courts have held that various occupations, such as those of a plumber, a barber and a laundryman in certain parts of a city, are matters which the State may regulate, such regulation being within the police power of the State. Barbier v. Connolly, 113 U. S; 27; People ex rel. v. Wardens, etc., 144 N. Y. 529; Singer v. State, 72 Md. 464; Ex parte Lucas, 160 Mo. 213. And it was also held that the practice of dentistry was not a right possessed by the citizen, but that the State could prescribe certain requirements before permitting the individual to engage in said calling. Wilkins v. State, 113 Ind. 514; Goshnell v. State, 52 Ark. 228; State ex rel. v. State Bd. Med. Ex., 34 Minn. 387. All the courts recognize the power of the State Board of Health to revoke a physician’s license, but such revocation must be for some act that would in common judgment be deemed unprofessional or dishonorable, and not from mere caprice or without any cause. People ex rel. v, McCoy, 125 111. ; State v. Schultz, 11 Mont. 429; State v. Hathaway, 115 Mo. 47. The granting of a license to an applicant requires that the Board of Health shall pass on his moral as well as scientific qualifications; hence, it has been decided that said board will not be compelled to issue such a license, as its decision thereon involves a matter that is judicial in its nature. State ex rel. v. Gregory, 83 Mo. 123; State ex rel.v. Med. Ex. Bd., 32 Minn. 324; People ex rel. v. Dental Exm., 1101 111. 180'; State ex rel. v. Lutz, 136 Mo. 633; State ex rel. v. St. Bd. of Health, 103 Mo. 28. (2) The same section of the statute that gives the State Board of Health the right to inquire into the moral standing of an applicant gives that same board the right to revoke the license in the event he has been guilty of unprofessional or dishonorable conduct. Sec. 8514, R. S. 1899. That a State may pass a law providing that a physician, who is guilty of unprofessional or dishonorable conduct, may have his license revoked, has been decided by our courts of last resort. Hawker v. New York, 170 U. S. 189; Traer v. State Bd. Med. Ex., 106 Iowa 559; Wharton on Medical Jur., sec. 449 ; Meffert v. State Bd. Med. Reg., 66 Kan. 710. (3) Much is said in relator’s brief in reference to the failure and refusal of the secretary of the State Board of Health to issue a subpoena for relator’s witnesses. As no authority is given that officer to issue subpoenas, as the issuance of such process and the failure to obey same would not entitle relator to an attachment, the secretary was justified in refusing to issue the same. But even if the secretary was in error, even if he omitted to do an act which it was his duty to do, for that failure relator has another and adequate remedy. Such a failure would not deprive respondents of their right to proceed to hear the complaint, nor rob them of their jurisdiction to decide said case. No person, no matter how long he has been in the practice of his profession, has a vested right to practice medicine. People v. Phippin, 70 Mich. 6; State v. Dent, 25 W. Va. 1; Bd. of Med. Exm. v. Fowler, 50 La. Ann. 1373; Myer on Vested Rights, sec. 952; Dent v. W. Va., 129 U. S. 123.
   VALLIANT, J.

— Relator holds a certificate issued by the State Board of Health in 1883, which declares that he is legally authorized to practice medicine and surgery in this State. Charges of improper conduct have been preferred against him by a number of citizens of his county and the State Board of Health has cited him to appear before it to answer the charges and show canse why his license or authority to practice medicine and surgery should not be revoked.

After service of the citation on relator'he wrote a letter to the secretary of the board wherein he gave the names and places of residence of a number of witnesses whom he desired to have summoned to testify in his behalf and requested the secretary to issue subpoenas for them. According to the citation the board was to sit in Kansas City at the Midland Hotel, December 20,1905. The witnesses for whom the relator desired to have subpoenas issued resided in Bollinger county. The secretary of the board replied to the letter saying that he had no authority to issue subpoenas and no fund out of which to pay witnesses for their attendance; that so far as the action of the board was concerned the only witnesses that would come before it would come voluntarily, and therefore relator would himself have to attend to the matter of procuring the attendance of his own witnesses. Relator says that after the receipt of the secretary’s reply to his letter he tendered to the desired witnesses their legal fees for one day’s attendance and their legal mileage, but that they declined to go without subpoenas; that he has a good defense against the charges, but cannot present it because he cannot procure the attendance of his witnesses. The prayer of his petition is that a writ may issue directed to the respondents, composing the State Board of Health, prohibiting them from proceeding in the matter.

The return filed by respondents admits substantially the facts stated, and says that in 1883 relator ap-' peared before the board and applied for a license to practice medicine and the same was issued to him; that the respondents composing the board have authity under the law to investigate those charges, to ascertain if they be true or false, and if found to be true to revoke the license, or if to be false to acquit him, and. this they purpose to do.

In Ms reply to the return the relator says, true it is he did obtain from the State Board of Health the license or certificate in question, but that it was not issued to him on his showing of a diploma or on an examination of him by the board, but on the fact that for a period of five years or more before the act of the General Assembly entitled, “An Act to regulate the practice of Medicine and Surgery in the State of Missouri,” approved April 2,1883, had gone into effect, he had been and then was a practicing physician in this State, and was by the terms of the act excepted from its requirements. The above-stated facts are undisputed.

The charges against relator filed before the State Board of Health by citizens of Marble Hill where he resides, were to the effect that he was then and for several years had been in the continuous and almost exclusive occupation of selling intoxicating liquors without a license and without a prescription in a drugstore kept by him; that he sells liquors to be drunk on the premises; he sells every day in the week, Sunday included, and that he sells to minors, that he conducts the business in open defiance of the law, and that it constitutes a public offense.

It appears from a stipulation filed herein that relator had been practicing medicine in this State since 1867, and duly registered as such under the act of 1874, which required such registration. His affidavit on file says that he applied to the State Board of Health in 1883 for the license or certificate which was issued to him, because he had been advised (he does not say by whom) that it was necessary, to have such a certificate, not knowing then, as he has since learned and now asserts, that he was entitled to practice without such certificate.

Under the act of 1874 no one was to be allowed to practice medicine or surgery in this State unless he had been graduated from a medical college or university with the degree of doctor of medicine, and he was required to register his diploma in the county of his residence. But that act excepted from its requirements men who were already engaged in the practice. [Laws 1874, p. 111.]

Under the act of April 2, 1883, it was required of one who shall practice medicine or surgery that he should he a graduate in medicine and exhibit his diploma for examination and verification to the State Board of Health or if he should not be a graduate he should stand an examination before the State Board of Health touching his learning, qualification and fitness to practice that profession.

The act also required the State Board of Health to issue certificates to those measuring up to the requirements of the law; the board were to have two forms of certificates, one for those who were graduates of medical colleges, and the other for those found on examination by the board to possess the necessary qualifications. The holders of these certificates were required to have them registered in the county clerk’s office of the county of their residence.

The eighth section of that act, now section 8514, Revised Statutes 1899, is: “ The State Board of Health may refuse certificates to individuals -guilty of unprofessional or dishonorable conduct, and they may revoke certificates for like causes, after giving the accused an opportunity to be heard in his defense before the board.”

In the eleventh section of the act, now section 8517, Revised Statutes-1899, is this proviso-, “the provsions of this article shall not apply to those persons who have been practicing medicine five years in this State. ’ ’ Under that proviso relator contends that the respondents who now compose the State Board of Health have no jurisdiction over him, no authority to try him on the charges mentioned.

Under the act of 1883, the relator was not required to have a certificate from the State Board of Health to entitle bim to practice medicine, because he had «been practicing for a period moré than five years before the law was enacted. That act prescribed b.ut two forms of certificate, one for the graduate of a medical college, the other for the man found qualified by examination by the board. The relator came within the description of neither the one nor the other, he belonged to a class expressly excepted from the operation of the statute. But he was not satisfied to stand on Ms legal exemption, he wanted a certificate from the State Board of Health to register and to show. Therefore, he applied to the board and obtained a certificate under its official seal and the signature of its officers and members, declaring that he was “legally authorized, under the provisions of the act to regulate the practice of medicine and surgery in the State of Missouri, approved April 2, 1883, to continue such practice.” It is to show cause why the board ought not to revoke that certificate that the relator has been cited to appear before the board.

Under section 8514 the board is not required to issue a certificate to every one who comes with a diploma or who possesses the necessary learning to pass an examination, but in spite of his diploma or of his learning the board may refuse him a certificate if he is guilty of unprofessional or dishonorable conduct. The certificate, therefore, implies not only that the holder is learned in the science, but that he is, from a moral or ethical standpoint, worthy to be trusted.

This relator has seen fit of his own volition to apply to the board for such a certificate, has obtained it, has published it by having it registered in two counties, still holds it, and now maintains that the board has no right to revoke it, even if it should find after investigation that he is morally unworthy to exercise the high calling, because he says the board had no right to issue. it in the first place.

A complaint of that kind does not make a very persuasive appeal for a writ which, after all, is within the sound discretion of the court to issue or refuse, independent of strict technicality, as the very right and justice of the case requires. In this case if the’hoard on investigation should find the relator guilty of the charges preferred, the utmost it could do would he to cancel the certificate that it has itself issued, leaving the relator in full possession of what he now says the law gives him, independent of the hoard, that is, the right to practice medicine on his own merits, hut it would not leave him armed with this certificate of good character from the State Board of Health. The relator has no right to hold that certificate if he is unworthy of the confidence it invites.

The gravamen of the complaint in the petition is that the hoard is going to try him without exercising compulsory process to bring before it the witnesses he needs for his defense. The State Board of Health is not a court, is not a judicial tribunal; it can issue no writ, it can try no case, render no judgment,- it is merely a governmental agency, exercising ministerial functions; it may investigate and satisfy itself from such sources of information as may be attainable as to the truth or falsity of charges of misconduct against one holding one of its certificates, but its investigation does not take on the form or character of a judicial trial. The law does not contemplate that the technical rules of evidence applicable to a judicial trial will be strictly followed or that compulsory attendance of witnesses will be made. It contemplates that a plain, honest, common sense investigation shall be made, with good faith and as thorough as may be with the light of such evidence on either side as is obtainable without process and with the means at hand; much like the investigation that fair-minded intelligent men would make in their own business concerning the alleged misconduct of one of their employees, with this difference only, that the board cannot revoke the license except for cause and after tlie accused has had an opportunity to be heard.

The statute above quoted says the board may refuse to issue the certificate, or may revoke it after it has been issued, if the man is unworthy; this implies that the board may have had some information of misconduct of an applicant which would justify a- refusal to issue the certificate, or after the certificate is issued that would justify its recall, and in either case the board is authorized to act “after giving the accused an opportunity to be heard.” Those are the only words that suggest a trial and they fall far short of a judicial trial. To guard and protect the health and welfare of its people the State must have its ministerial agents or officers and intrust them with power; if every administrative act that looks to the enforcement of the law should be required to be reduced to the compass of a lawsuit and be put into effect only after a court had at the end of a formal trial stamped its judgment upon it, the government would make slow progress. There must be trust reposed somewhere and power to execute the law. The General Assembly has taken great care to secure trustworthy men to perform the duties.that are devolved on the State Board of Health. Section 7519 provides that: “At least five (of the seven) of said board shall be physicians in good standing, and of recognized professional and scientific knowledge, and graduates of reputable medical schools and they shall have been residents of the State for at least five years next preceding their appointment.”

The duties of the board are of an administrative or ministerial character, and therefore as long as its acts are within the scope of the exercise of a reasonable discretion it is free to act. [State ex rel. v. Gregory, 83 Mo. 123.] If perchance, through a misunderstanding of the law, the board should refuse to perform a given duty, the writ of mandamus will right the wrong. [State ex rel. v. Lutz, 136 Mo. 633.] But the writ of prohibition does not go against sneh a body; it goes only against a court or a tribunal exercising judicial functions.

"We have very recently held that a writ of prohibition would not go against the Board of Election Commissioners, because although it exercised a large discretion (in the case there under review having to investigate, and find from the evidence and decide.which of two antagonistic sets of claimants was entitled to recognition as the lawful committee of a political party), yet it was the act of a ministerial and not a judicial body and the act to be performed was not a judicial act. [Kalbfell v. Wood, 193 Mo. 675.]

We have held in reference to a county court, which is a tribunal possessing judicial as well as administrative or executive powers, that in the exercise of the latter the court was not acting in a judicial capacity and therefore the writ of prohibition would not run against it. [State ex rel. v. Clark County Court, 41 Mo. 44; followed in Casby v. Thompson, 42 Mo. 133; Vitt v. Owens, 42 Mo. 512, and Hockaday v. Newsom, 48 Mo. 196.] State ex rel. v. Elkin, 130 Mo. 90, was a suit for a writ of prohibition against a county court, and the distinction was again drawn between the two kinds of functions that such a court exercised, and it was held that whilst the writ of prohibition would not go to restrain its action in a ministerial capacity it would go if the court assumed a judicial function that did not belong to it. The court in that ease, per Barclay, J., said (l. c. 105): “The writ of prohibition is applicable whenever judicial functions are assumed which do not rightfully belong to the person or court assuming to exercise these functions. . It is the nature of the act which determines the propriety of the writ. ’ ’ The language there used is broad enough to mean that if any person or tribunal, though possessing no judicial character at all, should assume to exercise a judicial funetion, the writ of prohibition would be a proper process to prevent the action. That language, however, cannot be taken as a decision of the court to that extent, because the court was reviewing the action of a county court, which, as we have seen, has a judicial side to its composition, and the question then before this court was whether the act of the county court there in question was one that pertained to its judicial or its administrative side. In such case, of course, the nature of the act under review was decisive of that question.

But if we should apply the language just quoted in its broadest sense to the facts of the case at bar, it would not bring the respondents within the range of a writ of prohibition, because the act complained of and sought to be prohibited is not judicial in its character.

In Higgins v. Talty, 157 Mo. 280, charges of keeping a disorderly house had been preferred against a dramshop-keeper, and Higgins, the excise commissioner, had cited him to show cause why his license should not be revoked. The dramshop-keeper applied to a circuit judge for a writ of prohibition against the excise commissioner to prohibit him from trying the accused on the charges, because he said to try him was to exercise a judicial function which under the Constitution could be exercised only by a court. This court, in an opinion by Burgess, J., said (l. c. 291): “The proceeding was merely by way of investigation, and was in no sense, a trial;” that the excise commissioner in proceeding to investigate the charges “was not acting judicially, but under the power conferred upon him by statute with respect to the subject-matter over which he has exclusive control. ’ ’

In State v. Hathaway, 115 Mo. 36, it was expressly decided that the State Board of Health was not a judicial body and that the powers conferred on it by statute were not judicial in character. After referring to the cases of State ex rel. v. Gregory, 83 Mo. 123, and State ex rel. v. State Board of Health, 103 Mo. 22, in which were expressions to the effect that the duties of the hoard were quasi- judicial, it was said hy the court, per Gantt, J.: “There is nothing in either of them which justifies the charge that this court hy its language in those eases recognized that the power conferred upon the hoard of health in any manner trenched upon that jurisdiction conferred hy our Constitution upon the judiciary of this State. ’ ’ And later in the same opinion it is said: “A judicial duty within the meaning of the Constitution is such a duty as legitimately pertains to an officer in the department designated by the Constitution as judicial. And we can hut commend in this connection the language of the same court in Flournoy v. City, 17 Ind. 169: ‘An act is none the less ministerial because the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act. ’ ’ ’

In the ease now before us for judgment we hold that the State Board of Health is not a judicial body, that it has the power to revoke a license or certificate issued hy it if after investigation in which the licensee is afforded an opportunity to he heard it is satisfied that he has been guilty of unprofessional or dishonorable conduct, and that in conducting such investigation (or trial if that term is preferred) it is not assuming to exercise a judicial function; therefore, a writ of prohibition does not lie to prevent the investigation.

Writ denied. Brace, G. J., Gantt, Burgess, Fox and Lamm, JJ., concur; Marshall, J., concurs in the result.