author: DAVID E. BLAIR, J.

text:
    PETER HAUPTMANN TOBACCO COMPANY v. HENRY UNVERFERTH, Appellant.
    Division Two,
    May 26, 1921.
    1. Justice' Court: Attachment: Entrance of Appearance. Where a defendant, sued by attachment in a justice of the peace court, took an appeal to the circuit court from a judgment rendered against him by the justice,' he thereby entered his appearance in the case in that court and was in court for all the purposes of his case in the circuit court, even though in the latter court he attempted to appear specially in a motion to discharge the garnishment and dismiss the case, and after it was overruled attempted to appear specially in a plea in abatement. After be had entered his appearance by taking such appeal, these motions were utterly futile for the purpose of attacking the jurisdiction of the justice court over his person or his property brought before that court by garnishment under the writ of attachment.
    2. -: -: Jurisdictional Amount: Voluntary Credit: Tort. Where plaintiff’s claim, in a suit before a justice of the peace, is based upon a tort, the jurisdiction of the justice court is determined by the amount of the demand as filed, and it is immaterial that the plaintiff’s loss exceeded in amount the limit of the justice’s jurisdiction. The filing of the claim is a voluntary credit of all in excess of its amount and a waiver by plaintiff of his right to recover therefor, to which defendant cannot object.
    3. -: -: Evidence. In a suit by attachment based upon the ground that the damages sued for arose from the commission of a felony, where it appeared from the evidence that defendant was head stableman for plaintiff and lived over plaintiff’s stables: that he was used to receiving money from plaintiff’s drivers and placing it for safe keeping in sealed envelopes in a safe in the office of the plaintiff’s stables where he worked and to which he had 'access at all times; that on the occasion in question he had received money and checks in excess of $500 and put them in the safe; that he was the only one present-having keys to the inner door of the safe; that a vicious watch dog was loose in the stables at night that would not permit strangers to enter; that the regular watchman was on duty from five o’clock in the evening before until after five o’clock the next morning and did not leave the 'premises during the night, and saw no one except defendant about the place, but did see him come down to the office about five o’clock on the morning the money was missing, which was an hour earlier than he usually came; that a police officer saw defendant about six-forty-five in the morning trying to open the safe and afterwards saw him running away from the stables and asked him what was the matter and he said that the money was gone; that defendant gave several reasons for opening the safe; that his rooms were searched but none of the money was found. Held, that there was sufficient evidence to .make a case for plaintiff both on the merits and on the attachment.
    Certified from St. Louis Court of Appeals.
    Affirmed.

      Anderson, Gilbert S Ilayden for appellants.
    (1) The justice never acquired any jurisdiction over defendant or his property because there was no valid process, (a) No provision is made whereby one justice can issue a writ returnable before another justice, and sucha writ is void. Secs. 7420, 76 40, R. S. 1909. (b) Powers of justices and the manner of- exercising the same are minutely prescribed by the statutes, and if a justice of the peace exercises any power or issues any writ for which he is not specifically given authority by the statutes, and even though he has power to issue the writ if it is not issued in the mode prescribed by the statute, it is void.- Brownfield v. Thompson, 96 Mo. App. 341-2; Busholtz v. Ins. Co., 176 Mo. App. 467; Davidson v. Schmidt, 256 Mo. 19. (c) Void process cannot be amended because there is nothing there to amend. Therefore the attempt of the plaintiff herein to amend the void affidavit and writ which was issued on June 4,1914, by filing a new affidavit on June 18, 1914, is a nullity. Owens v. Johns, 59 Mo. 90; Corrigan v. Morris, 43 Mo. App. 461; Stave Co. v. Whitson, 34 Mo. App). -659; Natl. Bank v. Griffith, 192 Mo. App. 445, 446. (d)' Any proceeding under void process is a nullity and has no legal effect. Schell v. Leland, 45 Mo. 293. (e) The writ issued October 1, 1914, conferred no jurisdiction because in attachment suits, service must be had of the writ of attachment prescribed. Sec. 7640, R. S. 1909. (f) And the statute does not authorize the appointment of a special constable to serve process in an attachment suit. This authority is limited to ordinary summons cases. Sec. 7424, R. S. 1909; Mitchell v. Shaw, 53 Mo. App. 653; Huff v. Alsup, 64 Mo. 51; Fletcher v. Wear, 81 Mo. 524; Manguld v. Donley, 89 Mo. Ill; Huff v. Shepard, 58 Mo. 245. (g) The affidavit filed on June 4, 1914, is void and no attachment could issue thereon. Norman v. Horn, 36 Mo. App. 419. (h) Where the justice court acquired no jurisdiction the circuit court acquires none on appeal. Nane v. McHugh, 187 Mo. App. 718; Trust Co. v. Merritt, 158 Mo. App. 657-8. (i) Taking of an appeal does not cure or waive defective service or want of service. Lively v. Lumber Co., 194 S. W. 742; Swezea v. Jenkins, 186 Mo. App. 431; Meyer v. Ins. Co., 184 Mo., 481. (j) The writ issued September 1, 1914, was the first valid writ issued and as there was no service on either defendant or garnishee under that writ, neither defendant nor his property was ever under the court’s jurisdiction. Huff v. Shepard,- 58 Mo. 245; Natl. Bank v. Griffith, 192 Mo. App. 444. (2) The evidence showed that the amount involved exceeded the jurisdiction of the justice. Admittedly the amount of cash missing exceeded $500. Plaintiff has sued for $500, but has not on its statement made a remittitur. Where a claim is for over $500 a voluntary credit is necessary to give the Justice jurisdiction. Trapp v. Mersman, 183 Mo. App. 512. (a) This is true even though the judgment rendered is in the jurisdiction of the justice. Guhman v. Dunaway, 183 Mo. App. 659. (3) The findings of the court both on the plea in abatement and merits are without evidence to support them.

      D. J. O’Keefe for respondent.
    (1) The original writ of attachment and summons issued by the justice court was not void but merely erroneous, which was properly corrected by amendment on motion of plaintiff, (a) Attachment proceedings in justice courts authorized by statutes. Secs. 7636, 7639, 7654, 2328, R. S. 1909. (b) Power of justice court to allow plaintiff to file amended affidavit and to amend the court’s own writs, summons or other proceedings is fully authorized by the statutes of Missouri, and the same may be amended in the circuit court on appeal. Secs. 2341, 7466, 7540,1848,1850, R. S. 1909; Musgrave v. Mott, 90 Mo. 107; Burnett v. McCluey, 92 Mo. 235; Boulware v. Railroad, 79 Mo. 495; Avery v. Good, 114 Mo. 295; Maurer v. Phillips, 182 Mo. App. 446; Martin v. Castle, 182 Mo. 230. (2) The question of the court’s jurisdiction over the person of defendant is fully established both by the record in the justice court and the voluntary appearance of defendant in the circuit court. Secs. 2329, 7568, 7579, R. S. 1909; Meyer v. Ins. Co., 92 Mo. App. 392; Winer v. Maness, 94 Mo. App. 162; Wenker v. Thompson, 96 Mo. App. 59; State ex rel. v. Mosman, 112 Mo. App. 547; Boulware v. Railroad, 79 Mo. 494; Advertising Co. v. Castleman, 265 Mo. 351; Advertising Co. v. Castleman, 165 Mo. App. 578; Kronski v. Railroad, 77 Mo. 368. (3) The findings and judgments of the court on the plea in abatement and the merits are clearly supported by the evidence and the law. Deering & Co. v. Collins, 38 Mo. App. 80; Milling Co. v. McWilliams, 121 Mo. App. 319. (4) This being an action in trover for the wrongful conversion of property, the statement filed before the justice and the amended statement ■ filed in the circuit court settles .the question of the jurisdiction of the court, and it is immaterial if the evidence shows a conversion of a sum in excess of the amount sued for. Am. & Eng. Encyc. of Law, pp. 652, 653; Borden v. Hornsby, 50 Mo. 238; Denny v. Eckelkamp, 30 Mo. 140, 141; Sec. 7615, R. S. 1909; Bank v. Tracy, 141 Mo. 252; Snow v. Pollard, 84 Mo. App. 286; Leet v. Gatz, 124 Mo. App. 394; Lincoln Tr. Co. v. Nathan, 122 Mo. App. 319; Guhman v. Dunaway, 183 Mo. App. 661.
   DAVID E. BLAIR, J.

Appeal from the Circuit Court of the City of St. Louis to the St. Louis Court of Appeals. The judgment of the circuit court was there affirmed and the case was certified here as . . , , . , . . „ , being contrary to a previous decision of the Springfield Court of Appeals in the case of Lively v. Munál-Jones Lumber Company, 194 S. W. 741. *

The opinion of the St. Louis Court of Appeals was by Reynolds, P. J., and was reported in 207 S. W. at page 283. We content ourselves with making reference to the case as there reported for a full statement of the facts and the opinion of the court. In brief, plaintiff (respondent here) instituted suit by attachment before Robert Walker, a justice of the peace of the City of St. Louis, against defendant for $500 for money of the plaintiff alleged to have been taken by the defendant from a safe belonging to plaintiff. Defendant was in the habit of receiving" money from plaintiff’s drivers and placing it for safe keeping in sealed envelopes in said safe which was in the office at the stables of the plaintiff where defendant worked as head stableman. Defendant lived with his family over the stable and had access to the office and safe at all times. He reported the loss of the money and it was thereafter charged that he took the money and checks amounting to something over $600.

The demand in the suit filed was for $500, the limit of the money jurisdiction of the justice court. The checks amounted to about $100. A garnishment was issued on said attachment and served upon two banks, one of which was the Broadway Savings Trust Company, which answered that it had in its possession the sum of $918.72 as the property of the defendant.

The writ of attachment was issued on a form in which the name of Charles S. Luce, another justice of the peace in the same district, was used instead of the name of Robert Walker, the justice of the peace who issued the writ. Return to this writ was made by the constable showing service on June 4, 1914, by delivering a true copy to defendant and by summoning the Broadway Savings Trust Company and the Northwestern Bank as garnishees. The garnishment against the Northwestern Bank was subsequently dismissed.

When the error in naming Justice Luce was discovered, an amended writ was issued on June 18, 1924, correcting said error. This writ was dated and made returnable on the same dates as the original- writ, to which writ constable made the return that he served it on defendant June 4, 1914, and summoned the Broadway Savings Trust Company as garnishee. Thereafter and on September 1, 1914, the justice issued a new writ of attachment and summons returnable September 18, 1914, to which the constable made a non est return as to defendant and that he served the attachment by attaching money of the defendant in the hands of the Broadway Savings Trust Company. On October 1, 1914, the justice issued his alias writ to a special constable, commanding him to summon defendant to appear October 15, 1914, to which writ such special constable made return under oath that he served the summons by leaving a true copy thereof at the usual place of abode of the defendant with a member of his family over fifteen years of age. On October 15, 1914, the justice rendered judgment against defendant by default in the sum of $500. It does not appear whether judgment was rendered against the garnishee. After the rendition of such default judgment in the justice court, defendant appealed the case to the circuit court.

In the circuit court the defendant filed his motion to discharge the garnishment, setting out that he appeared therein solely for the purpose of the motion. This motion detailed the proceedings before the justice of the peace, which we have only briefly outlined above, and averred that the proceedings in the justice court were null and void and that the justice was without jurisdiction and prayed for a release of the garnishment and that the judgment in the justice of peace court be set aside and that the action be dismissed. This motion was overruled by the circuit court. Thereupon defendant filed his plea in abatement, stating that he appeared specially and only for the purpose of his plea in abatement and under protest, etc. The plea in abatement was tried first and resulted adversely to defendant. The trial of the case on the merits resulted likewise and judgment was entered against the defendant for $500. Motions for a new trial and in arrest of judgment in the attachment proceedings and on the merits were overruled and the defendant has appealed.

I. The main contention of defendant is that the justice of the peace acquired no jurisdiction of his person or his property because there was no valid process; that the original writ of summons and at-tachment was void because returnable before another justice than the justice issuing same; that such void process could not be amended; that the writ of October 1, 1914, conferred no jurisdiction on the justice; that the statute does not authorize the appointment of a special constable to serve process in attachment suits and that therefore service thereunder on the defendant was a nullity; that where the justice court acquired no jurisdiction the circuit court acquired none on appeal and such appeal does not cure defective service or want of service.

The Court of Appeals sustained the action of the trial court and held that by going to' trial on the merits the defendant lost the benefit of his plea to the jurisdiction of the justice over his person and refused to determine the validity of the attachment, because that question was deemed not material for the reason that defendant had given bond covering the personal judgment rendered against him.

The opinion of that court recites its rulings in the case of Powell v. Railway Co., 178 S. W. 212, wherein it had previously held that defendant in that case waived his right to challenge the jurisdiction of the justice court by taking an appeal to the circuit court, and further recited that said Powell case had been certified to the Supreme Court, where it was still pending’ at that time.

In the ease of Cudahy Packing Company v. Chicago & Northwestern Railway Co., No. 21471, handed down in April, 1921, Division One of this court in an able and exhaustive opinion by James T. Blair, J., reviewed all the cases in this State on the vexed question of the effect of the taking of an appeal from the justice court to the circuit court and, with the concurrence of all the judges of that division, held that the taking of such an appeal by the defendant ‘ ‘ constitutes such an appearance as to waive defects in or absence of summons or service.” By his appeal from the justice court the defendant entered his appearance in the case in that court and he was in court for all purposes of his case in the circuit court. It made no difference whether he went to- trial on a plea in abatement or on the merits or made default after his motion to discharge the garnishment and for dismissal of the case had been overruled. After he had entered his appearance by taking such appeal these motions were utterly futile for the purpose of attacking: the jurisdiction of the justice court over his person or his property brought before that court by garnishment under the writ of attachment.

II. Another question raised by defendant and one not discussed in the opinion of the Court of Appeals is that the amount involved exceeded the jurisdiction of the justice court. The amount of cash missing exceeded $500 and no voluntary cr<Mit was given on the claim. To support this contention defendant cites the case of Trapp v. Mersman, 183 Mo. App. 512. Tlio action there was based on a note on which an amount in excess of the jurisdiction of the justice was due and it was held that the written instrument and not the memorandum of plaintiff as to the amount claimed determined the jurisdiction of the justice court;, that such memorandum did not amount to a voluntary credit on the note, so as to bring it within the jurisdiction of the justice.

In the case before us the action is based on tort and not on a written instrument. The jurisdiction of the justice court is determined by the demand. It is immaterial that plaintiff’s loss may have been in excess of $500. Plaintiff is permitted to waive recovery for a part of its loss, if it wishes. The defendant is in no position to object to such reduction. [Burden v. Hornsby, 50 Mo. 238.]

III. Defendant contends there was no evidence to support the judgment of the trial court, either on the merits or upon the attachment. It is unnecessary to set out the evidence at length, because it is fully reviewed in the opinion of the Court of Appeals. It tends to establish that defendant received the money exceeding $500 and put it in a safe under his control and that he was the only one present having keys to the inner door of the'safe. The regular watchman was on duty from five o’clock the evening before until after five o’clock the next morning and did not leave premises during the night. There was a vicious watchdog loose in the stables at night that would not permit strangers to enter. This watchman saw defendant come down to the office at about five o’clock on the morning’; the money was missing. This was an hour earlier than he usually came down stairs. The watchman saw no one except defendant about the place. A police officer saw defendant at 6:40 or 6:45 in the morning trying to open the safe and after-wards saw him running south away from the stables and asked him what was the matter, and defendant stated that’the money was gone. Defendant gave several reasons for opening the safe. Search of his rooms was made, but none of the money was found. The Court of Appeals held that there was .sufficient evidence to make a case for the plaintiff to submit to the trier of the facts. We agree ’with that court that there was sufficient evidence to make out a case for plaintiff. The same evidence which entitled the plaintiff to have the case submitted on the merits was sufficient on the plea in abatement on the ground that the damages for which the action was brought arose from the commission of a felony. The findings of the trial court conclude the matter.

Finding no error in the record, the judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. EVERETT BAIRD, Appellant.
    Division Two,
    May 26, 1921.
    1. MURDER: Circumstantial Evidence: Instruction. In a prosecution for murder, where defendant admitted the killing and nothing was left for the jury to determine from the circumstances except as to who was the aggressor and whether there was justification for the act or facts' which would mitigate the crime, it was not necessary for the trial court to instruct the jury in regard to circumstantial evidence.
    2. -: Good Character of Defendant: Instruction. In a prosecution for murder, where defendant did not put his character in issue- and offered no evidence as to good character, but testified in his own behalf, the State had a right to impeach him “as any other witness” (Section 4036, Revised Statutes 1919) but did not have a right, for the purpose of impeaching him as a witness, to show that he was of bad character as a quarrelsome, turbulent and dangerous man. Such evidence did not tend to impeach him as a witness but was an assault upon him as a defendant. And the State having produced witnesses to prove defendant’s bad character, in the respects stated, who testified that his character was not bad in those respects at the time of the homicide, and defendant’s character having thus been put in issue it was the duty of the trial court, under Section 4025, Revised Statutes 1919, to instruct the jury as to defendant’s good character, such instruction being “necessary” within the meaning of said section.
    Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.
    Reversed and remanded.

      Mayes & Gossom for appellant.
    , (1) The court erred in failing to instruct the jury as to the g;ood character of the defendant upon defendant’s request so to do. R. S. 1919, sec. 1025; State v. Anslinger, 171 Mo. 600; State v. O’Conner, 31 Mo. 389; State v. Cook, 207 S. W. 833; State v. Tender, 204 S. W. 735; State v. Byrd, 213 S. W. 37. (a) And it makes no difference whether the evidence of good character was adduced by the State or the defendant. State v. Birdstrup, 237 Mo. 273. (2) The court erred in refusing defendant’s request to instruct the jury on all questions of law necessary for their information in arriving at a-just verdict and especially in refusing the request of the defendant to instruct the jury on circumstantial evidence. State v. Barton, 214 Mo. 316; State v. Bobbitt, 215 Mo. 10; State v. Massey, 204 S W. 54.3; State v. Donnelly, 130 Mo. 643; State v. Francis, 199 Mo. 67.1. (3) The innocence of the defendant is presumed until his guilt is established beyond a reasonable doubt, either by direct and positive proof or by circumstantial evidence. The presumption of innocence is not overcome by mere proof that the defendant killed the deceased, when all the evidence in the case shows that he killed the deceased in self-defense. A verdict cannot stand that rests solely upon conjecture and suspicion. State v. Glahn, 97 Mo. 679; State v. Nesenhener, 164 Mo. 461; State v. Francis, 199 Mo. 671; State v. Gordon, 199 Mo.. 561.

      Jesse W. Barrett, Attorney-General, and J. Henry Garvthers, Special Assistant Attorney-General, for respondent.
    (1) No substantial evidence of good character was adduced. State v. Byrd, 213 S. W. .37; State v. Gartrell, 171 Mo. 519; State v. Anslinger, 171 Mo. 606; State v. Cook, 207 S. W. 833; State v. Hooper, 71 Mo. 430-1. (2) The State did not seek to convict defendant upon circumstantial evidence alone, hence the refusal of the court to give such instruction is not error. State v. Babbitt, 215 Mo. 43; State v. Donnelly, 130 Mo. 649; State v. Fairlamb, 121 Mo. 147; State v. Gartrell, 171 Mo. 519; State v. Eobinson, 117 Mo. 663; State v. Massey, 204 S. W. 543; State v. Crone, 209 Mo. 330.
   WHITE, C.

The appellant, March 23, 1920, in the Circuit Court of Pemiscot County was convicted of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for a term of fifteen years. He was charged with having killed one Will Jenkins on the tenth day of August, 1919.

Jenkins and Baird were farmers and lived near each other, their two houses being qbout a hundred yards apart. It seems that Jenkins was making a crop on the shares for Baird. The two men had had gorQe ¿p-fg^-uPy. the evidence showed that each had made violent threats against the other. The houses of the two men fronted east, and it appears that a division fence, somewhere near midway between the two houses, separated their respective enclosures, Baird’s house being on the south. To the rear, and a little to the north of Baird’s house was his barn. North of the barn, across the fence, was Jenkins’ cornfield. There was no witness to the homicide except the defendant himself. Jenkins ’ body, a few moments after he was shot, was found a few feet from the division fence inside his cornfield, among: the cornstalks.- The State attempted to show the shot which killed Jenkins was fired from a window in the loft of Bairds’ crib, which window was about 18 or 20 feet south of where Jenkins’ body lay. He was killed -with "a shotgun and according to the testimony the wounds ranged downward indicating that he was shot from an elevation. Baird admitted he killed Jenkins with a shotgun and explained to several persons who testified for the State how it occurred. It is claimed-by the State that those explanations were inconsistent.

According to the evidence offered by the defendant, on the morning before the tragedy, about 8:30 in the morning, Baird went away from home to a little town called Netherlands. "While he was gone his wife and Jenkins ’ wife had a quarrel about vegetables in the garden. It seems that the gardens of the two were enclosed together. A short time afterwards Jenkins appeared at the -milk house in Baird’s yard where Mrs. Baird was and abused her violently, threatening to kill the defendant. He had a shotgun at the time and went off through the field, Mrs. Baird thought hunting for her husband. Mrs. Baird then brought out her husband’s shotgun and when he returned from town she told him of the altercation. Soon afterwards Jenkins appeared with his gun, apparently “stalking” the defendant, peeping around his barn as if to discover where he was. After watching for a time the defendant stepped out into the open, and after a few remarks and gestures from which appellant claimed he thought Jenkins was about to shoot him he 'fired the fatal shot. Eleven shot took effect in Jenkins’ head, killing him instantly. Evidence was offered by defendant to prove that Jenkins was a violent, turbulent, quarrelsome character. Evidence also was offered by the State as to the defendant’s character, which will be noted later in the opinion.

The evidence indicates, that Jenkins fell where he lay, about 18 or 20 feet north of the window in the loft of the defendant’s barn, and about five feet north of the division fence. The stalks of com near the body showed the marks of a shot. With the view we take of the case it is unnecessary to set out the evidence at greater length.

I. The appellant assigns error to the failure of the court fully to instruct the jury on all the questions of law involved in the case. He claimed the court should have instructed in regard to circumstantial evidence. The court must instruct the jury in regard to it where the guilt of the defendant is established wholly by circumstantial evidence. Where the fact of the homxcxde by the defendant depends upon circumstances, such an instruction is necessary but not where the Only resort to circumstantial evidence is for the purpose of showing the manner in which the homicide took place. [State v. Gartrell, 171 Mo. l. c. 519; State v. Crone, 209 Mo. 316, l. c. 331; State v. Bobbitt, 215 Mo. l. c. 43; State v. Massey, 274 Mo. 578, 204 S. W. l. c. 543.]

In this case the defendant admitted that he killed Jenkins; nothing was left for the jury to determine from circumstance except as to who was the aggressor, and whether there was justification for the act or facts which would mitigate the crime. Such instruction in this case was not necessary.

II. Error is further claimed in the failure of the court to instruct on the good character of the defendant. The statute (Section 4025, Revised Statutes 1919), requires the trial court, whether requested or not, to instruct the jury upon all question of law arising in a criminal case which instructions must in¿lude “whenever necessary, the subjects of good character and reasonable doubt.” The defendant did not put his character in issue, offered no evidence as to good character. He took the stand in his own behalf and the State had the right to impeach him “as any other witness.” [See Sec. 4036, R. S. 1919.]

The State in rebuttal recalled three witnesses: B. F. Allen, William Foley, and C. L. Lefler. Allen testified as follows, without objection:

“Q. How long have you known Everett Baird? A.. Known Everett Baird as far as I remember, I got acquainted with Everett Baird about 1906 or ’07 as well as I remember.

“Q. Ask if you are acquainted with his general reputation for truth and veracity in the neighborhood in which he has lived? A.. Never heard that discussed.

“Q. Ask whether or not you are acquainted with his general reputation as to being a dangerous, quarrelsome and tuihulent character? A. Yes, sir, I am acquainted with it.

“Q. Is that good or bad? A. It is not bad for quarreling— (interrupted)

“Q. Dangerous? A. — and dangerous.

“Q. The full question. A. Not dangerous for quarreling and fighting unless you impose on him.

“By the Court: You say it is not bad for that?

“Witness: No, sir, it is not bad.’’’

Foley testified that he did not know the defendant’s general reputation in the neighborhood in which he lived for being a dangerous, quarrelsome, turbulent character.

L.efler testified without objection, as follows:

“Q. Mr. Lefler, I will ask whether or not you are acquainted with the general reputation of the defendant in this case for being a dangerous, quarrelsome and turbulent character? A. Yes sir.

/ “Q. Is that good or bad? A. Well, it is not so bad.

“Q. Is it good or bad? A. Well, lately he has been a pretty good man, — used to be when he got whiskey in him, of course, he didn’t care much.

“Q. Since whiskey gone out he’s done pretty well?

A. Different man before whiskey went out.

“By the Court : How long back, do you say?

“Witness: I guess for a year or two.”

The State had a right to show that defendant had a bad reputation for truth and veracity and that his general reputation for morality was bad, but it had no right, for the purpose of impeaching him as a witness, to show that he was of bad character as a quarrelsome, turbulent citizen. [State v. Beckner, 194 Mo. 281, l. c. 294-296; State v. Shuster, 263 Mo. l. c. 602; State v. Edmundson, 218 S. W. l. c. 865.] Such evidence did not tend to impeach the defendant in his character as a witness, but was an assault upon his character as a defendant. [State v. Beckner, supra, 1. c. 294.] It was an attempt to show he possessed the very qualities which would affect his tendency to # commit the crime of which he was charged.

It is claimed by the State that this evidence is not sufficient to warrant an instruction upon good character because it is not substantial evidence of good character. This court has held that “whenever necessary” as used in the section of the statute quoted means, “whenever there is any substantial evidence of general reputation of such character offered in evidence.” [State v. Cook, 207 S. W. l. c. 833; State v. Byrd, 213 S. W. 37.] The case of State v. Anslinger, 171 Mo. l. c. 608-609, is cited by the State in support of the propriety of the court’s refusal to give such instruction. In that case a witness was charged with illegal and fraudulent voting. The character witness testified that the defendant was a hardworking and industrious man, and the court held, l. c. 609, that there was not the slightest evidence upon the trait of character involved in the charge which rendered it necessary for the information of the jury to instruct upon the subject of good character; that a man might be a hard-working man and still be dishonest; it would not affect the trait of character which would lead him to vote illegally. In this case the questions were addressed to the very trait of character involved in the commission of the crime charged, whether the defendant was turbulent and dangerous. Allen testified that he was acquainted with Baird’s reputation; that it was not bad for quarrelling and fighting. Lefler testified that he once had a bad reputation when he could get liquor, but that of late his reputation for being quarrelsome was not bad. This evidence was brought out by the State; it was not objected to by the defendant and was proper for the jury’s consideration. That is, the State made an assault upon the defendant’s character as a defendant, and the evidence tended to show the reverse of what was intended. We are unable to say that there was no substantial evidence that the defendant had a good character in that respect.

Further, having deliberately attacked the character of the defendant, treating the matter as being in issue, having made the attack with the expectation of proving a bad character, and having produced evidence tending to show the contrary, the State is not in position to say that the issue was not before the jury. “Whenever necessary,” as used in the statute, is not limited to cases where the defendant himself has offered evidence of his good character, but it must include any case where his character is put in issue and there is sufficient evidence to warrant a finding by the jury that his character is good.

The position of the State in this respect is like that of a party to a suit who offers evidence as if an issue had been tendered by the pleading in the case, when in fact the pleading tendered no such issue. He can’t, therefore, claim there was error in submitting such issue to the jury; the court would err if it failed to submit the issue to the jury. [Chouquette v. Southern Elec. Ry. Co., 152-Mo. l. c. 263-261; Fisher Real Estate Co. v. Realty Co., 159 Mo. l. c. 567.] Parties to litigation necessarily are held bound to positions they assume therein. [Green v. City of Saint Louis, 106 Mo. 454, l. c. 458.] We see no reason why this rule should not be applied to the State in a criminal proceeding.

We, therefore, are of the opinion that the court erred in refusing to instruct the jury on the question of defendant’s character. Other errors are assigned, which we deem it unnecessary to consider because like circumstances probably will not occur in another'trial.

The judgment is reversed and the cause remanded.

Bailey and Mozley, GO., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author: RAILEY, C. PER CURIAM:

text:
    MARY H. BURTON v. H. FRANK HOLMAN, Administrator, et al., Appellants.
    Division Two,
    May 26, 1921.
    1. WILL CONTEST: Mental Capacity: Undue Influence: Instructions. In a will contest case, where the mental capacity of the testatrix to make a will was not questioned either in the pleadings or in the trial of the ease, and the only issue was whether the will was procured by the undue influence of the fafnily physician who was also the trusted confidential business advisor of the testatrix, the trial court committed no reversible error in instructing the jury at the instance of plaintiff that if they found the testimony of the subscribing witnesses to the will as to its execution and that testatrix was of sound mind to be true they should find that the instrument produced was the will of testatrix unless they should further find that it was the result of undue influence, and in refusing to instruct the jury at the instance of defendants that the mental capacity of the testatrix to make a will was not an issue in the case, although the giving of such an instruction would have resulted in no harm.
    2. -: Demurrer to Evidence in Chief: Waiver by Putting in Evidence. Where defendant does not stand on his demurrer to plaintiff’s evidence in chief, but, after it is overruled, himself puts in evidence, he thereby waives his right to object to the overruling of his demurrer, as it then becomes the duty of the jury to pass upon the evidence as a whole.
    3. -: Demurrer to Evidence at Close of Case: Physician and Patient: Undue Influence: Conflict of Evidence. In a suit brought by a daughter of the testatrix to contest the will on the ground that it was the result of the undue influence of one of the defendants to whom was left about one-half of the estate and who was the family physician and confidential business advisor of the testatrix, who was about seventy-eight years old when the will was made, the presumption of law is that the will was the result of undue influence and the burden was upon the defendant physician to show that it was not; and there being substantial evidence to support the plaintiff’s contention defendant’s demurrer to the evidence at the close of the whole case was properly overruled. '

      4. -: Instruction: Comment on Evidence. In a will contest case, where the issue was whether the will was the result of the undue influence of one of the beneficiaries of the will, who was the family physician and confidential business advisor of the testatrix, an instruction, asked by defendants, was properly refused, which stated only part of the facts appearing in the evidence in the case and told the jury that “such facts are no evidence of undue influence taken alone and raise no presumption of the invalidity of the will, provided the jury find that while making the will she had a sound and disposing mind and memory," because such instruction is an unwarranted comment on a part only of the evidence and also in conflict with an instruction given for plaintiff whereby the jury was directed in passing upon undue influence to consider all the facts and circumstances shown by the evidence.
    Appeal from Randolph Circuit Court.— Hon. A. W. Walker, Judge.
    Affirmed.

      J. H. Whitecotton, M. J. Lilly, W. B. Stone and Edmund Burke for appellant.
    (1) The testimony of Wisdom Burton and other witnesses’ testimony as to transactions had by Dr. Dinwiddie with and for Martha Harlow was incompetent and tended to prejudice the jury against him and was offered for that purpose only. (2) The instruction asked at the close of the plaintiff’s case in chief should have been given for the reason, that there was no substantial testimony tending to prove “mental incapacity,” or the exercise of “undue influence,” one of which must have been proven in this casé or the instruction should have been given. Undue influence means such influence as amounts to over-persuasion, coercion or fraud, destroying the free agency and will power of the testator. Martin v. Bowden, 158 Mo. 392; Tibbs v. Kamp, 154 Mo. 579; Sehr v. Linderman, 153 Mo. 289; Campbell v. Carlisle, 162 Mo. 647. (a) Also affirmative proof of such undue influence is required to be made either by direct facts shown or such, facts and circumstances as from which undue influence naturally results as a reasonable and fair inference, and not as mere conjecture. Tibbs v. Kamp, 154 Mo. 579; Campbell v. Carlisle, 162 Mo. 647; Weber v. Strobel, 236 Mo. 663. (b) Influence gained by kindness and affection will not be regarded as “undue,” if no imposition or fraud be practiced. Weber v. Strobel, 235 Mo. 664; Gordon v. Burris, 141 Mo. 616; In re Small, 105 App. Div. (N. Y.) 141. (3) Instruction No. 1 asked by the defendants should have been given. There was neither an allegation in the petition making “mental incapacity” a ground for contesting the validity of the will. Neither was there any proof offered that tended to prove the same had it been alleged. ‘ ‘ Mental incapacity ’ ’ not being charged as a ground and no proof made, the court should have given this instruction as said by this court in a similar case (Byrne v. Byrne, 250 Mo. 542): “At most this petition charges mental and physical weakness as tending toward producing a mind that could be more easily influenced. ’ ’ To make the matter worse the court not only refused this instruction but gave one asked by the plaintiff making mental incapacity an issue. Both actions of the court were under the pleadings and the evidence prejudicial error. Byrne v. Byrne, 250 Mo., 632; Coherly v. Donovan, 208 S. W. 53, 204 S. W.- 730. (a) Instruction marked “D,” should not have been given, for the reason that it submits an issue neither in the pleadings nor supported in the least by the evidence. It is also objectionable for the further reason that it is conditioned on undue influence of Dr. Dinwiddie, or anyone acting for him without any proof whatever in the case as to the fact of anyone- acting for him. It is purely speculation and is therefore, prejudicial to defendants. (b) Instruction marked “E,” should not have been given, for the reason there was no substantial evidence on which to base such an instruction, (c) The court having given an instruction submitting to the jury both the question of “undue influence” and “mental incapacity” should have given defendants’ instruction numbered‘3, and it was reversible error to refuse it. (4) The trial court should have granted the defendant a new trial because of the aforesaid errors committed by the court, and for the further reason, that there was no substantial testimony to support the verdict of the jury, on'either “mental incapacity” or “undue influence.” There must be substantial testimony in the case to support the verdict or the court should have granted a new trial; and this court in the case of a refusal of the trial court to so act will reverse the judgment. Naylor v. McEuer, 248 Mo. 423; Major v. Kidd, 261 Mo. 607; Kleinlein v. Krauss, 209 S. W. 933; Norton v. Paxton, 110 Mo. 461; Teckenbrock v. McLaughlin, 209 Mo. 538; Sayre v. Princeton University, 192 Mo. 120.

      Willard P. Gave for respondent.
    (1) The testimony of Wisdom Burton is entirely competent, and there is nothing there to indicate that the questions were in any way improper. (2) The instruction asked by defendant at the close of plaintiff’s case in chief, was properly refused, it being an instruction in the nature of a demurrer to the evidence, as there was a sharp issue of facts made in the case, (a) Furthermore in eases where undue influence is charged, and the facts are undisputed, that the defendant, Dinwiddie, was not only the confidential advisor and agent of the deceased, but also was her family physician and treated her professionally at the time, and immediately before the alleged will was made, under the laws of this State, the burden of proof is cast upon such person occupying a confidential relationship to a deceased to disprove the fact of undue influence. . Hall v. Knappenberger, 97 Mo. 509; Dausman v. Eankin, 189 Mo. 677; Cornet v. Cornet, 248 'Mo. 234; Mowry v. Jarman, 204 Mo. 173; Byrne v. Byrne, 250 Mo. 632; Sittig v. Kersting, 223 S. W. 742. (3) Instructions prayed for by plaintiff and given by the court, numbered A, B, C, D, E, F, Gr and H, are all correct declarations of the law.
   RAILEY, C.

This suit was commenced by plaintiff; in the Circuit Court of Randolph County, Missouri, on August 9, 1918, in vacation, to contest the will of her mother, Martha Harlow, a resident of said county, who died about April 26,1918. The will was duly probated in said county, and is set out in the abstract of record. The executor named in the will, and the heirs of testatrix having refused to administer upon said estate, the Probate Court of Randolph County, on May 8, 1918, appointed defendant, IT. Frank Holman, public adminstrator of said county, to take charge of the estate,- and he is now the acting administrator of said estate. The other defendants are designated as beneficiaries in said will.

The controversy, as presented in the petition, is clearly stated in respondent’s brief, as follows:

“The entire gist of the action is alleged to he undue influence exercised by the principal defendant, Dr. T. H. Dinwiddie, who was the practicing physician and trusted confidential advisor of the deceased, Martha Harlow. ’ ’

Appellants state the issues involved, as follows:

“The petition, while being very verbose, bases its right to set the will aside on undue influence only. ’ ’

The answer of the real defendants, Dinwiddie and the trustees of the Baptist Church of Higbee, is a' general denial of undue influence.

The testatrix, Martha Harlow, was the widow of John F. Harlow, who died about 1898, while living at Higbee in said county. Plaintiff is the only child of testatrix and John F. Harlow.

The will in controversy is dated April 4, 1903. By the third and seventh paragraphs of the will, plaintiff was given $500, and the household and kitchen furniture left by her mother. The eight paragraph of said will reads as follows:

“I will, devise and bequeath to T. H. Dinwiddie, Lots Nine (9) and Ten (10) in Block One (1), in Owen’s Division of Higbee, in Randolph County, Missouri, to have and to hold in fee simple forever, and I also will and bequeath to said T. H. Dinwiddie the sum of One Thousand Dollars.”

The evidence tends to show, that testatrix was about 76 or 78 years old when the will was made on April 4, 1903.

Respondent contends, that the estate left by testatrix was of the value of $6,500 or $7,000. Appellants contend, that it was worth about $7,300. The latter amount is named as the value by Wisdom Burton, one of plaintiff’s witnesses.

The will, after providing for the payment of testatrix’s debts, and the other bequests mentioned, left the remainder of her estate to James E. Rucker and John H. Botts, as trustees of the Baptist Church of Higbee, Missouri.

As appellants are insisting that the cause should be reversed with instructions to sustain the will, in order to avoid repetition, we will consider the evidence on the merits, the instructions and the rulings of the court, in the opinion.

The jury returned a verdict rejecting the will; judgment was entered in due form on the verdict; appellants, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled and they duly appealed the cause to this court.

I. There was no controversy at the trial over the pleadings, or evidence thereunder, as to the sufficiency of testatrix’s mental capacity to make the will in controversy.

Counsel for plaintiff, in his opening statement to the jury, after calling attention to the testimony which would show Dr. Dinwiddie was the family physician of testatrix and was her confidential business advisor, said:

“If we show you these, then we say we do not think there will be any lingering doubt in your mind that this will was promt,red by the undue influence of the defendant Dinwiddie.” (Italics ours.)

Counsel for appellants, after stating to the jury their theory of the case, said:

“Now, I think the testimony will disclose these facts, that the ivill was made of her own free will without influence or suggestion from a living soul. If these facts turn out as I believe they will turn out, I don’t believe you will have any trouble on earth in sustaining this will.” (Italics ours.)

In appellants’ original brief, it is said:

“The petition, while being very verbose, bases its right to set the will aside on undue influence only.” (Italics ours.)

In appellants’ reply brief, it is said:

“It is admitted by the respondent that this action is based upon the exercise of undue influence by Dr. Dinwiddie over the mind of Martha Harlow, deceased, and therefore respondent claims that said will was procured by the untkie influence of Dr. Dinwiddie.” (Italics ours.)

In respondent’s brief, it is said:

“The entire gist of the action is alleged to be undue influence exercised by the principal defendant, Dr. T. H. Dinwiddie, who was the practicing physician trusted confidential business advisor of the deceased, Martha Harlow.”

The plaintiff did not ask a verdict at the hands of the jury, upon the idea, that testatrix did not have sufficient mental capacity to make the will. Nor does it appear from the record, that plaintiff’s counsel argued or even suggested any such question before the jury. Appellants made formal proof as to the execution of the will by Jones and Wayne, who testified, without contra.diction by any one, that testatrix was of sound mind and executed the will in their presence, etc. There was absolutely no controversy over the mentality of Mrs. Harlow, at any stage of the proceedings.

The court, therefore, gave to the jury, at the instance of plaintiff, instructions A. and D. which, in legal effect, told the jury, if the testimony of Jones and Wayne was found by them to be true, then they should find, that the instrument produced, was the will of testatrix, tinless they should further find, that it was the result of undue influence, etc. In said instructions A., and D. the jury were not directed to find for plaintiff under any circumstances. We are at a loss to understand, how appellants could have been injured on account of the giving of said instructions.

In the case of Byrne v. Byrne, 250 Mo. l. c. 642, relied on by appellants, the facts were different. The meaning of the petition was doubtful, and the testimony produced at the trial was an issue in the case. On page 642, Judge Graves said:

‘ ‘ The prima facie case showed mental capacity, and even the evidence for the plaintiff is not sufficient to show mental incapacity. Under the pleadings and under the evidence there is no question that this issue, if it was an issue, should have been taken out of the case by the instruction aforesaid. We do not think it was a live issue, either by proof or pleading, but the petition is so peculiarly tvorded that the jury may have been misled, although no instruction toas ashed by plaintiff upon mental incapacity. . . Standing alone, under the facts of this case, it might not be such error as would necessarily work a reversal, but its refusal evidently contributed its mite to the result, in an exceedingly close case.” (Italics ours.)

The instruction mentioned by Judge Graves as having been refused, is similar in form and substance to appellants’ instruction one (1) refused in this case.

On the facts heretofore set out, testatrix’s mental capacity to mahe the will was not questioned in the pleadings or in the trial of the case. It would be a reflection upon the intelligence of the jury to hold, that they might have been misled as to the mental capacity of testatrix to make the will in controversy. We accordingly hold, that no reversible error was committed on account of the giving of said instructions A. and D., nor in refusing appellants’ instruction one (1), although no harm would have resulted from the giving of same, and informing the jury thereby that mental incapacity was not an issue in the case.

II. Appellants, under proposition II of their “Points and Authorities,” contend, that the trial court committed error in overruling defendants’ demurrer to plaintiff’s evidence in chief.

The law of this State is thoroughly settled, adversely to appellants ’ contention. Instead of standing upon their demurrer to plaintiff’s evidence in chief, appellants put before the jury their own testimony, and thereby waived their right to object to the overruling of said demurrer, as it then became the duty of the jury to pass Urpon the evidence as a whole. [Bowen v. Ry. Co., 95 Mo. l. c. 275-6, 8 S. W. 230; Guenther v. Ry. Co., 95 Mo. l. c. 289, 8 S. W. 371; McPherson v. Ry. Co., 97 Mo. l. c. 255, 10 S. W. 846; Hilz v. Ry. Co., 101 Mo. l. c. 42, 13 S. W. 946; Riggs v. Railroad, 216 Mo. l. c. 310, 115 S. W. 969; Riley v. O’Kelly, 250 Mo. l. c. 660, 157 S. W. 566; Lareau v. Lareau, 208 S. W. l. c. 243; State v. Jackson, 223 S. W. l. c. 728, and cases cited; State v. Mann, 217 S. W. l. c. 69, and cases cited, j

Under the foregoing authorities, appellants’ contention supra, is without merit.

III. It is further insisted by defendants, that their demurrer to the evidence, interposed at the conclusion of the whole case, should be sustained.

If there was substantial evidence offered at the trial, tending to support respondent’s contention, that the will in controversy was the result of undue influence upon the p-art of Dr. Dinwiddie, over the mind of testatrix at the time of its execution, the trial court cannot be convicted of error in overruling said demurrer.

Appellants, at page 10 of their reply brief, very frankly state the law of this case, as follows:

“We admit that it is the law of this State that when a confidential relation is shown to exist between the testator and the recipient of his bounty, an exerted influence will be presumed to have induced the bequest, and the onus is cast upon the beneficiary to make explanation of the transaction and establish its reasonableness.”

The law, in respect to this subject, is very clearly and concisely stated by this court in Sittig v. Kersting, 223 S. W. l. c., as follows:

“Under such circumstances (e. g\, the showing of the existence of a fiduciary or confidential relation), the law presumes the bequest was the result of undue influence, and the burden is thus thrown upon the recipient of the bounty to show that it was not. ’ ’

To same effect are the following cases: Kleinlein v. Krauss, 209 S. W. l. c. 936; Grundmann v. Wilde, 255 Mo. l. c. 116; Byrne v. Byrne, 250 Mo. l. c. 646; Cornet v. Cornet, 248 Mo. 184; Mowry and Kettering v. Norman, 204 Mo. l. c. 189, and cases cited; Roberts v. Bartlett, 190 Mo. l. c. 699; Dausman v. Rankin, 189 Mo. 688.

In considering the demurrer to the evidence, therefore, a.t the conclusion of the whole case, it becomes our duty to give respondent the benefit of every inference, which a fair-minded jury of ordinary intelligence might legitimately draw from the evidence. It is equally as well settled, that where respondent has produced substantial evidence as to the merits of her case, it is not the province of this court to pass upon the iv eight of the evidence, nor have we any legal right to do so. Keeping; in mind the foregoing principles of law, which should guide us in the consideration of this case, we will pass to a review of the testimony relating to the subject of undue influence.

The evidence of plaintiff tends to show, that defendant, Dr. Dinwiddie, a man said to be worth $20,000 to $25,000, who was neither related to plaintiff, nor her mother, about the year 1899, became the administrator of the estate of John F. Harlow, deceased, who was the husband of testatrix, and shortly thereafter, became the family physician of Mrs. Harlow; and continued as such up to the time of her death, in 1918; that during all of said period he was the confidential business advisor of Mrs. Harlow; that the latter was about 76 or 77 years or age when the will in controversy was executed on April 4, 1903; that during the month of February, 1903, commencing with the 12th and ending with the 27th of said month, Dr. Dinwiddie made twelve visits to testatrix, and presented an account against her estate for said services, together with a bill for other services, amounting in the aggregate to $260.

Wisdom Burton testified, that shortly after the death of John F. Harlow, Dr. Dinwiddie became the physician of testatrix, “and from that time until she died he attended to her business and ivas her business confidant to the most minute detail.”

Dr. Nichols testified, that Dr. Dinwiddie had been acting as the family physician of Mrs. Harlow and continued as such physician, and looked after her business affairs.

B. I. Nines testified, that on one occasion, Dr. Dinwiddie, in speaking of testatrix, remarked that “the old lady couldn’t pay for a load of tvood without he said so.”

Walter Shiftlett testified as follows:

“Q. What, if anything, in the way of presents and matters of that kind did he make to the old lady back in 1901, 1902, 1903, 1904 and 19051 A. Well, I have been there Christmas times and maybe around her birthday and she nearly would always have something that she said Doctor Dinwiddie gave to her — several times it was a. small bottle of whiskey and little dishes and glasses or something of that kind. I know a number of times she showed me little dishes that she said Doctor Dinwiddie gave to her.”

Mrs. Dolly SMftlett testified, that shortly after Mr. Harlow’s death, Dr. Dinwiddie became the family physician of testatrix, and continued as such up to the time of her death; that he looked after the business of Mrs. Harlow wholly. This witness was a grandchild of testatrix, and testified that the latter was always on pleasant and congenial terms with plaintiff and the mother of witness.

Mr. Willard P. Gave testified in favor of plaintiff, as follows:

“To the best of my recollection, knowledge and belief, the instrument was written at the request of the defendant, Doctor T. H. Dinwiddie, in my office, and taken away by him. I gave a receipt for the charge made for preparing the will and it was delivered, with the will, to Doctor Dinwiddie, who took it away from my office.”

He said he never saw testatrix and did not know her.

Dr. Dinwiddie testified, that he had treated Mrs. Harlow off and on from the date of her husband’s death, up to the time of her death; that he was her regular physician; that he collected interest for her on notes that she had out; that he looked after property she had a mortgage on, to see if it was worth the money “and attended to her business for her in a general way.” He admitted that he borrowed $3,000 from testatrix and owed a part of same at her death; that he was to pay her five per cent interest on the loan, and that he never got less than six per cent on his loans; that the credits on said $3,000 note were in his handwriting. Dr. Dinwiddie denied that he took the draft of the will to Mr. Cave and denied in toto, the facts which Cave testified about. He also testified, that he had nothing to do with the will, or the making of same, and that he never knew of its contents until after the death of Mrs. Harlow, although he‘had heard it intimated that she had made a will before she died.

T. E. Walton testified, in behalf of defendants, that Mrs. Harlow told him in 1911 she would not sell the home where she was living; that she wanted it to go to Dr. T. H. Dinwiddie at her death, “for her appreciation of what he had done for her.”

E. E. Newmrn was cashier of the Higbee Savings Bank. He said Dr. Dinwiddie was a director in said bank, and that Mrs. Harlow’s will was kept in the vault of said hank with other wills.

The evidence of plaintiff tends to show, that the value of the estate left by Mrs. Harlow, at her death, was about $7,000, and that about $3,500 in value of property, was willed to Dr. Dinwiddie, while but $500 and the household and kitchen furniture was given to plaintiff, her only child, by the provisions of the will.

The foregoing is a fair outline of the testimony relating to the subject of undue influence.

In view of the law on this subject, as stated at the commencement of this proposition, we hold, without the slightest hesitation, that the trial court was clearly right in overruling appellant’s demurrer to the evidence at the conclusion of the whole case.

IV. The trial court is charged with error in refusing defendants’ instruction numbered three (3), which reads as follows:

‘ The court instructs the jury that Martha Harlow in making her will had the right to dispose of her property as she wished and to give all or so much of the same thereof to any of her relatives or even to other persons not her relatives if she saw fit or deemed proper; and although the jury may believe from the evidence that she made an unjust and improper disposition of her property by will, and cut off some of her relatives with but little who had as strong or stronger claim on her generosity as others who received more of her will, such facts are no evidence of undue influence taken alone, and raise no presumption of the invalidity of the will, provided the jury find that while making the will she had a sound and disposing mind and memory.” (Italics ours.)

This instruction was palpably erroneous, and was properly refused, because it was an unwarranted comment, on a part of the testimony in the cause. [Andrew v. Linebaugh, 260 Mo. l. c. 663; Rice v. J. C. B. & T. Co., 216 S. W. l. c. 751; State v. Adkins, 225 S. W. l. c. 982-3.] It was in conflict with plaintiff’s instruction E, which properly declared the law, a<nd directed the jury in passing upon undue influence, to consider all the facts and circumstances shoiun by the evidence.

V. We have carefully examined and fully considered, all the questions presented by the record, and in the briefs of counsel. We are of the opinion, that no error was committed by the trial court of which appellants can legally complain. The judgment below was for the right party, and is accordingly affirmed.

White and Mosley, GG., concur.

PER CURIAM:

The foregoing- opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


text:
    ROSA BORACK v. MOSLER SAFE COMPANY, a Corporation, ERNEST J. WEIS, Doing Business as WEIS & COMPANY, and GEORGE F. KIESEL, ERNEST J. WEIS, Appellant.
    Division Two,
    May 26, 1921.
    1. NEW TRIAL: Weight of Evidence: Review by Appellate Court. Where the trial court grants plaintiff a new trial on the ground that the verdict for defendant is against the weight of the evidence, the appellate court, on appeal from the order granting a new trial, will not interfere, if the record discloses any substantial evidence in plaintiff’s fa-vor. But if the evidence is such that a verdict for plaintiff would not be allowed to stand, the order granting a new trial will be reversed, even though such order was bottomed by the trial court on the ground that the verdict was against the weight of. the evidence.
    2. NEGLIGENCE: Violation of Ordinance: Proximate Cause. It is the general rule in this State that the violation of a city ordinance regulating the running of vehicles over the city streets is negligence per se and that one guilty of such violation is liable in damages for all injuries proximately caused thereby.
    3. -: -: -: Accident. Where the evidence shows that the death of plaintiff’s husband was caused by his being struck by • the tongue of a wagon driven by defendant’s driver, and that such striking was due to the wheel of the wagon getting caught in the rail of a street-ear track in the street, which caused a violent jerk and one of the horses slipped on the wet wooden-block pavement and fell against the tongue of the wagon in such manner as to cause the end of the tongue to strike deceased, who was standing on or near a temporary sidewalk in the street alongside a building in course of erection, and it further appearing from the evidence that horses are liable to slip and fall on a wooden-block pavement at any time and' especially when it. is wet, and that there is no way to prevent the same, and it further appearing from the evidence that the fact that the driver, in violation of a city ordinance, made a left turn into the street, from an intersecting street, without going “to the right of and beyond the center of the intersecting street before turning ” had no tendency to increase the likelihood of the horse slipping and falling and therefore the negligence of the driver in violating the ordinance was not the proximate cause of the injury, but the case was one of ' mere accident, the trial court erred in not giving the jury a peremptory instruction to find for defendant; and the verdict having been for defendant was for the right party, and the court erred in granting a new trial.
    Appeal from St. Louis City Circuit Court. — Hon. Robert W. Hall, Judge.
    Eieversed and remanded {with directions).

      W. H. Douglas for appellants.
    (1) Where “the facts are such that all reasonable men would be likely to draw from them the same inferenees, the question of negligence is one of law for the court.” In this case the only inference that reasonable men could draw from the facts in evidence is that this defendant was not guilty of negligence. Becke v. Railroad Co., 102 Mo. 551; Daneschocky v. Sieble 195 Mo. App. 470. (2) The only issue submitted to the jury by plaintiff in its instruction number one is the failure of the driver of the wagon to obey a city ordinance which provided that “a vehicle in turning to the left into another street shall pass to the right of and beyond the center of the intersecting street before turning.” The failure of the defendant to obey this ordinance was not negligence under the facts in evidence in this case, and the court should have sustained defendant’s demurrer to the evidence. Ins. Co. v. United Rys. Co., 200 Mo. App. 325; Melville v. Rollwage, L. R. A. 1917B, 133; Fusili v. Ry. Co., 45 Mo. App. 540; Yonkers v. Railroad, 182 Mo. App. 55Q; Dennison v. Forth Co., 22 Pa. 219; Git-tings v. Schenuit, 122 Md. 582; Foster v. Parmlee Co., 179 111. App. 21; Canfield v. Trans. Co., 112 N. Y. S. 854; Grimm v. Car Co., 199 111. App. 553; Kerbaugh v. Express Co., 58 Pa. 550; Buddy on Automobiles (5 Ed.), p. 232, sec. 269 and note 42, p. 324; secs. 270 and 75, note 65, p.. 329; sec. 289, pp. 351, 352. (3) A technical violation of an ordinance at the direction of a police officer does not constitute negligence, especially when the violation of the ordinance was calculated to relieve traffic at a congested street crossing, and when a compliance with the ordinance would have greatly congested the traffic as would have been the result in the'present case if the traffic officer had not directed plaintiff to turn without passing to the left and beyond the center of the intersection of the street. See authorities under Point 2, supra; Caudor v. Griffith, 111 N. E. 818; Borg v. Larsen, 111 N. E. 201. (4) The ordinance pleaded by plaintiff was’ enacted for the purpose of preventing congestion of traffic at busy street crossings, and the evidence in this case shows that the violation of the ordinance at the time, and under the circumstances greatly relieved traffic instead of congesting it and therefore its violation did not constitute negligence. See authorities under Point 2, supra. (5) The violation of a city ordinance at the direction of the traffic officer in this case was not the proximate cause of the death of plaintiff’s deceased husband, and defendant’s demurrer offered at the close of the whole case should have been sustained. Brewing' Assn. v. Talbot, 141 Mo. 583-6; Stone v. Leritz, 182 Mo. App. 315; Ins. Co. v. Rys. Co., 200 Mo. App. 317; Foley v. McMahon, 114 Mo. App. 448; Saxon v. Transfer Co., 145 Mo. App. 693; Glenn v. Ry. Co., 167 Mo. App. 118; Hysell v. Swift & Co., 78 Mo. App. 51; Melville v. Rollwage, 13 N. C. C. A. 1117, L. R. A. 1917B, 137; ITuddy on Automobles, sections cited under Point 2.

      James T. Roberts, of counsel, and Edward W. Foristel for respondent.
    (1) Trial courts have a wide discretion in granting new trials, especially where .the weight of the evidence is involved. Bank v. Munson, 177 S. W. 778; Frame v. Ry. Co., 209 S. W. 314; Rodan v. Transit Co., 207 Mo. 392; Geyer v. St. Joseph, 198 S. W. 78; Gould v. St. John, 207 Mo. 619; Slicer v. Owens, 241 Mo. 319. (2) The violation of the city ordinance by the defendant was negligence per se. Yonkers v. Railroad, 182 Mo. App. 558; Jennings v. Railroad, 112 Mo. 268; Petty v. Railroad, 88 Mo. 306; Bluedorn v. Railroad, 108 Mo. 439; Burt v. Nichols, 264 Mo. 15; Propulouris v. Const. Co., 218 S. W. 792. (3) In the circumstances here presented, the violation of the ordinance was the proximate cause of the injury. This in view of the testimony 6f the witnesses that it was raining, that the street was paved with blocks of wood and that the rain on these blocks of wood made it very slick and the horses were liable to fall. Daneschocky v. Sieble, 195 Mo. App. 470.
   DAVID E. BLAIR, J.

the action is for damages in the sum of $10,000 for death of the husband of respondent, plaintiff below, due to alleged negligence of the defendants. Trial by jury resulted in a verdict for the defendants, Mosler Safe Company and Ernest J. Weis. The trial court sustained a demurrer to the evi¿ence ag defendant George F. Kiesel. The trial court sustained plaintiff’s motion for a new trial on two grounds: First, “because the verdict was against the weight of the evidence” and, second, “because the court erred in refusing to give the jury an instruction declaring the law to be that a police officer has no right by an act of his own to violate a valid subsisting city ordinance.” Defendant Weis appealed from the order setting aside the verdict and granting a new trial.

Plaintiff is the widow of Abraham Borack, a blind news vendor, who was killed on or about September 14, 1916, as a result of a blow from the tongue of a dray wagon owned and operated by defendant Weis. Said defendant was engaged in hauling material for a building being erected at the northeast corner of Broadway and Washington Avenue in the City of St. Louis. In the course of this work a fence had been built around the structure between it and the curb and a narrow sidewalk had been constructed alongside the fence for use by the public. Defendant’s driver had hauled several loads of material and in unloading the same had caused serious obstruction to traffic, because the stopping of his team and wagon at the proper place for unloading prevented passengers on the street ears from boarding and leaving the same. In the position he had theretofore assumed the team and wagon were on the north side of Washington Avenue with the team to the west. Having noticed the obstruction referred to the traffic officer on duty on that comer directed said driver on his next trip to come in another way, that is, to come south on Broadway and turn toward the east on the north side of Washington. By coming around in this manner the team and wagon would be stopped far enough to the east of the unloading point to .avoid interference with passengers getting on and off the street cars and the movement of such cars on Washington.

In obedience to these instructions and on his next trip the driver drove his team south on Broadway and stopped just north of the north line of Washington until he received a signal from the traffic officer. He testified that he .remained there fifteen or twenty minutes waiting for the congestion at that corner to be relieved. Upon receiving a signal from the officer he drove his team and wagon east on Washington, turning in a wide swing to the left of the intersection of the two streets, in order to bring his said wagon and team to a position with the left wheels close to the temporary sidewalk on the north side of Washington with the rear of the wagon at the proper place for unloading. In making this turn one wheel of the wagon caught in the rail of the street car track and caused a violent jerk and one of the horses slipped and fell against the tongue of the wagon in such manner as to cause the end of the tongue to strike the deceased who was on or near the temporary sidewalk selling his newspapers. The injury resulted in his death. At that place the pavement was coin-nosed of wooden blocks. These were more or less slippery at all times, and particularly so at the time of the accident because it had been raining. At that point the pavement sloped more because of the location there of a drainage sewer. Tt appears from the evidence that horses are liable to slip and fall on wooden block pavement at any time, and especially when the pavement is wet, and there is no way to prevent the same. All the foregoing facts were shown by plaintiff’s witnesses.

An ordinance of the City of St. Louis was introduced by plaintiff which provided that ‘‘a vehicle in turning to the left into another street, shall turn to the right of and beyond the center of the intersecting street before turning.” The violation of this ordinance and the careless and negligent driving and management of the team by the driver constitute the main charge of negligence in the petition. The petition also alleged that defendant negligently overloaded the wagon in violation of another city ordinance introduced in evidence, so that it was impossible for the horses to pull the same with safety and that this caused the fall of the horses and the resulting injury to the deceased.

The answer was a general denial and plea of negligence on the part of deceased.- The reply was a general denial of the new matter alleged in the answer.

Defendant Weis interposed a demurrer to plaintiff’s evidence and also a demurrer to all the evidence introduced in the case, both of which were overruled by the court and exceptions saved.

I. The evidence of plaintiff did not disclose any overloading of the wagon, but rather that it was not loaded quite as heavily as usual. The court did not submit the question of the overloading of the , n , . . wagon to the jury and clearly such charge of negligence was not sustained by any' evidence and need not be further considered.

II. If the record discloses any substantial evidence of negligence on the part of defendant’s driver in the handling of the team which contributed to the injury of the deceased, this court will not interfere with the action of the trial court in granting a new trial on &ronild th&t the verdict of the jury is against the weight of the evidence. But if the evidence is such that a verdict for plaintiff would not be allowed to stand, the order granting a new trial will be reversed, even though such order was bottomed by the trial court on the ground that the verdict is against the weight of the evidence. This has been so frequently and consistently ruled that citation of authorities is unnecessary.

III. This brings ns then to a consideration of the plaintiff’s evidence. The ordinance of the City of St. Lonis required vehicles in turning to the left into another street to turn to the right of and beyond the center of the intersecting street before turning. It is the general rule in this State that the violation of such an ordinance is negligence per se ailH bhe violator is Hable in damages for all injuries proximately caused thereby. [Brannock v. Elmore, 114 Mo. 55; Schlereth v. Mo. Pac. Ry. Co., 96 Mo. 509.]

Assuming for the purpose of the case, but without so deciding, that the defendant’s driver under the circumstances here shown was guilty of negligence per se in driving to the left of the intersection of the streets, as claimed by plaintiff, yet defendant would not be liable for the death of plaintiff’s decedent, unless such negligence was the proximate cause of his death. Even though defendant’s driver was negligent in driving to the left in violation of the ordinance, defendant cannot be required to respond in damages if the injury to deceased was caused by an occurrence over which the driver had no control and which he could not reasonably have foreseen as the result of such negligence. This is the rule laid down in Daneschocky v. Sieble, 195 Mo. App. 470, cited by respondent, and it is undoubtedly the general rule.

Taken by itself, the sudden jerk of the wagon and slipping of a horse and fall of the horse against the wagon tongue, causing it to strike and injure deceased, could he nothing more than an accident. Plaintiff’s evidence shows the driver was experienced in his work; that he did not make a sharp turn, but on the contrary made a wide kirn. No jerking of the team or any act of the driver tending to cause the horse to fall is shown. The plaintiff’s evidence further shows that there is no way to prevent horses from falling on wooden block pavement, either wet or dry.

It is clear the turning to the left of the intersection of the streets had no tendency to increase the likelihood of a horse slipping and falling. Such-accidents are as frequent in one place in the street as another. If the turn had been made to the right of the intersection and in making such turn the same thing had occurred, we would not hesitate to characterize it as a mere accident. The turn to the left was probably no sharper than if it had been made to the right of the intersection, for in turning into the north side of Washington the' driver would start to turn sooner. That would be all the difference. The driver could not have been expected to anticipate the fall of the horse as- a result of such turn. The occurrence was a mere accident not reasonably to have been foreseen as a result of his alleged negligence.

A good illustration of results that might, and reasonably would, occur from a violation of an ordinance of this sort would be where a vehicle coming westbound along the north side of Washington Avenue would collide with the team headed eastward on the wrong side of the street. If a collision of that sort had occurred, with or without negligence on the part of the driver of such other vehicle and knockd down defendant’s horse and caused the injury to deceased, the result could be said to have been one the driver of defendant’s team could reasonably have anticipated and naturally resulted from his violation of the ordinance. The accident here did not come within the class of accidents that reasonably resulted from the violation of the ordinance.

It therefore appears from the evidence of plaintiff and as a matter of law that the negligence of defendant’s driver was not the proximate cause of the injury to plaintiff’s decedent, and the trial court should have sustained defendant’s, demurrer at the close of plaintiff’s case, and as defendant’s evidence did not in anywise tend to strengthen plaintiff’s case, the court again erred in refusing to give a peremptory instruction for defendant at the close of all the evidence. Since there was no' evidence of negligence of defendant that was the proximate cause of the death of plaintiff’s husband, there was no reason for the trial court to set aside the verdict of the jury as being against the weight of the evidence.

This being our view of the evidence, there is no necessity of discussing the proposition of law involved in the refusal of plaintiff’s instruction. The verdict of the jury was for the right party.

It therefore follows that the order granting a new trial should be reversed and the cause remanded with instructions to the trial court to reinstate the verdict of the jury and reenter judgment thereon in favor of defendant Weis.

All concur.


text:
    THE STATE ex rel. JOHN E. DOLMAN, Appellant and Respondents, v. C. E. DICKEY, et al., Respondents and Appellants.
    Division Two,
    May 26, 1921.
    1. SECOND APPEAL: Reconsidering Former Ruling: No Bill of Exceptions: Record Proper. In a mandamus suit to compel the issuance to relator by the authorities of a city of the first class of certain special tax-bills for the cost of certain public improvements, where the Supreme Court, on the first appeal, had reversed the judgment and remanded the cause with directions to the circuit court to try a certain issue, the petition and writ to be considered as amended so as to deal alone with that issue, and on a second appeal by relator it appeared that the trial court followed the mandate of the Supreme Court on the re-trial and rendered judgment for relator for all he claimed, and relator filed no motion for a new trial, or in arrest and no bill of exceptions, but merely an affidavit for an appeal, the only thing before the Supreme Court on relator’s appeal is the record proper: and it appearing that the judgment gave him all he claimed, relator is in no position to ask a re-consideration of the ruling of the first appeal.

      2, '-: -: ‘-: -: Proper Procedure. The Supreme Court, in a few cases and when properly presented, on a second appeal, has reconsidered its former ruling, but such practice is an exception to the general rule, and is not to be encouraged; and before such reconsideration will be made, it must appear on the second appeal, that on the re-trial evidence was introduced as in the first trial, instructions asked, and motion for new trial and bill of exceptions filed, and the whole record must be brought before the Supreme Court on the second appeal in an orderly and regular way showing that all the matters complained of were again before the court for its consideration.
    3. PUBLIC IMPROVEMENTS: Severable Contract: Distinct Classes of Work: Distinct Prices: Mandamus. Where a contract was let by a city of the first class for certain public work on a public street, consisting of the construction of sidewalks, the taking up and resetting of curbing,'the construction of curbing and driveways, and also the paving of the roadway, and separate and distinct prices were specified in the contract for each different kind of work, the contract was severable; and if the contractor complied with the contract as to one or more of the different classes of work, but not as to the others, he was entitled to be paid for the work which conformed to the contract and to have special tax bills issued therefor; and the issuance of such tax-bills can be enforced by mandamus.
    Cross-Appeals from Buchanan Circuit Court. — Hon. Thomas B. Allen, Judge.
    Appibmed.

      John E. Dolman for relator.
    (1) The constitutionality of Section' 8840, R. S. 1909, as construed by this court in its opinion of the first appeal of this case, was not raised or passed upon in that case and therefore, upon that,question, the decision of this court therein does not operate as an estoppel. State ex rel. St. Joseph Water Co. v. East in, 213 S. W. 59. (a) While in the absence of cogent'or convincing reasons shown this court on a second appeal will not open up and reconsider questions adjudicated upon a former appeal, yet where such reasons are clearly shown, and especially where the former ruling inadvertently so construed a statute as to make it unconstitutional or overruled some sound and well settled principle of constitutional law, such as was done by this court on the former appeal of this case, this court will have no hesitancy whatever in overruling the former decision and reexamining on the second appeal. Russell v. Railway, 242 Mo. 21; National Bank v. Donnell, 195 Mo. 570; Machinery Co. v. Ramlose, 237 Mo. 527; Gracey v. St. Louis, 221 Mo. 1; Paget v. Smith, 205 Mo. 125; Wilson v. Railroad, 3 23 Mo. 131; Bird v. Sellers, 122 Mo. 32; Boone v. Shackelford, G6 Mo. 497; Hamilton v. Marks, 63 Mo. 172; Chambers v. Smith, 30 Mo. 158; Bealey v. Smith, 158 Mo. 522-3. (2) In holding and deciding that Section 8840, R. S. 1909, gave the Board of Public Works exclusive jurisdiction to decide all questions as to the proper construction of the work and the meaning of contracts, renders said statute unconstitutional in that it deprives appellant of its property without due process of law and of the equal protection of the laws in violation of the 14th Amendment of the United States Constitution. Ohlmann v. Sawmill Co., 222 Mo. 66; Womach v. St. Joseph, 201 Mo. 482; Jones v. Tore, 142 Mo. 44; Wilcox v. Tore, 142 Mo. 44; Wilcox v. Phillips, 260 Mo. 664. (a) “The guarantees of due process require that all administration proceedings affecting property rights shall be subject to review in the courts and a judicial determination made on notice and a hearing.” 12 Corpus Juris, 1241, eases cited; Ry. Co. v. State, 134 U. S. 457, 33 L. Ed. 970; Smyth v. Ames, 169 U. S. 466, 42 L. Ed. 819; Ry. Co. v. Tompkins, 176 U. S. 173, 44 L. Ed. 420; Hager v. Reclamation Dist., Ill U. S. 708. (b) Law in its regular course of administration through the courts of justice is due process and only when this is secured by the law of the State is the constitutional requirement satisfied. Leeper v. Texas, 139 U. S. 468; Ry. Co. v. Iowa, 160 U. S. 389. (3) In holding and deciding that the finding of the Board of Public Works that the contract in question liad not been substantially complied with was conclusive upon the contractor allows the city to take his property for a public use without compensation, contrary to Sec. 21, Art. 2, Mo. Const., and deprives him of his property without due process of law, contrary» to Sec. 30, Art. 2, Mo. Const., and contrary to the fourteenth Amendment of the United States Constitution. Railway v. Chicago, 166 U. S. 226. (a) “Where the taking is under an administrative regulation the defendant must not be denied the right to show that as a matter of law the order was so arbitrary, unjust or unreasonable as to amount to a deprivation of property in violation of the fourteenth Amendment.” State v. Ry. Co., 224 U. S. 524. (4) In holding and deciding that the finding of the Board of Public Works that the contract in question had not been substantially complied with was conclusive upon the contractor and that he had no right to have that question judicially determined in a court of justice deprives him of the right guaranteed to him under Sec. 10, Art. 2, Mo. Const. Cement Co. v. Cas. Co., 225 Mo. 22; Asphalt Co. v. Ridge, 169 Mo. 387; State ex rel. v. Smith, 177 Mo. 69; Construction Co. v. Coal Co., 205 Mo. 62. (a) It is the exclusive province of the courts to construe the meaning of contracts, and plaintiff was entitled to show that the Board of Public Works misconstrued the contract. Williams v. Railway, 112 Mo. 493; Scott v. Realty Co., 241 Mo. 128. (b) Whether or not there was a “substantial compliance” with the contract was a judicial question to be determined by the courts upon a disagreement of the contracting parties over that issue. Boyer v.-Kansas City, 205 S. W. 874; Mullaly v. Greenwood, 127 Mo. 138; Berthold v. Const. Co., 165 Mo. 280.

      A. F. Lindsay, City Counselor, and G. W. Meyer, Assistant City Counselor, for defendants.
    (1) Under the contract by virtue of which the work in question was done, tax bills cannot be issued for only a portion of the work, (a) The contract itself provides that, tax hills were not to be issued until the work had been fully completed, according to specifications and to the satisfaction of the Board of Public Works, (b) According to the following authorities the contract in this case is not severable. McGowan v. United States, 35 Ct. Cl. 606; Broxton v. Nelson, 103 Ga. 327, 30 S. E. 38; 13 C. J. 562, 563.
   RAILEY, C.

November 8, 1916, relator filed, in the Circuit Court of Buchanan County, Missouri, a petition for mandamus to compel respondents to issue and deliver to him certain tax bills, to pay for the construction of pavement on a street in St. Joseph, Missouri, a city of the first class. The relator is the assignee of the Standard Construction Company, the contractor in performance of the work. Respondents made return and the - circuit court aforesaid, after hearing the evidence, found the issues m favor of relator and granted a peremptory writ. Said defendants, in due time, appealed the cause to this court. Upon a hearing of the case, we reversed it outright, as shown in the opinion of Commissioner White, reported in 219 S. W., at pages 363 and following. Relator filed in this court a motion for re-hearing. In support of said motion, this court was requested to hold, that the contract mentioned in petition was severable, and that the work on the sidewalk and curbing mentioned therein, was substantially complied with, etc. Thereupon, at the instance of relator (219 S. W. 368), the opinion of Commissioner White was modified and the cause remanded, in order that the trial court might ascertain whether the construction of the curbing and sidewalk was in accordance with said contract, and could be separated from the paving, in determining the price to be paid for same, etc. The motion for re-hearing, after said modification, was thereupon overruled. Upon the filing of the opinion and mandate of this court in the circuit court aforesaid, the latter proceeded to dispose of the case upon the petition and return aforesaid under the directions of this court for the purposes aforesaid.

It appears from defendants’ hill of exceptions herein that relator, in the re-trial of the case, offered in evidence the hill of exceptions and record in the case made up at the former trial. Other evidence was offered by relator in support of his contention.

On March 29,1920, the circuit court entered the following judgment after said re-trial:

“Now on this day comes the plaintiff by John E. Dolman its attorney and also coiné the defendants, by O. W. Meyer, their attorney and the mandate and opinion of the Supreme Court in said cause, remanding the same to this court for further proceedings with reference to the sidewalk, curb, and driveways, having been filed and the said cause in accordance with said opinion, now coming on to be heard and the record upon the former trial of this cause, the bill of exceptions and the original contract having been- introduced in evidence and the court having heard the arguments of counsel and being fully advised in the premises, finds that the sidewalks, curbing and driveways can be separated from the paving of the roadway and that the prices therefor are different from the price charged for said driveway, to-wit: For all curbing taken up and reset per linear foot, fifteen cents. For new (artificial concrete stone) curbing furnished and set per linear foot, forty-four cents. For (artificial concrete stone) sidewalk per square foot, fourteen cents and for concrete driveways per square foot, twenty cents.

“And the court further finds that all of said sidewalks, curbing and driveways were constructed in accordance with the contract and that plaintiff is entitled to have tax bills issued therefor according to the terms of said contract, but that under said decision of the Supreme Court, plaintiff is not entitled to have tax bills issued in payment for the paving of the roadway provided for in said contract.

“IT IS THEREFORE ordered, considered and adjudged that a peremptory writ of mandamus issue against said defendants and against the Board of Public Works of the City of St. Joseph as now constituted and the City Engineer of said city, commanding them to issue and deliver tax bills to said John E. Dolman, relator herein, for all sidewalks, curbing and driveways constructed under said contract, in accordance with the prices contained therein and that the City Engineer certify, authenticate and sign the same to the end that the same may be established as a lien against the several pieces and parcels of land liable for such improvement.

“That plaintiff have and recover interests on said tax bills at the rate of 8% per annum from the' date of his demand therefor, to-wit, January 27, 1915, and that said relator have and recover of said defendants his costs in this behalf expended and hereof let execution issue.”

On April 2, 1920, defendants filed a motion for a new trial, which was overruled on April 14, 1920. Defendants, in due time and in a proper manner, appealed to this court.

Relator filed no motion for a neto trial, nor did he file any motion in arrest of judgment. He filed án affidavit for appeal on April 24, 1920, and took leave to file a bill of exceptions during the May term, 1920, of said court.

Relator’s affidavit for appeal, which was sustained, reads as follows:

“Comes now the relator, John E. Dolman, in the above entitled cause, and moves the court for an appeal to the Supreme Court of the State of Missouri. John E. Dolman, being first duly sworn on his oath states that' he is the relator in the above entitled cause and that this appeal is not made for vexation or, delay, but ¡because be believes himself aggrieved and injured by the judgment of the court in this cause.

“J. E. Dolman.

“ Subscribed and sworn to before me this 16th day of April, 1920,” etc.

The respective appeals will be disposed of separately in the opinion.

1. Relator insists, that on the record aforesaid, he is entitled to have this court re-consider, the law of the case as- declared in the opinion of Judge White. It is true, that the Supreme Court, in a few cases, when properly presented, has reconsidered its former ruling on the second appeal, but such practice is an exception to the general rule, and is not to be encouraged. According to our conception of the law, relator is in no position to ask at our hands a re-consideration of the former ruling, denying the writ of mandamus, for he is here, without any record upon which that matter can be considered.

We remanded the original case, at the instance and request of relator, in order to give him a chance to recover tax bills for the curbing and sidewalk, if the trial court should find that the contract was severable, etc. The jurisdiction of the circuit court upon a re-trial of the case, was limited solely to the above issue. In granting relator’s request for a re-trial of the above matter, it was upon the theory, that the petition and -writ were to be considered as amended, so as to deal alone with the above issue. Both court and counsel proceeded in the second trial upon this theory, as shown by the proceedings and judgment rendered. The record proper, then, in the second trial, consisted of the petition and writ as amended, the return of defendants, and the judgment heretofore set out. As shown by the record, relator offered testimony upon the re-trial of the case and, after judgment was rendered in Ms favor, upon the issues thus presented, he filed no motion for a new trial or in arrest of judgment, but simply filed the affidavit for appeal heretofore mentioned, and has sought to bring the case here without the evidence, or without any matters of exception, which may have occurred during the progress of the trial. It has long since become elementary law in this State, that in the absence of a motion for a new trial, and in arrest of judgment, nothing but the record proper, can be considered by the appellate court. [State v. Griffin, 98 Mo. l. c. 674-5; State v. Wray, 124 Mo. l. c. 542-3; State v. Handley, 144 Mo. l. c. 118-9; State v. Revely, 145 Mo. 660; Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. l. c. 449; Gilchrist v. Bryant, 213 Mo. 442; Groves v. Terry, 219 Mo. 595; State ex rel. v. Adkins, 221 Mo. l. c. 120; Hays v. Foos, 223 Mo. 421; Betzler and Clark v. James, 227 Mo. 375; St. Louis v. Henning, 235 Mo. 44; Blanchard v. Dorman, 236 Mo. 416-7; Realty Co. v. Brewing Co., 247 Mo. 29; Haggerty v. Rtuth, 259 Mo. 221; McKee v. Donner, 261 Mo. 378-9; Case v. Carland, 264 Mo. 463; State ex inf. v. Morgan, 268 Mo. l. c. 271; Tracy, v. Tracy, 201 S. W. 902; Pennewell v. Pennewell, 204 S. W. 183; Hoskins v. Nichols, 213 S. W. 838; State v. Baugh, 217 S. W. l. c. 280.]

Numerous other authorities in this State, to the same effect, can be found reported.

The petition and writ, considered as amended, the return of defendants’, considered as amended to correspond with same, and the judgment entered on the second appeal, constitute the record proper in this case, but not in the former proceedings. [State ex rel. Combs v. Staten, 268 Mo. l. c. 295-6, 187 S. W. l. c. 43-4.]. As heretofore shown, there is nothing for review before us on relator’s appeal, but the record proper and, having received all he asked for in this proceeding, he has no legal ground for complaint under the present appeal.

II. Relator’s appeal is likewise without merit, for the obvious reason, that he has appealed from a judg ment in Ms own behalf, without complain-^n9 °f an9 error ^ the trial. No judgment was rendered against him in the trial court, and he got all he claimed in the re-trial of the case.

III. The authorities cited by relator for re-opening the original controversy, as he has attempted to do by simply filing an affidavit for appeal in the second trial, do not sustain his contention. It will be found upon examination of the records in those cases where the original opinion was re-considered upon a second appeal, that on the re-trial, the evidence was introduced as in the first trial, instructions asked, motions for new trial filed, etc. If the trial court refused to follow our ruling, there would be no necessity tor a re-consiaerahon of the case on appeal, but if it followed our ruling, then the complaining party might again appeal, and we would then determine whether the original judgment should stand. In this orderly way of procedure, the trial court would not be ignored-in the proceeding, and the whole record would be before us on the second appeal for our consideration. .

In support of this conclusion, we call attention to the leading case in this State of Hamilton v. Marks, 63 Mo. 170' and following, cited and relied upon by relator. The case was formerly tried, and will be found reported in 52 Mo. at pages 78 and following. On a re-trial of the case, evidence was heard, instructions asked, and the case was again tried as formerly. This court then had before it, in the usual manner, the record and proceedings of the second trial, showing that the matters complained of were again before this court for its consideration.

We are not aware of any rule of legal procedure in this State, by which relator can have the original judg- and proceedings herein re-considered, as he has attempted to do in this ease, on appeal from a judgment in his otun favor, and that too, by ignoring the trial court, and failing to produce for our consideration, the evidence and other proceedings had before the trial court.

IV. Judge White's opinion (219 S. W. 363 and following), contains a .very full statement of the facts, as they were presented in the original trial and, hance, it is not necessary to encumber this record with a reproduction of same. The evidence adduced by relator at the second trial, was amply sufficient to sustain the judgment rendered in the present case, if the contract can be construed as authorizing the severance made by the trial court in its judgment. We have examined the authorities cited by defendants in support of their contention, that the contract in controversy is not severable, yet we do not think the weight of authority is with the defendants, respect to this matter. In our opinion, the principle of law which should apply in a case of this character, is very clearly and forcefully stated, in Amsler v. Bruner, 173 Ill. App. 337-8, as follows:

“If the part of a contract to be performed by one party consists of several distinct and separate items, and the price to- be paid by the other is apportioned to each item to be performed or is left to be implied by law, such a contract is in general severable, and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, though the latter in its nature is single and entire. ’ ’

The principle of law above announced is supported by the following authorities: Keeler v. Clifford, 165 Ill. 544; Siegel v. Eaton & Prince Co., 165 Ill. 550; Barlow Mfg. Co. v. Stone, 200 Mass. 158, 160-1; Dibol & Plank v. W. & E. H. Minott, 9 Iowa, 403; Pierson v. Crooks, 115 N. Y. l. c. 554-5; Wooten v. Walters, 110 N. C. l. c. 255; Williams v. Robb, 104 Mich. 242, 246-7; 2 Parsons on Contracts (9 Ed.), sec. 4, pp. 672-3-4; Hammon on Contracts, sec. 463, p. 907; 13 Corpus Juris, sec. 528, par. 4, p. 563; 7 Am. & Eng. Ency. of Law (2 Ed,), par. 4, p. 95; 3 Elliott on Contracts, sec. 2046, pp. 229-30-31, and cases cited.

The rulings of our appellate courts upon kindred questions, while not directly in point, are in line with the law as declared in above authorities. [Neil v. Ridge, 220 Mo. 233-257; Porter v. Construction Co., 214 Mo. l. c. 18; Haag v. Ward, 186 Mo. 325, 348; Reinert Bros. Const. Co. v. Whitmer, 206 S. W. l. c. 388; City of Maryville v. Cox, 181 Mo. App. l. c. 263-4; Joplin ex rel. v. Freeman, 125 Mo. App. 717, 722; City of Marionville to use v. Henson, 65 Mo. App. 397.]

It does not appear from the record before us, that defendants are liable to sustain any loss or damage should the judgment below be enforced. In our opinion, the ends of. justice will best be subserved, by overruling defendants ’ contention.

Y. In view of the conclusions heretofore reached, the judgment of the trial court, as to relator and defendants, is hereby affirmed.

White and Mozley, GG., concur.

PER CURIAM:

The foregoing opinion of Railey, . C., is hereby adopted as the opinion of the court.

All of the judges concur.