author: WHITE, C.

text:
    MARIA HOELEY v. SOUTH SIDE BANK OF ST. LOUIS, Appellant.
    Division Two,
    January 6, 1920.
    1. NEGOTIABLE NOTE: Issued in Fraud: Transfer: Notice. Plaintiff employed a real estate agent to huy for her, free of incumbrance, a certain property, and placed $6000 in his hands for that purpose. He paid the money to the vendor and caused the deed to be made to his employee, a “straw man,” and caused said employee to execute a note for $4000 to a third party, and to secure it by deed, of trust on the property, and then caused the employee to convey the property to plaintiff, who took possession, paid the taxes, collected the rents and made the repairs. After the' note became due he paid the balance to said third party, who indorsed it and delivered it to him, together with the deed of trust, and without marking it paid he delivered it to defendant bank as a pledge to secure the payment of his personal note to the hank, which received it without actual knowledge of its • fraudulent character, and afterwards demanded payment of plaintiff, who up to that time had no actual knowledge of its existence. Held, that the note and deed of trust originated in fraud against plaintiff, and since the perpetrator of the fraud could not have enforced the note in his own behalf no one who acquired it with notice, even before maturity, could do so; and although it be conceded that said third party was an innocent purchaser for value, and could pass good title to another, although said other had notice of the fraud, said perpetrator was not within that rule, which under the statute (Sec. 10028, R. S. 1909) is limited to one “who is not himself a party to any fraud,” and therefore the note in the hands of said fraudulent perpetrator, after he took it up, was affected by the same infirmity which made it unenforcibie by him in the first place"; and since the bank, having acquired the noté after maturity, was not a holder in due course, it was subject to the same defenses in its hánds under said statute as it would have been had it been non-negotiable.
    2. -: -: Transfer After Maturity: Due Course. Since the person who causes his “straw man” to execute a fraudulent note tó a third party has no right to enforce it, the burden is on the holder who receives it at the hands of the perpetrator of the fraud, who has himself received it from said third party, to show that he is a holder in due course, and if such holder acquires it after maturity he is not a holder in due course under the statute (Sec. 10028, R. S. 1909), hut receives it subject to the same defenses that would be available had it been non-negotiable.

      3. -: • — ——: Innocent Purchaser. The rule that where one of two innocent persons must sustain a loss occasioned by the fraud of a third, the loss must fall on the one who puts’ it in the power of the third party to commit the fraud, has no application to a transaction by which plaintiff employed a real estate agent to purchase a certain property for her and he with her money bought the property and caused it to be conveyed to his employee and then caused said employee to make a note to a third party and secu,re it by a deed of trust, and then after maturity paid to said third party the amount due, took it up, and delivered it to a bank as a pledge to secure his own debt; for his authority, real or apparent, did not contemplate the interposition of said “straw man’" to place a mortgage on the property before its conveyance, to plaintiff, and there was nothing in her attitude to lead the bank to believe she authorized any such dealings with the property.
    4. -: -: Purchase or Payment. When the perpetrator of the fraud, who caused his “straw man” to execute a note to a third party, took it up by paying what was due on it, and it was indorsed by the payee and delivered to him, he did not take it by purchase; and the rule that where one not a party to nor liable on a note pays the holder out of his funds and acquires possession of it, the transaction is a purchase and not a payment, does not apply. The note was accommodation paper, and the perpetrator of the fraud was not a stranger to the transaction, which, therefore, was a payment and not a purchase of the note.
    5. -: -: Accommodation Paper. An instrument signed, accepted or indorsed by one for the accommodation of another is accommodation paper, although the party for whose accommodation it was signed is not himself a party to the instrument. A “straw man” who executes a fraudulent note to a third party for and at the request of the perpetrator of the fraud, is the accommodation party under the statute (See. 10000, R. S. 1909), which, although it does not .define accommodation paper, does define accommodation party as “one who has signed the instrument as maker without receiving value therefor and for the purpose of lending his name to some other person.”
    6. --: Accommodation Paper: Payment or Purchase: Discharge. Under the statute (Sec. 10089, R. S. 1909) a negotiable instrument is discharged "by payment in due course by the party accommodated, where the instrument is made or accepted for accommodation;” and if the perpetrator of the fraudulent note, executed by his “straw man” to a third party for his accommodation, paid it when it fell due, it was discharged; and such payment is a good defense against a subsequent holder who acquired the note, after its maturity, from such perpetrator, for such holder is not a holder in due course.

      Appeal from St. Louis City Circuit Court. — Hon. Thos. E. Hennings, Judge.
    Aefirmleb.

      Walter Diehm for appellant.
    (1) If one not a party to or liable on a note pays the holder of the note out of his own funds and acquires possession of and title to the same, the transaction is. a purchase and not a payment. Wing v. Union Central Life Ins. Co., 181 Mo. App. 391; Van Hoose v. Machine Co., 169 Mo. App. 54; Vansaudt v. Hobbs, 84 Mo. App. 629; Swope v. Leffingwell, 72, Mo. 348; Marshall v. Meyers, 96 Mo. App. 643. (2) When Krembs acquired possession of' the note and the deed of trust securing it from Moellenhoff, he did not have it marked “paid” or “cancelled,” nor did he release the deed of trust of record, but, in fact, subsequently negotiated the same, and his conduct in thus negotiating the same amounted to a re-issuance of the note. The fact that he did not have the note cancelled and did in fact negotiate it is conclusive proof of his intention that the note and deed of trust should be kept alive. Sater v. Hunt, 66 Mo. App. 530. (3) The true owner of a negotiable promissory note indorsed in blank by the payee, cannot complain if he clothed the apparent owner with all the indicia of ownership and full power of disposition so that third persons are led into dealing with him. Such third parties will be protected even though they bought after maturity, where they purchased in good faith, for value and without notice. It is but an application of the principle that where one of two innocent persons - must sustain a loss occasioned by the fraud of a third, it must fall upon the one who puts it in the power of the third person to commit the fraud. International Bank v. German Bank, 71 Mo. 197; Lee v. Turner, 89 Mo. 494; Neuhoff v. O’Reilly, 83 Mo. 169; Turner v. Hoyle, 95 Mo. 346; Wright Invst. Co. v. Frisco Realty Co., 179 Mo. 80; Clifford Banking Co. v. Donovan Comm. Co., 195 Mo. 283; Geradi v. Christie, 148 Mo. App. 75; Miller v. Peoples Savings Bank, 193 Mo. App. 507. (4) Tlie holder of a negotiable promissory note indorsed in blank by the payee, is prima-facie the owner thereof, and is presumed to have taken it in good faith, for value, before maturity and without notice. Keim v. Vette, 167 Mo. 389; Horton v. Bayne, 52 Mo. 531; Johnson v. Murry, 72 Mo. 278; Fitzgerald v. Barker, 85 Mo. 13; Mayes v. Robinson, 93 Mo, 122. (5) While it is true that the transferee or indorsee of a negotiable promissory note transferred after maturity takes it subject to all equities attached to it in the hands of the payee, yet the equities are such as are connected with the note itself and not such as grow out of distinct and independent transactions between the original parties. Gullett v. Roy, 15 Mo. 399; Unseld v. Stephenson, 33 Mo. 161; Mattoon v. McDaniel, 34 Mo. 13¡8; Arnot v. Woodburn, 3'5 Mo. 99; Cutler v. Cook, 77 Mo. 388; Knaus v. Gibbons, 110 Mo. 58; 'Kelly v. Staed, 1361 Mo. 430; Hunleth v. Leahy, 146 M.o. 408; Gennel v. Hueben, 71 Mo. App. 291; Crawford v. Johnson, 87 Mo. App. 478; An-nan v. Houck, 4 Gill. 325, 45 Am. Dec. 133'; Young v. Shriner, 80 Pa. 463. In this connection it is to be borne in mind that the respondent is not a maker of the note in question nor even liable on the same because she acquired the property merely subject to the deed of trust.

      Karl M. Ve-tsburg and Charles II. Franck for respondent.
    (1) All the evidence shows that the transaction between Krembs.and Moellenhoff wa.s intended as a payment and discharge of the paper and not a purchase. Girardi v. Christie, 148 Mo. App*. 75.' (2) Regardless of intention, one who owes a duty to discharge an obligation cannot purchase it and continue it in force. Such .an attempted purchase would in fact be a payment and a discharge. Powers v. Fouche, 14 N. Y. 406; Comstock v. Buckley, 141 Wis. 228. (3) A note, paid "by one who has no right to call on other parties for repayment, is no longer a valid contract, and has no legal existence. 8 Corpus Juris, sec. 815, p. 582. (4) Krembs, by-reason of his having secured the consideration for the execution of said note and deed of trust, and biy reason of his fraudulent conduct, was the principal debtor in the transaction and payment by him to Moellenhoff discharged the note and extinguished the lien of the deed of trust. The obligation of Krembs’ “straw man,” Miller, was in law and fact thei obligation of Krembs. Comstock v. Buckley, 141 Wis. 228-; IToutz v. Heilman, 228 Mo. 655; R. S. 1909, sec. 19089.^ (5) The note in suit being executed by Krembs’ straw man, or alter ego, Krembs was not a stranger to the note, but was in law and fact the actual maker and the principal debtor in the transaction. Van Raalte v. Epstein, 202 Mo. 17*3; IToutz v. Heilman, 228 Mo. 655; Comstock v. Buckley, 141 Wis. 228; Hoffman v. Habighorst, 49' Ore. 384; Arnold v. Green, 116 N. T. 573. (6) One who acquires negotiable paper after maturity, takes it subject to the defense of payment, even though he is an innocent holder for value. R. S. 1909, secs. 10022 and 10028; Girardi v. Christie, 148 Mo. App-. 75; Kelly v. Staed, 136 Mo. 4.37; Williams v. Gerber, 75 Mo. App-. 30; Vandagrift v. Investment Co., 144 Mo. App-. 84. (7) The payment by Krembs to Moellenhoff was a discharge of the note and deed of trust, and the subsequent deposit of- the same by Krembs with the defendant bank as collateral passed no title or interest to the bank. Vandagrift v. Investment Co., 144 Mo. App. 84; Williams v. Gerber, 75 Mo. App. 30; R. S. 1909, sec. 10089; Comstock v. Buckley, 141 Wis. 228; Jackson v. Johnson, 248' M;o. 680; Bishop- v. Chase, 156 Mo. 158.
   WHITE, C.

The plaintiff in this action seeks to enjoin the negotiation of a certain promissory note and deed of trust securing the same -on her property, and prays for a cancellation of the note and the removal of the deed of trust as a cloud upon the title. There was a judgment in the Circuit Court of the City of St. Louis for plaintiff, and the defendant appealed.

The facts of the case are all contained in an agreed statement signed by the parties, in substance as follows:

Maria Hoeley, of German- birth, was, at all the times mentioned in the statement, a widow, spoke the English language indifferently, and was unable to read or write it. One Herman J. Krernbs was a real estate agent and notary public in the City of St. Louis, for many years . had been the agent of the plaintiff’s husband before the latter’s death, and thereafter acted as agent of the plaintiff in certain real estate transactions. Krernbs was indebted to plaintiff in matters arising out of various business transactions other than the one under consideration. All business which he had' in charge for the-plaintiff was conducted in the German language.

On or about the twenty-second day of December, 1905, the plaintiff employed Krernbs to purchase for her, free and clear of incumbrance, the property in suit. She provided Krernbs with six thousand dollars with which to make the purchase, the same being the proceeds of collections which Krernbs had made for her.

Krernbs on that day caused a contract of purchase to be made with the owner of the real estate mentioned, for the sum of six thousand dollars, payable in cash, and caused one Franz Bichard Miller to sign the contract as purchaser. Miller was unknown to plaintiff and was at the time in the employ of Krernbs and acted for him in the capacity of a “straw man.”

Afterwards, on the eighth day of January, 1906, without the knowledge, consent or authority of plaintiff. Krernbs caused the owner to execute a deed conveying the property to Miller for a consideration of six thousand dollars. The deed, a general warranty, is set out in the statement, and recites a consideration of six thousand dollars. Krernbs at that time paid the vendor, owner of the land, the purchase price of six thousand dollars. On the same day, without the knowledge or consent of the plaintiff, Krembs caused Miller to execute a note for four thousand dollars and interest and a. deed of trust on the property .to secure the same. . The note was payable in three years.

Krembs, thereupon, without the knowledge or consent of the' plaintiff, sold and delivered the deed of trust and note to H. Moellenhoff for the sum of four thousand dollars, which was paid to Krembs and which Krembs retained.

Four'days later, on the twelfth of January, 1906, Krembs caused Miller to execute a warranty deed conveying the said property to the plaintiff for a recited consideration of six thousand dollars. The deed con-. tains this clause: “This conveyance being .subject to an incumbrance of four thousand dollars executed by the party of the first part duly filed for record.” The plaintiff was unaware of such recital and was in ignorance of the existence of the deed of trust; the knowledge of its existence was falsely and fraudulent! v concealed from the plaintiff by Krembs; she believed her'property to be clear of any incumbrance whatever.

After the plaintiff acquired title she took possession of the property, collected the rents, paid the taxes, insurance, water license and repairs; all without knowledge of the existing deed of trust. Krembs, at no time after purchase the real estate for plaintiff, as aforesaid, acted as her agent for the purpose of managing the property, but said Maria Hoeley. managed the same herself.

Krembs, without the knowledge of plaintiff, palo, Moellenhoff the interest on the four-thousand dollar-note and when it fell due, January 8', 1909, he paid Moellenhoff the sum of one thousand dollars and caused it to be extended for three years. Thereafter he continued to pay the interest on the remaining three thousand dollars until the expiration of the extension. On March 20, 1912, after such expiration, Krembs, without tlw knowledge of plaintiff, paid Moellenhoff three thousand dollars by his check, and Moellenhoff thereupon delivered the note duly indorsed by him, the deed of trust and- insurance policies connected with the loan, to Krembs.

Krembs held the note and deed of ' trust in his possession without marking the same paid and without causing the deed of trust to be released, until October 11, 1912. At that time he delivered the note and! dec of trust to the defendant bank as a pledge to secur" the payment of his personal note in the sum of two thousand, seven hundred and fifty dollars. Afterwards Krembs paid the plaintiff bank the sum of two hundred and fifty dollars on account of said note, leaving a balance due of twenty-five hundred dollars.

In March, 1915, Krembs committed suicide, and the bank presented its claim against his estate in the probate court and the same was allowed.

After the death of Krembs the defendant bank demanded of plaintiff payment of the balance due on the four-thousand-dollar note, and that demand “was the first intimation or knowledge by plaintiff of the existence of said note and deed of trust and of the pledge of the same to the defendant.” Thereupon the plaintiff brought this proceeding to enjoin the disposition of the note and deed of trust and procure cancellation of the same.

Other facts stated in the stipulation show the advertisement for sale of the pledged! note, thiei advertisement of the real estate by the trustee in the deed of trust, and a sale of the same and purchase by the defendant company, all after this suit was filed. Before the sale of the real estate and of the note the plaintiff duly notified all persons concerned by lis pendens, and other written notices, of the filing of this suit and that the note had been paid and said sale notices were of no effect.

I. The note and deed of trust against the plaintiff’s property originated in fraud and were without consideration moving to her. It cannot be claimed and is not contended that in the hands of Krembs the note could' have been enforced against the plaintiff’s property. He received from her the full amount °f cash necessary to make the purchase of the property, and without her knowledge or consent attempted to create an indebtedness against the land in the sum of four thousand dollars through the instrumentality of his straw man, Miller. Manifestly, since Krembs himself could not have enforced the note on his own behalf, anyone acquiring it with notice, even before maturity, would have been in the same position; that is, Moellenhoff, if he had had knowledge of all the facts of the transaction, would have been in the same position as Krembs. [Sections 10025 and 10026, Revised Statutes 1909.]

It may be Conceded that Moellenhoff was an innocent purchaser for value, and could pass a good title to another, although the other had notice of the fraud. [McMurray v. McMurray, 258 Mo. l. c. 417.] But Krembs was not within that rule. Section 10028, Revised Statutes 1909, of the Negotiable Instrument Act, limits its operation to one “who is not himself a party to any fraud” affecting the instrument. The note, therefore, in the hands of Krembs after he took it up was affected by the same infirmity „ which made it unenf orcible by him in the first place. [Powers v. Fouche, 14 N. Y. St. 406; Comstock v. Buckley, 141 Wis. 228,] He was at once under obligation to remove the debt from plaintiff’s property. [Houtz v. Heilman, 228 Mo. l. c. 669; Van Raalte v. Epstein, 202 Mo. 173.]

II. Then what was the position of the defendant bank and what is there in the circumstances to give it a right which 'Krembs did not possess? When it was shown that the right of Krembs to enforce the instrument did not exist the burden was on the defendant to shpw it was holder in due course. [Sec. -^qqq'q^ 1909.] The bank, “having acquired the note after maturity, was not a holder in du course as that character is defined by -the ‘ Negotiable Instrument Act (See. 10022, R. S. 1909). And it was. subject to the same defenses as if it had been nonnegotiable. [Sec. 10028, R. S. 1909.]

Appellant asserts it is in better position than Krembs would have been, better than a purchaser with notice, or an ordinary purchaser after maturity, on the theory that where one of two innocent persons must sustain a loss occasioned by the fraud of a third, th" loss must fall upon the one who puts it ... . ,. „ ... within the power or the third person to commit the fraud. A number of cases are cited r suppiort of that proposition. [International Bank v German Bank, 71 Mo. l. c. 195; Priest v. Garrett, 191 S. W. 1048; Banking Co. v. Donovan Com. Co., 195 Mo. l. c. 283.] It will be noticed that these cases are wher-’ the “owner has bv assignment conferred the apparent absolute ownership” on the person with whom the purchaser deals; or, where the true owner of a note invests another with the usual evidence of ownership or with the full power of disposition. In all cases of that character the owner has consciously conferred upon another person authority, or acquiesced in the exercise of authority, which is relied upon by the purchaser.

There are no such facts in this case. While Mrs. Hoeley employed Krembs to make the purchase of specific property, there was no general agency, nor holding him out as general agent. The stipulation -says she “employed said Krembs 'to purchase for her” this particular property. His employment as to the property extended no further than to make the purchase. At no time after purchasing the property did Krembs act as the plaintiff’s agent in managingit, or in doing anything in connection with it. She managed it herself. He probably could have used the plaintiff’s name in connection with the purchase in some way to compromise her and cause her to incur liability, but it could not be said that his authority, real or apparent, con - templated the interposition of a “straw man” to place a mortgage upon the property before its conveyance to plaintiff. Much less was there any agency, real or apparent, at the time ■ Krembs took np the note from Moellenhoff and negotiated the same to the bank as collateral security. There is nothing in her attitude nor in the circumstances which could lead the bank to believe she authorized any such dealing with the property. In fact, the bank did not act upon that belief at all, but apparently upon the belief that Krembs was an entire stranger to the original transaction and acquired the note for value from the payee. It had no knowledge, so far as the stipulation goes, that Krembs had anything to do with the original transaction in which the plaintiff authorized him to make the purchase.

It is further claimed by the appellant that although the note was transferred to the defendant after maturity it is subject only to such equities beween the original parties as are connected! with the note itself and the plaintiff cannot take advantage of equities growing-out of an independent transaction. Each of the cases cited under this proposition show some collat- .. # 1 era! or independent arrangement which, m an action on a note, is the basis of a set-off or counterclaim. Here the fraud!, of Krembs was not connected with anything else but the note; the note itself was without consideration, was conceived and executed in fraud.The straw man who executed it was in legal contemplation Krembs himself.

The note in the hands of the bank was subject to the same attack as it would have been in the hands of Krembs.

III. The ajjpellant asserts that when Krembs tool? up the note it was a purchase. It relies upon the rule that where one not a party to nor liable on a note pays the holder out of his own funds and acquires possession of it, the transaction is a purchase and not a payment. A number of authorities are cited in support of the proposition. The argument is that Krembs, not being a party to the note, when lie paid the balance due on it to Moellenhoff and took it up' without marking it paid or releasing the deed of trust, acquired title to it as by purchase from an innocent holder and therefore passed a good title for value to the defendant.

What is said above disposes of that contention. Besides the transaction was a payment and not a purchase. Krembs’ relation to the note was not that of a stranger. The paper was undoubtedly accommodation paper. Although the statute does not define accommodation paper, it does define accommodation party (Section 10000) as “one who has signed the instrument as' maker,” etc., “without receiving value therefor and for the purpose of lending his name to some other person.” Miller, then, was the accommodation party. He signed the note for the purpose of lending his name to Krembs for Krembs’ purposes. Krembs, therefore, according to all definitions, was the accommodated party. This court, in the recent case of Overland Auto Co. v. Winters, 210 S. W. l. c. 3-4, had occasion to define the party accommodated as one for whose convenience the paper is made, or to whpm the name or credit of another person is loaned. His name need not appear on the instrument. The rule is thus stated by Corpus Juris: “An instrument signed, accepted, or indorsed by .one for the accommodation of another is accommodation paper, although the party for whose accommodation it was signed is not himself a party to the instrument.” [8 C. J. P). 254.] See also Skagit State Bank, v. Moody, 150 Pac. (Wash.) 425; Delaware County Ins. Co. v. Haser, 85 Am. St. Rep. 763, l. c. 769; Rea v. McDonald, 68 Minn. 187, 71 N. W. 11. And there are no authorities announcing a contrary doctrine. Krembs was the party accommodated.

Under Section 10089, Eevised Statutes 1909, of the Negotiable Instrument Act, a negotiable instrument is discharged: “(2) By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation.”

Krembs, the party accommodated, paid the note in due course when it fell due; that was a discharge of the note. Payment is a good defense against a holder who is not a holder in due course. [Kelly v. Staed, 136 Mo. 430, l. c. 437; Section 10028, R. S. 1909.]

The judgment is affirmed.

Hailey and Mosley, CC., concur.

PER CURIAM: — The foregoing* opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    GEORGE T. VICE et ux., Appellants, v. CITY OF KIRKSVILLE.
    Division Two,
    January 6, 1920.
    1. CONSTITUTIONAL LAW: Title: Act of 1905: Believing City of Liability for Negligence. The title to the Act of 1905 (Laws 1905, p. 93) "providing for the acquisition of waterworks systems by cities of the second, third and fourth classes” and “to pay therefor by the issuance of bonds which shall create no general or personal liability on the part of the city” did not indicate that a section was embedded in the body of the act exempting the city from all liability for “any alleged negligence in the operation of the waterworks plants,” and therefore said section (Section 21) is void.
    2. -: - — :-:-: Nuisance. For conducting a private enterprise, such as the operation of a waterworks plant for the supply and sale of water to its citizens, in such a negligent way as to constitute a nuisance, a city is liable in damages to those injured thereby, in spite of the Act of 1905, Laws 1905, page 93.
    3. --: Exemption From Taxation: City Waterworks Bonds. A statute which exempts from taxation the bonds secured by a mortgage on a waterworks plant conducted by the city as a private enterprise, and not in its governmental capacity, is unconstitutional.
    Appeal from Adair Circuit Court. — Hon. James A. Cooley. Judge.

      Reversed and remanded (with directions).

      A. G. Knight and W. K. Avnick for appellant.
    (1) The title of said Act of 1905 gave notice only that it was an act providing' for the acquisitions of waterworks systems by cities of certain classes, and under certain charters, having certain populations, and a mode of paying therefor by the issuance of bonds and the like, and gave no notice, and not a word of warning or intimation,'that such cities and waterworks commissioners would by this Section 21 be relieved of their negligence, and relieved from all acts of tort. This was in violation of Section 28 of Article 4 of the Constitution. Williams v. Railroad, 233 Mo. 677; State v. Burgdoerfer, 107 Mo. 30; State v. Great Western Coffee & Tea, Co., 171 Mo. 643; Kansas City v. Payne, 71 Mo. 162: St. Louis v. Weitzel, 130: Mo. 616; State v. Distilling' Co., 237 Mo. 103'; State v,. Gordon, 268 Mo. 713: State v. Fulks, 207 Mo. 26; St. Louis v. Workman., 213 Mo. 131; State v. Rawlings, 232 Mo., 557; State ex. rel. Schofield, 41 Mo. 39'; .State v. Persinger, 76-Mo. 346; Witzman v. Railroad, 131 Mo. 617. (2) By the Constitution of Missouri, Article 10, Section 6, the property exempt from taxation is enumerated, and by Section 7 all laws excluding property from taxation other than the -property above enumerated, shall be void, and bonds are not enumerated in Sec. 6., and therefore Sec. 994-1-, R. S. 1999, exempting waterworks bonds from taxation, is clearly void. State ex rel. St. Louis Co. v. Gordon, 268 Mo. 713; State v., Bengsch, 170 M;o. 81. The city is liable in this case. Stifel v. City of St. Louis, 181 S. W. 577, 579; Curran v. St. Joseph, 264 Mo. 656; .Rile}' v. Independence, • 2-58 Mo. 671; Benton v. St. Louis, 248 Mo. 98; Benton v. St. Louis, 217 Mo. 687; 129 Am. St. 561; Barree v. City of Cape Girardeau, 197 Mo. 382-389, 6 L. R. A. (N. S.) 1090, 114 Am. St. 763; Drake v. Kansas City, 190 Mo. 370'-384, 109 Am. St. 759'; Conner v. City of Nevada, 188 Mo. 148i, 107 Am. S¡t. 314; Ely v. City of St. Louis, 181 Mr. 723; Straub v. City of St. Louis, 175' Mo. 413'; Rice v. City of St. Louis, 165 Mo. 636; Dammami v. St. Louis, 152 Mo. 186-396; Donahoe v. Kansas City, 136 Mo. 657; Fuchs v. St. Louis, 133 Mo. 168, 34 L. R. A. 118'; Walker v. City of Kansas, 99 Mo. 647.

      Campbell $ Ellison and A. Doneghy for respondent.
    (1) It will be readily conceded that the last subdivision of Section 21 of the Act of 1905; Laws. 1805; p. 85, is null and void for the reason that it is in the teeth of Section 6, Article 10, of the Constitution. But it does not follow as a conclusion from such admission that the entire section is void, as the subdivisions are clearly divisible, and one does not depend on the other. The subdivision which makes the bonds non-taxable is clearly divisible from the one which exempts the city from negligence in the operation of the waterworks system. State ex rel. St.> Louis v. Gordon, 2:68 Mo. 713. (2) The title of the act is amply sufficient to cover the provision exempting the city or board of water comtmissioners from negligence in the operation of the waterworks. The constitutional mandate in regard to the title of a statute does not require a table of contents as a caption to a law. It is sufficient if the title does not mislead as to the chief topic of the act, and-that th,e minor features of it have a reasonable and natural connection with the subject named in the title. State ex rel. v. County Court, 128 Mo. 441; State ex rel. Garresche v. Roach, 258 Mo. 541; O’Connor v. Transit Co., 198 Mo. 622. (3) The subject of the Act is to provide for the acquisition of waterworks by cities, and the title contains only matters germane to the subject, and a provision in the Act exempting the City and the Board of Commissioners from negligence in the operation of the plant, is merely one of the incidents which the Legislature deemed expedient “for-the preservation of its revenues,” as set forth in the title. Authorities supra. (4) The demurrer was properly sustained for the 'reason, if none other, that the law (at the time of the alleged injury) was that the city, in the operation of the waterworks (which the petition discloses was part and parcel, of the. fire department), was not engaged in an imperative ministerial act for private corporate gain, but in a discretionary governmental capacity for the public good, health and safety. In 1909 the positive law of the State declared the waterworks to be a public utility. R. S. 1999, sec. 9914; La.ws 1911, p. 352; Commonwealth v. City of Covington, 107 S. W. 231; Mendel v. Wheeling, 28 W. Ya. 233, 57 Am. Rep. 665; Cassidy v. St. Joseph, 247 Mo. 197; Stater v. Joplin, 189 Mo. App: 383; McKenna v. St. Louis, 6 Mo. App. 320.
   RAILEY, C.

This action was commenced in the Circuit Court of Adair County, Missouri, on March 30th, 1917, by the filing of following petition, to-wit:

“Plaintiffs for their cause of action against the defendant state the following facts:
“That the defendant, the City of Kirksville, at all times in this petition mentioned and now is a municipal corporation and body corporate under the laws of the State of Missouri, and as such is entitled to sue and be sued in the courts of this State, and as such municipal corporation has the legal right to and does own real and personal property, exercising the rights and franchises and performing the functions, offices, duties, responsibilities and liabilities of .municipal corporations in this State, of the class to which said city belongs and is and was at all times a city of the third class, operating a city'government, known as the City of Kirksville, and attempting to exercise the franchises, functions and obligations of such city.
“That plaintiffs are husband and wife and are now and were such at all times in this petition mentioned; that they are the parents of Murle Vice, deceased.
“That said Murle Vice was the infant daughter of the said George T. Vice and Musie L. Vice, plaintiffs, and that said Murle Vice lost her life by drowning in one of defendant’s reservoirs in and near, the City of Kirksville. Adair County, Missouri, on the 2nd day of April, 1916, and that this suit is prosecuted to recover damages for the loss of the life of the plaintiffs’ said child and daughter, Murle Vice, by said plaintiffs, as the parents, to-wit, the father and mother, of said Murle Vice, they being the persons entitled to sue under the laws of this State for the death of the said Murle Vice, caused as alleged by plaintiffs, by the carelessness and negligence of the defendant.
“That the said Murle Vice was a youth of tender years, to-wit, of the ag’e of eleven years at the time of her death. That on the said 2nd day of April, 1916, and long prior thereto, the defendant was the owner and in possession of a certain plot or body of ground, consisting of about five acres, situated about two miles northwest of the center of said City of Kirksville, which was used in a general way as a water plant or part, of a water system which was used in the pumping, retaining, clarifying and furnishing of the water and water supply for said city. Said water plant, in addition to being used by said city for fire protection and’city purposes, was likewise used, at all times in this petition mentioned, as a private water system and private business' enterprise in a proprietary capacity in furnishing water for private consumers for domestic and commercial purposes and to its private citizens, at a stipulated price .and water rental, which said private use and proprietary employment yielded said city large sums of money and large income and revenues derived in that manner, and for such use and source and income. That said plot of ground had located thereon a pumping station, and a large reservoir or retaining basin into which the water was pumped by the defendant, connected with other wells and basins and reservoirs which were used for clarifying, and in which the water was treated chemically and piped from one reservoir to others, which said reservoirs, basins and wells were made in the ground and lined, curbed and walled with cement; that one of said reservoirs or basins was called a coagulating reservoir or dead water basin or bin; that the same was practically square and forty or fifty feet across either way and about eight or ten feet in depth and walled with a smooth cement wall sloping slightly to the inside thereof; that said premises was located between the light of way of the Quincy, Omaha & Kansas City Railroad Company on the north side thereof, and the public road running east and west on the south side of said premises; that said premises were unenclosed and were so constructed as to be inviting to children and other persons visiting said premises, and was dangerous to the lives of children frequenting said premises, as well as other persons.
“That plaintiffs’ daughter was drowned in what was known as said coagulating- reservoir or dead water basin or bin, which will hereafter be designated as the dead water basin.
“That said premises were frequented by many people of said city and others as an outing- resort and place of pleasure and amusement and was open to the public and much used and frequented by the public. — mien, women and children — and was so known to the defendant, and had been so frequented, visited and used long prior to the said 2nd day of April, 1916', and the defendant, its officers, agents and servants had full knowledge of such uses and habits as hereinbefore alleged and stated. That said reservoirs and water basins and walls on said premises were practically level with the top .or surface of the ground and were unprotected and. unguarded, and had no walls, fences, guards or other protection to prevent children and others from falling therein, although much used and frequented by children and others, as hereinbefore stated, and was so known to be by the defendant,> or by the exercise of ordinary care and diligence on the part of the defendant, could have been so known and understood. That there were no ladders or other means of escape provided, against the walls of said basin or wells, and no means of affording escape to anyone falling therein or in any manner getting into said basin or being precipitated therein; that the maintaining of such premises as aforesaid, was carelessness and negligence on the part of defendant, and the defendant, on said 2nd day of April, 1916, and long prior thereto, carelessly and. negligently maintained said premises in said dangerous and unsafe condition, and so maintained said basin in such careless and negligent mjanner aforesaid, and in such dangerous, unguarded and unprotected condition, as aforesaid, so as to constitute the same a pitfall and a nuisance in law, making the same both a private and public nuisance, dangerous to the lives of those frequenting or going upon said waterworks grounds, as aforesaid, and the same was at all times in this petition mentioned, known by the defendant to be in said unsafe and dangerous condition, as aforesaid, and to be both a private and public nuisance, which was attractive to children and attracting and inducing children thereto, which was dangerous to the lives of those going upon and frequenting said premises, as aforesaid.
“That on said 2nd day of April, 1916, the deceased, Murle Vice, in company with another little girl of tender years, visited said water plant, and said dead water basin on said premises, and while being and playing about said basin, which as aforesaid, was attractive and inviting to children, said Murle Vice fell into said dead water basin, without legal negligence on her part, and was then and there drowned. That the drowning of said child was occasioned and caused by the carelessness and negligence of the defendant in permitting said premises to be unguarded and said basin to be unprotected, without guards and other protection to protect children of tender years and others from falling therein, and by reason of the defendant providing no means of escape from said basin, as aforesaid, and by reason of said premises being dangerous to the lives of those frequent-mg and going upon said premises, as aforesaid, and by reason of said premises being conducted and maintained by the defendant as a public resort and park, as aforesaid, and by reason of the maintenance of said basins and premises in a dangerous condition, as aforesaid, so as to constitute in law a private and public nuisance, as aforesaid.
“Wherefore and by reason whereof, the deceased, the said Murle Vice, lost her life by drowning and being drowned by the carelessness and negligence of the defendant.
£ That the death of the deceased was not occasioned by the operation of said water plant at the time of said death by pumping water .to said city, and that the operation of said plant at the very time of the death of the deceased was not the proximate cause of deceased’s death, but plaintiffs aver that the cause of deceased’s death was the negligent and careless maintenance of said premises, as aforesaid, so as to constitute a nuisance, as aforesaid, and the careless and negligent maintenance of said water basin in said unguarded and unprotected condition, and of the use of said premises, and permitted use thereof, as hereinbefore stated, and the maintenance of said premises in said dangerous and negligent manxxex-, as aforesaid, axxd was xxot occasioned in the act of operatixxg the water plant for the purposes of its use, but only by the maintenance of the premises and its instrumentalities afoxusaid, axxd not by the use of said plant in its entii’ety.
££ Wherefore plaintiffs say they, as the parents of the said Murle Vice, are exxtitled to bring this suit axxd have hereixxbefore stated their cause of action for the careless and negligent death of their said child, and that they have been damaged in the sum of ten thousand' dollars, for which they ask judgment, and that they recover their costs in this behalf laid out and expended.”

Defendaxxt filed a general demurrer',to said petition, which, without caption, reads as follows:

“Comes now the above named defendant and demurs to the petition filed in said cause, and for reasons says: Said petition does not state facts sufficient to constitute a cause of action.”

The following proceeding’s were had, in respect to said demurrer, on June 1, 1917:

“Now at this day come the parties plaintiffs with their attorneys, and defendant by its attorneys, and defendant’s demurrer coming on to be heard, the same is taken up, duly considered by the court and sustained.
“Thereupon, the plaintiffs declining to plead further in this cause, judgment is by the court entered herein in favor of the defendant.
“It is therefore considered, ordered and adjudged by the court that the plaintiffs take nothing by their said suit and that the defendant go hence without day and have and recover of and from the plaintiffs the costs herein laid out and expended and that execution issue therefor.”

• Prom the judgment aforesaid, plaintiffs appealed the case to this court.

T. It is manifest from the record and briefs of counsel that the trial court sustained the demurrer to plaintiffs’ petition on the ground that Section 21 of the Act of 1905, Laws 1905, page 93, exempted defendant from liability on the facts disclosed in the petition. Appellants challenge the constitutionality of said section, on the ground that it is violative of Section 28 of Article 4 of the Constitution 1875 of Missouri, in this, -that the provisions of said section are not covéred by the title of the act. The latter reads as follows:

“AN ACT providing for the acquisition of waterworks systems by cities of the second, third and fourth classes, and cities operating under special charter, having three thousand and less than thirty thousand inhabitants; and to, pay therefor by the issuance of bonds which shall create no general or personal liability on the part of the city, but which shall be 'secured only by the property composing the waterworks system, together with the revenues arising therefrom; and providing a method for the payment of such bonds and the right to-continue the operation of such waterworks system after default and foreclosure; and -providing for a. board of waterworks commissioners to manage and control the waterworks system so acquired, and for the preservation of its revenues, and exempting such waterworks system from levy and sale under execution and taxation, except as provided herein, with an -emergency clause. ’ ’

Section 21 of said act reads as follows:

“Sec. 21. The city shall not be held liable in any suit at law or in equity on account of any alleged negligence in the operation of the waterworks plant, but the city and the board of waterworks commissioners and the property of the waterworks system shall be exempt from any such liability; and said waterworks system, while owned and operated by the city, and the bonds given to pay the purchase price thereof, shall be exempt from taxation, as provided by Section 6 of Article X of the Constitution of this State.”

Section 28 of Article 4 of our Constitution, provides ' that: “No bill . . . shall contain more than one-subject, which shall be clearly expressed in its title.”

It is evident that the framers of the Constitution, in the enactment of Section 28, supra, were attempting to guard the people of our State against fraudulent, misleading and improper legislation, by providing that the title to the act should indicate in some way, the kind of legislation that was to be had thereunder. The members of the General Assembly may have been in favor of allowing cities of the second, third and fourth class to own and operate a system of waterworks, yet, may not have been willing- that such municipalities should be turned loose to operate and carry on said business as any other private owner, and be permitted to construct public and private nuisances', while engaged in said business, without being liable, in any case, to those who suffer an injury thereby. In other words, the Legislature might be willing to exempt the municipalities from liability while its employees were pursuing purely governmental functions, and unwilling to do so, when they were not so engaged.

Would any intelligent person reach the conclusion, from reading the above title, that there was any indication therein that the former rulings of the courts would be disregarded, and the municipality, in a case where it was proceeding as a private owner of the waterworks, be relieved from liability on account of its negligence and the creation of a nuisance? Leaving out of consideration Section; 21, supra, and taking the law as it had been declared for many years by this court, the petition would have stated a cause of action. [Stifel v. St. Louis, 181 S. W. l. c. 579, and eases cited; Lamar v. Bolivar Special Road Dist., 201 S. W. 890.] These two cases very clearly point out the distinction between the exercise of a governmental function and one conducted by the municipality as a private enterprise. We can conceive of no good reason, either in law or morals, for exempting cities of the second, third and fourth class from liability on account of their negligence in operating waterworks (while not engaged in the exercise of governmental functions), which should not apply with equal force to cities of the first class, or other cities outside of the three classes exempted by Section 21. In view of the foregoing, the title to ab'ove act should be carefully considered in connection with Section 21, in passing upon the constitutionality of the latter.

We are driven to the inevitable conclusion, from reading the above title and Section 21, in the light of the other matters referred to, that Section 28 of Article • 4 of our Constitution has been utterly ignored and en-tirely disregarded in„the enactment of said section; that no intelligent consideration of the title, would have led any reasonable mind to understand that the former laws of the State, sustaining a recovery, were being brushed aside, and an unheard of exemption substituted in their place. We are, therefore, of the opinion that Section 21 supra, cannot stand the test of judicial criticism and by reason thereof should be declared unconstitutional. [State ex rel. Greene County v. Gideon, 210 S. W. l. c. 360, and cases cited; Hardware Co. v. Fisher, 269 Mo. l. c. 277-8, 199 S. W. 570; State ex rel. v. Gordon, 268 Mo. l. c. 732-31, 188 S. W. 160; State v. Sloan, 258 Mo. l. c. 313-4; State ex rel. v. Revelle, 257 Mo. 529; State v. Distilling Co., 237 Mo. 103; State ex rel. v. Gordon, 233 Mo. l. c. 387-8; Williams v. Railroad, 233 Mo. l. c. 677; State v. Rawlings, 232 Mo. 557; St. Louis v. Wortman, 213 Mo. 131; State v. Fulks, 207 Mo. l. c. 33; State v. Great Western Coffee & Tea Co., 171 Mo. l. c. 643; Witzmann v. Railroad, 131 Mo. 617; City of Kansas v. Payne, 71 Mo. l. c. 162; Cooley’s Constitutional Limitations (7 Ed.), p. 205; Mengel Box Co. v. Fowlkes, 180 S, W. (Tenn.) 91; National Surety Co. v. Murphy-Walker Co., 174 S. W. (Tex.) 997; Burton v. Monticello & Burnside Turnpike Co., 173 S. W. 144.]

a. It is conceded by counsel for respondent that the last clause of Section 21, supra, violates Section 6 of Article 10 of our Constitution, in respect to the bonds mentioned therein being exempt from taxation. [State ex rel. v. Gordon, 268 Mo. 713, 188 S. W. 160.]

II. Having heretofore reached the conclusion that Section 21 of the Act of 1905' is unconstitutional and void, does plaintiffs’ petition state a cause of action?

It does not undertake to state a cause of action against defendant based upon any negligent acts committed by it while performing a governmental function, but predicates a right of recovery upon the illegal and wrongful acts of defendant in the construction and maintenance of a public and private nuisance as the owner of the water plant, by reason of which, appellants’ child lost her life. The petition may not be termed a model pleading, yet it contains all the averments that are necessary to constitute a cause of action when challenged by demurrer.

The judgment of the trial court is in conflict with the conclusions reached by us. We accordingly reverse and remand the cause, to be proceeded with, in conformity to the views heretofore expressed.

Mosley and White, CO., concur.

PER OURIAM: — The foregoing opinion of Raxley, 0., is hereby adopted as the opinion of the court.

All of the judges concur.


text:
    AMANDA L. MORTON, Appellant, v. SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY et al. AMANDA L. MORTON, Appellant, v. SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY and UNION ELECTRIC LIGHT & POWER COMPANY. AMANDA L. MORTON v. HIRAM LLOYD BUILDING & CONSTRUCTION COMPANY, Appellant.
    No. 20143.
    No. 21431.
    No. 21432.
    Division Two,
    January 6, 1920.
    1. APPELLATE JURISDICTION: Appeals to Different Appellate Courts. The same case cannot be pending on appeal from the same final judgment in two appellate courts through separate appeals by different parties to the action. So where more than one party appeals and the amount in dispute in either appeal gives the Supreme Court jurisdiction, all the appeals should be sent to said court for final adjudication.
    2- -:-: This Case. Plaintiff brought suit for $10,000 against a telephone company, an electric power company and a construction company, for the negligent killing of her husband, and recovered judgment for $7500 against the construction company alone. At the same term and on June 26th, the construction company appealed to the- Court of Appeals, and a short transcript was duly filed in that court. At the same term hut on September 29th, plaintiff applied for an appeal from the judgment, and her appeal was allowed to the Court of Appeals, and a transcript ordered sent to that court, but it was sent to the Supreme Court. Two years later, the telephone company and the power company filed in the Court of Appeals a certified transcript, showing that the judgment had been rendered, and the appeal taken, and moved that the judgment be affirmed, and that motion was sustained; but three days later the construction company moved that the order of affirmance be set aside, and the motion was sustained, and thereupon plaintiff filed her motion to transfer the cause involving both appeals to the Supreme Court, an,d that motion was sustained and the cause transferred. Held, that the Court of Appeals had no jurisdiction to render the judgment of affirmance, but only jurisdiction to determine whether it in fact had jurisdiction, .and having ascertained that it did not, it could only perform the mere ministerial act of transferring the case to the Supreme Court, whether or not plaintiff had perfected her appeal.
    3. -: Appeal to Wrong Court. Where plaintiff sues three corporations for $10,000, and recovers a verdict of $7500 against one of them, hnd the verdict is in favor of the other two, and she files a motion for a new trial against them, which is denied, her appeal is properly allowable to the Supreme Court, for the amount in dispute, as between her and those two, is $10,000; and if the trial court grants her appeal, but erroneously orders that the transcript be sent to the Court of Appeals, the order, upon notice, can be corrected in the trial court, and if correction is refused she can, by mandamus, compel the trial court to correct its record to conform to the law. But if, in spite of the erroneous order granting her an appeal to the Court of Appeals, .the transcript is sent to the Supreme Court, the record will be treated as having been properly corrected so as to show her appeal was granted to the Supreme Court.
    4. APPELLATE PRACTICE: Knowledge of Defective Appliance: No Pacts in Evidence. Where a telephone company and a power company each properly constructed an electric wire on a line of poles for the accommodation of a construction company engaged in constructing a reservoir, and the employees of the construction company, in the progress of their work, foúrteen days before the accident, broke one of the poles, and six days later broke the telephone wire, ■ which; later sagged down within four or five feet of the ground and as it sagged came in contact with the power wire, and no facts are presented in evidence that either company knew ; that the wire was broken or that it had sagged, and no' conclusive evidence that either of them had any reason to know such facts, a verdict for them, in" an action by the wife of an employee of the construction company who came in contact with the wire and was killed, rendered in pursuance to correct instructions, cannot be disturbed on appeal, as being against conclusive evidence of tkeir actionable negligence.
    5. NEGLIGENCE: Electric Wire: Demurrer to Evidence. Where a telephone wire and a highly-volted power wire had been placed upon cross-arms of poles for the accommodation of a construction company engaged in building a reservoir, and its employees in the progress of the work broke one pole fourteen days before the accident and six days later the telephone wire broke and one end was wrapped about the next pole, where it gradually worked loose and fell down over the power wire, and continued to sag lower and lower day by day, the facts and dangerous situation being known to the superintendent and foremen, of the construction company, no demurrer to the evidence should be sustained in a suit by the husband of an employee who, in the discharge of his duties in the night time, came in contact with the wire and was killed.
    6. --: Compensatory Damages: Life Expectancy. In a suit by a widow for the negligent killing of her husband, the amount she is entitled to recover is the pecuniary loss she has suffered and will ■ suffer by being deprived Qf his support during their probable joint live's, and therefore mortuary tables showing the life expectancy of each may be introduced in evidence, in order that the number of years of the one whose life expectancy is the least may be used as a basis for calculating her loss.
    7. --: Pleading: Age of Plaintiff: Evidence. In case of a death claim it is proper to permit plaintiff to prove her age and state of health, as well as the age, condition of health, earning capacity and personal expense of deceased, without specifically pleading those facts. ’
    8. -: -: Use of Wages: General Objection. Aj general objection to plaintiff’s testimony that deceased gave her a certain portion of his wage for her support, that he spent his evenings at home and that she paid his burial expenses, that “it is irrelevant and immaterial,” is not sufficient to invite a ruling by either the trial or appellate court.
    9. -: Instruction: Electric Wire: Knowledge of Danger. An instruction which required the jury to find that defendant caused and permitted a telephone wire to become loose, sag and come in contact with a power wire and to fall to the ground where deceased was expected to be, necessarily required them to find that defendant knew that the coming of the telephone wire in contact with the power wire and with deceased was dangerous. A company whose business requires a constant us'e of electric current is - chargeable with knowledge of its dangerous character.

      10. -: -: Measure of Damages: Non-Direction. An instruction telling the jury that, in assessing plaintiff’s damages, they will award her such sum, not exceeding $10,000, as they find irom. the evidence will fairly and justly compensate her for all pecuniary loss , she has sustained or will sustain as a necessary result of the death of her husband, is correct as far as it goes; and if defendant wishes a more specific direction as to how to estimate the damages, it is its duty to ask it; otherwise, the defect, if any, is merely non-direction, which is not reversible error.
    Appeal from St. Louis City Circuit Court.— Hon. Kent K. Koerner, Judge.
    Affirmed.

      Sajford S Marsalelc for Amanda L. Morton.
    (1) The undisputed evidence in this case showed' ‘that defendant Telephone Company, permitted its wires to remain, unused, on the poles mentioned in evidence for.a long time, at least two months; that one' of the wires was broken eight days before the accident to plaintiff’s husband, and the end coiled around one of the poles; the next day the broken end was seen, gathered in a bundle on the ground at the footi of the pole. A week before the accident this wire had sagged down past the power wires, between said pole and the next pole south so that its lowest point was about a foot above the reach of an ordinary man. The day before the accident it had sagged to within four feet of the ground. This wire was in close proximity to a road, much used by the employees of defendant Construction Company. At all times after it commenced to sag it was likely to touch the power wires' 'on the same, poles, and if a person came in contact with it, to convey the dangerous current from the power wires-to him, whether the power wires were properly insulated or not. Under these circumstances defendant Telephone Company was, as a matter of law, guilty of negligence in failing to remove its dangerous wire. Geisemann v. Elec. Co., 173 Mo. 678; Goodwin’v. Telephone Co., 157 Mo. App. 607; TCrihs v. L. & P. Co., 199 S. W. 261; Brubacker v. Elec, Co., 330 Mo. App 439; Wilhite v. City, 167 Mo. App. 3.55; Melliean v. Elec. Co., 90 Mo. App. 595. (2) The undisputed evidence showed that when the power wires of defendant Power Company were moved from the broken pole mentioned in evidence to the new pole, about two weeks before the accident, the insulation „ on the power wires was' left in an impaired condition whore the wires had been fastened to the old pole; that eight days before the accident one of the telephone wires on the same line of poles was broken, and said uninsulated wire ran from the top of the new pole down to a point at or near the bottom, where, it was coiled, or left in a bundle, so that it passed, in its course, within a short distance of the defective insulation on the power wires; that the telephone wire sagged between said pole and the next pole south, so that a week before the accident it was just out of the reach of an ordinary man, and the day before had come within four feet of the ground; that the telephone wire was likely to convey the dangerous current from the power váre to a person who came in contact with it, whether the power wire was properly insulated or not. Under these circumstances defendant Power Company ivas guilty of negligence, as a matter of law, in failing to remove the telephone -wire, in permitting its power wire to be without proper insulation, and in permitting its power wire to be and remain charged with a dangerous current of electricity. Krihs v. L. & P. Co., 399 g. W. 261; Brown v. Light Co., 137 Mo. App. 734; Brubacker v. Elec. Co., 130 Mo. App. 439; I-Iarrison v. L. & P. Co., 395 Mo. 606. (3) The undisputed fact that plaintiff’s husband came to his death by coming into contact -with the electric current which escaped from defendant’s wire is conclusive proof of the negligence of defendant Power Compan3L Geisemann v. Electric Co., 173 Mo. 678; Von Trebra v. Light Co., 209 Mo. 659; Clark v. R. Co., 234 Mo. 439. (14)! Electricity is one of the most dangerous agencies ever discovered by human science, and the law requires that the highest degree of care be exercised in its use to prevent injury to others. Clark v. Ry. Co., 234 Mo. 42'3; Hill v. Electric Co., 260 Mo. 7(7; Yon Trebra v. Light Co., 209 Mó. 648; Geisemann v. Electric Co., 173 Mo. 674. (5) Where the evidence is conflicting the court, on appeal, will not weigh it to determine whether or not the verdict is supported by the weight of the evidence; but where a verdict is'not supported by substantial evidence it is the duty of the trial court to set it aside on motion, and upon its failure to do so the court, on appeal, will reverse the judgment. Ettlinger v. Kahn, 134 Mo. 497; Harper v. Railroad, 186 Mo. App. 308; » Tibbe v. Kamp, 154 Mo. 585; Turner v. Anderson, 236 Mo. 545. (6) Where the court, on appeal, is satisfied that tiro verdict was rendered in disregard of the evidence, and the trial court in refusing a new trial has wrought a manifest injustice, the court will set aside the judgment and order a new trial. Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railway Co., 87 Mo. 74; Garrett v. Greenwell, 92 Mo. 125; State v. Patrick, 107 Mo. 179; Southern, etc., Co. v. Surety Co., 207 S. W. 510,

      Jeffries é Comm for Southwestern Telephone & Telegraph Company, D. A. JVarik of compel.
    (1) There was no evidence offered by the defendant, yet the plaintiff’s evidence was of such, character that the jury was warranted in the finding from the facts before it that the Telephone Company did not, at the time of the accident, and theretofore, maintain a telephone wire on the poles, or that at the time of the accident, and that, theretofore, it could have discovered the danger by the use of ordinary care. The jury is entitled to draw more than one inference or inferences from the evidence adduced, (a) The jury’s finding in this respect is binding upon this court and cannot be disturbed. Kennett v. Constr. Co., 273 Mo. 299'; Moore v. Railroad, 268 Mo. 34; In re Lankford Estate, 272 Mo. 1. (b) Whether or not the Telephone Company in this particular case was guilty of negligence is a question for the jury. 15< Cyc. 480-; Jones on Tel. & Tel. Companies, 662; Brubaker v. K. C. Elec. L. Co., 130 Mo. App. 439; Block v. Milwaukee Street Ry. Co., 89 Wis. 371, 27 L. R. A. 3'65; Goodwin v. Telephone Co., 157 Mo. App-. 606. (2) The plaintiff cannot now charge that the Telephone Company w;as negligent in failing to use the highest degree of care when the case was submitted to the jury on the question of ordinary care. Plaintiff is bound before this court to rely upon the theory relied on at the trial. 3 Corpus Juris, 7Í18; Glaser v. Rothschild, 106 Mo. App. 429; Taylor & Sons jBrick Co. v. Railroad Co., 2.13 Mo. 728; Walker v. Railroad, 198 Mo. 483'; Williams v. Santa Fe, 23-3 Mo. 666'; Grimes v. Cole, 133 Mo. App-. 526. (3) There is no evidence that the Telephone Company was negligent. Strack v. Telephone Company, 216 Mo. 601.

      Jour dan, Rassieur é Pierce for Union Electric Light & Power Company.
    (1) (a) The jury’s finding- in favor of the Power Company is' binding on this court and should not be disturbed, (b) The mere presence of an uninsulated wire followed by death or injury caused by escaping current, does not give rise to indisputable proof of actionable negligence on the part of the owner of the wire as the cause of the death or injury, (o) In overruling the plaintiff’s motion for a new trial in the cause at bar, the trial court did not abuse its discretion, for reasonable men could have drawn more than one inference from the testimony adduced, (d) The mere fact that this defendant’s wire may have been uninsulated and plaintiff’s husband met his death from the escaping current, does not make out a case of liability against this defendant, where an independent act or agency of some third party intervened and thereby caused the death. This independent act or agency intervening is in law regarded as the proximate cause. This defendant could not be liable for such, unless it could have been reasonably anticipated. Brubaker v. Electric Light Co., ISO Mo. App. 4461; Luehrman v. Laclede Gas Light Co., 127 Mo. App. 213; McMullen v. Edison Electric, 34 N. Y. Supp. 248, 13 Misc. 3921; Brush Electric Co. v. Lafevre, 93 Tex. 604; Blackburn v. Railroad Co., 180 M'o. App. 548; Freenlan v. Brooklyn Heights Railroad, 66 N. Y. Supp. 1052; 9 Ruling Case Law, 1213, sec. 21. (e) The testimony in this case is overwhelming that Morton met his death as the result of an intervening act of the Construction Company in breaking down the telephone wire and allowing it to sag where it would likely come in contact with persons upon the ground, and that this defendant had no knowledge of this condition and that the condition had existed only a few hours before Morton’s death.

      Jones, Eocher, Sullivan & Angert for Hiram Lloyd Building and Construction Company.
    (1) The demurrer to the evidence offered by the Construction Company should have been sustained. The petition charged joint acts of negligence on the part of all three defendants, and there was no evidence whatever of this defendant’s participation in the proximate cause of the deceased’s death. There was particularly no evidence whatever of negligence on the part of this appellant. It is not negligence not to take precautionary measures to prevent an injury, which, if taken, would have prevented it, when the injuries could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened. American Brewing Assn. v. Talbot, 141 Mo. 683; Stanley v. Union Depot Ry. Co., 114 Mo. 623; Brubaker v. Electric Light Co., 130' Mo. App. 449. (2) The court erred in admitting in evidence the evidence of the actuary, George Graham, since the tables from which he testified were based upon conditions different from those which the plaintiff and deceased had. This testimony furthermore was particularly incompetent with respect to the expectancy of the plaintiff. 17 Corpus Juris, p. 1356; . Morse v. Detroit Railroad Co., 168 Mich 99; Rajnow ski v. Detroit Railroad Co., 74 Mich. 20; Mississippi Oil Co. v. Smith, 95 Miss. 528, 735; Cumberland Tel. Co. v. Anderson, 89 Miss. 722; Vicksburg Railroad Co. v. White, 82 Miss. 468. (3) The trial court erred in permitting the plaintiff to testify as to her age, when there was no allegation in the petition with reference- to the same; it was also error to permit her to state that her health was poor. Smelser v. Railroad, 262 Mo. 41; Johnson v. Mining* Co., 171 Mo. App. 143; Benton v. Chicago Railroad Co., 55 Iowa, 497; Seattle Electric Co. v. Harldess, 144 Fed. 381, 75 C. C. A. 317; Chicago" Railroad Co. v. Woolridge, 174 111. 336; Troll v. Gas Light Co., 182- Mo. App. 600. For the same reason, the trial court erred in permitting her to testify as to the age of the deceased. Smelser v. Railroad, 262 Mo. 41; Johnson v. Mining Co., 171 Mo. App. 143. For the same reason, the testimony was • inadmissible as to how much the deceased was earning, and how-much he gave the plaintiff out of his wages for her support. Smelser v. Railroad, 262 Mo. 41; Johnson v. Mining Co., 171 Mo. App. 143. The testimony that the deceased spent his evenings at home with the plaintiff was grossly incompetent, as not a proper element of damages. Boyd v. Railroad, 236 Mo. 90; Howard v. Scarritt Estate, 161 Mo. App. 562; Schaub v. Railway Co., 106 Mo. 93. The testimony as to the payment of burial expenses by the plaintiff was improperly admitted, as it was not a proper element of damages. Hayden v. Maher, 67 Mo. App. 436; Holland v. Brown, 35 Fed. 43; Wilcox v. Railroad Co., 18 Del. 157; St. Louis Railroad C'o. v. Sweet, 57 Ark. 287; Traction Co. v. Howe, 60- N. J. L. 444. The testimony as to the deceased protecting the plaintiff was also incompetent as not a proper element of damages. Boyd v. Railroad, 23'6 Mo. 90; Howard v. Scarritt Estate, 161 Mo. App. 562; Schaub y. Hannibal- & St. J. Ry. Co.; 106 Mo. 93. (4) Plaintiff’s instructions numbers 1 and 2 arc erroneous in that they attempt to cover the whole case and authorize a verdict for the plaintiff without requiring the jury to find that the Construction Company knew, or by the exercise of ordinary care could have known, that said telephone wire was liable to come in contact with the power wire of the Power Company, and that it knew such a contract would be dangerous. Nephler v. Woodward, 200 Mo. 189; American Brewing Assn. v. Talbot, 343 Mo. 683. (5) Plaintiff’s instruction does not correctly declare the measure of • damages in this case. McGowan v. St. Louis Ore & Steel Co., 309 Mo. 538; Calcaterra v. lovaldi, 123 Mo. App. 354. (G) The verdict in this case in favor of the Telephone Company and the Power Company, is either against the weight of the evidence, or the verdict against this appellant is wholly unsupported by the testimony. Yon Trebra v. Gas Light Co., 209- M:o. 659; Geisemann v. Electric Co., 373 Mo. 678; Clark v. Railway Co., 234 Mo. 423; Hill v. Union Electric L. & P. Co., 260 Mo. 77; Brown v. Light, Power & Tee Co., 137 Mo. App. 734; Goodwin v. Telephone Co., 157 Mo. App. 607; . Aboard v. Oregon Teleg. & Tel. Co., 24 Ore. 276, 22 L. R. A. 635.
   WHITE, C.

Two separate appeals from one-judgment and one motion to affirm have been docketed as three cases by the above numbers, but by stipulation they are consolidated and considered together.

The plaintiff, Amanda L. M'orton, brought suit in the Circuit Court of St. Louis against the Hiram Lloyd Building & Construction Company, the Southwestern Telegraph & Telephone Company, and the Union Electric Light & Power Company, seeking to recover damages on account of the death of her husband, caused,, it is alleged, by the negligence of the three defendants. ■On trial to a jury in the Circuit Court of St. Louis, a verdict was rendered in her favor in the sum of sev•en thousand, five hundred dollars against the defendant Hiram Lloyd Building & Construction Company, and in favor of the other two defendants. A motion for new trial was filed by Amanda L. Morton as against the Southwestern Telegraph & Telephone Company, hereafter for convenience called “the Telephone Company,” and the Union Electric Light & Power Company, hereafter called “the Power Company;” and a motion for new trial was filed by the Hiram Lloyd Building & Construction Company, hereafter called “the Construction Company.” These motions were overruled at the June term, 1916. On June 26', 1910, the Construction Company appealed from the judgment against it to the St. Louis Court of Appeals, and a short transcript Was duly sent to that court. At the same term, on September 29-th, the plaintiff, Amanda L. Morton, appealed from said judgment to the St. Louis Court of Appeals and her appeal was duly allowed. A transcript of the judgment and order granting the appeal of the plaintiff, Amanda L. Morton, although ordered by the trial court sent to the St. Louis Court of Appeals, was sent to this court and appears here under the serial number 20143. Those transcripts thus rested in the two courts until July 24, l'S18, when the respondents in the plaintiff’s appeal, the Telephone Company and the Power Company, filed a joint motion to affirm in the St. Louis Court of Appeals, accompanied by the certificate of the Clerk of the Circuit Court of the City of St. Louis, as provided by. Section 2047, Revised Statutes 1909, shoving that the judgment had been rendered, as stated above, and the appeal taken. This motion was by the St. Louis Coiirt of Appeals on the same day sustained and the judgment affirmed. Three days later, July 27, 1918-, the Construction Company, appealing defendant, filed a motion in said court to set aside the order of affirmance, with suggestions in support of same. To this the other defendants, Telephone Company and Power Company, filed suggestions in opposition. This motion, October 5, 1918, was sustained and tbe order of affirmance set aside.

On tbe twenty-eighth, day of October, 1918', Amanda L. Morton filed her motion in the St. Louis Court of Appeals to transfer the cause involving both appeals to this court and that motion was on November 19, 1918, sustained and the appeals transferred here where they appear under numbers 21431 and 21432.

The death of Ernest L. Morton, husband of plaintiff, from which arose her claim for damiages, occurred on the twenty-sixth day of November, 1915, while he was employed by the appellant Construction Company. The Construction Company, under contract with the city, was at the time engaged in the reconstruction and repairing of a reservoir owned by the city. The reservoir was located in what is known as Reservoir Park; a strip of park surrounded the two basins which constituted the reservoir. The Construction Company had built a fence around the reservoir, dividing the strip of park which surrounded it, and the work was being done inside this inclosure. A line of poles ran from the northwest corner of the property southwardly across the fence to a, point inside the park, there being at least two of such poles inside the inclosure. These poles were from twenty-five to thirty feet in height, and each one supported two cross-arm's about) eighteen inches apart. The upper cross-arms carried a telephone wire; the lower cross-arms carried three or four power wires which were charged with very high voltage of electricity. There was evidence tending to show that the telephone wire and upper cross-arms were owned by the Telephone Company. The defendant Power Company owned the power wires on the lower cross-arms, and through them conveyed current to a transformer and a meter where the current and power were delivered to the defendant Construction Company inside the inclosure. The Power Company had a contract with the Construction Company to furnish power for use in the work which the Construction Company was (loins’.

On the 12th day of November, fourteen days preceding the death of Morton, the employees of the Construction Company, in the progress of their work, caused the first pole inside the inclosure to be broken off. A few days later this pole was ^ replaced. On the eighteenth day of November, and eight days before the death of Morton, the employees of the defendant Construction Company, while engaged in “fleeting a guy,” that is, moving a guy line forward with a pile driver, broke the telephone wire inside the inclosure, between the first pole inside and the first pole outside. The broken wire dropped down beside the first pole inside the inclosure, was gathered up by one of the Construction Company’s employees, coiled up and hung on the pole. It remained intact between the first and the second poles inside the inclosure. There is some evidence indicating manipulation of the broken end in wrapping it around the pole. Soon after this wire was bfoken it began to sag between the first and second poles inside the inclosure. A day or two, or possibly longer, before the death was inflicted, it had sagged to within ten or twelve feet of the ground. In sagging down it came in contact with the power wires. Oh the twenty-sixth of November, in the afternoon, it was seen to sag to within four or five feet of the ground.

Morton’s work required him to be on the ground during the night. He was not a watchman, but what is termed, “the handy man” — the general utility man. It was his duty to- see that the machinery was kept in operation and that everything was in proper shape during the night. Among other things, it was his duty to fill the boilers with water. Eight or ten feet from where the telephone wire sagged was a water pipe which came from the reservoir, at which pipe 'he could get water'for the boilers. He went to work as usual on the twenty-sixth of November, at night. About eleven o’clock that night the Construction Company foreman discovered his body lying across the telephone wire with his feet on the ground. Sparks were coming from his leg and body and his clothing was on fire. . He was burned in such a way as to indicate that he met instantaneous death by electrocution. Other details in connection with the incident are furnished by the evidence as throwing light upon the issue as to whether the defenda.nts, or any of them, were guilty of such negligence as to authorize a recovery. Such of these as are pertinent will be noticed in considering the proposition urged for a reversal.

The petition alleges a cause of action against each of the defendants in that they were each and all negligent in permitting the wire mentioned to sag and become charged with electricity in such manner as to become dangerous and cause death. There was no claim of contributory negligence on the part of either of the defendants, each of whom answered by a general denial.

I. The jurisdiction of this court is challenged by the respondent-defendants. They move to have case No. 21431 ordered, back to the St. Louis Court of Appeals, or the appeal dismissed here, and case No. 20143 stricken from the docket.

"Whatever he the modifications by recent adjudications of the ancient doctrine regarding the entirety of a judgment, the rule still obtains that there can be rendered in an action only one final judgment which mtust finally dispose of the case as to all parties. This is statutory. [E. S. 1909, sec. 2097; Wollman v. Loewen, 108 Mo. App. 581; Clark v. Railroad, 234 Mo. l. c. 435; McQuitty v. Steckdaub, 190 S. W. 590; Dixon v. Transit Co., 197 Mo. App. 646.] Therefore the same case cannot be pending on appeal in two appellate courts through the appeals of different parties to the action. [Sandusky, Exr. v. Sandusky, 265 Mo. l. c. 232; Connelly v. Railroad, 169 Mo. App. 272, l. c. 281.] Otherwise, in the case of cross-appeals there might ensue inconsistent judgments in the same- case. So where more than one party appeals and the amount in dispute in either appeal gives this court jurisdiction, both appeals should be sent to this court for final determination. [Sandusky, Exr. v. Sandusky, 265 Mo. l. c. 232.]

In case No. 21431, involving the same appeal as No. 20143, the respondents, the Telephone Company and the Power Company, filed in the St. Louis Court of Appeals the certificate of the Clerk of the Circuit Court provided for in Section 2047, Revised Statutes 1909, as a basis for a motion to affirm the judgment. This certificate did not show on its face a want of jurisdiction in the Court of Appeals; the judgment was affirmed and the order afterwards set aside on it being brought to the attention of the court that it was without jurisdiction. The matter then stood in the St. Louis Court of Appeals on the appeal of the Construction Company, and the appeal of the plaintiff as to the other two defendants. The plaintiff had not perfected her appeal, nevertheless the case was lodged in the St. Louis Court of Appeals by the action of the defendant-respondents. It is claimed by the Telephone Company and the Power Company here that inasmuch as the appeal was not perfected in accordance with the requirements of Sections 2047 and 2048, the Court of Appeals rightly affirmed the judgment. That court had no jurisdiction to make a final determination of the case, and an affirmance would be a final determination. It had authority only to determine whether in fact jurisdiction existed in that court and, having ascertained that it did not, it could only perform the mere formal act authorized by the statute of transferring the case- to this court. [Sec. 3938, R. S. 1909, Moberly v. Lotter, 266 Mo. l. c. 464-6; Forsee v. Gates, 89 Mo. App. l. c. 581.] Therefore, on. the transfer of the case here, with ^proper authority to make such transfer, this court acquired and has jurisdiction finally to determine the case represented by the two appeals.

II. Even if this court had not acquired jurisdiction by transfer of Case No. 21431 from the Court of Appeals, jurisdiction was lodged here by virtue of plaintiff’s appeal as shown hy her transcript in Case No. 20143'.

Plaintiff filed a proper affidavit,for appeal during the June term, 1916', when the judgment was rendered against her in favor of the two non-appealing defendants. Her petition disclosed on its face she was suing for ten thousand dollars. The Constitution and the statute contemplated that her appeal should be granted to this court. She deposited with her application for appeal the ten dollars fee required to he paid by the appellant. The court, by an entry of record, sustained ‘her application for an appeal, hut in the face of the, statute and Constitution made the record recite that her appeal was allowed to the St. Louis Court of Appeals, which had no jurisdiction over her case, instead of allowing the appeal to this court as the Constitution and statute required. We will not presume that the trial court intentionally violated the law in granting plaintiff an appeal to a court having no jurisdiction of her cause, biut on the contrary must presume that that portion of the order granting the appeal to the St. Louis Court of Appeals was the result of oversight or mistake. In any event, if the attention of the trial court had been called to the error it could, undoubtedly, upon proper notice have amended its record to comply with the requirements of the law, even after the case had been appealed to the appellate court. [State ex rel. v. Ellison, 210 S. W. 401, l. c. 403; Johnston v. Ragan, 265 Mo. 420, l. c. 441, 178 S. W. 159; Exchange National Bank v. Allen, 68 Mo. 474, l. c. 486; DeKalb County v. Hixon, et al., 44 Mo. 341.] It is clear that if plaintiff, on discovering the mistake, had applied to the court below to correct its entry arid grant the appeal to this court, it would have corrected the same because the amount involved was ten thousand dollars; and this court alone had jurisdiction over the cause on appeal. If the trial court had refused to correct the error under such circumstances this court,' upon • a proper application by plaintiff, would, by writ of mandamus, have compelled the trial court to correct its record in conformity to the law. [State ex rel. v. Homer, 249 Mo. 58, l. c. 65, 66, 67 and 68; State ox rel. v. Shackelford, 263 Mo. 52., l. c. 60 and fol.] Under the circumstances aforesaid the trial court would have had no discretion in regard to the matter, as the record proper disclosed the plaintiff was suing for ten thousand dollars, and the law designated this court as the tribunal to try her case upon appeal.

We now have before us all the records and proceedings of the trial court in respect to this cause. All the parties are now before the court on a consolidated case. The record shows on its face that plaintiff filed a timely and proper affidavit for appeal, and did not ask that her appeal be allowed to the Court of Appeals which had no jurisdiction over her case. Plaintiff has taken all the steps which would have been necessary’ to present her case to this court had the trial court complied with the law in granting her appeal.

Upon the record thus presented disclosing a palpable mistake upon the part of the trial court, we will treat its record as having been properly corrected so as to show that plaintiff’s appeal was granted to this court instead of to the St. Louis Court of Appeals. [State ex inf. v. Clardy, 267 Mo. l. c. 380-381; Tebeau v. Ridge, 261 Mo. l. c. 559; Davidson v. Land & Imp. Co., 253 Mo. l. c. 229; State ex rel v. McQuillin, 246 Mo. l. c. 594; Darrier v. Darrier, 58 Mo. l. c. 233.]

Knowledge Defective Wire. III. Both appellants assign the same, and only one, .error, which they claim was committed by the trial court in favor of the non-appealing defendants, viz.: that the verdict in their'favor was against conclusive evidence of t|heir actionable negligence, on account of which the motion for new trial should have been sustained.

There was no evidence that either of said defendants knew the telephone wire was broken or that it sagged, and no conclusive evidence that either of them had any reason to know such facts. It was for the jury to say, under proper instructions, whether those companies were negligent in failing to learn and guard against a condition which rendered the electric current dangerous. There were sufficient facts from which the jury might well find, as it did, that the.Power Company did not fail to exercise the highest degree of care to prevent injury bv its appliances, and that the Telephone Company did not fail to exercise ordinary care in that respect. The verdict is conclusive upon this court.

IV. The appellant-defendant assigns error to the failure of the trial court to sustain its demurrer to the evidence, claiming there was no evidence an7 negligence on the part of the said appellant.

The evidence shows that the appellant’s employees broke the wire, which subsequently sagged, wound up the end of it in a careless manner which did not prevent its sagging, knew that it did sag and continued to sag more and more, a fact observable to anybody who passed that way. The Construction Company knew that it was receiving a very high power from; the electric wires; it knew from the position of the wires in the park that the sagging telephone wire was likely to come in contact with the highly charged wires and become dangerous to anyone within whose reach it should come while on the ground. It was a condition from which a man of reasonable prudence should have foreseen that injury was likely to ensue.

The telephone wire on the upper cross-arms of the pole was broken on the eighteenth day of November by William E. Ahrens, appellant’s pile-driver foreman. He ordered the broken end coiled up and hung on the pole by an employee. A few days afterwards, about four or five days before the death of Morton, he noticed that the coil of wire which was hung up on the pole was working loose and he took a piece of xnlarhne and supposed he made it fast. On the day he broke 'the wire he reported the fact to Mr. Gove, superintendent of the Construction Company.

Mattox, another pile-driver foreman, was hauling concrete piles and placing them along the reservoir on Friday, the daAr preceding the night on which Morton was killed, and saw the coil of wire lying loose at the foot of one of the poles and warned his men to keep, away from it. About three o’clock on that day Harry Clark, pile-driver, saw the wire between the poles sagging down from ten to thirteen feet from the ground.

IT. Middleberg, construction foreman of the Construction Company, about four or five o’clock on the day Morton was killed, saw the wire sagging down between the poles to about four or five feet above ground. He had been requested by Mr. Ahrens, pile-driver foreman, on the day the wire was broken to take hold of it and throw it aside. He refused because the wire was dangerous.

There was evidence that Morton’s duty required him! to visit the hydrant within a few feet of the sagging wire for the purpose of procuring water for the boilers.

It was the duty of appellant to use reasonable care to keep the premises where Morton was obliged to work in a reasonably safe condition. As in the case of the other defendants, it was for the jury to say whether, under the evidence, the appellant failed to perform that duty, and such failure caused the death.

The demurrer to the evidence was properly overruled.

Y. Error is assigned by the appellant to the admission of the evidence of an actuary who testified by mortuary tables to the life expectancy of the plaintiff at the time of her husband’s death, and the expectancy of the deceased at the time of his death. T. , ,, , , , It was shown that her expectancy was 25.27 years and his expectancy was 2-3.08 years. This was in accordance with the mortuary tables of insurance companies. It was not objected that these tables were different from the tables provided by statute. It is now settled in this State that mortuary tables are admissible in a case of this kind. The actual recovery by the plaintiff must he the pecuniary loss which she has suffered and will suffer hy being deprived of the support of her liushand during the remainder of their joint lives, and the only way the jury can estimate the duration of their joint lives is hy the mortuary tables of both. It is not proper to base the estimate upon the expectancy of the one who is likely to live the longest, but on the one whose expectancy is least. Of course, as has been said, there can be no absolute certainty as to the duration of anyone’s life. The tables are simply evidence for the jury to consider in estimating the damages to accrue, damage which at best is more or less conjectural. [Schlereth v. Railway Co., 115 Mo. 87; Chambers v. Hotel Co., 154 Mo. App. 249, l. c. 260; Stevens v. K. C. L. & P. Co., 208 S. W. 630.]

It is further objected by appellants that the court erred in permitting the plaintiff to testify to her age and her'state of health, also to the age of -the deceased and his earning capacity, on the ground that there was no allegation as to those matters.- It is held by this court that where damage naturally flows from the injury, which is the basis of the suit, as a reasonable consequence of the same, it need not be pleaded. In ease of a death claim it is proper to show the condition of health, earning capacity, age, etc., of the party killed, as well as Ms habits, without pleading those specific facts. [Boyd v. Railroad, 249 Mo. 110, l. c. 126; Boyd v. Railroad, 236 Mo. l. c. 64-65.] The general habits and personal expense of the deceased could be considered by the jury in determining Ms earning capacity and contribution to bis wife’s support. [Baglev, Admr., v. City of St. Louis, 268 Mo. 259, l. c. 264.]

VI. Appellant asserts there were errors in the admission of certain items of evidence on behalf of the plaintiff, where- the plaintiff was ali: , , , , , i lowed to state how much ot the deceased’s wages were given for her support, that he spent his evenings at home, that she paid for his burial expenses, and that he protected hen during the years of their married life.

In referring to the pages in the abstract of the record where this evidence was admitted and the objection of the defendant registered, it appears that the only objection in each case was that evidence was “irrelevant and immaterial.” A general objection of that character is not sufficient to apprise the trial court and opposing counsel of the particular reason why the evidence is objectionable so as to authorize review here. [State ex rel. v. Diemer, 255 Mo. 336, l. c. 346-350; Hafner Mfg. Co. v. St. Louis, 262 Mo. l. c. 634; Elsea v. Smith, 273 Mo. l. c. 409; Heinbach v. Heinbach, 274 Mo. l. c. 315.]

VII.. Appellant criticises instruction number two, given on behalf of the.plaintiff, upon the ground that it didn’t require a finding by the jury that the Construction Company knew, or by the exercise of ordinary care could have known, the telephone wire was liable to come in contact with the power wire of the electric company and knew that such a contact would be dangerous.

The instruction objected to did require the jury, before finding for the plaintiff, to find existence of the highly charged electric wire and the telephone wire which ran on cross-arms of the same poles, “and that the defendant caused and permitted the telephone wire to become loose and sag dangerously near and to come in contact with said power wirfe, if any, and to become charged with said electric current, if any, and conduct said current to a point near the ground and thereby endanger pedestrians on the ground near said wire.”

A finding by the jury that the defendant negligently caused and permitted the condition mentioned is equivalent to a finding that the defendant knew the condition to exist. [Hall v. Mo. Pac. Ry. Co., 74 Mo. 298, l. c. 302.]

Electricity is one of the most dangerous agencies discovered by modern - science and used in conducting power. [Clark v. Railroad, 234 Mo. l. c. 423; Hill v. Union Electric L. & P. Co., 260 Mo. 77.] It would be entirely superfluous to have the jury-find that the defendant company knew contact with the liigh-power wire would be dangerous because it is a matter of common knowledge. That a company engaged, as the Construction Company was, in a business which required the constant use of electric current, could he ignorant of the dangerous character of that, agency is not to he supposed.

Appellant cites in support of its position the case of Nephler v. Woodward, 200 Mo. 179. In that case the plaintiff was injured by stumbling upon a hole in the carpet in a dimly lighted theatre. It was held that the jury should be required to find that, the defendant knew the hole was dangerous and was likely to cause an injury. In commenting upon that this court said, l. c. 189: “If a person knows that he has left his cellar door open in a public sidewalk on a dark night he knows that he has set a mantrap.”

This was to illustrate the distinction between a condition which is obviously dangerous so as to charge a party responsible for its existence with knowledge of its dangerous character, and one where such dangerous character must be proven and found by the jury, as the case there under consideration.

YTIT. Instruction number seven given on behalf of plaintiff on the measure of damages was objected to as not correctly stating the rule by which the jury conld estimate the .measure of damages. It reads:

“The court instructs the jury that if you find in favor of the plaintiff you will, in assessing her damages, award her such sum, not exceeding ten thousand dollars, as you find from the evidence will fairly and Wsily compensate her for all, if any, pecuniary loss you find from the evidence she has sustained, or will sustain, as a necessary result of the death, if any of Ernest L. Morton.”

Instructions similar in form and of like intendment have been approved several times by this court. [Powell v. Railroad, 255 Mo. l. c. 453-456; Mintor v. Brandstreet Co., 174 Mo. 444, l. c. 491; Browning v. Railroad, 124 Mo. 55, l. c. 71-72.] In the case first cited the cases are reviewed at length showing the approval of this court of instructions in that form. While the instruction complained of is entirely general, it is not denied, that it is correct as far as it goes. It is only claimed that it is defective in that it is not sufficiently specific in directing the jury as to how to estimate the damages. This, as determined by the cases above cited, was merely a matter of non-direction. The defendant asked no instruction on the measure of damages and is in no position to complain that the jury was not sufficiently instructed upon that subject.

The judgment is affirmed.

Railey and Mosley\ GO., concur.

PER CURIAM: — The foregoing- opinion by White, C., has been adopted as the opinion of the court.

All the judges concur; Williams, P. J., in result.