author: VALLIANT, J.

text:
    RICHARDSON, Administrator, Appellant, v. BUSCH.
    In Banc,
    June 30, 1906.
    1. CONVERSION: Title: Authority of Public Administrator. Where the public administrator sues a defendant for damages for having wrongfully converted to his own use certain certificates of stock belonging to a deceased, the issue is the question of title for the thing sued for, and not one of authority in the public administrator to take charge of the estate of a decedent who died in another State. And, therefore, the point of whether or not the public administrator’s authority can be attacked in a collateral proceeding has no place in the case.
    3. -: Pleading: Demurrer: Admission. Where the public administrator’s petition in general words charges conversion, but in addition by specific averments charges how the conversion was accomplished, and that averment is that defendant had in his possession certain certificates of stock in a foreign corporation and delivered them to the decedent’s administrator in the State where decedent died, there is nothing in the petition from which it can be inferred that the certificates were lost to the estate, and hence a demurrer does not admit a state of facts on which defendant would be liable as for conversion.
    3. ADMINISTRATION: Stock: Foreign Corporation: Place of Ownership. Decedent was the holder of 500 shares of stock of a New York corporation, and when the corporation was sued in attachment in Missouri delivered the certificates to defendant to indemnify' him against his liability as surety on the attachment bond. While the attachment suit was pending, decedent died in New York, and plaintiff as public administrator immediately took charge of his estate in Missouri. Thereafter the attachment suit was dismissed, and defendant’s liability on the bond ceased, and plaintiff demanded of defendant the certificates of stock, but defendant refused, and plaintiff sues him for damages as for conversion. Releí, that, the certificates being not the stock but mere evidence of the ownership of the stock, the stock itself was not in Missouri when decedent died, and plaintiff had no right to claim the certificates.
    4. -: -: Place of Ownership. Certificates of stock are only evidence of the ownership of the stock. The stock belongs to the administrator in the State where the owner died. The mere fact that certificates of stock of a New York corporation were in Missouri when the owner died in New York does not give the courts of this State the right to seize that stock. The stock itself, in such case, is beyond the process of the courts of this State. The certificates left in this State could not be applied to the payment of decedent’s debts here or to distribution among his kin.
    5. -: -: Papers: Statute. The word “papers” used in . the statute (sec. 292, R. S. 1899) authorizing the administrator to take charge of the “money, property, papers or other estate” of deceased persons, refers to papers which constitute the assets or part of the assets of the estate-papers in which there is a property value.
    6. -: -: Right to Administer: Debts. The right of the public administrator to take charge of an estate is not dependent on what is to be done with the proceeds at the end of the administration, but on the fact that there was property in this State at the time of his death belonging to deceased. The interests of distributees are as important as those of creditors. The mere fact that debts exist is no ground for administration.
    Appeal from St. Louis City Circuit Court.— Hon. II. D. Wood, Judge.
    Arrirmed.

      Bassieur, Schnurmacher & Bassieur for appellant.
    (1) The authority of plaintiff, as public administrator, to administer the estate and to maintain this action, is not open to collateral attach; the probate court alone has jurisdiction-in a direct proceeding to question his power. Leeper v. Tayior, 111 Mo. 312; Vermillion v. Le Clare, 89 Mo. App. 55. (2). Letters of administration have no extra-territorial force. A New York administrator could not sue in our courts for the possession of the stock nor recover from defendant for conversion thereof. Lie would have no legal capacity to maintain any action whatever in Missouri respecting the stock. Naylor v. Moffatt, 29 Mo. 126; May v. Burk, 80 Mo. 675; McPike v. McPike, 111 Mo. 216; Gregory v. McCormack, 120 Mo. 657; Wolf v. Ins. Co., 75 Mo. App. 306, 22 Am. Big. (Century Ed.) 3311. . (3) A local administrator may pass the legal title to shares of stock in a foreign corporation. Middlebrook v. Bank, 41 Barb. 481, affirmed 3 Abb. App. Dec. 295; Hutchins v. Bank, 12 Met. (Mass.) 421; Luce v. Railroad, 63 N. H. 588; Brown v. Gas Light Co., 58 Cal. 426; In re Navig. Co., 51 N. J. L. 78. (4) While certificates or shares of stock are not, strictissimi juris, negotiable paper, they approximate it as nearly as possible, and a mere delivery of such certificate, properly indorsed, transfers to the assignee the title to the shares anywhere, whether in the domicile of the corporation or elsewhere. Trust Co. v. Lumber Co., 118 Mo. 458; Withers v. Bank:, 67 Mo. App. 115; McAllister v. Kuhn, 96 U. S. 87; Bank v. Lanier, 11 Wall. (78 U. S.) 369; Brown v. Gas Light Co., 58 Cal. 426. (5) The wrongful refusal to surrender the certificates of stock amounted to a conversion by defendant, for which an action will lie. Withers v. Bank, 67 Mo. App. 115; McAllister v. Kuhn, 96 U. S. 87. (6) The following choses in action have been held to be “assets” or “property” or “goods and chattels” sufficient whereon to base the right of ancillary administration: (a) Simple debts owing to the non-resident deceased by debtors within the State where such ancillary administration is applied for. McCarty v. Hall, 13 Mo. 480; Becraft v. Lewis, 41 Mo. App. 546; Equitable Life Assur. Society v. Vogel, 76 Ala. 441; Henderson v. Clarke, 14 Ky. 277; Hyatt v. James, 71 Ky. 9; Still v. Woodville, 38 Miss, 646; Smith v. Monroe, 23 N. C. 345; Appeal of Picquet, 22 Mass. 65; Pinney v. Gregory, 102 Mass. 186; Swancy v. Scott, 28 Tenn. 327; Stearns v. "Wright, 51 N. H. 600; Kohler v. Knapp, 1 Bradf. Sur. 2,41; In re Hopper, 5 Dem. Sur. 242. (b) Specialty debts wherever the specialty may happen to be at the time of the owner’s death. Beers v. Shannon, 73 N. Y. 292; Fletcher v. Sanders, 7 "Dana (Ky.) 351; Grace v. Hannah, 51 N. O. 94. (c) A suit for unliquidated damages pending at the death of the non-resident, even though the suit after-wards result unfavorably. Robinson v. Epping, 24 Fla. 237; Murphy v. Creighton, 45 Iowa 179. (d) The right of action given by statute to an administrator for the death of his decedent by wrongful or negligent act. Morris v. Railroad, 65 Iowa 727; Brown’s Adm’r v. Railroad, 97 Ky. 228; Findlay v. Railroad, 106 Mich. 700; Hutchins v. Railroad, 44 Minn. 5. (e) An insurance policy. Ins. Co. v. Woodworth, 111 U. S. 138; Holyoke v. Ins. Co'., 84 N. Y. 648; Smith v. Ins. Co., 57 Fed. 133; Ins. Co. v. Smith, 67 Fed. 694. And the ancillary administrator, having the right to the possession of an insurance policy on the life of a non-resident, has a superior cause of action to that of the principal administrator. Merrill v. Ins. Co., 103 Mass. 245.

      Finkelnburg, Nagel S Kirby for respondent.
    (1) Doubtless the allegation that defendant “converted” the property is an allegation of fact, just as is an allegation that defendant has “negligently” done a certain act, but where a wrong is charged in general terms, accompanied by a specific statement of acts constituting such wrong, it is a well-settled rule of pleading that the cause of action is limited to the specific acts enumerated. Waldhier v. Railroad, 71 Mo. 515; Hut-son v. Tyler, 140 Mo. 263; Chitty v. Railroad, 148 Mo. 75; Summers v. Ins. Co., 90 Mo. App. 701; Arnold v. Maryville, 110 Mo. App. 260. (2) The stock was assets in New York, where the corporation was organized and the decedent resided, and was not assets in Missouri, where the paper certificate was situated. The result of the authorities may he briefly summarized as follows: As to the situs or corporate stock belonging to a decedent one of the following three propositions is true: 1. The situs is where the corporation is organized. This has the direct support of the following authorities : "Winter v. Louden, 99 Ala. 263; Grayson v. Robertson, 122 Ala. 330; Murphy v. Crouse, 135 Cal. 14; Arnold v. Arnold, 62 Ga. 627; Woerner on Administration (2 Ed.), *451; 13 Am. and Eng. Ency. Law (2 Ed.), 924. 2. The situs is the domicile of decedent. This has the support of the following authorities (cited and apparently relied on by appellant): Middlebrook v. Bank, 41 Barb. 481; Hutchins v. Bank, 12 Met. 421; Luce v. Railroad, 63 N. H. 488; Brown v. Railroad, 58 Cal. 426; In re Cape May Co., 51 N. J. L. 78; but to this extent only, — that in the absence of administration in the State where the corporation is organized, a conveyance by the domiciliary administrator will be recognized and given effect. 3. The situs is where the paper certificates happen to be situated at the time of decedent’s death. This has the direct support of no authorities. Respondent contends that the first proposition is the true one, and that it is in accord with the principles announced by the court of this State in the cases of Armour v. Bank, 113 Mo. 12; Caffery v. Coal Co., 95 Mo. App. 174; McCarthy v. Hall, 13 Mo. 480; In re Ames’ Estate, 50 Mo. 290; Morton v. Hatch, 54 Mo. 411; Becraft v. Lewis, 41 Mo. App. 546. But it makes no difference, so far as this case is concerned, whether the first or second be adopted. In either event, the situs of the stock is in New York, the domicile of both the decedent and the corporation. (3) If anything can be regarded as settled, both in this State and elsewhere, it is the proposition that the situs of a simple contract debt evidenced by a negotiable instrument, is where the debtor resides, and not where the instrument is found. McCarthy v. Hall, 13 Mo. 480; In re Ames’ Estate, 52 Mo. 290; Morton v. Hatch, 54 Mo. 411; Becraft v. Lewis, 41 Mo. App. 546. If this is true, it is difficult to understand how the mere presence of the note in this State could constitute assets, the title to which vested in the ancillary administrator; how á denial of the ancillary administrator’s non-existent title could constitute a conversion; how Busch’s surrender of the evidence of title to the persons in whom the title was vested, and his refusal to surrender it to the person in whom no title was vested, could constitute a wrong to the latter. Hammond v. Hastings, 134 U. S. 401.
   VALLIANT, J.

The petition states that the plaintiff is the public administrator in the city of St. Louis, and that in that right he has taken charge of the estate of John C. De La Vergne, deceased, who at the time of his death was a resident of the State of New York; that De La Vergne in his lifetime, being the owner of 500 shares of stock in a New York corporation called the De La Vergne Befrigerating Machine Company, evidenced by two certificates for 250 shares each, delivered those certificates to the defendant Busch to indemnify him against his liability on a bond for $24,000 which he had signed as surety for the De La Vergne corporation at the request of De La Vergne in an attachment suit in the city of St. Louis against the corporation; that while the attachment suit was pending De La Vergne died in New York and plaintiff in his official capacity as public administrator immediately took charge of the De La Vergne estate in Missouri; that thereafter the attachment suit was dismissed and Busch’s liability on the bond ceased; that thereupon the plaintiff demanded of Busch the certificates of stock, but Busch refused to deliver the same “and wrongfully converted the said certificates and shares of stock to his own use,” to the plaintiff’s damage in the sum of $50,000, for which sum he asks judgment. The court sustained a demurrer to the petition and the plaintiff declining to plead further, judgment for defendant was entered, and plaintiff appealed.

I. The first point made in the brief of appellant is that his authority as public administrator to take charge of the estate of the deceased De La Yergne cannot be questioned in a collateral proceeding. That is a correct statement of the law, but that rule of law is not involved in this case. The defendant is not in this case denying the authority of the plaintiff to sue for and recover anything that the deceased De La Yergne left in the way of an estate in Missouri, but he is denying that the stock in the New York corporation of which he holds the certificates was ever in Missouri and therefore he says that it does not belong to the Missouri administrator. It is a question of title to the thing sued for, not the official character of the plaintiff.

II. It is also said that the petition charges a conversion of the stock and, it is argued, the legal effect of that act was to change the character of the asset from stock in the corporation to a right of action for the tort, and that right of action exists where the wrongdower is found.

It is true the petition charges in general words a conversion of the stock, but in addition to the general charge it specifies how the act of conversion was done, and from the specific averments we find that the only thing the defendant ever had in his possession was the certificate of the stock, and what the plaintiff construes to be conversion consists alone in the refusal of the defendant to deliver to him the certificate when demanded. There is nothing stated in the petition from which the inference can be drawn that the defendant ever made any such use of the certificate as that the stock itself was lost to the estate. If the averments in the petition relied on to constitute a conversion really have that legal effect, then the conversion would be complete even though the fact were that the defendant had delivered the certificate to the New York administrator and that fact would be no defense to this action.. Unless, therefore, we are prepared to hold that, even though the defendant gave the certificate to the New York administrator (and that fact in the oral argument was admitted), still he was guilty of conversion of the stock, we cannot hold that the demurrer to this petition admits a state of facts on which the defendant would be liable as for conversion.

III. The real question in this case is, was this stock in Missouri when De La Vergne died? The certificate was here and in the hands of the defendant and that is the only fact on which the plaintiff relies to sustain his claim. The corporation was in New York.

To the learning and industry of counsel on both sides of this case we are indebted for an array of all the principal authorities supporting their respective contentions. We will not attempt a review of the authorities discussed, but will be content with citing some of them, referring the inquirer to the briefs themselves, which will be reported, for further light.

To the general proposition that the certificate is not the stock but the mere evidence of the ownership of the stock there is no denial. [Cook on Corporations, sec. 485; Thompson on Corporations, sec. 2348; Armour Bros. v. Bank, 113 Mo. 12; Caffery v. Coal Min. Co., 95 Mo. App. 174; Jellenik v. Huron Copper Co., 177 U. S. 1.]

In Armour Bros. v. Bank, above cited, this court laid down the principle which practically settles the law of this case. In that case the bank held in St. Louis, as custodian for the owner, certificates of stock in a Texas corporation; in a suit by attachment against the owner a writ of garnishment was served on the bank aimed to attach the stock; the conrt held that the stock was not attached. The court rested its decision on two propositions: first, that our statute prescribing the mode of serving writs of attachment and garnishment to reach stock in a corporation was intended only to reach stock in a domestic corporation, and no method was prescribed for reaching stock in a foreign corporation; second, that the stock itself was not within the State although the certificate was here. In discussing the second proposition the - court, after quoting from some decisions, said : “But be that right what it may, certificates of stock are not the stock itself — they are but evidence of the stock; and the stock itself cannot be attached by a levy of attachment on the certificate. As was well, said by the Supreme Court of Pennsylvania, Stock cannot be attached by attaching the certificate any more than lands situated in another State can be attached by an attachment in Pennsylvania served on the title deeds to such land.’ ” [Christmas v. Biddle, 13 Pa. St. 223.] In that case a man in Mississippi had sent to a bank in Philadelphia for sale certificates of stock in a Mississippi corporation; in an attachment suit against the owner an attempt was made to levy on that stock by seizing those certificates and the court held that it could not be done, using the language above quoted.

Our process cannot reach beyond our state boundaries, and, as suggested in the quotation from the Pennsylvania court, if our General Assembly should pass an act essaying to authorize the levy of execution on land in another State by seizing the title deeds that happened to be within our borders, the act would be unavailing. If the real thing that is sought to be taken hold of by the process is not in Missouri it is beyond our reach, and for that reason doubtless our Legislature has never attempted to prescribe a mode for levying an attachment on stock in a foreign corporation. The court in Armour v. Bank, above mentioned, was, therefore, not content to rest the decision alone on the fact that there was no statute directing a method of attaching stock in a foreign corporation, but it declared the fundamental doctrine that the res was not within our borders.

In Jellenik v. Huron Copper Co., 177 U. S. 1, there was the converse of the case before us; that suit was brought in the United States Circuit Court for the Western District of Michigan; the subject-matter of the suit was stock in a Michigan corporation, the owners of the stock and holders of the certificates lived in Massachusetts, and it was contended that since they were not within the Western District of Michigan and were personally beyond the reach of process, the court had no jurisdiction of the case; but it was held that the stock was in Michigan and the court could there lay its hands on the thing in controversy, and having done so it acquired jurisdiction and could bring the owners in by publication. In its opinion the U. S. Supreme Court said (1. c. 13): “The certificates are only evidence of the ownership of the shares, and the interest represented by the shares is held by the company for the benefit of the true owner. As the habitation or domicile of the company is and must be in the State that created it, the property represented by its certificates of stock may be deemed to be held by the company within the State whose creature it is, whenever it is sought by suit to determine who is its real owner.”

If the property is not here so that it can be reached by the process of a court of general jurisdiction, how can it be taken hold of by a court of limited or special jurisdiction?

In In re Est. Ames, 52 Mo. 290, the administratrix had inventoried the debts due the estate not only in Missouri but in Mississippi also and had, under an order of the probate court of St. Louis county, sold the whole list. It was held that the sale was void in so far as it attempted to cover the debts outside of Missouri. The court said: “The question here, however, is a question of jurisdiction over such assets after the death of the surviving partner. In such case fiction gives way to truth, and the real situs can and must be inquired into.” For further authorities on this point we refer to the brief-of counsel for respondent.

In our statutes on the subject of the administration of estates of deceased persons there is nothing to indicate a purpose to reach beyond our limits or to authorize an administration founded on fictitious assets.

Section 292 of our laws of administration declares it to be the duty of the public administrator “to take into his charge and custody the estates of all deceased persons: . . . in the following eases: . . . fourth, when money, property, papers or other estate are left in a situation exposed to loss or damage, and no other person administers on the same,” etc. The word “papers” used in that clause refers to papers which constitute the assets or a part of the assets of the estate ; in other words, papers in which there is a property value. The language is “papers or other estate.” It was not the intention of the lawmakers to authorize the public administrator to take charge of anything that was not in the nature of property or assets. If the deeased left nothing in this State that could be applied to the payment of debts or to distribution among his next of kin there is nothing here to administer.

It is alleged in the petition that debts to a large amount have been established and allowed against the estate in the probate court here, but that fact is of no influence at all. The public administrator would have as much right to take charge of property or assets here if there were no debts as he would if there were debts, the interests of the distributees are as important as those of the creditors. The plaintiff has added nothing to his case by stating in his petition that debts have been proven against the estate. His right to administer depends not on what is to he done with the property at the end of the administration, but on the fact that there was property or assets in this State belonging to the deceased at the time of his death.

A certificate that a certain person owns so many shares of stock in a corporation is bnt evidence of that fact, it is not the shares of stock. The thing of value is the stock, the thing that De La Yergne in his lifetime owned was the stock, and if that was in New York at the time of his death, it cannot be made the basis of an administration in this State even if our statute essayed to make it so.

If a chattel mortgage is executed on personal property which is in New York the presence of the paper writing in this State does not constructively bring the property within our jurisdiction. In such case if one holds the mortgage here he may thereby acquire an interest in the property, but to realize the interest he must go into the State where the property is.

If a cargo of grain is shipped from St. Louis to New York the bill of lading may be retained here and may be sold for value, but the thing sold is not the hill of lading, but the cargo of grain which it represents and if that should be destroyed the only thing that is of property value is destroyed, though the bill of lading is safe, and if the holder of the bill of lading is entitled to recover of any one for the destruction, it is for the destruction of the grain. But if the bill of lading should be destroyed, the owner loses no property, he is only deprived of the best or most convenient evidence of his title.

The chattel mortgage may be hypothecated and so may the bill of lading, but the delivery of such a collateral is only a symbolical delivery of the property which it calls for, so also it is with a wárehouse receipt.

In the case at bar suppose while this certificate of stock was in the hands of the defendant it had been destroyed by an accidental fire and that that was the condition when the pledgor died, then where was the property? Could a Missouri administrator have acquired any right to administer on the stock which was then in New York? Stock in a corporation is the right of the owner to share in the profits of the operation of the corporation or in the proceeds of its property. That right may exist in one who has subscribed and paid for the stock although no certificate has been issued to him. The situs of the interest is the situs of the corporation.

The fact that certificates of stock are handled in every-day commerce and treated as the stock itself does not alter the fact that it is merely the representative of the stock and the evidence of ownership.

There may possibly be a value in the certificate itself apart from the value of the stock which it represents, on the same theory that there may be a value in the title papers to other kinds of property apart from the value of the property itself to which they relate. But that value is only estimated in the light of the convenience of such papers as evidence. If a party wrongfully obtains or retains possession of such papers the owner of the property might have his action to recover their possession or damages for their detention, but such damages, if recovered, are no part of the value of the property to which the title papers relate. And no one could maintain such a suit except the owner of the property. Ownership of the title papers is incident only to ownership in the property.

If this were a suit to recover for the loss or destruction of the certificate, that is, the title paper to this stock, brought by the owner of the stock, a different question would arise.

As we understand the theory of the plaintiff’s case he is seeking to recover, not the mere value of the paper as evidence, but the value of the stock itself; his position is .that the certificate is the stock, but in that he is mistaken; the stock is in New York and belongs to the administrator there. Right to the possession of the title paper is incident to the ownership of the property.

In the brief for the Missouri administrator in this case it is said that “the contention of the New York administrator if followed to its logical conclusion would lead to strange results, ’ ’ because if, when the Missouri administrator calls on Mr. Busch to deliver to him the certificate, he could lawfully refuse to do so on the ground that it belonged to the New York administrator as an incident to the ownership of the stock, and if, when the New York administrator made a like demand he should again refuse, there would be no way of compelling him to surrender it, because a New York administrator could not maintain a suit in Missouri.

Whether if the defendant had refused to deliver the certificate to the New York administrator the latter could have maintained a suit here to recover the same we are not called upon to say in this case. We frequently hear it said that a foreign administrator, as such, cannot maintain a suit in the courts of this State. That is true as a general rule and is true as applied to the facts of the cases in which that expression is found in our hooks; hut the language used is not entirely accurate and does not express exactly what we mean in the ordinary use of it; what we really mean to say is that an administrator appointed in another State does not, by virtue of his appointment, acquire title to personal property which the intestate left at his death in this State. He cannot maintain a suit here for such property for the simple reason that he has no title to the property, not because the doors of our courts are closed against him, for the doors of our courts are open to every one to sue and recover in this State for anything that belongs to him that is here wrongfully detained by another.

Judge Stort has said: ‘ ‘ And here it may he necessary to attend to a distinction important in its nature and consequences. If a foreign administrator has, in virtue of his administration, reduced the personal property of the deceased, there situated, into his own possession,' so that he has acquired the legal title thereto according to the laws of that country; if that property should afterwards be found in another country, or be carried away and converted there against his will, he may maintain a suit for it there in his own name and right personally, without taking out new letters of administration; for he is, to all intents and purposes, the legal owner thereof, although he is so in character of trustee for other persons.” [Story on Conflict of Laws (8 Ed.), sec. 516.]

A man owns a farm just across our line in Kansas on which he has a herd of cattle, he dies and an administrator is appointed and qualified in Kansas and takes possession of the estate, the legal title to the herd of cattle vests in the Kansas administrator, but some one leaves the gate open and the cattle stray across the line into Missouri and some one here takes possession of them, does the act of the cattle in straying across the line extinguish the title of the Kansas administrator, or are the doors of our courts closed against him if he seeks to recover his own? That question is not in this case, nor is the New York administrator here suing Mr. Busch for the possession of the certificates, so we need not say what we would do if the New York administrator had been compelled to sue here for possession of these certificates. - -

Our conclusion is that the stock was never in Missouri; therefore, the Missouri administrator never acquired any title to it. The judgment is affirmed.

All concur, except Lámm, J., who dissents.


source: Caselaw Access Project

license: Public Domain

text:
    DE LA VERGNE v. RICHARDSON, Administrator, Appellant.
    In Banc,
    June 30, 1906.
    ADMINISTRATION: Certificates: No Assets. Certificates of stock of a New York corporation, assigned by the owner; a resident of New York, to a citizen of Missouri, as collateral security, and held by him at the time of the owner’s death in New York, after which the citizen’s liability ceased, are not-assets of the . estate, but simply evidence of the ownership of the stock, which is in New York. And if there are no other assets of decedent’s estate in Missouri, as shown by the inventory, however large the debts proved here against the estate, the administration here should be dissolved.
    Appeal from St. Lonis City Circuit Court. — Ho». Franklin Ferriss, Judge.
    Affirmed.

      Rassieur, Schnurmacher é Rassieur for appellant.

      Nagel & Kirby- for respondent.
   VALLIANT, J.

This proceeding comes from the same state of facts that constitute the controversy in the case of Richardson, Administrator, v. Busch, just decided, and reported at page 171 of this volume, and differs from that case only in the character of the litigation.

Here the widow of the deceased De La Vergne and others interested in the estate in New York have come into the probate court in the city of St. Louis and moved to revoke the authority of Richardson to administer on the estate of De La Vergne because as shown by the inventory of the administrator filed the two certificates of stock in question in the case of Richardson v. Busch constitute the only items that are claimed by the administrator to belong to the estate in Missouri, and that therefore there is nothing in this State to administer. The cause was certified to the circuit court where it was tried' and submitted for judgment on an agreed state of facts, which showed among other things that there was never any estate in Missouri belonging to De La Yergne unless these two certificates of stock were such and that Mr. Busch had delivered them to the New York executors, and they were there included in the inventory of the executors. There was evidence of debts proven against the estate in St. Louis. The circuit court rendered judgment sustaining the motion to revoke and annul the authority of Richardson as administrator of the estate of De La Vergne, and from that judgment Richardson brought this appeal.

For the reasons stated in the opinion in the case of Richardson v. Busch, above mentioned, the judgment in this case is affirmed.

All concur, except Lamm, J., who dissents.


author: GRAVES, J.

text:
    SUBLETTE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    June 30, 1906.
    APPELLATE JURISDICTION: Constitutional Question. Tbe Supreme Court does not obtain jurisdiction of an appeal by an averment in the pleadings that a former decision of the Court of Appeals in the same cause, in construing certain statutes, was in violation of the Federal and State constitutions. A constitutional question cannot be raised in that way.
    Appeal from St. Louis County Circuit Court. — film John W. McElhinney, Judge.
    TrANSFEBED TO ST. LOUIS COURT OF APPEALS.

      Geo. S. Grover for appellant.

      D. C. Taylor and B. II. Stevens for respondent.
   GRAVES, J.

This is the second time this case, or some phase of it, has broken through the portals and gotten into this court. It first came from Adair county and was by this court certified to the Kansas City Court of Appeals. [76 Mo. App. 480.] It has been in the Courts of Appeals, and received consideration and opinions three other times. [66 Mo. App. 331; 81 Mo. App. 327; 96 Mo. App. 113.] The litigants have been absolutely fair with the two Courts of Appeals, having been to each of them twice, and having been to this court but once, the same spirit of fairness perhaps prompted them in this second attempt here, under the guise of alleged constitutional and federal questions.

The petition is one declaring upon a judgment of a. justice of the peace for $125, and accrued interest at the rate of 6 per cent from 1883. The answer is of great length, but outside of the part which we will presently set out, is presented fully by Barclay, J., 96 Mo. App. 113, and repetition here is useless.

After the opinion of Judge Barclay, affirming the judgment of the circuit court, in setting aside its finding and judgment for defendant, the defendant before a second trial, which resulted in the present appeal, amended its answer by adding another count thereto, which is the part thereof raising the alleged constitutional and federal questions.

This part of the answer is as follows:

“Further answering, defendant says that this cause was tried before Hon. John "W. McElhinney, circuit judge of the Thirteenth Judicial Circuit, at Clayton, Missouri, on the 15th day of June, 1901; that thereafter, on the 15th day of July, A. D. 1901, a judgment for the defendant was ordered in said court, and thereafter on the 27th day of July, 1901, the plaintiff’s motion for new trial was sustained by said court; whereupon defendant perfected an appeal in said cause to the St. Louis Court of Appeals, where, subsequently, the judgment below in sustaining said motion for new trial was affirmed.
“Defendant further states that the opinion of the St. Louis Court of Appeals at the last trial of this cause, affirming said judgment for new trial, is in direct conflict with the opinion of the Kansas City Court of Appeals, found in the 81st Missouri Appeals, on page 327, as hereinbefore recited, and with numerous controlling decisions of the Supreme Court of Missouri, and that the construction of the various statutes of the State of Missouri, bearing upon this case, as given by the St. Louis Court of Appeals, violates section 30, of article 2, of the Constitution of Missouri, in that it attempts to deprive the defendant of property without due process of law, and also violates the fourteenth amendment to the Constitution of the United States, in that said decision deprives the defendant of property without due process of law, and denies to the defendant the equal protection of the laws within the jurisdiction of said court.
“Wherefore, defendants say that plaintiff ought not to have or maintain this action, and having fully answered, prays to be discharged with its costs.”

The judgment here appealed from is for $276.85.

This answer in substance charged a conflict of opinion between the St. Louis Court of Appeals and the Kansas City Court of Appeals, and that the construction of various statutes of this State given by the St. Louis Court of Appeals violates our Constitution and the Federal Constitution. The Courts of Appeals have as much right to construe statutes as has this court, if construction of such is demanded in the course of decision of cases coming properly within their jurisdiction, and their construction is as final in such cases as is the construction of statutes by this court in cases here.

This court cannot undertake to act as a court of appeals for these two appellate courts in any such manner, as would result by an assumption of jurisdiction in the case at bar.

In a nutshell, this answer says that we should assume jurisdiction, because it, defendant, thinks the opinion of the St. Louis Court of Appeals as to the meaning of certain statutes is in violation of state and federal constitutional inhibitions.

In our judgment this answer raises no constitutional or federal question. If this answer confers jurisdiction upon this court, then all a defendant would have to do, to burden this court with all kinds of small cases, would be to plead in his answer that certain statutes applicable to and involved in his case had been construed previously by the Court of Appeals, and that the construction given violated some constitutional provision. This is going a step too far for constitutional and'federal questions.

There being no such questions properly raised by this record, this cause should be transferred to the St. Louis Court of Appeals and it is so ordered.

All concur.


author: LAMM, J.

text:
    FORBES v. DUNNAVANT, Appellant.
    Division One,
    June 30, 1906.
    1. NEGLIGENCE: Demurrer to Evidence. Where a demurrer is offered by defendant to the evidence, any evidence offered by defendant contradictory of plaintiff’s has no office, for plaintiff is entitled to have his evidence taken as true, and defendant’s contradictory evidence as untrue, and he is entitled, in addition, to every reasonable and favorable inference of fact naturally deducible from his own testimony and the uncontradicted testimony of defendant.
    2. -: Master’s Duty: Delegation. The master may trust his servant to perform the intermediate, ordinary and simple duties incident to the servant’s employment and resting upon the servant’s knowledge and skill.

      3. -: -: -: Carpenter. A carpenter knows a good board as well as does his master, often better; and if the master furnishes him a pile of lumber from which to select the boards for the work immediately in hand and he selects an improper and unsound board, nails it to his scaffold, and the board gives way and injures him, it is his negligence and not the master’s. The master is not required to be present, either in person or by his foreman, every time he selects a board from the pile, to see that he selects only safe and sound boards.
    4'. -; -: -: -: Fellow-Servant. And if the selection of the unsound board from the pile of lumber from which the carpenter and a fellow-carpenter working with him in nailing on the boards to a scaffold obtained their boards, was made by the fellow-servant, the negligence was not the master’s.
    5. -: -: Scaffolds: Statute. Manifestly the statute (sec. 6447, R. S. 1899) requiring “all -scaffolds used in or for the erection . . of any kind of building to be well and safely supported, and so secured as to secure the safety of persons working thereon,” was not intended to inure to the benefit of work- . men engaged in the erection of the scaffold, but for others who might use it after it was constructed. And even if it inures to the benefit of those engaged in the construction of the scaffold, it would not charge the master with the negligence of a fellow-servant in selecting, to be used in its construction, an unsound and unsafe piece of lumber from á mass of material furnished by the master.
    Appeal from St. Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge.
    Reversed.

      Seddon é Holland, McKeighcm, Wood '& Watts and Wm. B. Gentry for appellant.
    The court erred in overruling appellant’s demurrer to the evidence, (a) Because there was no case made by merely showing the happening of the accident, as the doctrine of res ipsa loquitur does not apply in this case. Kimmer v. Webber, 151 N. Y. 417; Bowen v. Railroad, 95 Mo. 268. Before respondent was entitled to have his ease submitted to the jury, it was incumbent upon him to show some negligence on the part of appellant. Harper v. Railroad, 187 Mo. 575; Chandler v. Glass Co., 174 Mo. 321. (b) Respondent proved the breaking of the board, and introduced some testimony to the effect that the board was worm-eaten, but he did not introduce a scintilla of evidence showing, or tending to show, that the breaking of the board was caused by the worm-eaten condition thereof. The burden o’f proof was upon respondent to show, not only that the board was defective, but also to show that the breaking of the plank was directly due to such defect, (c) But even had there been testimony that the breaking of the plank was due to its worm-eaten condition, the respondentwasnotentitled to recover because the evidence clearly shows that the duty of selecting timber from a large mass was placed upon the respondent’s fellow-servant, Redford, who was charged with the duty of taking out suitable pieces and passing them up to respondent. If, then, this piece which Redford selected out of the mass and passed up to respondent was defective and unfit for use, the negligence, if any, in selecting same and passing it up, was the negligence of a fellow-servant and not the negligence of the master. McCone v. Gallagher, 44 N. Y. Supp. 697; Herbert v. Wiggins Ferry Co., 107 Mo. App. 288; Richards v. Hayes, 45 N. Y. Supp. 234; Jones v. Packet Co., 43 Mo. App. 203; Kennedy v. Spring, 160 Mass. 203; Oelschiegel v. Railroad, 73 Minn. 327; Ferguson v. Galt, 27 Ont. App. 489; Ross v. Walker, 139 Pa. St. 42; Colton v. Richards, 123 Mass. 484; Kelly v. Norcross, 121 Mass. 508; Beesley v. Wheeler & Co., 103 Mich. 196; Howard v. Hood, 155 Mass. 391; Dewey v. Parke, Davis & Co., 76 Mich. 631; Adasken v. Gilbert, 165 Mass. 443; Fraser v. Lumber Co., 45 Minn., 443; Armour v. Hahn, 111 U. S. 313; Peschel v. Railroad, 62 Wis. 338; McGinity v. Athol Reservoir Co., 155 Mass. 183; O’Connor v. Rich, 164 Mass. 560; Johnson v. Boston Tow Boat Co., 135 Mass. 209; Miller v. Railroad, 175 Mass. 363; Allen v. Iron Co., 160 Mass. 557; Hoar v. Merritt, 62 Mass. 386; Cregan v. Mars-ton, 120 N. Y. 568; Pfeiffer v. Dialogue, 8 Am. Neg. Rep. 90; Hayes v. Railroad, 17 Am. Neg. Rep. 542; Callahan v. Trustees, 180 Mass. 183. (d) Even if the board broke on account of a defect, and even if this particular board was supplied by appellant, appellant would not be liable unless he had failed to furnish sufficient suitable timbers. But there was no evidence in this case that appellant failed to furnish sufficient suitable timber.

      A. R. Taylor for respondent.
    (1) Upon this record there can arise but these material issues of fact: (a) The plaintiff affirms that the timber which broke and caused his injury was defective by reason of being worm-eaten and decayed. He supports this affirmation by the direct evidence of Redford, and the production of the timber before the jury, showing that the board was worm-eaten and doty or rotten. This the jury saw. This claim is also directly supported by the evidence of Joseph Eastman, an expert of wide experience, who, in substance, declares the timber unfit for use. The condition of the board was open and visible, and the same as when used, (b) The defendant denies that the board was unfit, but asserts that it was a proper board, and endorses its use — and claims that it broke by reason of improper nailing alone — thus taking out of the case all controversy as to any negligence of a fellow-servant in providing an unfit board when good ones were furnished by defendant. Defendant and his foreman both, in substance, say this board was one supplied by defendant for the very use to which it was applied. (2) If the above evidence for plaintiff were true the contention that a demurrer to the evidence should have been sustained is without any foundation. Appellant is mistaken in Ms statement of fact that plaintiff failed to show any evidence before the jury tending to prove negligence on the part of appellant. There was strong substantial affirmative evidence of negligence in providing this timber for such use, as set out above. The board before the jury, with the evidence of weakness it bore, was evidence of negligence of defendant when he admits he furnished it for the use to which it was applied. The case was then one properly for the jury. There was no question of a fellow-servant’s negligence in the issue of providing the board when defendant and his foreman both say the board was one which was all right. If it passed through the hands of a fellow-servant this servant was doing their bidding. If the board was unfit, defendant assumes the responsibility. If appellant was negligent in providing this board and it broke by reason of its unfitness, and without negligence of plaintiff or others, it was no accident.
   LAMM, J.

Dunnavant was a contractor in the erection of the Textile Building for the World’s Fair Association at its grounds in the city of St. Louis in 1902, and is sued by Forbes, Ms servant, employed with others in the building of a scaffold to be used in the erection of said building. While thus employed, the scaffold broke and he was so injured by Ms resulting fall that no complaint is made over the amount of his verdict, to-wit, $7,500.

The gist of the paper issues follows: Thus, by the petition it is set forth:

“That whilst the plaintiff was on said scaffold in the due discharge of the duties of his service, one of the cross timbers in said scaffold broke and the plaintiff was caused to fall a great distance, about thirty-two feet,breaking both of the plaintiff’s feet and crushing the bones of Ms left ankle and leg, causing such injury as to necessitate the amputation of plaintiff’s left leg nine inches below the knee, and otherwise causing great injury to the plaintiff, both externally and internally. And the plaintiff avers that said scaffold was caused to break and give way and injure the plaintiff through the negligence of the foreman of the defendant, and of the defendant, in failing to provide suitable material for the construction of said scaffold. That defendant provided for the construction of said scaffold timber, plank and cross timbers of inferior grade and entirely defective and insufficient for such purpose, being second grade lumber and weak and insufficient for said purpose; as the defendant and its said foreman well knew, yet negligently provided said materia], lumber, plank and timbers for said purpose, which negligence directly caused and contributed to cause said scaffold to give way and break and cause said injuries to the plaintiff. And plaintiff avers that defendant was further negligent in failing to provide a suitable and safe place where the plaintiff was to work in the discharge of the duties of his employment, which negligence also directly contributed to cause the plaintiff’s said injuries.”

The last charge of negligence, to-wit, negligence in providing a suitable and safe place, was attacked, nisi, by a motion for a rule and order requiring plaintiff to make the same more definite and certain, for that (the motion says) it “is indefinite and uncertain and does not state in what respect the place furnished by defendant to plaintiff was not suitable and safe.” This motion was sustained. Plaintiff, declining to further plead, stood on his petition, filing a term bill of exceptions. As plaintiff did not appeal, his exception is not here and the averment in question must be taken as out of the case.

And by an amended answer, the defenses set forth, were: (1) a general denial, (2) plaintiff’s contributory negligence, (3) that the details of the surroundings were open and obvious, were known to plaintiff, and the dangers, if any, in working amid said surroundings were also known to him and he assumed the risk, and (4) that his injuries were the result of the negligence, carelessness or misconduct of other servants in the employ of defendant engaged in a common service with plaintiff.

The reply was a general denial.

On a trial to a jury, the verdict was as said. Thereat defendant filed his motion for a new trial, and, the same being overruled, excepted, and brought the case here by appeal.

The cause is here on assignments of error predicated of the giving of certain instructions for plaintiff, and of the refusing of an instruction for defendant in the nature of a demurrer to the evidence.

If it was error to refuse the demurrer, then a consideration of other assignments is in nubibus. In this view of the case, any evidence offered by defendant running counter to plaintiff’s has no office; because plaintiff, on demurrer, is entitled to have his evidence taken as true, to have the evidence of defendant, where contradicted, taken as untrue, and is entitled to every reasonable and favorable inference of fact naturally deducible 'from his own testimony or the uncontradict-' ed testimony of defendant.

One Redford was a “partner” of, i. e., worked as a carpenter with, plaintiff in building the scaffold. Evidence was introduced on the issue whether plaintiff and Redford were fellow-servants. This evidence needs no attention, because it not only sufficiently appears they were fellow-servants, but the cause is submitted here substantially on that theory by both sides, and that one Lederer was foreman. Hence, this feature of the evidence is of no value and may be omitted.

In passing, it may be further said there was evidence pro and con upon the issue of fact as to whether the “ledger” or cross-piece, nailed to uprights and which gave way, to plaintiff’s hurt, was negligently nailed ornot. Defendant bases one of his defenses on the theory that the ledger split from nail holes in the end; that in driving nails plaintiff improperly grouped them together and so negligently drove them as to cause the ledger to split and give way — contra, it is insisted by plaintiff that the ledger was weakened by worm-holes and by incipient stages of decay, and that the breaking of the ledger was caused thereby, but that the nailing was done with proper care. Directed to this issue of fact, testimony pro and con was put in. All this, in our opinion, was submitted to the jury and decided against' defendant. Hence, we have nothing to do with it.

Defendant contends that plaintiff’s principal witness, said Redford, so contradicted himself and, as we somewhat infer, exhibited such levity on the stand, that his testimony should be allowed no probative force. We do not understand the learned counsel for defendant to seriously press this contention, and the insistence arises more as a conclusion of our own than from the formulation of counsel. For instance, this witness made a former statement differing in essential particulars from his testimony on the stand. On cross-examination, being pressed on these contradictions, the following appears': “Q. Would your statement be different if you were under oath from what it would be if you were not under oath? A. Very likely it would be a little. Q. Then you never tell the truth, the whole truth, unless you are sworn? A. I guess that’s a fact; now I have got to tell the truth. Q. At the time yoii made this statement on June 28,1902, you were not telling the truth, is that a fact? A. I did not write that. Q. You signed it, didn’t you? A. Yes.”

Relating to the foregoing, possibly in counsel’s mind, is the fact that said witness was not only an expert carpenter but seems to have been a wag as well. For, having testified in relation to a “ribbon” under the ledger, he was asked this question: “I thought you said a while ago it didn’t have ribbon under there?” To which he answered, “This end didn’t, bnt that end did. . . . There is different ends on boards, you know. It wouldn’t do to have both ends on one end. ’ ’

But it goes without saying that the self-contradictions, if any, of this witness and his levity, if serious enough to command attention, as well as his subtlety in metaphysical distinctions between truth-telling off the stand and on the stand, were, one and all, for the jury and not for an appellate court in a law case.

With this clearing away of underbrush, to use a homely expression, the facts necessary in passing on the demurrer are as follows:

Plaintiff testified he was a carpenter and had been one for ten years, and, during all that time, had built more or less scaffolding; that he was in the service of Dunnavant on June 26, 1902; was engaged in the erection of a scaffold in connection with the Textile Building at the World’s Fair Grounds. Said scaffold, at the time he fell, was thirty-two feet above ground and was intended to go to the ceiling in the pavilion to be used by plasterers and carpenters in putting on the ceiling. He had been building scaffolds for six weeks for defendant; was under one Lederer as foreman; the lumber was furnished by Dunnavant — was pine, commonly called Oregon pine. First class lumber is necessary for scaffolding. The scaffolds consisted of various floors, different heights from the ground and uprights. At the time of the accident, he was standing on a plank, resting on cross pieces, and this plank formed a part of the upper floor of the scaffold and was used to stand on. All at once, one of the cross timbers, under the plank, broke. It was about eleven feet long, one inch thick and six inches wide, and plaintiff never saw the cross piece afterwards. The lumber used in building the scaffold did not look like first grade lumber. Witness fell thirty feet and was unconscious for a long time. He further testified to the extent of Ms injuries, the length of time he was in the hospital, his wages, expenses, etc., none of which is material here.

On cross-examination, he said the reason he didn’t think the scaffolding lumber was first class, was because first grade lumber would not break that way. It was further shown by him that he had a helper, named Benton, and Benton was on top of the scaffold at the time; that there was another carpenter, named Redford, and he had a helper named Brown — and these four worked in one gang — Redford being the leader; that Redford selected the lumber out of a pile and passed it to Brown and Brown passed it up; that he and Redford were the only carpenters working in the building of the scaffold; that the planks in the scaffold were sawed on the ground and passed up to the top; that Redford did the sawing ; that the lumber was originally piled on the ground outside the building and pieces were selected and brought in and put on the floor of the building, and then were taken from there and put in the scaffold. Some of Dunnavant’s employees assorted the pieces and brought them in a wagon and they were taken inside. This wagon brought them from a big pile of lumber. When inside, Redford would assort them again, selecting what he chose, and hand the pieces, as selected, to his helper, who would pass them up to Forbes’ helper, i. e., Redford culled the lumber after it got inside the building, and used his judgment in using it. Plaintiff further testified that he nailed on the end of the piece that broke and Redford nailed the other end — the plan of procedure being that after the lumber was sawed and passed up, Redford would come up and he and plaintiff would nail the boards in place. This duty required both and was- performed by both. The scaffold, when complete, was intended to hold material used in the construction of the building, as well as the men engaged in putting the material in place. At the time the piece broke, plaintiff was stooped over shifting the floor planks resting upon this cross piece.

By Bedford, substantially the same facts were shown — in addition, thát at the time he was on the ground at the foot of the scaffold; that the cross beam that broke was called a “ledger,” and it. and other cross-pieces were used to hold the floor planks. The ledger in question was taken out of a second class lumber pile —• was worm-eaten and “dozed.” Witness identified the ledger in court. The worm-holes appearing in the ledger in court were the same as they were at the time of the accident, and the dozed appearance of the wood is the same. By “dozed” witness meant soft with age — elsewhere he explained it thus: “dozed is kind of soft wood, starting to rot, got them symptoms in it.” Before the accident, at a time not located, witness told defendant “the lumber was not fit to put in the scaflold because it was knotty and dozed and worm-eaten.” When witness told defendant that, defendant replied: “ Go to that second class pile up there and pick the best out of that.” Witness had long been engaged in building scaffolds-and said first class lumber was needed. He spoke' only once to Dunnavant, but he spoke to the foreman, Lederer, and called his attention several times to the bad condition of the lumber. When he did so, Lederer told witness “to pick out the best of it, use what he could and throw the rest away. ’ ’

On cross-examination, it appeared he had been a carpenter twenty years, and had good eyes, could see without glasses. Having testified in chief that the worm-holes in the broken ledger showed on the outside, i. e., were visible to the naked eye, he was asked if he had noticed at the time he passed the plank up to plaintiff that it had worm-holes and was “doty,” and he answered he couldn’t remember whether he noticed the holes or not; that he wouldn’t say he did or not; that he sawed the board in question; that he took the planks out of the pile aud cut them in lengths and then passed them up and would then go up and help Forbes nail them in place; that Forbes nailed the ledger on the end that gave way. As to talking to Dunnavant about the lumber not being proper, he said he couldn’t tell what time it was, but it was inside of a couple months before the accident. He said he was referring in his talk to the ledger lumber, but he also said “it was before that board ever showed up at all” — meaning before the ledger that broke came upon the ground. At this stage, the court remarked: “That inquiry is not material if it relates to entirely different lumber and not lumia this scaffold at all.” Witness said he didn’t see the lumber come in; didn’t know whether it came all at one time or not. He further testified that his talk with Lederer about the lumber referred to another scaffold, except a conversation right before the scaffold fell. Lederer then said, “I will be over right away,” and when witness got there, the scaffold fell.

By one Brown, it was shown that instructions were given from Lederer to plaintiff and others handling lumber to take out all the 'bad lumber and throw it to one side and pick out the best material and use it, which was done. It was shown, furthermore, that sometimes Bedford culled the lumber and sometimes Forbes did.

Such was plaintiff’s case, in subtance.

On behalf of defendant, it was shown the scaffold was built of yellow pine; that after its completion, one Eastman used the scaffold in question to put on the staff on the Textile Building. He was a boss and his men used the scaffold; it was an excellent scaffold; they had on it sometimes 2,000 pounds at one spot; did $100,000 worth of work on that scaffold — meaning work on the building. This witness, on being shown the broken ledger at the trial, said he would have thrown that board out if he had been building the scaffold, and noticed the worm-holes.

By one Bollman, it was shown he was an expert lumberman. Being shown the broken ledger, he said it was yellow pine and by the trade classed as “number one yellow pine fencing” — fencing, because six inches wide and one inch thick — No. 1, because a sound board —not a ‘‘clear,” but-a sound, board. By “clear” is meant clear of defects. There are three, grades of clear .lumber and the board in question is No. 1 common, i.e., comes after “third clear.” By “doty” is meant the first evidence of decay or rot. The board is not doty; the worm-holes do not affect the strength of the plank; thinks the board would have been no stronger if the worm-holes had been out of it; did not consider the board unsafe from the little worm-holes in it; would have been of a higher grade if the worm-holes were out; if the worm-holes were out it would be of a higher grade than is used in scaffolds; the highest grade of lumber is not used to tie scaffolds. On cross-examination, the witness said that decay or worm-holes or doty condition did not cause the board to break.

By one Gavin, it was shown pretty much the same as by Bollman. Further, that a pin worm-hole won’t weaken the strength of a plank, that the pin worm-holes are pretty well scattered in the plank that broke and were so small they didn’t amount to anything. On cross-examination, it was shown that fallen timber left on the ground too long commences to decay; that worms won’t go into lumber that is dry and painted, but will go into a log; that the pin worm-holes had the same effect as sticking a pin into a board, and, if you drive enough pins into the board to destroy the fiber of the wood, you would weaken it, provided there were enough holes and they were large enough.

By Lederer, it was shown that “culling” means picking out the best material from that sent to the job. Bedford was ordered- by witness to pick out the best material and to use nothing but what was good. The lumber was culled from the pile on the wagon and then again culled in the building. Witness denied the conversation with. Redford immediately before the accident relative to the character of the lumber. His account of it was that Redford said he didn’t have material enough and requested witness to send more, which was done. Redford said he couldn’t get enough from what he had to build the scaffold and witness told him he would send more material to pick from. Redford made no complaint" at any time of the quality of the lumber supplied for the scaffold, but was told only to use good material and not to use any poor stuff.

On cross-examination, he said that the men were left to use their own judgments to put the scaffold up strong enough; that they were told what the scaffold was for and were told to put up a scaffold that would hold the work. Witness noticed the scaffold off and on but not at. the time of the accident. It was left to the carpenters putting it up. Witness knew of no rotten timber that was sent to the men, but there were orders to the men that they were to sort out, and not 'use, bad material. The plank that broke had been in the scaffold about two hours.

By defendant, Dunnavant, it was shown that he ordered 200,000 feet of 1 by 6, twelve and sixteen feet long, of fencing No. 1; bought it in Omaha, Nebraska, and it came for the purpose of scaffolding; that clear lumber is never used for outside work; that No. 1 common is used; that the object in having the men select it from the pile was to leave the knots, so that they would not be carried to the place of the scaffold; that on the lumber piles there were no carpenters, simply laborers, but when material was hauled to the place of use, then the carpenters reculled it, selecting what they considered good enough to go into the scaffold. The carpenters were instructed not to use bad material. He also testified the worm-holes in the broken ledger were too small to do any damage, and he (with others of his witnesses) threw the blame on the way the ledger was nailed. The witness denied any conversation with Redford about tbe character of the lumber. On cross-examination, he testified the tensile strength of the board in question was as great as any board witness ever saw, and other evidence produced by defendant was to the effect that the ledger was a good, safe board.

But, as said heretofore, there being evidence the board was unsound, it was for the jury to say whether they would believe plaintiff’s witnesses or defendant’s witnesses. One thing is clear, the board broke. To that extent, the thing speaks for itself. The cause of its breaking is a question. Plaintiff’s theory was that the board was unsound; defendant’s theory was that pláintiff nailed it negligently. The jury found for plaintiff and, necessarily, against defendant’s theory. Plence, for the purposes of this case, the ledger must be considered unsound.

On this evidence, is defendant liable as a matter of law? "We think not, and this for the following reasons :

I. In the first place, it is insisted by plaintiff’s learned counsel that there is an admission in the case, arising as a sequence from a position taken by defendant, which admission does away with the necessity of considering the question of whether defendant negligently furnished a defective plank, or whether plaintiff’s fellow-servant negligently selected a defective plank. In other words, plaintiff’s counsel argues that the question of fellow-servant is not in the case — all of which comes about in this way: At the trial, defendant introduced evidence tending to prove the plank a sound plank. With such evidence lodged in the case, plaintiff argues it is tantamount to an admission that the plank was safe and was adopted by defendant, that is, furnished directly by defendant. The trouble with this contention is that it is as unsound as the plank itself. Under the paper issues, defendant was entitled to show the plank was sound. If he showed that,-it relieved him from liability, no difference who was directly instrumental in selecting it. If he failed to show that (as he did, under the verdict), then he had left the other string to his bow, viz., that he did not furnish the unsound plank, but that plaintiff’s fellow-servant voluntarily and unnecessarily selected it from a mass of lumber, which it is not pretended was all unsound and unsafe. We rule this contention against respondent.

II. It is next contended (as we understand it) in effect, that the duty of furnishing safe material for this scaffold could not be delegated by the master, and that if such duty was delegated the performance- of that duty was still the master’s act. Of which contention, it may be said the evidence is uncontradicted that a mass of raw material was furnished by the master for the use of Forbes and Redford in erecting the scaffold. And it is not contended that none of it was suitable. Redford selected a bad board from the lot which broke under the weight of plaintiff and his helper and badly injured plaintiff. Now, turn the matter as we may, at root, after analysis, the thing resolves itself into the question: Who selected that board? Was it the master, in contemplation of law, or was it a fellow-servant? If the master could not delegate the duty of selecting that particular board, except such delegation went cum onere, i. e., burdened with responsibility for the selection, then the master is liable — otherwise, not.

In the exposition of this matter, as in other legal argumentation, it is safe to recur to first principles. The law is theory, but not theory alone. It is a practical, applied science. Its rules were invented by the wisdom of sages in ages .gone to aid men in their business affairs. As these business affairs become complicated, under the evolution constantly going on, the law strives to keep abreast of the times in affording remedies for wrongs. When Appius Claudius built the Appian Way, or the Egyptian kings the pyramids, there was a vast aggregation of labor employed, but the laborers were serfs, in a degree, and the rules governing their employment, autocratic, few and simple. Not so, now. Under modern conditions, the master may carry on a business over a vast field with thousands of employees in different branches of labor, widely separated, and his servants may never come under his actual eye. In this condition of things, looking at the matter from the master down to the servant, it has been said that the master may not delegate (and thus avoid) his primary duties in furnishing his servants a safe place and suitable and safe material and appliances, by merely giving general orders and directions, however wholesome and full, to others, who are foremen, i. e., vice-principals. And such is the law. But, on the other hand, the law entertains another view, from another standpoint — a view that, beginning with the servant and considering him, looks up to the master. By this view, we start with the postulate that a servant is presumed to possess, not only common sense, but certain knowledge peculiar to his trade, or art. The master may be presumed to hire, not only the bodily services of the servant (his hands, eyes, ears, muscles and legs),'but the skill and knowledge pertaining to the servant’s art or trade and possessed by the latter. Hence, it is steadily held as sound law that the master may trust the servant to perform the intermediate, the ordinary and simple duties incident to the servant’s employment and resting upon the servant’s knowledge and skill. For instance, a carpenter knows a good board as well as his master, and in many cases, better. A master buys a mass of raw material — some bad, some good,a result incident to all buying by the quantity in market. Must he be present in person, or constructively, at every precise moment of time to select and deliver to that carpenter a sound board, so the carpenter will not hurt himself or his fellow-craftsmen or may he trust that carpenter to select a good board from the mass of raw material? We think there can be but one answer to this question. Lord Coke says: “There are two instruments either to confirm or impugn all thing’s — reason and authority.” Certainly, reason is with the defendant in this case. The reason of the thing lies with the proposition that Dunnavant could properly trust the judgment of Forbes and Red'ford to select sound ledgers. Because, by the very act of hiring themselves to him, they held.themselves out as capable of doing that very thing. Authority lies the same way: Bowen v. Railroad, 95 Mo. 1. c. 277; Herbert v. Wiggins Ferry Co., 107 Mo. App. 1. c. 299 et seq., and cases cited; Allen v. Iron Co., 160 Mass. 557; Dewey v. Parke, Davis & Co., 76 Mich. 631; Beesley v. Wheeler & Co., 103 Mich. 196; Cregan v. Marston, 126 N. Y. 568; Callahan v. Trustees, 180 Mass. 183; Miller v. Railroad, 175 Mass. 363; Colton v. Richards, 123 Mass. 484; Johnson v. Towboat Co., 135 Mass. 209; O’Connor v. Rich, 164 Mass. 560.

See, also, the pronouncements of this court on a similar question — the non-reliability of the master where the servant, a miner, is intrusted with the duty of inspecting his own drill-holes. [Knorpp v. Wagner, 195 Mo. 637; Livengood v. Lead & Zinc Co., 179 Mo. 229; Fisher v. Central Lead Co., 156 Mo. 479.]

III. Finally, it is argued by plaintiff’s counsel that the statute applies (Revised Statutes 1899, sec. 6447), the material part of which reads: “All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. . . .”

In the very nature of things this statute was not intended to inure to the benefit of workmen, fellow-servants of each other, charged with the duty of selecting sound material from a mass of other material and engaged in the matter of erecting a scaffold out of such selected material. The primary object of this law was that scaffolding should be so safely built that others, having no part in its building and in nowise responsible for its safe construction, when called upon to use such scaffolding, might not be injured. Take this case: if Eastman and the workmen under him had been injured by the scaffolds, falling because of negligent construction, and had sued, a different question might arise. But if the statute be held to apply to the workmen charged with its construction and while in the act of constructing it, and having the duty and power of selecting material, it could only apply in the sense that it is a statutory admonition to them to do their duty,— a duty inherent in things and present with them in the absence of written law, — and not erect a deathtrap for others to perish by.

We all agree that the injuries of plaintiff resulted from the negligence of his fellow-servant, Bedford, and that, since this is so, the court erred in overruling the demurrer.

The cause is, therefore, reversed.

All concur.


author: BURGESS, P. J.

text:
    THE STATE v. BATEMAN, Appellant.
    Division Two,
    July 3, 1906.
    1. RAPE: Sufficiency of Evidence. Evidence held sufficient to justify a conviction of rape.
    2. -: Admitted: Evidence: Medical Proof. Where prosecutrix testifies unequivocally to the rape committed upon her, and defendant admits that he had connection with her at the time and place charged, hut swears that it was with her consent, no medical proof of the perpetration of the rape is necessary.
    3. -: Complaint of Common Assault: Evidence: Variance. The justice of the peace testified that prosecutrix came to his office and told him she wanted to make complaint against defendant; that there were two other men in his office at the time, and that prosecutrix seemed embarrassed and did not tell him the real character of the assault, but said, “He bit me and bruised me;” that thereupon, supposing it was merely a case of common assault, he wrote a complaint to that effect, which prosecutrix signed and swore to; and that, afterwards, on learning the nature of the assault, he went to see the prosecutrix, who gave him the details of the outrage, and he then prepared another complaint charging defendant with rape. Sold, that, under the circumstances, the most that can be said of the variance between the affidavit of the prosecutrix and her testimony at the trial is that it went to, her credit as a witness, nothing more.
    4. -: Relating Particulars: Withdrawing Evidence: Non-Prejudicial Error. The particulars of the crime of rape, as related by the prosecutrix at the time of or after making complaint, are not admissible in evidence except when drawn out from the prosecutrix upon cross-examination, or introduced as confirmatory of her testimony after evidence has been introduced tending to impeach her; and the subsequent withdrawal of such evidence from the consideration of the jury does not cure the error if the evidence was of such a character as to prejudice the defendant’s case. But the admission of such evidence is non-prejudicial error where defendant testifies that he had connection with the prosecutrix at the time and place as testified to by her.
    5. PRACTICE: Leading Questions. The asking of leading questions is a matter which rests almost entirely in the discretion of the trial court, and a judgment will not be reversed upon that ground unless it appears that such discretion has been unwisely exercised.
    6. -: Evidence: Objection: No Motion to Strike out. Where defendant objects to the answer of a witness on the ground that it is not responsive to the question, and, the objection being overruled, he makes no motion to strike out the answer, he will be held to have waived his right to have it excluded.
    7. RAPE: Statements of Prosecutrix: To Justice of the Peace: Harmless Error. The justice of the peace testified that prosecutrix at first made complaint to him of an assault and battery committed upon her by defendant; and he further testified, over the objection of defendant, that he afterwards went to see the prosecutrix, and that, in answer to a question prepounded to her by him, she stated that defendant had forced her to comply with his wishes. Held, that, conceding the admission of this evidence to be error, it could not have prejudiced defendant’s rights, and was, therefore, harmless.
    8. -: Character of Prosecutrix: Evidence: Objection Too Late. Where witnesses are permitted, without objection, to testify to the good character of the prosecutrix before it has been impeached, defendant’s motion to strike out the testimony on the ground that it is of the witnesses’ own knowledge of her character, and not of her general reputation, comes too late.
    9. INSTRUCTION: Reasonable Doubt: Definition. A definition of “reasonable doubt” as being “a substantial doubt arising from the evidence, and not a mere possibility of innocence,” is sufficient.
    Appeal from Lawrence Circuit Court. — Hon. F. G. Johnston, Judge.
    Affirmed.

      Henry G. Young for appellant.
    (1) The verdict is so clearly against the weight of the evidence, and is so manifestly the result of prejudice and passion, that this court is fully warranted in reversing the judgment and remanding the cause for a new trial. State v. Patrick, 107 Mo. 147; State v. Huff, 161 Mo. 459; State v. Prendible, 165 Mo. 329; State v. Nesenhener, 164 Mo. 461. (2) Medical proof of the condition of the private parts and lower limbs of prosecutrix immediately after the assault was attainable, and yet no such proof was offered by the State. “And the practice seems to be, judging from the case just cited, not to permit a conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable.” 1 Whart. Cr. Law (9 Ed.), secs. 555, 565; State v. Dickson, 78 Mo. 447; State v. Burgdorf, 53 Mo. 65. (3) The charge of rape is unsupported save by the ipse dixit of the prosecutrix and is contradicted by all of the surrounding facts and circumstances. Her action in swearing out a warrant against the defendant for a common assault within a few hours after the occurrence is so entirely inconsistent with human experience of the conduct of a ravished female, and so consistent with the defendant’s statement, as to exclude the reasonable probability of his'guilt. State v. Patrick, 107 Mo. 147; State v. Huff, 161 Mo. 459; State v. Dickson, 78 Mo. 447; -Champagne v. Harney, 189 Mo. 709; State v. Musiek, 101 Mo. 271. (4) The court erred in permitting witnesses Belle Bilue and Lucy Siler to give the particulars of the offense as detailed to them by prosecutrix. State v. Jones, 61 Mo. 235 ; 3 Russell on Crimes, 232; 23 Am. and Eng. Ency. Law, 874; State v. Wertz, 90 S. W. 841. Nor did the action of the prosecuting attorney, at the close of all the evidence in the ease, in withdrawing from the consideration of the jury “the details of this occurrence” and the details of the conversation as related by these witnesses, “but leaving for their consideration the main fact that she simply made complaint of the outrage,” have the effect of curing the error. State v. Fredericks, 85 Mo. 150; State v. Thomas, 99 Mo. 235; State v. Hopper, 71 Mo. 425; Robbins v. State, 83 S. W. 693. (5) The court erred in permitting the prosecuting attorney to lead his witnesses throughout the trial of the case. State v. Boyd, 178 Mo. 2; State v. Wertz, 90 S. W. 843. (6) The court erred in permitting the State to elicit from witness Rickman on cross-examination the statement that prosecutrix told him in reply to his questions that defendant forced her to consent to his wishes. State v. Patrick, 107 Mo. 147; State v. Burgdorf, 53 Mo. 65. (7) The court erred in permitting the State to bolster up prosecutrix’s reputation for chastity and good conduct before it had been impeached. State v. Huff, 161 Mo. 459; State v. Patrick, 107 Mo. 488. (8) The court erred in the giving of the fourth instruction at the instance of the State. In defining the doctrine of reasonable doubt the court cast upon defendant the burden of establishing his innocence. -State v. Blue, 136 Mo. 41.

      Herbert 8. Ilaclley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) (a) State’s witness Belle Bilue testified to the complaint made to her by prosecutrix a short time after the commission of the crime charged. In fact, this complaint was made before prosecutrix had gotten out of Bed and only a few minutes after defendant had left the room. This was clearly admissible as a part of the res gestae; and also admissible as being a recent complaint of the rape just commited. State v. Patrick, 107 Mo. 163; State v. Warner, 74 Mo. 86; Stevens v. Walpole, 76 Mo. App. 220 ; 3 Greenl. on Evid., sec. 213; Roscoe’s Crim. Evid. (7 Ed.), 879; Wharton’s Crim. Evid. (7 Ed.), sec. 273. But even if error was committed in admitting said evidence, the trial court after-wards, at the request of the State, withdrew said evidence and instructed the jury not to consider the same, (b) The asking of leading questions is always a matter to be addressed to the discretion of the trial court. In view of the charge against the defendant, and the natural modesty and hesitation of all women who are called to testify in such a case, it cannot be said that the trial court abused its discretion. State v. -Whalen, 148 Mo. 290; State v. Napper, 141- Mo. 401. (c) Defendant also objected to defendant’s witness Rickman’s answering the State’s questions as to what the prosecutrix said to him about being raped by defendant. Defendant placed this witness on the stand — he was a justice of the peace — and proved by him that prosecutrix made complaint to him at first of an assault made by defendant. That afterwards, when no one was in his office she returned and told him all about it, and made the present complaint. Defendant having brought out a part of the conversations that this witness had with prosecutrix, the' State was entitled to have all of said conversations detailed. State v. Moore, 156 Mo. 211; State v. Sassen, 75 Mo. App. 201. (2) The evidence discloses the commission of a crime which is one of the most revolting that has ever been' committed in this State, and is sufficient to support the verdict. State v. Dusenberry, 112 Mo. 296; State v. Boyd, 178 Mo. 19; State v. Miller, 111 Mo. 552; State v. Wilcox, 111 Mo. 575; State v. Yocum, 117 Mo. 626; State v. Sanford, 124 Mo. 487; State v. Dilts, 90 S. W. 782.
   BURGESS, P. J.

At the March term, 1905, of the circuit court of Lawrence county, upon an information duly verified and filed by the prosecuting attorney of said county, the defendant was convicted of the crime of rape, and his punishment assessed at death. Defendant’s motions for new trial and in arrest having been overruled, he perfected his appeal to this court.

At the time of the commission of the alleged assault, the defendant, a negro, twenty-two years of age, was employed as day porter in the hotel of E. J. Shelpman, at Aurora, Lawrence county. Myrtle Digby, the prosecutrix, a white girl, twenty years of age and unmarried, was employed as waitress and chambermaid at the same hotel, and had been working there for about a week prior to February 28, 1905, the date of the alleged assault. Her room was on the third floor of said hotel building, and defendant’s room was some distance away in an attic of the building. A gravel roof extended from just under the window of the room occupied by the prosecutrix and over the window of the room occupied by the defendant.

The State’s evidence tended to prove that the prosecutrix had retired early, and that about midnight she was awakened by the presence of defendant in her bed. She asked who it was, and defendant replied that it was Peck, alluding to the hotel clerk, and told her to hush up. She told him to get out, but defendant immediately put his hands on her throat and grabbed her arm in his teeth which he bit severely. He then told her that she might as well behave and submit to him, for he was going to have what he came in for if they hung him. The prosecutrix screamed several times and struggled to free herself from the clutch of the defendant, but he nevertheless succeeded in having sexual intercourse with her. He then made his escape through the window and went to his room, but before leaving he told the prosecutrix he would kill her if she moved while he was in there. While defendant was on the bed with her the prosecutrix heard footsteps at the door and heard some one turning the door knob, but the defendant prevented her from screaming by grabbing her throat. As soon as he left she unlocked the door and found Mr. Shelpman and the night porter there. The porter had heard the girl’s screams and he awoke Mr. Shelpman and both came up to see what was the matter. She immediately told them of the assault made upon her by the defendant and showed them the marks of his teeth upon her arm and the finger prints and bruises on her neck. Her night clothes were torn, the bed clothes rumpled and some of them on the floor, and the rugs on the floor disarranged. Meanwhile Miss Belle Bilue and Miss Lucy Siler, who were also employees in the hotel, came out in the hall, and to them the prosecutrix made complaint in full. They stayed with her the remainder of the night in another room. Mr. Shelpman went to the defendant’s room and found him in bed, but not asleep. Defendant told him that he had been down to the brick hotel to sing with another negro.

Thomas Collins, night porter at the hotel, testified that the defendant came in that night about half past eleven o’clock, and that he remained to the defendant that he was a little “jagged,” and defendant replied, “No, I ain’t, I am going to bed.” That about ten minutes later he heard the girl scream, and he grabbed a club and went up to the door of her room, but could not get in, as the door was locked. That she kept hallooing, and he went down and awoke the landlord, and both went up after the landlord had put on his clothes. That he proposed pushing the door open, but the landlord would not allow him to do that. After a little while the girl opened the door and said, ‘ ‘ Tom, it was a nigger.” He asked her what nigger, and she said, “The day porter.” Witness also testified that on the morning before the assault he heard the defendant express a desire to have sexual intercourse with the prosecutrix.

The defendant’s testimony was to the effect that the first day the prosecutrix began working at the hotel she made advances to him, and suggested that he get men to come to her room. That she invited him to come to her room, saying that’he was as good to her as if he was a white boy. Pie stated that he had sexual intercourse with her in her room on two different occasions prior to the night of this particular assault. That on the night of the alleged assault he had been down to a negro minstrel show at the opera house, and after the show was over he went with some of the performers over to another hotel and then went with them to the depot. That, by an arrangement previously made with the prosecutrix, he went to her room and got in bed with her. That while having sexual intercourse with her she accused him of running about with some of the minstrel girls, and then struck him on the nose. That he then turned and bit her on the arm, and she screamed, whereupon he told her not to yell any more, as somebody might hear her and catch him in there. That he heard some one turn the door knob, but that prosecutrix assured him the door was locked.

The justice of the peace to whom prosecutrix first made formal complaint testified that she came to his office and told him that she wanted to make complaint against defendant. He said that there were two other men in the- office at the time; that she was somewhat embarrassed and did not tell him the real character of the assault, and he, supposing it was merely a case of common assault, wrote a complaint to that effect, which she signed and swore to. Afterwards, on learning of the nature of the assault, he went to the hotel, when the girl gave him the details of the outrage, and he then prepared another complaint, charging the defendant with rape.

In rebuttal, the State proved that defendant had not been in the room of the prosecutrix prior to the night of the alleged assault, and before that night she occupied a room with another girl. The good reputation of the prosecutrix was established by a number of witnesses.

The contention.that the verdict is against the evidence, and the result of prejudice and passion, is entirely without merit, as the evidence, if believed by the jury, who are the sole judges of the weight to be given to it, shows the guilt of the defendant beyond any question. The testimony of the prosecuting witness as to the outrage upon her by the defendant was corroborated in several respects, and to an extent such as to fully justify the conviction and repel the assertion that the verdict was the result of prejudice or passion.

It is absurd to say that there should not have been a conviction in the absence of medical proof of the perpetration of the outrage, when the prosecuting witness testified to it in unequivocal language, and the defendant himself acknowledged that he had connection with her at the time and place' stated, but with her consent. Medical proof was wholly unnecessary under such circumstances.

It is earnestly contended by counsel for defendant that the charge of rape is unsupported save by the testimony of the prosecutrix, and is contradicted by all the surrounding facts and circumstances. In support of this contention the fact that the prosecuting witness stated in her affidavit for the arrest of defendant, made a few hours after the offense was committed, that he did unlawfully and willfully assault, strike, beat and wound her, is relied upon as being so entirely inconsistent with human experience of the conduct of a ravished female, and so consistent with defendant’s testimony, as to exclude the reasonable probability of his guilt. But a proper consideration of the attending circumstances and of the testimony of other witnesses renders this contention untenable. Pluman nature revolts at the crime of rape, and a female of ordinary modesty upon whom the criminal assault has been made reluctantly relates the details of the outrage upon her. Besides, many of them do not know the difference in law between a common assault or battery and assault and rape, and it is not to their discredit that they do not so know. The justice of the peace before whom the prosecutrix made the affidavit testified that when she came to his office and told him she wanted a warrant for defendant there were two men present in his office; that he asked what she wanted the warrant for, and what the defendant had done to her, and that she said, “He bit me and bruised me;” that when about to make out the warrant he asked her if that was all, and she replied, “I don’t know, but I reckon so.” He further stated that he was not as careful as he should have been in questioning her as to the facts; that the girl seemed timid and backward about talking in the presence of one of tlie men who remained in his office; that a few hours afterwards he went to the hotel where the girl was to talk to her about the matter again, and asked her if the defendant forced her, when she assured him that he did. Under such circumstances, the most that can be said regarding the variance between the affidavit and the testimony of the prosecutrix upon the trial is that it went to her credit as a witness, nothing more.

Counsel for defendant next insists that the court erred in permitting witnesses Belle Bilue and Lucy Siler to give the particulars as detailed to them by the prosecutrix, of what occurred between her and the defendant, instead of stating the conversation or the substance of it between themselves and her and thus enable the court to determine whether what she said to them amounted to a complaint of ravishment. After the witness Bilue testified that she went into the room of the prosecutrix immediately after the offense was committed and found her raised up in bed and crying, and saw her night gown and waist torn, she proceeded to state, without other than a general objection from the defendant, what the prosecutrix stated to her regarding the assault and rape; but after the witness had thus testified counsel for defendant moved “to strike out all the-testimony of this witness in regard to what the prosecuting witness told her after the commission of the crime.” The motion was overruled, and defendant excepted. However, after the evidence was all in, the State, with the permission of the court, withdrew from the consideration of the jury all of the testimony of this witness which was objected to, and the court orally ‘directed the jury to disregard it.

The authorities are uniform in holding that in prosecutions for rape, the particular facts of the crime as related by the prosecutrix at the time of or after making complaint of the injury are not admissible in evidence, except when drawn out from the complainant by cross-examination, or introduced as confirmatory of her testimony after testimony has been introduced tending to impeach her. [State v. Jones, 61 Mo. 232; 3 Russell on Crimes, 232; 23 Am. and Eng. Ency. Law, 874.] That such testimony was inadmissible we think clear, and the withdrawal of it by the State and the exclusion of the same by the court from the consideration of the jury did not cure the error if the evidence was of such a character as to prejudice the defendant’s case (State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145; State v. Thomas, 99 Mo. 235), but its withdrawal will be sufficient if it be apparent from the evidence that it did not have or was not calculated to have that effect. Defendant testified in his own behalf that he had criminal connection with the prosecuting witness at the time and place as testified to by her, and the detailing by witness Bilue of the circumstances of the assault, as related to her by the prosecuting witness, could not, in our opinion, have in any way prejudiced the rights of the defendant.

The only objection made during the examination of witness Lucy Siler was that the questions propounded to her by the prosecuting attorney were leading. The court overruled the objection. As a general rule leading questions should not be asked a witness, but it rests almost entirely in the discretion of the court to allow or refuse to allow such questions to be asked, and a judgment should not be reversed upon that ground, unless it appears that such discretion was unwisely exercised, which does not appear to be the case in this instance. [State v. Napper, 141 Mo. 401; State v. Whalen, 148 Mo. 286, and authorities cited.] Belle Bilue was asked by counsel for defendant, upon cross-examination, “How'did you come to wake up?” to which she replied: “The proprietor and porter came and woke me. And the time they were knocking at her door the nigger was choking her, and she could not move, and they woke me up and thought he was in her room, but did not know for sure and they woke me up, and I jumped up in my night clothes and went to her door and I could not raise her, and I went and put on a loose dress, and when I got back to her door the second time the nigger had went out the back window, and the key was turned and I went in and saw Myrtle. ’ ’ Counsel for defendant interposed an objection to this answer upon the ground that it was not responsive to the question, which objection was overruled. He made no motion, however, to strike out the answer, as he should have done in order to avail himself of the right to have such evidence excluded, and must be considered as having waived it. [State v. Foley, 144 Mo. 600; State v. Lehman, 175 Mo. 619.]

It is said for defendant that the court erred in permitting the State to. elicit from D. L. Rickman, on cross-examination, the statement that the prosecutrix told him, in answer to his question, that defendant forced her to yield to his demands. Rickman was a witness for the defense. He was a justice of the peace. He testified that the prosecutrix made complaint to him at first of an assault and battery made upon her by defendant, and that she said nothing that time about her having been forced by defendant to have connection with him; but witness was permitted to testify, over the objection of defendant, that thereafter, on the same day, he went to the hotel where the assault was committed, and that the prosecutrix, in answer to a question propounded by him, stated that the defendant forced her to comply with his wishes. Conceding this to be error, was it, under the circumstances as disclosed by the record in the case, of such a character as to prejudice the defendant’s easel Ye think not. It added not one iota to the testimony of the prosecutrix, and this being so, it is inconceivable that the defendant could have been prejudiced in the remotest degree by its admission.

Defendant claims that the court erred in permitting the State to introduce testimony of the good character of the prosecutrix before it had been impeached. The record does not show that there was any objection whatever to the introduction of such testimony, and it must be held that the objection was waived. It is true that after witnesses Albert Daniels and J. W. Davis had testified, without objection, to the good character of the prosecutrix, the defendant moved to strike out this testimony upon the ground that it was of their own knowledge of her character and not of the girl’s general reputation, but the objection was then too late. As was said in State v. Foley, supra, “A party cannot speculate upon evidence which is objectionable upon its face when offered, and afterwards complain of a refusal to reject it later in the trial. [Maxwell v. Railroad, 85 Mo. 95; State v. Hope, 100 Mo. 347; Hickman v. Green, 123 Mo. 165; State v. Marcks, 140 Mo. 656.] ’ ’ It is also claimed that the court erred in giving the fourth instruction, at the instance of the State, in that it east upon the defendant the burden of establishing his innocence. State v. Blue, 136 Mo. 41, is relied upon as sustaining this contention; but it does not do so. In that case reasonable doubt was defined by the trial court as being ‘£ a substantial doubt growing out of and consistent with the evidence,.” while in this case it is defined as a ££ substantial doubt arising from the evidence, and not a mere possibility of his innocence.” It is apparent from a casual reading of the instruction that it did not impose upon defendant the burden of proving his innocence. An instruction couched in substantially the same language as the one challenged in this case was approved by this court in State v. Sacre, 141 Mo. 64.

The instructions covered every phase of the case, and are free from error. The evidence was of the most convincing character, and such as to leave no possible doubt in the minds of the jury as to the defendant’s guilt. The jury found him guilty of the offense charged against him, and their verdict met with the approval of the court.

We have been unable to find reversible error in the record, and, therefore, affirm the judgment, and direct that the sentence pronounced be executed.

All concur.