text:
    MARY HOWARD, Appellant, v. GARRARD STRODE, Public Administrator, In Charge of Estate of LACLEDE J. HOWARD, Deceased.
    Division Two,
    April 9, 1912.
    1. DOWER: Admeasurement: Personalty: Child's Part. The statutory provisions for the admeasurement of dower (Sec. 367 et seq., R. S. 1909), do not apply to personalty; and the child’s part in the personalty given by Sec. 349, R. S. 1909, to the wife, is not dower in the true sense of the term. The wife under that section is not a dowress, but a distributee. A suit in the probate court to obtain an order directing the administrator to turn over to plaintiff, as the widow of decedent, a child’s part in the net estate, is not a suit for the ad-measurement of dower.
    2. --: -: Child’s Part: Trial by Jury. The plaintiff, claiming to be the widow of decedent, is not entitled to a trial by jury, either in the probate court or after appeal in the circuit court, of her motion asking that a child’s part of the net proceeds of the estate he paid over to her upon final settlement. A right to a jury trial to establish her claim to be adjudged the wife of decedent an! therefore to be considered a distributee, did not exist at common law, nor by statute prior to the adoption of the Constitution of 1875, nor was it given by that Constitution. All controversies growing out of final settlements in the probate court, and concerning the widow’s rights to the personalty, are to be tried by the court without a jury.
    3. DIVORCE: Granted by Another State: Recognized in this State. The validity of a decree of divorce granted upon constructive notice by a court of competent jurisdiction in another State wherein the defendant never had a matrimonial domicile, is recognized in this State; and there is nothing in the case of Haddock v. Haddock, 201 U. S. 562, which nullifies that policy. All that decision holds is that a State, which refuses to recognize the validity of such foreign divorces, cannot be compelled to recognize them by the full-faith-and-credit clause of the U. S. Constitution.
    4. -: -: Incomplete Record: Constructive Notice. Whére the decree of the foreign court of general jurisdiction states in effect that legal service was had by publication, a prima-facie case of due and legal service is made out, authorizing the introduction of the decree as evidence establishing the fact that the plaintiff therein had heen granted a divorce and that the marital relation had heen dissolved, and establishing his status as a witness.
    5. -: Competency of Husband to Testify: Deposition Taken Before Decree. A husband who has heen divorced from his wife is thereafter competent to testify that the claimant to a child’s share in the estate of a deceased third party was married to the witness on a certain date; and a deposition of said husband, in which he so testifies, taken prior to the divorce decree, but not offered in evidence until after the decree was rendered, is competent. The competency of a deposition is to he determined hy the status of the witness at the time the deposition is offered in evidence. If the witness would himself he competent to testify, then his deposition, whatever may have heen his marital status at the time it was taken, is competent: The competency of a husband or wife as a witness depends upon whether the marriage relation exists at the time of the trial (except as to confidential relations).
    6. EVIDENCE: Entries in Books; Whereabouts of Entrant.. Entries in order hooks of a wholesale establishment made hy a person in the ordinary course of his business are, in case of his death, admissible for the purpose of showing where such person was at the date which such entries bear — in this ease as showing that Laclede J. Howard, deceased, in whose handwriting the orders, for goods, hearing date of January 15, 1883, were made in his company’s hook, in their regular order, was not the “Henry Howard” to whom claimant was married at Decatur, Illinois, on that date. And entries in the company hooks of the proceedings of the stockholders and hoard of directors at meetings held on January 16th made by said deceased president and secretary, are competent, as the best evidence obtainable, after all the other stockholders and directors there present are dead.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Affirmed.

      John J. O’Connor for appellant.
    (1) Plaintiff was entitled to a trial by jury of her suit for dower in the personal property owned by her deceased husband at the time of his death. Sec. 2937, R. S. 1899; Shipp v. Snyder, 121 Mo. 155; sec. 372, R. S. 1909. Sec. 2937-, R. S. 18991, gives a new right to the widow, “dower in personal property of the deceased husband,” but prescribes no remedy, and .when a right is given without a remedy, the person to whom the right is given may select any remedy suitable. Sedgwick, State and Court Law (2 Ed.), p. 74-; Young v. Renshaw, 102 Mo. App. 184. (2) The trial court erred in admitting over plaintiff’s objection the deposition of T. J. Miller in evidence. Miller claimed to be the husband of plaintiff at the time he gave said deposition, and his deposition covered matters and things which he testified occurred during the time that he alleges he was her husband, and as he was not a party to this action, he was incompetent as a witness, and his testimony was incompetent for any purpose. Sec. 6359, R. S. 1909, provides the only cases in which a husband may testify when he is not a party to the suit, and this is not one of such cases. State v. Ulrich, 110 Mo. 364; Layson v. Cooper, 174 Mo. 211; Scott v. Burfiend, 116 Mo. App. 71; Kane v. Kane, 79 Mo. App. 339. The statute does not change the common law rule, except as to the matters therein mentioned; in other respects the husband is still incompetent. Curd v. Brown, 148 Mo. 95'. Defendant offered the deposition on the theory that Miller was plaintiff’s husband, and he is bound by that theory in this court. State v. St. John, 94 Mo. App. 229‘. (3) The trial court erred in admitting, on behalf of defendant, and over the objections of plaintiff, the alleged decree of divorce alleged to be granted to Miller in the Superior Court at Olympia. Plaintiff was never in Washington, nor was the status of the alleged marriage of Miller ever maintained or sustained in Washington. Hence the Superior Court of that State never had jurisdiction to render any judgment against plaintiff in said alleged suit. Haddock v. Haddock. 201 U. S. 562. It was not a full record, and for that reason it should have been rejected. Crone v. Dawson, 19 Mo. App. 214; Williamson v. Williamson, 53 Mo. App. 623; Lee v. Lee, 21 Mo. 5’34. Under the full-faith- and-credit clause of the Constitution of the United States, sec. 1, art. 4, it was not admissible. Adams v. Adams, 188 U. S. 14; Haddock v. Haddock, 201 U. S. 562. Nor was there any statute of Washington offered or read in evidence showing that said Superior Court had jurisdiction to render such a decree on constructive service. Price v. Clevenger, 991 Mo. App. 536; Mfg. Co. v. Long, 54 Mo. App. 149‘. Moreover, the admission of said decree violated her rights under the Constitution of the United States (Sec. 1, 14th Amendment), in that it took her property -without due process of law. Haddock v. Haddock, 201 U. S. 562. (4) It was error to admit in evidence over plaintiff’s objections the two order books of the Evans & Howard Eire Brick Co. That company was no party to this suit, and the entries in said books were only hearsay, and not binding on plaintiff. Especially was it error to admit in evidence the minute book of said company over plaintiff’s objection; for there was no evidence offered to show when the minutes of the stockholders’ meeting, or the minutes of the meeting of the board of directors were actually writtén into the minute book. For all that the defendant’s evidence shows, said minutes could have been written a month after the meetings are said to have been held. Martin v. Nichols, 54 Mo. App. 594; Nelson v. Nelson, 90 Mo. 463; 1 Greenleaf on Evidence, sec. 118'; Milling Co. v. Walsh, 108 Mo. 285; Robinson v. Smith. Ill Mo. 205; Bader v. Ferguson, 118 Mo. App. 34.

      Johnson, Houts, Marlatt <& Hawes for respondent; Bloch & Sullivan of counsel.
    (1) A decree of divorce in another State, upon constructive service, is valid and binding here. Gould v. Crow, 57 Mo. 203; Anthony v. Rice, 110 Mo. 227. (2) When a judgment is offered merely to prove the fact of its rendition, the judgment only, and not the entire record, need be produced. Lee’s Admx. v. Lee, 21 Mo. 534; Seymour v. Newman, 77 Mo. App. 583; Crone v. Dawson, 19 Mo. App. 218. (3) The Superior Court of Washington, being a court of record, and having assumed jurisdiction to grant a divorce, its right to do-so will be presumed. G-ould v. Crow, 57 Mo. 202; Anthony v. Rice, 110' Mo. 227; Williams v. Williams, 53 Mo. App. 620, (4) A divorce removes the disqualification as a witness for or against the former spouse, save-only as to. confidential communications during coverture. Long v. Martin, 152 Mo. 675; State v. Kodat, 158 Mo. 128; McClosky v. Pub. Co., 163 Mo. 27; 30 Am. & Ency. Law (2 Ed.) p. 950; 1 Wigmore on Evidence, see. 610. (5) The competency of a witness testifying by deposition is controlled by his status at the time of the trial, instead of at the time the deposition is given. Messmer v. McCray, 113 Mo. 390; 13 Cyc. 994; Oliver v. Moore, 13 Heisk. 487; Railroad v. Harper, 60 Ark. 159; R. S. 190-91, .see. 6384; Ex parte Livingston, 12 Mo. App-. 84; Ex parte Priest, 76 Mo. 232. (6) The order book and minute book of the Evans &■ Howard Pire Brick Company were admissible in evidence to prove the whereabouts of Laclede J. Howard on Jan. 15- and 16, 1883. Comm. Co. v. Bank, 107 App. 435; Knapp v. Trust Co., 199 Mo. 669; Jonesboro Co. v. United Co., 117 App. 153; Clark v. Church, 21 Hun, 98; Abbott’s Trial Briefs “Mode of Proving Pacts,” p. 31; Nichols v. Webb, 3 Wheat. 332; Leland v. Cameron, 31 N. Y. Í21; Welsh v. BarT rett, 15 Mass. 386; 2 Wigmore on Evidence, p. 18801, sec. 15-18 (b), p. 1890, secs. 1523-1528 ; 9 Am. & Eng. Ency. Law (2 Ed.), p. 895-; 2 Wigmore on Evidence, see. 1074 (b), p. 1267. They were also admissible as specimens of the hand-writing and signature of Laclede J. Howard for purpose of comparison with the” marriage record at Decatur. R. S. 1909, sec. 6382. (7) The procedure which we inherited from England for the assignment of dower was a chancery proceeding, and not a common law proceeding. Mun-day v. Mnnday, 4 Brown’s Ch. Eep. 295, S. C. 2 Vesey 122. The jury mentioned in the statute regulating ' proceedings to assign dower is discretionary with the court. E. S- 1909, sec. 372. Our statute, regarding a jury in dower cases, is expressly limited to dower in real property. E. S. 1909, sec. 367. The right of a widow in the personal estate of her deceased husband' is not dower; she is, as to such, a distributee. Bryant v. McCune, 49 Mo. 547; Weindel v. Weindel, 126 Mo* 644; Hastings v. Myers, 21 Mo. 521; Griffith v. Canning, 54 Mo. 284; Woerner’s Administration, 229. The claims of widows to shares of the personal estates of their deceased husbands were not being tried' by juries when the Constitution of 1875 was adopted. Hastings v. Myers, 21 Mo. 519; McFarland v. Admr., 24 Mo. 156; Hayden v. Admr., 23 Mo. 398; Bryant v. McCune, 49 Mo. 546; Cummings-y. Cummings, 51 Mo. 263; Downey v. Bauer, 68 Mo..155; Devin v. Pa'tchen, 26 N. Y. 445; Bradstreet v. Bradstreet, 64 Me. 209; Higbee v. Bacon, 11 Pick. (Mass.) 425. On appeal from the probate court, in cases of' this character, the circuit court does not sit as a court of law, and a jury trial is not- dejnandable. Skeen v. Johnson, 55 Mo. 24; Whaley v. Whaley, 50 Mo. 582; In re Meeker’s Estate, 45 Mo. App. 194; Perry v. McGowan, 68 Mo. Appv 617; Finley v. Schlueter, 54 Mo. App. 458; Schooler v. Stark, 73 Mo. App. 308; Anslev v. Eichardson, 95 Mo. App. 334; Pearson v. Haydell, 87 Mo, App. 499; Stevens v. Larwill, 110 Mo. 1491; 24 Cyc. 148. The widow is a distributee of the personal estate and obtains her share of the estate, less debts, etc., on final settlement like any other distributee. Straat v. O’Neill, 84 Mo. 73; Cox v. Admr., 3 Mo. App. 848; Hastings v. Admr., 21 Mo. 521; Griffith v. Canning, 54 Mo. 284.
   FERRISS, P. J.

This causé was begun by filing-on Aug-ust 23. 1905> tbe following- motion in the probate court of the city of St. Louis:

IN THE PROBATE COURT.
State of Missouri, City of St. Louis
In the matter of Laclede J. Howard, deceased.
Now comes the undersigned, the widow of Laclede J. Howard, deceased, and respectfully shows to the court that at filing of the last annual settlement filed in this court on the 20th day of June, 1904, by Garrard Strode, public administrator, in charge of the estate of her said deceased husband, there was in the hands of said administrator, and unexpended, money, bonds, stocks and other personal property belonging to said estate in excess of the sum and value of $198,825; that said administration has been in course and pending in this court since the 15th day of May, 1903; that all the assets of the estate have been fully collected, and all the demands made or that can be made agreeable to law against 'said estate have been paid, and that said estate has been fully administered upon, but that no final settlement has been made by said administrator, and that she is informed and believes that there is now or should be now in the hands of the administrator, after paying all claims and demands allowed against said estate and the costs of administration, money, bonds, stocks and other personal property belonging to said estate in excess of $218,000, and that de-' ceased left surviving him and still living, one child, a minor, and the undersigned, his widow, and she further states that as the widow of deceased she is now entitled to receive a child’s part or one-half of all the personal property owned by her said husband at the time of his death, as provided by seotion 2937, Revised Statutes 1899, but that she has never received any part thereof.
Wherefore, the undersigned moves the court for an order on said Garrard Strode requiring him to make final settlement of his administration of said estate, and that upon the filing and hearing' thereof, the court may set out her share of dower in all the personal property belonging to the estate"of her said husband and owned by him at the time of his death, and which passed into the possession or under the control of said administrator as shown by the appraisement, inventory and settlements heretofore filed by him in the administration of said estate in this court. And that thereupon this court will make an order of distribution requiring said, administrator to pay over to her such sum of money and deliver to her such articles of personal property as it shall determine to be her dower or distributive share in the personal property of said estate. MARY HOWARD.
By JOHN J. O’CONNOR,
Attorney for Widow.

After hearing evidence on the motion, the same was denied by the probate judge. Upon appeal to the circuit court, the matter was tried de novo by the court upon the evidence, and judgment rendered against plaintiff, from which judgment she appeals.

There was a vast amount of evidence given on both sides, making in all some 1200* pages of record. It will be unnecessary to detail the testimony. A short outline of the facts will suffice as a preliminary statement.

The plaintiff claimed that in 1883 she resided in Palmer, a small town in Illinois; that she was married to Laclede J. Howard, under the name of “Henry Howard,” in Decatur, Illinois, on January 15, 1883; that within a very few days he left her; that they again met the following spring, and were together two days, at Litchfield, Illinois; that he then left her a second time, and she did not see him again until the spring of 1903, when she saw him in St. Louis; that some time after 1883 she heard that he was deád; that subsequently she married twice, under the belief that Howard was dead. "When she saw him in St. Louis in 1903, she was living with her second subsequent husband, one Leafgreen.

It appears from the testimony, without contradiction, that Laclede J. Howard was born in St. Louis in 1847, and always lived there. Prom 1880 he was president of the Evans-Howard Fire Brick Company, a corporation engaged in business in that city. .He died in the spring of 1903) leaving a widow (who died soon after) and one child. He left a large estate which was administered by the public administrator, this defendant.

The defense denied the marriage to plaintiff, and claimed, and offered evidence tending to prove, that on January 15', 1883, the plaintiff was married in Decatur to one Thomas J. Miller, under the name of “Henry Howard.” There is no controversy but that a marriage did take place on that date and at that place between plaintiff and some man who gave his name as Henry Howard. The fact of snch marriage was established by the production of the original marriage records. The only question in controversy is as to the identity of the man, plaintiff claiming that it was Laclede J. Howard, and the defense, that it was Thomas J. Miller.

The errors complained of, and urged here, are:

1. Refusal of the court to grant a jury trial.

2. The admission of the deposition of Thomas J. Miller, who testified that he was the man who married plaintiff in Decatur.

3. The admission of certain entries in the books •of the Evans-Howard Fire Brick Company.

I. Appellant contends that she was entitled to a trial by jury in the circuit court. Counsel for appellant in his brief refers to the motion as “an action for the assignment of her dower,” and claims a right to the statutory method provided by sections 367 et seq., Revised Statutes 1900', for the admeasurement of dower in real estate. Counsel justifies his claim that the child’s part given to the widow by section 349, Revised Statutes 1909, is dower in the true sense of the term, by reference to the fact that this section is found in the chapter entitled “Dower” in the Revised Statutes, and also by the fact that the widow’s interest in the husband’s personalty is-referred to as •dower in section 117, Revised Statutes 1909, and also. in the following cases: Glenn v. Gunn, 88 Mo. App. 426; Hastings v. Myers, Admr., 21 Mo. 519; Cummings v. Cummings, 51 Mo. 261; Griffith v. Canning, 54 Mo. 282; Hasenritter v. Hasenritter, 77 Mo. 162.

The essential nature of a thing cannot be altered by changing its name. The title to the chapter does not control the interpretation of the sections therein. Such title is used as a designation under which to collect associated and analogous, laws. The word 41 dower” has been used somewhat loosely in some of the statutes and decisions. It is clear, however, that the portion of the husband’s personalty given to the widow by section 349' is not dower. The wife, under that section, is not a doweress, but a distributee. Dower is something that belongs to the wife absolutely, and independent of her husband or his creditors. As a distributee under section 049, she takes subject to debts, and her interest can be ascertained only upon final settlement of the estate. This subject is discussed fully by Brace, P. J., in Weindel v. Weindel, 126 Mo. 640. In that ease it was asserted that a wife who had divorced her husband for his fault became entitled upon his death to a child’s share in his personalty under this same statute. Eeliance was placed upon section 359, Eevised Statutes 1909', which provides that a woman who has been divorced from her husband for his fault shall not thereby lose her dower. It was contended that the child’s part allowed to the widow was dower, and, therefore, under the provisions of section 359, was not lost to her by the divorce decree. It was held that the word “dower” in section 359 did not embrace the share in the personal estate given by section 349. By the same reasoning applied by Judge Brace in the Weindel case we must hold that the word “dower” as used in the sections providing for the admeasurement of dower does not include the interest in the personalty which appellant is claiming. The distinction between dower proper and the so-called dower in personalty is clearly pointed out by Valliant, P. J., in Ferguson v. Gentry, 206 Mo. 189. In Bryant v. McCune, 49 Mo. l. c. 547, Judge Bliss says: “The term ‘dower’ is

sometimes applied to any interest in the estate of the husband given by law; and Judge Scott, in Hastings v. Myers’ Admr., 21 Mo. 519, seems to use it in this sense, but it properly refers to the interest of the ■widow as such in his lands.”

We therefore conclude that the statutory provisions for the admeasurement of dower do not apply to personalty. The claim for a child’s share must be presented in the probate court. The amount of this share cannot be ascertained until final settlement; hence, where an estate is still open, any proceeding to secure this share must involve and depend'upon a final settlement. The appellant recognized this, and proceeded properly by motion in the probate court to demand a final settlement and distribution. The nature of this proceeding cannot be changed by calling it an action for the assignment of dower. Under section 349, the widow is entitled absolutely to a share in the personal estate of her husband equal to the share of his child. She thus becomes a distributee, and as such stands in the same relation to the personal estate as does the child, and manifestly is entitled to the same remedies to enforce her rights. In Hastings v. Myers’ Admr., 21 Mo. 519, this court says, “As to personalty, we see no difference between the interest of a widow in her deceased husband’s estate and that of any one of his distributees.” This interest is to be ascertained upon final settlement of the estate, and after a full accounting by the administrator, and then an order of distribution. To secure such accounting, settlement and order of distribution, the appellant filed in the probate court her motion therefor. There is no pleading required to such a motion. There is no provision for a jury trial thereon. It is not contended that appellant was entitled to a jury trial in the probate court. The probate court heard the evidence introduced for and against the motion, decided that the appellant was not the widow of the deceased, and denied her motion, whereupon she appeals to the circuit court, and when the cause comes on for trial de novo demands a jury. Appellant has cited no authority for this contention.

At common law a wife had no rights in the personalty of her husband; hence no right of trial by jury nan be based on the common law. Nor will it avail to appeal to the Constitution. Under section 28 of article 2 of that instrument, the right of trial by jury is limited to the right ‘ ‘ as heretofore enjoyed. ’ ’ We have recently decided that this clause refers to the right of trial by jury as it existed prior to the date when the Constitution was adopted, namely, 1875. [State ex rel. v. Holtcamp, 235 Mo. 232; King City v. Duncan, 238 Mo. 513.]

It does not appear that in cases like this the right' of trial by jury existed before 1875. It was not given by the common law. There is no statute granting it. We have ruled above that the statutes providing for admeasurement of dower in lands in the circuit court do not apply to the widow’s interest in the personalty. The uniform unbroken practice in this State has been to try all controversies growing out of final settlements in the probate court, and concerning the widow’s rights in personalty, by the court without a jury. [Hastings v. Myers’ Admr., supra; McFarland v. Baze’s Admr., 24 Mo. 156; Hayden v. Hayden’s Admr., 23 Mo. 398; Bryant v. McCune, 49 Mo. 546; Cummings v. Cummings, 51 Mo. 263; Dowry v. Bauer, 68 Mo. 155; In re Davis, 62 Mo. 450; Booker v. Armstrong, 93 Mo. 49; Myers v. Myers, 98 Mo. 262; Hitchcock v. Mosher, 106 Mo. 578; Glover v. Holliday, 109 Mo. 108; Clark v. Bettelheim, 144 Mo. 258; In re Estate of Meeker, 45 Mo. App. 186; In re Estate of Danforth, 66 Mo. App. 586.]

In many of the cases just, cited the controversy arose over the claim for widow’s allowance under section 116, which, as was suggested by Brace, P. J., in Weindel v. Weindel, supra, makes a provision for the widow possessing more of the attributes of dower than her share in the personalty under section 349, inasmuch as it is not subject to debts.

It is obvious that a proceeding which involves an accounting from the beginning of the administration is not suited to a jury trial. Apt discussion on this point will be found in Schooler’s Estate v. Stark, 73 Mo. App. 301; In re Meeker’s Estate, supra, and in Pearson v. Haydel, 87 Mo. App. 495. The paper filed by plaintiff in the probate court is not a petition instituting a suit. It is merely a motion filed in proceedings pending in that court, and, in the absence of a statute to the contrary, is to be considered and passed upon. by the court as are motions generally.

II. Defendant, over the objection of plaintiff, read in evidence the deposition of Thomas J. Miller, taken in the State of Washington, for the purpose of proving by said Miller that he was the man who-married plaintiff at Decatur on January 15, 1883. It was objected that as defendant claimed that Miller was the husband of plaintiff, and offered his deposition to prove such fact, Miller was, on defendant’s theory, incompetent. At the same time plaintiff denied that Miller was or ever had been her husband. The court was not called upon to pass on this proposition, inasmuch as, in connection with the offer of the deposition, the defendant introduced in evidence a decree of divorce from plaintiff which had been granted to said Miller by the Superior Court of the State of Washington subsequent to the date of his deposition, and before same was offered in evidence. This decree was admitted, also over plaintiff’s objection, and thereupon the court held the deposition competent, evidently upon the strength of the decree of divorce, without regard to whether it would be competent if no such decree had been granted. If, therefore, the decree of divorce was properly secured, and if it made the deposition competent, it is unnecessary to consider the objection based solely on tbe ground that it was offered as tbe testimony .of tbe husband of plaintiff.

We will now consider tbe ruling on tbe objection to tbe decree of divorce.

III. Defendant offered in evidence tbe following decree of divorce granted to tbe witness, Tbomas J. Miller, duly authenticated:

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON, FOR THE COUNTY OF THURSTON.
Thomas J. Miller, alias Henry Howard, Plaintiff, Mary Moore Miller, alias -Decree. Mrs. Mary Howard, alias Mrs. Mary Leaf green, Defendant.
Now, at this time this matter coming on to be heard upon application of plaintiff herein for a decree according to the findings of fact and conclusions of law herein, and the plaintiff appearing in person and as well by his attorney, G. C. Israel, and the defendant appearing not, but still being in default herein, and it appearing to the court that heretofore this cause came on duly for trial before the court, and that at said time full jurisdiction of the defendant had been obtained herein by publication of summons, and the default of the defendant had been duly entered, and that in the absence of the defendant there appeared in said action Horatio Ailing, prosecuting attorney for Thurston county, state of Wash ington, and the court thereupon did hear evidence and did file its findings of fact and conclusions of law.
Now, therefore, by reason of the law and the premises, it is by the court ordered, adjudged and decreed that the plaintiff, Thomas J. Miller, alias Henry Howard, alias Charlie Howard, be and he is forever divorced from the defendant, Mary A. Miller, alias Mary A Moore, alias Mary Moore Howard, alias Mary A. Leafgreen, and the bonds of matrimony now existing between the plaintiff and defendant be and the same are annulled and forever set at naught.
It is further ordered, adjudged and decreed that all real and personal property acquired by said plaintiff subsequent to the year 1885 be and the same is declared his separate property and estate, divested of any interest therein of, in or to the same by said defendant.
It is further ordered that neither the plaintiff or defendant shall contract marriage or enter into a marriage with any third person in or out of the State of Washington for a period of six months from and after the signing of this decree.
Done in open court this 23rd day of. January, A. D. 1906.
O. V. LINN,
Judge.

To the introduction in evidence of this decree plaintiff objected “on the ground that the court rendering the decree never acquired jurisdiction over the person of the plaintiff herein; that it is not shown that the parties were married in Washington, or that the plaintiff in this suit ever had a residence in the State of Washington, and because it shows that the service upon which the decree was rendered was constructive service, and because the evidence already before the court shows that the. parties in this case, whether it be Miller or Howard, were married in the State of Illinois, and because plaintiff here was not a party to this action, the court never having acquired legal jurisdiction over the person of plaintiff; and because to introduce this record now would be in violation of her constitutional rights under that provision of the Constitution, section 1 of the 14th Amendment to the Constitution of the United States, which forbids the taking from her without due process of law her property rights, and in violation of section 1 of article 14 of the Constitution of the United States, and in violation of the written opinion of the Supreme Court of the United States rendered in the case of Haddock v. Haddock, reported in volume 201 U. S., page 562; and in violation of section 30 of article 2 of the Constitution of Missouri. ’ ’

Later, before the decree was admitted, plaintiff interposed this additional objection:

“In addition to the objections made heretofore to the admission of the decree, it is further objected to on the ground that the decree is incomplete, in that the record of said cause is not present, and that from the face of said decree it does not appear that the Superior Court of Thurston county, State of Washington, is a court of general jurisdiction, or that its jurisdiction extends beyond the limits of said county, or that it acquired any jurisdiction over the person of plaintiff.”

Tlie objection to the jurisdiction of the Washington court over the subject-matter was fully met by the introduction in evidence of a statute of that State defining the jurisdiction of the Superior Court.

The objection based on the non-residence of plaintiff in Washington is founded upon the decision of the U. S. Supreme Court in Haddock v. Haddock, 201 U. S. 562, which holds that the full-faith-and-eredit clause in the Federal Constitution cannot be invoked to compel a State to recognize as valid a divorce granted by a sister State upon constructive service by publication, where the defendant in the suit had never had a matrimonial domicile in the State granting the divorce. That case does not hold that such decree cannot be recognized as valid in another State. On the contrary, the opinion says (1. c. 605): “Without intimating a doubt as to the power of the State of New York to give to a decree of that character rendered in Connecticut, within the borders of the State of New York and as to its own citizens, such efficiency as it may be entitled to in view of the public policy of that State, we hold that the decree of the court of Connecticut rendered under the circumstances stated was not entitled to obligatory enforcement in the State of New York by virtue of the full-f aith-and-credit clause. ’ ’

In the course of the opinion the court cites Missouri as holding to the policy of recognizing the validity within its borders of such decrees, and cites as authority Gould v. Crow, 57 Mo. 200, and Anthony v. Rice, 110 Mo. 223. The ruling of .the two cases just cited has never been questioned in this State. It is our policy to recognize the validity in this State of such foreign divorces. There is nothing in the Haddock case which in the slightest degree seeks to control our policy in this regard. This policy violates no rights under either the State or Federal Constitution.

Concerning the objections that tlie decree fails to show dne service, and is also incomplete, absent the entire record, the decree states in effect that legal service was had by publication. This makes a prima-facie case of dne and legal service. It must also be presumed that the court proceeded in due course, and by right, upon a sufficient record. In the recent case of Lieber v. Lieber, 239 Mo. 1, we approve this from 13 Am. & Eng. Ency. Law (2 Ed.), p. 995: “Where reliance is placed on a foreign judgment rendered by a court of record and of general jurisdiction the presumption is that such court had authority to render the judgment in question, and that the necessary jurisdiction was acquired properly.”

In the light of such presumption, the point made by plaintiff that it does not appear that the statutes of Washington authorized constructive service by publication, is not well taken. Moreover, this exact question is decided adversely to plaintiff’s claim in Williams v. Williams, 53 Mo. App. l. c. 620 upon grounds which we fully approve.

For the purpose for which this decree was offered in evidence, namely, to establish the status of Miller as a witness, we think the record was prima-facie sufficient and valid.

IY. Did the trial court err in holding that the divorce removed the alleged matrimonial disability of Miller to testify at the time his deposition was taken? In other words, if the witness when he gave his deposition was incompetent to testify because he was at the time the husband of plaintiff, does the subsequent removal of the disability by a decree of divorce, granted before the deposition is offered to be read in evidence, make the deposition competent?

Our statute, section 6411, Revised Statutes 1909, provides that depositions “may be read and used as evidence in the cause in which they shall have been taken, as if the witnesses were present and examined in open court on the trial thereof.” That is to say, the deposition becomes, as it were, the witness. The competency of a witness, in regard to the objection made here, is to be determined by his status when put upon the stand. If he is the husband of plaintiff he cannot testify. He is not disqualified because of the fact that he has been plaintiff’s husband, except as to confidential communications.

In 13 Cyc. 994, the rule is thus stated: “As a general rule, the status of the witness at the time of the trial governs the question of his competency; for, in contemplation of law, the deposition itself is the witness, and the witness is presumed to testify when the deposition is used.”

In Messimer v. McCray, 113 Mo. 382, we said: “The competency of a witness to testify can only be determined when his deposition is offered upon the trial, at which the deposition stands for the witness. If he is not competent under the law as it then exists his deposition cannot be read, although he may have been competent under the law as it existed when it was taken. The parties have no vested right in the evidence of a witness. [O’Bryan v. Allen, 108 Mo. 227.]”

In St. L., I. M. & S. Railway Co. v. Harper, 50 Ark. 159, a deposition was taken when the witness was competent. Before it was offered in evidence the witness became' incompetent by reason of his conviction of an infamous crime. The deposition was rejected. The court says: “The status at the trial governs the question of competency (Weeks on Depositions, sec. 515; Fielden v. Lahens, 14 Abb. Pr. 48; Oliver v. Moore, 12 Heisk. 482; Webster v. Mann, 56 Tex. 119), for, in contemplation of law, the deposition is the witness (Jones v. Scott, 2 Ala. 58), and the witness is presumed to testify when the deposition is used (Park v. Lock, 48 Ark. 133; Quick v. Brooks, 29 Ia. 485; Fagin v. Cooley, 17 Ohio Rep. 51).”

In the eases of Long v. Martin, 152 Mo. 668, and McCloskey v. Publishing Co., 163 Mo. 22, we held that a divorce removed the disability of a wife as a witness. To the same effect is Toovey v. Baxter, 59 Mo. App. 470.

That the competency of a husband or wife as a witness depends upon whether the relation exists at the time of the trial (except as to confidential communications), is evident when we consider the ground upon which the rule rests. Mr. Greenleaf says it rests upon the notion of the untrustworthiness of a spouse testifying; that each will be likely to favor the other; also to protect the sanctity of the marriage relation on grounds of public policy. [1 Greenleaf on Ev., sec. 333.] He also says that divorce destroys the incompetency. [Ibid., 337.]

In view of the foregoing, it is obvious that the court did not err in its ruling on this proposition.

V. Plaintiff was married on the 15th day of January, 1883, at Decatur, Illinois, to a man whose name appears in the marriage license as “Henry Howard,” and who wrote his name as Henry Howard in the return of marriage to the county clerk, which was signed by both bride and groom on said 15th day of January. Plaintiff claims that this man whom she married on that day was Laclede J. Howard. The defense not only denies this claim, but introduced evidence tending to prove that the man whom plaintiff married that day, under the name of Henry Howard, was in fact one Thomas J. Miller. In support of this defense the defendant introduced, over plaintiff’s objection, several pages of a book of entry of the Evans-Howard Eire Brick Company, of which company Laclede J. Howard was president in 1883, and particularly an order for goods which purported to have been entered therein on the 15th day of January, 1883, in the handwriting of Laclede J. Howard. It was shown in evidence that this booh was kept at the time, and had since remained, in the office of the brick company in the city of St. Louis; that it was kept for the purpose of entering orders therein; that this particular entry occupied its proper place for that date between other similar entries of orders received for goods preceding and following it; that it was written by Laclede J. Howard in the performance of his duty to make such entry, in the usual course of his business; that it was made in St. Louis; that it was customary to enter orders in this book on the date when received. Defendant also introduced in evidence, over plaintiff’s objection, a book identified as the regular minute book of the company, containing the record of meetings of stockholders and directors. This book showed the regular annual meeting of the stockholders held in St. Louis on January 16, 1883, and a meeting on the same day of the board of directors. The evidence showed that the minutes of these meetings were entered in the book in the handwriting of Laclede J. Howard, and signed by him as president and secretary. These minutes state that he was present at the meeting and give the names of the others present. The minutes of these meetings appear under date January 16, 1883, and in regular order with reference to other similar meetings. These entries were introduced for two purposes; first, to prove that Laclede J. Howard was not in Decatur on January 15, 1883, the date of the marriage, and, second, to prove the handwriting of Laclede J. Howard for the purpose of comparison with the signature “Henry Howard” upon the marriage return. The entries were conceded to be competent for the latter purpose, but it was objected that they were not competent evidence to show that Laclede J. Howard was in St. Louis on January 15 and 16, 1883. This objection was overruled; and the question is presented whether such entries were competent evidence of the whereabouts of Laclede J. Howard on the dates mentioned.

The law is well established that entries made by a person in the ordinary course of his business are, in case of his death, admissible at least for the purpose of showing where such person was at the date which such entry bears. This proposition is in the nature of an exception to the rule against hearsay testimony, and is based upon the fact of necessity, and also upon the uniform reliability of such entries.

In Nicholls v. Webb, 8 Wheat. 326, the U. S. Supreme Court says in a case where the book entry of a deceased notary was received to prove a protest: “We think it a safe principle that memorandums made by a person in the ordinary course of his business, of acts or matters which his duty in such business requires him to do for others, in case of his death are admissible evidence of the acts and matters so done.”

A full discussion of this question is found in 2 Wigmore on Evidence, p. 1880. See, also, Clark v. St. James Church, 21 Hun, 98, a case quite like this as to the facts and the point involved.

The record entry in the minute book of the directors’ meeting has less probative force than the entry in the order book. It is, of course, quite possible that the entry of the minutes in the book might occur subsequent to the actual date of the meeting. Still, we think the distinction goes rather to the weight than to the competency of the evidence. It is the duty of a corporation to keep a record of the minutes of .the meetings of its stockholders and directors. Such minutes should show the date when the meetings were held, and also who were present. It was the duty of Laclede J. Howard as secretary to prepare and enter such minutes in the record. The testimony shows that the minutes of the meeting purporting to be held Jan-nary 16,1883, were written by Laclede J. Howard into the regular minute book, and in regular order as compared with other entries therein. These minutes state the names of those present, including that of Laclede J. Howard. The testimony shows that all of those named as present at that meeting were dead at the time the record was offered in evidence. Under these circumstances we think the evidence was competent as a circumstance tending to prove that Laclede J. Howard was present in St. Louis at a meeting of the board held January 16,1883. This record furnished the best evidence obtainable. The same reasons that sustain the introduction of regular book entries, namely, death of the entrant, generally reliability of such entries, and that such was the-best evidence obtainable, support the competency of the record entries, notwithstanding the inferior probative value of such record entries as compared with that of the entry in the order book. None of this evidence is conclusive. It is subject to contradiction and impeachment. It is testimony to be weighed with all the evidence and circumstances in the case.

YI. As plaintiff does not contend in this court that there is not sufficient evidence to support the judgment of the circuit court, it is unnecessary to discuss the evidence in detail. We have, however, read it, and are convinced that the judgment below is right. Considering the uncontroverted facts in the case, the story told by the plaintiff is inherently improbable. The weight of the testimony overwhelmingly preponderates for the defense. Even if all the testimony objected to were eliminated, there would remain enough to amply sustain the finding of the court against the plaintiff.

The judgment is affirmed.

Kennish and Brown, JJconcur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    AMANDA J. POPE v. WABASH RAILROAD COMPANY, Appellant.
    Division Two,
    April 9, 1912.
    1. APPELLATE PRACTICE: Demurrer to Evidence. An assignment that the court erred in overruling defendant’s instruction in the nature of a demurrer to the evidence, offered at the close of all the testimony, necessitates on appeal a review of all the evidence tending to support plaintiff’s cause of action, whether introduced by plaintiff or defendant.
    2. DAMAGE STATUTE: Sec. 5425: Constitutional. On the authority of Young v. Railroad, 227 Mo. 307, section 5425, Revised Statutes 1909, is held to be constitutional.
    3. NEGLIGENCE: Signal: Knowledge of Train’s Approach. The object of a signal is to give warning, and if those on the track know of the train’s approach, without the signal, in time to escape from danger, then failure to give the signal is of no legal importance.
    4. -: Speed-Limit: Proximate Cause. Where plaintiff and deceased, in running towards and crossing the cattle-guard to get off of the track, were not in any manner influenced by the belief that the train was running at a speed in excess of the maximum rate permitted by ordinance, the failure of the train men to observe the ordinance speed-limit was not the proximate cause of the injury, and plaintiff cannot recover on the theory of negligence in violation of the city ordinance.
    5. -: Humanitarian Doctrine: Knowledge of Train’s Approach. Where a pedestrian knows of the train’s approach and is at that time at a place on the railroad track at which he can safely get off and avoid being hurt and does not do so, the humanitarian doctrine does not apply. Where he knows of the train’s approach, and can get off and be safe, those in charge of the train have a right to presume that he will get off, and then before there can be any recovery it must be shown that the engineer, after he saw the pedestrian’s peril (that is, after it became apparent that the pedestrian did not intend to step off, but was intending to stay on the track), did not exercise proper care to stop the train. The law does not require a train to be stopped every time an adult person is seen on the track ahead.
    Appeal from Adair Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Reversed.

      J. L. Minnis and Higbee & Mills for appellant.
    (1) The court erred in overruling defendant’s demurrer to the evidence. It was admitted by plaintiff that she and her husband both knew the train was rapidly approaching them, was very near, and that they “would have to get out of the way some way.” With full knowledge of their perilous position they ran a race with death. Their wanton and reckless negligence continued down to the moment of the catastrophe, after it was impossible for the engineer to avoid it. It was the proximate cause of Pope’s unfortunate death. Yeatch v. Railroad, 145 Mo. App. 232; Sissell v. Railroad, 214 Mo. 530; Sinclair v. Railroad, 133 Mo. 233; Laun v. Railroad, 216 Mo. 563; Mockowick v. Railroad, 196 Mo. 550; McMamamee v. Railroad, 135 Mo. 440; Pry v. Railroad, 200 Mo. 377; Porter v. Railroad, 199 Mo. 100; McGee v. Railroad, 214 Mo. 530. (2) The court erred in giving plaintiff’s instruction 2. It purports to cover the whole case and does not confine the issue of fact to' those belonging to negligence under the doctrine of the “last chance.” It eliminates the contributory negligence of plaintiff and her husband, which continued to the moment of the catastrophe, and unquestionably was the proximate cause of his death. Pope was able to run and to get off the track. He was not at any time in peril from the engineer’s standpoint; he could at any time have stepped aside. His foot was not caught as in Woods v. Railroad, 188 Mo. 229, syl. 3. Yet this instruction, without qualification, told the jury if the engineer saw Pope on the track it was his duty to stop the train. The engineer knew Pope and his wife both saw the train. It was running at a speed of thirty miles per hour, as averred in their petition; he had a right to continue running the train without checking its speed, and to act upon the presumption they would get off the track, until the last moment. If this instruction is the law, no train could he run on schedule time. This was the only instruction given; all of defendant’s instructions were refused. Laughlin v. Railroad, 144 Mo. App. 185; Degonia v. Railroad, 224 Mo. 564; Frye v. Railroad, 200 Mo. 377. (3) The court erred in -refusing defendant’s instruction 2. Plaintiff and her husband with full knowledge of their peril believed they could reach and cross the cattle-guard in safety, and recklessly raced with death. Plaintiff repeatedly urged her husband to run and to run faster. They unfortunately misjudged the speed of the train or their own ability. Roenfeldt v. Railroad, 180 Mo. 554; Laun v. Railroad, 216 Mo. 563; Kinlen v. Railroad, 216 Mo. 164.

      Campbell <& Ellison and Chas. E. Murrell for respondent.
    Where there is any evidence, be it ever so slight, to support the verdict of the jury, the same will not be disturbed by the appellate court. There is an abundance of testimony to support the judgment in question. - The engineer, after discovering the deceased on the track 1500 feet away from him running for the crossing, and knowing, as he admits, that these two old people were running for the crossing and that they would have a close call, made no effort to stop the train until at the time or after he struck the deceased. In other words he did not exercise ordinary care to prevent the injury after he discovered their position of peril and that they did not intend to leave the track. Under the decisions in this State and the facts of this case, it was a question for the jury, as to whether he exercised ordinary care to prevent the injury. The engineer would know better than anyone else in what distance the train could be stopped, and he says that he could stop it under the conditions there existing, with safety to the train and those on board, in a distance of 900 or 1000 feet. Then if he had made the emergency appliance at the point where he says he did, he would have stopped the train before he reached the crossing and place of accident. The uneontroverted evidence is that he ran more than 1000 feet after he struck the deceased, showing that the emergency application was made after the accident. The question then before the court is whethercor not the appellant exercised ordinary care to prevent the injury complained of. Rayburn v. Railroad, 187 Mo. 573; 2 Thompson on Law of Negligence, secs. 1734-38. When the deceased started to run at a time when the engineer was 1500 feet from him, it was the engineer’s duty to act, and stop or slacken the speed of the train and save the deceased. Neier v. Railroad, 12 Mo. App. 25; Remer v. Railroad, 36 Hun (N. Y.) 253; Thompson on Negligence, secs. 1771, 1775; Woods v. Railroad, 188 Mo. 229; Mertens v. Railroad, 122 Mo. App. 304; Schafstette v. Railroad, 175 Mo. 164.
   KENNISH, J.

On the 13th day of September, 1907, in the city of Kirksville, Adair county, Joseph Pope, deceased, was struck and killed by appellant’s train. Respondent, his widow, brought this action for damages under the provisions of section 5425; Revised Statutes 1909. Upon a trial a verdict was returned in her favor, awarding damages in the sum of two thousand dollars. The defendant appealed to this court. In its answer the defendant assailed the constitutionality of said statute; hence the appellate jurisdiction of this court.

The acts of negligence assigned in the petition are that deceased, Joseph Pope, being upon the defendant’s railroad track, where the same is much travelled by pedestrians, by the negligence of defendant’s agents in charge of and operating defendant’s train upon its said track, was knocked down and received injuries from which he died; that by the exercise of ordinary care on their part, the said agents so in charge of said train might have seen said Pope and become aware of his peril in time to have stopped the train before it reached him, and thus have avoided striking and killing him; that the defendant’s said agents negligently failed to ring the bell or sound the whistle as the train approached said Pope, and that the said agents negligently operated said train at a high and dangerous rate of speed in said city, in violation of a city ordinance, thereby causing the injury complained of.

The answer contained four defenses: a general denial; a defense of contributory negligence; that the ordinance limiting the speed of trains was unreasonable and void; and that section 5425, Revised Statutes 1909, under which the action was brought, was unconstitutional.

At the close of all the testimony, the defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused. Defendant saved its exceptions and, among other errors assigned, complains of the action of the court in refusing said instruction. This assignment necessitates a review of all the evidence tending to support plaintiff’s cause of action, whether introduced by plaintiff or by defendant.

There was very little conflict as to the material and determinative facts in evidence. It was shown by the undisputed testimony that appellant’s railway track runs north and south at the place of the.alleged injury. Elizabeth street runs east and west on the north side of the city of Kirksville, and it was at the intersection of said street and railway track that the deceased was killed. The track is straight and the view unobstructed for a distance of more than half a mile to the north, so that a person walking thereon where the accident occured could plainly see an approaching train for that distance, and conld as plainly he seen for the same distance by the engineer of a south-bound train.-

Plaintiff’s first witness was M. B. Cowan, the conductor on the train that killed deceased. He testified that the deceased was struck by a south-bound passenger train at about eight o’clock in the morning; that the crossing signal was given about fifteen hundred feet north of Elizabeth street crossing, and that the emergency brake was put on and the alarm signal given about the same time; that along the track, where a path made by pedestrians led from the pasture to the place of the accident, there was no obstruction to hinder a person from stepping off on either side to a place of safety from á passing train; that at the rate of speed the train was running that morning it could not have been stopped within a distance of less than about twelve to fifteen hundred feet.

Plaintiff testified in her own behalf. She was the only eyewitness to the accident, except the crew operating the train. She testified that she was sixty-three years of age and the deceased seventy-nine at the time of the accident; that they lived about a half of a quarter of a mile south of Elizabeth street crossing and about thirty yards west of the railway track; that she and deceased, the morning of the accident, had gone to the pasture to milk, as they had done twice a day for three years during pasture time, and as they were returning by way of the path upon the railway track, the deceased was struck by a south-bound passenger train and killed; that before he got upon the track plaintiff looked and listened, but heard no train; that as they walked south plaintiff felt a jar and looking back saw the approaching train north of the bridge; that they were then about sixty steps from Elizabeth street crossing, and immediately began to run so as to reach the crossing before the arrival of the train; that plaintiff looked back' again when they were about twenty or twenty-five steps from the crossing and, seeing the train coming on, urged the deceased to run faster, and as they crossed the cattle-guard and got off the track on the east in Elizabeth street, the train passed, striking her husband and instantly killing him; that they were about midway in the cut north of the cattle-guard when they first saw the train, and that they did not get off the track sooner because of the ditch and embankment on each side; that the ditch was about a foot and a half deep, and that plaintiff had crossed the ditch before when no train was near.

There was testimony for plaintiff tending to •prove that the alarm signal was not given until the train was near Elizabeth street crossing.

I. Since the trial of this case the constitutionality of section 5425, Revised Statutes 1909, on which the action was based, has been sustained by this court, and therefore appellant’s attack thereon need not be further considered. [Young v. Railroad, 227 Mo. 307.]

II. The alleged negligence of defendant, (1) in failing to give signals as the train approached, and (2) in exceeding the speed-limit ordinance read in evidence, were removed from the case as actionable issues by plaintiff’s testimony.

Witnesses for plaintiff testified that signals were given, and, besides, plaintiff testified that she saw the train long before it reached them and she and deceased attempted to run and did run fifty yards on the track after they saw the train.

The object of a signal is to give warning, and if those on the track know of the train’s approach without the signal, in time to escape from danger, then failure to give the signal is of no legal importance. [Mockowik v. Railroad, 196 Mo. l. c. 570, and cases cited; McManamee v. Railroad, 135 Mo. l. c. 449.]

It was shown by plaintiff’s testimony that those operating trains on defendant’s railway had never observed the speed-limit ordinance, neither had any effort been made to enforce it. Plaintiff lived within thirty yards of the railway track, and testified that she was familiar with the running of defendant’s trains and their speed. There was no evidence that plaintiff and the deceased, in running toward and crossing the cattle-guard to get off the track, were in any manner influenced by the belief that the train was running within the time prescribed by the ordinance. These facts show that the failure to observe the ordinance was not the proximate cause of the injury, and preclude a right of recovery on the theory of negligence in the violation of the ordinance pleaded. [Laun v. Railroad, 216 Mo. 563; Kinlen v. Railroad, 216 Mo. 145; Moore v. Railroad, 176 Mo. 528.]

III. This leaves in plaintiff’s case only the theory that the' defendant’s agents were negligent in not seeing the peril of the deceased and stopping the train in time to have avoided the injury. It was upon that theory the court submitted the case to the jury. It is known in our decisions as “the humanitarian doctrine.” As applied to the facts of this case, it means that if those in charge of the train became aware of deceased’s peril in time so that by the exercise of ordinary care they could have stopped the train or checked its speed and thus have averted the injury, the plaintiff was entitled to recover. But plaintiff does not bring her case within that rule.

In the case of Kinlen v. Railroad, 216 Mo. l. c. 164, this court said: “The humanitarian doctrine only applies and authorizes a recovery where the injured party is ignorant or oblivious to the impending danger; but if he knew of the approaching danger, then clearly he would be guilty of such contributory negligence as would prevent a recovery whatever the conduct of the agents in charge of the train might be. ’ ’

The foregoing language must be understood as applying to a case in which a person is upon the track at a place where he could safely have gotten off and out of danger when conscious of the train’s approach. That was the situation in this case. The deceased knew of the oncoming train. He could have stepped off the track and have been safe. Those operating the train had the right to presume that he would get off, and there was no testimony tending to show any negligence on the part of the engineer after he saw the peril of deceased, that is, after it became apparent that the deceased did not intend to step to one side of the track, but was intending to run across the cattle-guard and into the street, before leaving the track.

Doubtless the plaintiff and her husband were confused and were acting as they thought best under the circumstances, but it is unreasonable to expect, and the law does not require, that a train should be stopped every time a person is seen walking on the track ahead. To have done so under the testimony in this case would have necessitated the application of the air brakes a quarter of a mile before reaching the place of the accident. While those in charge of a train may not wilfully or recklessly injure persons upon the railroad track, but must use care to avoid such injury, yet, on the other hand, they have the right to rely upon the presumption that an adult person upon the track will be regardful of his own safety and will get out of the way of the train. [Candee v. Railroad, 130 Mo. 142; 3 Elliott on Railroads (2 Ed.), sec. 1257a, and cases cited.]

We have carefully considered the evidence in this case and, under the most favorable view to plaintiff, there is an entire failure to show actionable negligence. Entertaining these views, we hold that the court should have given the instruction in the nature of a demurrer to the evidence. Accordingly the judgment is reversed.

Ferriss, P. J., and Brown, Jconcur.