author: WILLIAMS, C.

text:
    THE STATE v. ALBERT LEE, Appellant.
    In Banc,
    February 9, 1916.

    1. CRIMINAL INTENT: Presumption: Possession of Property: Corpus Delicti. The possession by one of the property of another does not raise any presumption, nor is it of itself evidence, that the property was stolen. The possession must be accompanied by other in-. criminating circumstances, inconsistent with the possessor’s innocence. The evidence in this case does not establish beyond a reasonable doubt that the property was stolen or the defendant’s guilt.
    2. -: Instruction: Unexplained Possession of Stolen Property. The purpose of an instruction on the question of the presumption of guilt arising from the recent unexplained possession of stolen property, is to aid in determining the identity of the felonious taker; and where defendant admits that the hog alleged to have been stolen was by his -direction taken from the range and placed-in his barn by his hired hands, such an instruction should not be given, since the question at issue is not the identity of the taker, but the intent with which the hog was taken.
    3. -: -: Assuming Property Was Stolen. Where the issue is whether or not the hog found in defendant’s possession was stolen, an instruction which assumes that the hog was stolen is erroneous.

      Appeal from Butler Circuit Court. — Hon. J. P. Foard, Judge.
    Reversed and defendant discharged.

      E. B. Lentz for appellant.

      John T. Barker, Attorney-General, and S. P. Howell, Assistant Attorney-General, for the State.

      NOTE. — Certified to the Reporter February 5, 1918.

   WILLIAMS, C.

Under an indictment charging the defendant with stealing six hogs, the property of one Walter Reynolds, the defendant was tried in the circuit court of Butler County, found guilty, and his punishment assessed at two years in the penitentiary. Defendant has duly perfected an appeal to this court.

The evidence upon the part of the State tends to show that Walter Reynolds, the prosecuting witness, lived on a farm about three-fourths of a mile north of the farm upon which the defendant lived, near Neelyville, in Butler County, Missouri. Reynolds owned a small black sow. The sow was marked with a crop and split in the left ear, and an aluminum button, bearing the name of “Walter Reynolds” on one side and “Neelyville, Missouri” on the- other side, was fastened in the sow’s right ear. This button was about the size of a quarter. The sow was turned out on the range which extended up to defendant’s place, and would come up to prosecuting witness’s home nearly every day. During the last week in September, 1913, she failed to come up as usual, and Mr. Reynolds did not see her again until October 14, 1913, on which date he found her in defendant’s barn. At that time she had five small pigs and was fastened up in a stall in the barn with some other hogs.

It appears that on October 13th, one Bradford and a Mr. Molloy went to defendant’s place in search of some missing hogs. They told defendant that they had heard he had some hogs of theirs. Thereupon defendant said, “Come on and I will show you,” and he took them to the Barn and showed them the hogs that were fastened in the stall, but they did not find the hogs they were looking for. They noticed a black sow with five pigs in the stall at that time. Defendant said the hogs in the barn belonged to him.

Later, that same day, Bradford and one McClain went back to the farm, but it does not appear that defendant was then present. On the next day, October 14th, Bradford, Molloy and the prosecuting witness and his mother went to defendant’s farm, but it does not appear that the defendant was present or that they had any conversation with him. When they reached the barn, Reynolds examined the black sow and, upon raking the mud from-her ear, found the aluminum button bearing his name.

Some time later, on that day, the prosecuting witness instituted replevin suit to replevin the sow and returned to defendant’s place with the constable and Mr. McClain. It appears that McClain and the prosecuting witness went to the barn, and that the constable went out into the field where he found defendant at work. There the constable served the replevin writ upon the defendant and the defendant said that the hogs did not belong to Reynolds. The officer told defendant that Reynolds had identified the black sow by the aluminum button in her ear, and defendant said, “If that black sow has got Walter Reynolds’ button on her ear,I will eat it.” Defendant then accompanied the officer to the barn and they scraped the mud off of the sow’s ear and showed defendant the button. It does not appear what defendant did or said after that. None of the State’s witnesses knew who put the sow in the barn or how long she had been there. They testified that the pigs appeared to be about one week old. Some of .the witnesses said that the pen in which the hogs were fastened in the barn was boarded up about four feet and that it was dark in there. Other witnesses described the pen as a stall with the opening boarded up about four feet. The prosecuting witness’s mother testified that she accompanied the men to the barn when they found the sow and pigs in the barn with a lot of other hogs — one of Mr. Abington’s, one of Mr. McClain’s and one that the witness did not know.

The defendant testified, in his own behalf, that, on October 12th, he owned a black sow which was running loose on the range and that he was .expecting her to have pigs. At that time, he had two hired hands working for him, one a “hobo”. called Shorty, and the other was Howard Rowe, whose home was somewhere in Arkansas. The defendant, before starting on a trip to Poplar Bluff, told these two hired hands that if the black sow came up that day to put her in the barn, because he was expecting he^ to have pigs. 'When he returned from Poplar Bluff, the next day, the hired hands told him that they had put the black sow in the barn and that during the night she had delivered pigs. That when Bradford and Molloy came to his house, on the 13th of October, and inquired' for hogs, he took them to the barn and opened the door and showed them the hogs in the barn. The defendant, at that time, saw the black sow and the pigs and supposed they were his, but said that it was a little dark in there and that he did not pay much attention to the hogs at that time, and that he did not know that the black sow was not his until the replevin writ was served on him the next day, at which time he went to the barn with the officer and was shown the button in' the sow’s ear.

He testified that his sow and the prosecuting witness’s sow were about the same size and that his sow had a crop in the left ear and that nobody could have told that the sow he had in the barn belonged to the prosecuting witness until the mud was scraped off her ear, which was the first time that he had information that the sow did not belong to him. Defendant’s sow finally came up two or three weeks afterwards without any pigs. He presumed that something had destroyed them. He testified that he did not know where “Shorty” went after he quit working for him, and that Rowe lived somewhere in Arkansas.

(It appears that defendant was not indicted until April 24, 1914, some six months after the occurrence, of the alleged offense, and that the trial did not occur till April, 1915, eighteen months after the date of the alleged offense).

Defendant’s wife corroborated him in regard to the two hired hands putting the hog in the barn while the defendant was away in Poplar Bluff. Defendant’s son Willie also corroborated the defendant and testified further that he had just come home from school and saw Shorty and the other hired hand driving the black sow around to the barn door and that she did not have pigs at that time. The son also heard “Shorty” tell defendant, at ‘breakfast the next morning, that they had put the black sow up.

In rebuttal, the prosecuting witness testified that he never saw “Shorty” or Rowe about the place. Witnesses Molloy and Bradford testified that they had been around defendant’s place about four times in October,. but that at none of those times had they seen “Shorty” or Rowe working there. Upon cross-examination, they admitted that “Shorty” and Rowe might have been working for the defendant on .those occasions and they had failed to see them, and admitted that on one or two occasions they had been to defendant’s place and had not seen him there.

Instruction Number 6, given on behalf of the State, was as follows:

“If the jury believe from the evidence that soon after the commission of the offense charged in the indictment, if you believe from the evidence an offense was committed, the property taken at the time of commission of the offense was found in the possession of the defendant, such possession is presumptive evidence of the defendant’s guilt, and if such possession of such stolen property is not satisfactorily explained by defendant, it will be conclusive evidence of his guilt; and the jury are further instructed that it devolves on the defendant to explain such possession.”

I. Appellant contends that there was not sufficient proof of the corpus delicti and' that, therefore, the evidence was insufficient to support the verdict. We think this point well taken. The facts shown by the testimony are stated fully in the foregoing statement and it becomes, therefore, Unnecessary to restate the same in detail here. In substance the evidence discloses that the defendant was found in possession' of a hog which belonged to the prosecuting witness, and which, prior to that time, had been running at large on the range which extended from the home of the prosecuting witness to that of the defendant. Defendant’s evidence tended to show that the hog was similar in description to one of his own upon the range and was, by his two employees, placed in the barn under.the mistaken belief that it was the property of defendant.

The mere fact that the hog disappeared from the range would not b,e sufficient proof that the hog was feloniously taken therefrom — this, becáuse it is a matter of common knowledge that stock running out upon the range, in common with other stock, may disappear therefrom by becoming mixed up with the other stock and follow it off, or by being driven off by mistake, just as readily as it may be feloniously taken therefrom, and the mere proof of disappearance from the range would not, in and of itself, justify the presumption that it had been stolen. And the further fact that the hog was afterwards found in defendant’s possession would also fail to prove that the hog had been stolen. The possession by one of the property of another does not raise any presumption that the property was stolen. The correct rule in this regard is stated as follows: “The possession of property does not of itself raise any presumption, nor is it indeed any evidence, that the property was stolen. There must be other evidence of the corpus delicti.” [8 Ency. of Evidence, pages 99-100, and cases therein cited.]

The disappearance of the hog from the range and the subsequent finding of same in possession of the defendant would, no doubt, furnish material for links in a chain of circumstantial evidence,' if they were accompanied by other incriminating circumstances. But the necessary incriminating circumstances are here absent. The conduct of the defendant at each time he was questioned about the hogs was not that of a man trying to conceal, and therefore the conduct of a guilty man, but he showed, at all times, a ready willingness to have the hogs seen and examined. The facts disclosed are not inconsistent with the theory of defendant’s innocence. Yery appropriate to the situation here is the following language of the Court of Appeals of New York in McCourt v. People, 64 N. Y. 583, l. c. 586-7, to-wit:

“Whether the criminal intent existed in the mind of a person accused of crime at the time of the commission of the alleged criminal act, must of necessity' be inferred and found from other facts which in their nature are the subject of specific proof; and for this reason it is, that the other constituents of the crime being proved, it must, ordinarily, be left to the jury to determine, from all the circumstances, whether the criminal intent existed.
“In some cases the inference is irresistible, and in others it may be, and often is, a matter of great difficulty to extermine whether the accused committed the act charged with a criminal purpose. But there are usually found in connection with an act done, which is charged to be criminal, attending circumstances which characterize it, and if these are absent, or the circumstances proved are consistent with innocence, a conviction cannot be safely allowed.”

It does not appear that the prosecuting witness had any conversation with defendant prior to the time the writ of replevin was served, and judging from the conduct of defendant when questioned by Bradford and Molloy, concerning the lost hogs of Bradford, it would appear that the prosecuting witness could easily have obtained possession of his hog had he gone to defendant and made his claim instead of going to the trouble of bringing a suit in replevin. While it is true that defendant’s conduct does not, necessarily, establish his innocence, yet the same may be mentioned for the purpose of showing that it contained nothing incriminating. The burden was upon the State to establish defendant’s guilt and not upon the defendant to establish his innocence. The evidence at most can only be said to raise a suspicion of guilt against the defendant, but suspicion, alone, is never sufficient to support a verdict. [State v. Jones, 106 Mo. 302; State v. Morney, 196 Mo. 43; State v. Ruckman, 253 Mo. 487.]

After carefully considering the evidence in all of its phases, we have reached the conclusion that it falls short of the quantum of proof which would justify the triers of fact, in finding, beyond a reasonable doubt, that the defendant is guilty. [State v. Counts, 234 Mo. 580; State v. Claybaugh, 138 Mo. App. 360, l. c. 364; State v. Bass, 251 Mo. 107.]

II. The court erred in giving said instruction numbered 6, on the question of the presumption of guilt arising from the recent unexplained possession of stolen property. In this case, defendant admitted that the hog was taken from the range and placed in his barn, by reason of his orders to his two employees. The question at issue, therefore,-was not the "identity of the person who took the hog, but the intent with which the hog was taken — whether innocently or feloniously taken. Under such conditions this instruction (the function of which is to aid only- in determining the identity of the felonious taker, State v. Warden, 94 Mo. 648, l. c. 652) should not have been given. [State v. Christian, 253 Mo. 382, l. c. 396.]

The instruction is also subject to criticism in another respect, viz., in one portion of the instruction it assumes that the property was stolen. In a case where there was no dispute concerning the State’s claim that the property in question had been stolen, this assumption would, perhaps, not be considered as harmful, but in a case, like the present, where that issue is a contested one, the assumption of that fact in the instruction would, no doubt, work serious injury to the rights of the defendant.

The judgment is reversed and the defendant discharged.

Roy, G., concurs.

PEE CURIAM: The above cause coming into Court in Banc, the opinion therein by Williams, C., is modified' and adopted.

Woodson, C. J., and Graves, Walker, Faris and Blair, J.J., concur; Bond and Bevelle, JJ., dissent.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    JOHN A. BARRETT et al., Plaintiffs in Error, v. STODDARD COUNTY et al.
    Division Two,
    October 9, 1917.
    1. EES AD JUDICATA: Eecord of Former Trial: Writ of Error. Where the Court of Appeals had affirmed the judgment of the trial court rendering judgment for damages against plaintiffs on their bond in a dissolved injunction and had remanded the cause to the circuit court with directions to enter judgment for a designated sum as of a certain date,’ and the circuit court had complied with that mandate, the interested parties being present, plaintiffs cannot, by a writ of error sued out of the Supreme Court to review this last judgment, inject into the case, to aid the writ, the record of the trial which resulted in the judgment from which the appeal was taken to the Court of Appeals, for the issues raised in that trial had become res adjudieata, and form no part of the record and proceedings brought up by the writ of error,, and hence cannot be reviewed by the Supreme Court.
    2. APPELLATE JURISDICTION: Nominal Party. Jurisdiction cannot be conferred by the presence of a merely nominal party.
    3. -: County as Nominal Party: Motion for Damages on Injunction Bond. An injunction brought by a bank against the county and another bank to restrain the county treasurer from depositing the county funds in the defendant bank uesignated as county depositary had been dissolved, and on appeal to the Supreme Court the judgment was affirmed. Thereafter upon, motion to assess damages on the injunction bond the court rendered judgment for defendant bank in the sum of $7000, and plaintiffs sued out a writ of. error to the Supreme Court. Held, that the county was only a nominal party to the proceedings and had no right to file such a motion, because the interest on its deposits, about which the original suit centered, had been paid, and if the revenue laws were involved they were involved only in the original proceeding, which was settled on the former appeal; hence, the Supreme Court has no jurisdiction of the writ of error.
    Error to Howell Circuit Court. — Hon. W. N. Evans, Judge.
    Writ quashed.

      Thomas F. Lane, J. L. Fort and Giboney Houck for plaintiff in error.

      Mozley & Woody and Wammack & Welborn for defendant in error.
    (1) Every issue on the merits of this case was briefed, argued and submitted to the Springfield Court of Appeals, and its decision and judgment thereon became and was a final adjudication of all such matters, and no other court will interfere therewith.' Any other rule of procedure would lead to intolerable chaos. Hope v. Blair, 105 Mo. 93; McLure v. Bank, 263 Mo. 134; Emmert v. Aldridge, 231 Mo. 128; Cantwell v. Johnson, 236 Mo. 603. (2) When the Springfield Court .of Appeals (183 S. W. 644) remanded this cause to the Circuit Court with directions to enter judgment for $7000 as of the date of overruling of the motion for new trial, it was a' final determination of the cause, and the only thing the trial court could do under the law was to enter judgment in strict accordance with, that direction. Allen v. Choteau, 74 Mo. 56; Bridge-Co. v. Stone, 194 Mo. 175; Spratt v. Early, 199 Mo. 491; Smith v. Kiene, 231 Mo. 215; Keaton v. Jorndt, 259 Mo. 179; McLure v. Bank, 263 Mo. 128. (3) The contention is made that jurisdiction of this cause rests in this court because Stoddard County is a party, and a construction of the revenue laws is involved. Neither of these contentions is tenable. This is purely an action to assess damages on an injunction bond. The record discloses that Stoddard County has no interest in the matter whatever. It is true that the action is ancillary to a proceeding to which, in some sort, the county was a party, and had some interest, and the appeal in the main case did go to the Supreme Court, but when that appeal was determined by this court, the county’s connection with the case ceased. It filed no motion to assess damages. The evidence shows it suffered none, in fact, the City Bank having paid it the same interest that the Bank of Essex would have paid, had it been permitted to carry out its contract. The same statement will suffice as to the revenue laws. It seems to us absurd to say that in this simple action to assess damages on an injunction bond, the revenue laws of this State are involved. (4) This court, has no jurisdiction of this proceeding for the reason that on the 7th day of April, 1916, when the judgment was entered in the Howell Circuit Court, in accordance with the mandate of the Springfield Court of Appeals, the amount in controversy, both • judgment and interest, was only $7432.76.
   WALKER, P. J.

This case is here upon a writ of error issued June 21, 1916. The purpose of the writ is to secure a review of the record and proceedings in a certain case theretofore pending in the circuit court of Howell County in which a judgment had been entered in compliance with a mandate of the Springfield Court of Appeals.

A chronological resume of all the facts nearly and remotely connected with this case is presented. While much of this is extraneous and cannot be considered in determining the matter at issue, its statement will afford an opportunity for a better understanding of the case than can otherwise be obtained.

A temporary injunction was granted at the instance of plaintiffs by the circuit court of Stoddard’ County in July, 1907, restraining the treasurer of that county from depositing its funds in the Bank of Essex, which had theretofore been designated as the county depositary, and directing that- such funds be deposited in the City Bank of Bloomfield. An injunction bond was given upon the granting of the temporary writ. A change of venue was then taken to Howell County by defendants, where, upon a trial in February, 1909, a judgment was rendered for defendants and as a consequence the writ of injunction was dissolved. Defendants thereupon filed a motion for damages oh the injunction bond, and before its determination plaintiffs appealed from the ruling of the circuit court on the merits to the Supreme Court, where the judgment of the circuit court of Howell County was affirmed. Thereafter the motion to assess damages on the injunction bond was continued from time to time until December, 1914, when it was tried before a jury and defendants’ damages fixed at $10,000, and after a remittitur a judgment was rendered by the court for $7,000. An appeal therefrom was granted plaintiffs to the Springfield Court of Appeals, where, after a review of all of the facts, the judgment of the trial court was on February 16, 1916, affirmed (183 S. W. 644), and it was ordered that the cause be remanded to the circuit court of Howell County and that it enter a judgment for the sum of $7,000 as of the date of the overruling of plaintiffs ’ motion for a new trial therein.. Plaintiffs thereupon filed motions for a rehearing and to transfer the cause to the Supreme Court, both of which were by the Court of Appeals overruled March 11, 1916, and a mandate in conformity with its judgment was transmitted to the circuit court of Howell County. On April 7, 1916, all the parties being present, the circuit court of Howell County, in compliance with the mandate of the Springfield Court of Appeals, entered judgment in favor of the Bank of Essex and against the City Bank of Bloomfield and the sureties on its injunction bond for the sum of $7,000. An affidavit for an appeal to the Supreme Court from this judgment was filed by the plaintiffs and an appeal was granted to the Springfield Court of Appeals May 28, 1916. Within the time granted plaintiffs filed their bill of exceptions in said court and on June 16, 1916, dismissed their appeal therein and sued out a writ of error to the Supreme Court. In aid of this writ not only the record of the proceedings relative to the entry of the judgment by the circuit court in compliance with the mandate of the Court of Appeals is- here submitted, but also the record of the proceedings of a former trial of this case, in which there was a judgment for defendants and upon appeal to the Court of Appeals the same was affirmed, followed by a mandate to the circuit court as above stated. The course pursued by the plaintiffs in error in the preparation of this abstract is not only anomalous but unauthorized. The parties and the issues in the case tried in the circuit court and affirmed upon appeal in the Court of Appeals being the same as in the instant case, the matters determined upon that appeal must be regarded as having been' finally determined, and they cannot be galvanized into life as undecided issues by incorporating them into the record in the case under consideration; in other words, they are res ad judicata. [Cape Girardeau & Thebes Bridge Term. R. R. Co. v. So. Ill. & Mo. Bridge Co., 215 Mo. 286; Meriwether v. Publishers, 224 Mo. 617; Benton v. St. Louis, 248 Mo. 98; Bagnell Timber Co. v. Railroad, 250 Mo. 514; Armor v. Frey, 253 Mo. 447; Scott v. Realty & Imp. Co., 255 Mo. 76.]

All prior matters having been adjudicated, the record and proceedings ordered to be brought up under our writ “that error, if any there be, may be corrected,” etc., has reference only to the record of the judgment of the circuit court of Howell County entered in compliance with the mandate of the Court of Appeals. Compliance therewith is the trial court’s only alternative. [Bagnell Timb. Co. v. M. K. & T. Ry. Co., 242 Mo. 11; State ex rel. v. Lamb, 174 Mo. App. 360; Ward v. Haren, 183 Mo. App. 569.] Our review, therefore, must be limited to consideration of the court’s action in this regard.

We have heretofore had occasion to consider this question in Meyer v. Goldsmith, 196 S. W. 745, in which we reached the conclusion, under facts identical with these at bar, that the circuit court had no other alternative than to comply with the mandate of the appellate court, and upon a showing that this had been done its action would not be interfered with.

There are no assignments of error assailing the integrity of the judgment we are authorized to review. The assignments made have reference only to errors alleged to have been committed during the first trial. These, as we have shown, were finally, disposed of in the opinion and judgment of the Court of Appeals (183 S. W. 644). If this were not true, not only in .this case but in others, the courts, instead of tending to terminate controversies by the finality of their judgments, would but offer opportunities for unending strife. There being apparent in this record, therefore, no substantial reason why we should interfere with the judgment of the trial court in its entry of the mandate of the Court of Appeals, we decline to do so.

The result of this conclusion would be an affirmance of the judgment of the circuit court. Another question, however, is acutely presented by the record which renders a formal declaration of this conclusion unnecessary. It is that of this court’s jurisdiction to entertain and determine the appeal in this case. The grounds of our alleged jurisdiction as asserted by plaintiffs in error, is that one of the parties defendant is a county and that a construction of the revenue law is involved. The writ of error is based upon a judgment rendered upon a motion to assess damages on an injunction bond. Stoddard County has no interest in this matter. In the original proceeding out of which this action arose the county did have an interest in the funds in controversy, but this case was appealed to the Supreme Court and there determined. Thus determined, whatever interest the county had in the controversy ended. Furthermore, its right to file the motion to assess damages on the injunction bond did not exist, because the interest on its deposits, about which the original suit centered, had all been paid, and as a consequence it would have been entitled to no damages in said suit and hence did not join therein. While, as a general rule, all of the obligees should join in the motion to assess damages on an injunction bond, a non-joinder is permissible if cause exists therefor. [Ohnsorg v. Turner, 33 Mo. App. 486; Jones v. Mastin, 60 Mo. App. 578.] The county’s presence, therefore, as a defendant on the face of these proceedings, is due not to its being a real party in interest under the general requirements of our procedure, but to its having been made a party by plaintiffs to the original action and as a consequence continued-as such in the motion to assess damages on the bond. By jurisdiction we mean the right to hear and determine. A nominal party to a proceeding has no rights therein to, be heard or determined and therefore a court can acquire no jurisdiction by reason of his presence.

The nearest approach to a revenue, law being involved is the fact that the original suit was concerning the interest on county funds. This, as stated, had been fully determined and the action here under review was simply in regard to the assessment of damages on an injunction bond.

Both of these questions were presented to and considered by the Court of Appeals, which ruled, as we do, adversely to the contention of the plaintiffs in error.

No facts are now submitted persuasive of our right to hear and determine this case, and while we have held, upon a review of all of the testimony relevant and otherwise, that we will not interfere with the judgment of the circuit court, we hold in addition that the writ of error was improvidently issued and should be quashed. It is so ordered.

All concur.


author: WHITE, C.

text:
    W. E. CLARK et al., Constituting Board of Managers of STATE HOSPITAL NO. 3, Appellants, v. COLE COUNTY.
    Division Two,
    October 9, 1917.
    1. INSANE PATIENT: County Charge. A state hospital makes out a prima-facie case -for a claim against the county by showing that the patient had entered the hospital as a county patient and that the charges for a definite subsequent period had not been paid.
    2.____• -; Inheritance of Estate: Notice to State Hospital: Evidence That Notice Was Received. Where the county court made an order reciting that a certain person, theretofore confined in a state hospital as a county patient, had become possessed of an estafe sufiicient to support himself and family, that the probate court had appointed a guardian to take charge of his person and estate, and ordering that such person be no longer a charge upon the county, a transmission of that order to the hospital, in the manner prescribed by Sec. 1429, R. S. 1909, bars the right of the hospital board to recover from the county for the keep of said patient thereafter; and testimony by the- deputy county clerk that on the same or the next day after the order was made he made a certified copy of it, inclosed it in an envelope with the county clerk’s return address thereon, sealed it, directed it to the superintendent of the hospital, and mailed it, and that he had a specific recollection of mailing the particular document, is positive evidence that the order was received by the hospital, and sufficient to raise a prima-facie presumption that the superintendent received the copy so sent, and to submit that issue to the jury. '
    3.-:-:-: Instruction: Changing “Deposited With” to “Transmitted To:” Definition. The court did not err in changing the words “deposited with” to “transmitted to” in the instruction asked by the hospital, directing the jury that although they might find from the evidence that the county court made the order transferring the insane patient from a county charge to a pay patient, yet, unless they should further,find that a certified copy of the order was "deposited with” the superintendent of the hospital, the verdict should be for it. The statute requires the clerk to “transmit” the certificate to the superintendent, and that duty is discharged when the order is duly mailed in an envelope and addressed to the proper party. That is the meaning of “transmit,” while “deposit with” is not synonymous with “filing,” but means something more than “to deliver” and something different.
    4.-: -: -: -: That Notice Was Received. The appellant hospital cannot complain that the jury .was not required in terms to find that the order of the county court transferring an insane person theretofore kept at the hospital as a county charge to a pay patient, was actually received by the hospital authorities, where the .word “received” was contained in no instruction asked, and the theory of appellant’s instruction on which the issue went to the jury was that the proper mailing of the order was a prima-facie presumption that it was duly received.

      Appeal from Cole Circuit Court. — Hon. John M. Williams, Judge.
    Affirmed.

      Lee B. Ewing and Irwin & Peters for appellants.
    (1) The appellants made a prima-facie case by showing that Raithel had been an inmate of State Hospital No. 3, as county charge of Cole County, since January 1, 1889, and by introducing the certified copy of the account sued on. R. S. 1909, secs. 1389, 1429. (2) Appellants having shown that Raithel had long been maintained by Cole County at State Hospital No. 3, that county could only relieve itself from payment for his care by showing that its county court had made an order transferring him to a pay patient, and that a certified copy of this order was lodged with .the hospital superintendent. R. S. 1909, sec. 1429. (3) There could be no presumption that the certified copy of the order of the county court of Cole County was received by the superintendent until it was first shown that the certified copy was placed in an envelope, properly addressed, bearing sufficient postage, and then deposited in the postoffice. Sills v. Burge, 141 Mo. App. 148; Crain Co. v. Railway, 120 Mo. App. 203; Coucher v. Novelty Co., 116 Mo. App. 99; Best v. Ins. Co., 68 Mo. App. 598; Welsh v. Fund Soc., 81 Mo. App. 30; 22 Am. & Eng. Ency. Law (2 Ed.), p. 1255. (4) Any presumption arising of receipt of a letter deposited in postoffice, properly addressed, bearing sufficient postage, is overcome by .testimony of' addressee that the letter was not received. 22 Am. & Eng. Ency. Law (2 Ed.), pp. 1255-56; Morton v. Morton, 16 Colo. 358. (5) There can be no presumption that a letter was received' by the mere proof that it was mailed, i. e., dropped in the postoffice. To do this would be to base this presumption upon another presumption, i. e., that the letter was properly addressed, and bore sufficient postage. Yarnell v. Railway, 113 Mo- 580; State v. Lackland, 136 Mo. 32; Bigelow v. St. Ry. Co., 48 Mo. App. 371; Click v. Railway, 57 Mo. App. 104; Button Co. v. Skirt Co., 140 Mo. App. 382; Haynie v. Pkg. Co., 126 Mo. App. 92; Moore v. Reniek, 95 Mo. App. 95; 22 Am. So Eng, E-ncy. Law (2 Ed.), p. 1236. (6) Appellants’ peremptory instruction skould kave keen given at close of defendant’s case, also at close of tke wkole case. Moore v. Railway, 28 Mo. App. 622; Haynie v. Packing Co., 126 Mo. App. 88. (7) Appellants’ Instructions “C” and “D” skould kave keen given in tke form asked. Webster’s Dictionary; 4 Encyclopaedic Dictionary, p. 4794; R. S. 1909, sec. 1429.

      D. F. Calfee and J. H. Lay for respondent.
    Wken a letter is properly addressed and mailed, witk postage prepaid, tkere is a rebuttable presumption of fact tkat it was received by tke addressee as soon as it could be transmitted to kina in tke usual course of tke mails. 16 Cyc. 1065; McFarland v. Accident Assn., 124 Mo. 204; Bank v. Latimer, 64 Mo. App. 321. Presumption of receipt of a letter by mail is strengthened —“becomes well-nigh conclusive” — where tke letter bears a return request and is not returned to tke sender. 16 Cyc. 1066-1071.
   WHITE, C.

The plaintiffs brought this suit against Cole County, on account, for the maintenance of one John Raithel, insane, at State Hospital No. 3, from September 1, 1908, to September 17, 1910. After Raithel had been kept there some years as a county patient at the expense of Cole County, on October 2,1907, an order was made by the county court of Cole County directing the clerk to notify the superintendent of State Hospital No. 3 that said Raithel was possessed of an estate and would be kept no longer at the hospital at the expense of the county. This order was not transmitted to the hospital authorities; On July 15, 1908, another order was made in the matter which recited that John Raithel had become possessed of an estate sufficient to support himself and family, and upon notice thereof the probate court of Cole County had appointed a guardian to take charge of-his person and estate; it was therefore ordered that said Raithel be no longer a charge upon said county and that his charge be transferred tó his guardian so appointed, and that the superintendent of State Hospital No. 3 be so notified.

The only question of fact at issue is whether this last mentioned order was transmitted to State, Hospital No. 3 at Nevada, Missouri, in accordance with requirement of Section 1429, Revised Statutes 1909. It is conceded by appellants that if it was received by the hospital authorities in due time then the maintenance of Raithel ceased to be a charge upon Cole County after September 1, 1908, and the county is not liable. The trial was by jury and the verdict for defendant. -

I. Error is assigned to the action of the trial court in refusing to give a peremptory instruction directing a verdict for plaintiff. It is claimed there was no evidence to show the order mentioned was received by the hospital superintendent.

The plaintiffs first made out their prima-facie case by showing that the patient entered the hospital as a county patient. The defendant introduced the order of July 15, 1908, and then introduced Dr. O. L. Moore, who was deputy county clerk of Cole County at the time the said order was made. He testified that either the same day or the next day after the order was entered he made a certified copy of it and mailed it, in the county official envelope with the county clerk’s return address on the envelope, to the superintendent of the institution at Nevada, Missouri; that he had a specific recollection of mailing the particular document; that he recollected it because there had been a question as to whether he had sent a copy of the first order made in 1907, and to be on the safe side the second order was made in 1908. He said he was positive he made a copy of the order and put it in an envelope, “sealing it and stamping it and putting it in the post office.” It was further shown by defendant that the guardian of Raithel, on June 10, 1908, paid Hospital No. 3 the sum of $67 on account of the care of Raithel.

The evidence made out a prima-facie ease of delivery. The testimony of Moore was sufficient to raise the primafacie presumption that the addressee, the superintendent of State Hospital for the Insane, No. 3, at Nevada, Missouri, received the copy so sent, and to submit that issue to the jury. [Covell v. Western Union Telegraph Co., 164 Mo. App. l. c. 635; McFarland v. Accident Assn., 124 Mo. l. c. 219; Sills v. Burge, 141 Mo. App. l. c. 154; Grain Co. v. Mo. Pac. Ry. Co., 120 Mo. App. l. c. 210; Edwards v. Miss. Valley Ins. Co., 1 Mo. App. l. c. 198; Cromwell v. Phoenix Ins. Co., 47 Mo. App. l. c. 111.]

This presumption was rebuttable and the plaintiffs introduced evidence tending to rebut it. However, the jury found the fact in favor of the defendant and the evidence was sufficient to sustain the finding.

II. Complaint is made by the appellants of the refusal of the court to give two instructions, “C” and “D,” as asked by them, and of the court’s action in modifying them. These instructions directed the jury that although they might find from the evidence that the county court of Cole County made the order of transfer, yet, unless the jury should further find that a certified copy of the order ‘was deposited with” the superintendent of said Hospital No. 3, the verdict should be for the plaintiff. The trial court modified the instructions by erasing the words “was deposited with” and inserting the words “was transmitted to.” It is claimed that the instructions so modified did not require the jury to find that the order was actually received by the hospital authorities. The court in modifying the instructions simply used the language of the statute, Section 1429, which says:

“If the county court of the proper county shall so order, the clerk thereof shall transmit to the superintendent a certificate, under his official seal, setting forth that any county patient in the state hospital from his county has sufficient estate to support and maintain him at the hospital. After the receipt of this certificate the patient shall he a pay patient,” etc.

The duty of the clerk of the county court is set out in the use of the word “transmit.” As the word is defined, that duty is discharged when it is shown that the order was duly mailed in an envelope stamped and addressed to the proper party. The receipt of the order is then prima-facie presumed. Such is the meaning attached by the authorities to the word “transmit.” [Stanton v. Kline, 11 N. Y. 196; Davies v. Newcastle & L. Ry. Co., 71 Ohio St. 325.] The words used in the instruction as asked, “was deposited with,” have a significance beyond the duty required of the county authorities. To deposit is not synonymous with “filing.” [People v. Peck, 22 N. Y. Supp. 576, l. c. 583; United States v. Van Duzee, 185 U. S. 278, 46 L. Ed. 909, l. c. 910.] “To deposit” means something more than “to deliver” and something different. [Staniels v. Raymond, 58 Mass. 314, l. c. 316; Toler v. White, 24 Fed. Cases, 3-5.]

Counsel for the appellants complain that the jury should have been required in terms to find that the order was actually “received” by the hospital authorities. The appellant asked no instruction requiring a finding in that form; the word “received” was not used in any instruction asked. The plaintiffs asked an instruction, which was given, to the effect that unless the jury should find that a certified copy of the order was deposited in .the United States mail, hearing the proper address of the superintendent of the State Hospital No. 3 at Nevada, Missouri, and bearing the required amount of postage to carry said copy to its destination, the verdict, should he for the plaintiffs. Thus the theory of plaintiffs on which the issue went to the jury was that the proper mailing was a prima-facie presumption of the receipt of the document. That instruction, together with the instructions requiring the jury to find the order was ‘ ‘ transmitted, ’ ’ in the absence of any request by the plaintiffs for further qualifying or specific instruction relating to the actual delivery and receipt of the order, was entirely sufficient to submit to the jury the issue as to whether the order was received.

Finding no error in the record the judgment is affirmed.

Boy, G., concurs.

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

All of the judges concur.


text:
    WILLIAM BEARD, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division Two,
    October 9, 1917.
    1. NEGLIGENCE: Pedestrian on Track: Evidence of Signals at Crossing. Where defendant’s unfenced spur track ran through á thickly-settled community, and the use of the track by pedestrians had been acquiesced in for years by defendant, and'its trains were run over the track not for public convenience but at irregular intervals in hauling coal, evidence that no bell was rung or whistle sounded just before or at the time of backing the loaded cars over the track on which the deceased was walking when struck, is competent, and is not to be excluded on the theory that the statutory duty to give such signals at a road crossing does not pertain to a pedestrian on a track 150 feet from a public crossing.
    2. -: -: -: Instruction: Anticipating' Pedestrian on Track. It being the duty of the railroad company to ring the bell or sound the whistle when it approached that portion of its track used for travel by pedestrians, it was error to instruct the jury that their verdict must be for defendant unless the trainmen saw or by the exercise of ordinary care could have seen the deceased in a position of peril and thereafter failed to stop the train in time to avoid striking him, especially when the facts point to the conclusion that the failure to give either of the signals tended to cause the injury. That neither of the trainmen saw the deceased did not lessen the duty to give one or the other signal.
    3. '-: Instruction: Based on Conjecture: Climbing on Car. The giving of an instruction which attempts by inference based on conjecture to define the limit of defendant’s liability is error. To tell the jury that their verdict must be for defendant if the deceased fell or was thrown under a moving train in an attempt to climb on tbe cars, where there is no testimony from which the conclusion can reasonably be drawn that he made such an attempt, is error.
    4. -: -: Result of Mere Accident. Where the injury was caused either by the negligence of defendant or that and the contributory negligence of deceased, an instruction that if the injury was the result of a mere accident plaintiff cannot recover, should not be given.
    5. -: -: Trespasser. The deceased was not a trespasser when struck by defendant’s train while walking on a portion of its track which ran through a thickly settled community and was much used as a pathway by pedestrians with defendant’s acquiescence; and an instruction limiting defendant’s liability on the assumption of trespass was erroneous.
    6. -: Ordinary Care: Lookout on Rear of Backing Train. In backing a long train of cars over a portion of its track on which pedestrians had a right to be and frequently traveled, ordinary care requires that a railroad company place some one on the last car to look out for such persons. .
    Appeal from Saline Circuit Court. — Hon. Samuel Davis, Judge.
    Reversed and remanded.

      Charles Lyons, Carl L. Ristine and Reynolds & James for appellant.
    (1) The court erred in refusing to permit the plaintiff to prove that the defendant neglected and failed to ring the hell or sound the whistle in order to warn the deceased of the near and dangerous approach of its train, because in this case its servants in charge of its train had no right to expect a clear track at the place where deceased was killed and it was their duty to see deceased and warn him by the use of the bell and the whistle. Reyburn v. Railroad, 187 Mo. 572; Morgan v. Wabash Ry. Co., 159 Mo. 283; Hinzeman v. Railroad, 199 Mo. 64; Hinzeman v. Railroad, 182 Mo.‘ 626; Feldman v. Railroad, 175 Mo. App. 637; Walker v. Wabash Ry. Co., 193 Mo. App. 270. (2) The court erred in giving instruction numbered 2 on behalf of the defendant, because it limited the duty of the defend- • ant to the sole proposition of whether or not the train could have been stopped in time to avoid striking deceased, and leaves out -entirely the duty to warn deceased by ringing the bell and sounding the whistle, and injects a matter into the case without evidence to support it, namely, whether deceased was attempting to climb onto the train. Rashall v. Railroad, 249 Mo. 521, and cases cited above. (3) The court erred in giving-instruction numbered 3 on behalf of the defendant, because it disregarded all of plaintiff’s evidence of negligence and left the matter of what constituted an accident to the conjucture and speculation of the jurors. Simon v. Met. St. Ry. Co., 178 S. W. 450 ; Wise v. Transit Co., 198 Mo. 550; Beave v. Transit Co., 212 Mo. 355; Felver v. Railroad, 216 Mo. 209; Zeis v. Railroad, 205 Mo. 650; Lagarce v. Railroad, 183 Mo. App. 86. (4) The court erred in giving instruction numbered 4 on behalf of the defendant, because there was no evidence upon which to base said instruction, and it invited the jury to speculate and draw upon their imagination in determining the issues in the case. Degonia v. Railroad, 224 Mo. 588; State ex rel. v. Morrison, 244 Mo. 211; Simon v. Met. St. Ry. Co., 178 S. W. 450; Feldman v. Railroad, 175 Mo. App. 639; Small v. Ice Co., 179 Mo. App. 464; Scott v. Smelting Co., 187 Mo. App. 359; Kinney v. Nat. Newspaper Assn., 193 Mo. App. 343. (5) The court erred in giving instruction numbered 6 on behalf of the defendant, because it required the deceased to make all possible precautions for his safety, and eliminated the gist of this land of an action, namely, that even though the injured party was negligent, defendant is nevertheless responsible for the hurt, because it could have avoided the injury entirely by exercising ordinary care and failed to do so. Rashall v. Railroad, 249 Mo. 521; Reyburn v. Railroad, 187 Mo. 573; Degonia v. Railroad, 224 Mo. 564; Cabal v. Railroad, 251 Mo. 257; Dutcher v. Railroad, 241 Mo. 1. c. 164; Morgan v. Railroad, 159 Mo. 262; Walker v. Railroad, 193 Mo. App. 249; Feldman v. Railroad, 175 Mo. App. 629.

      Edward J. White, James F. Green and Harvey C. Clark for respondent.
    (1) The testimony offered by the plaintiff on failure of the defendant to ring the bell or sound the whistle was properly excluded, because: (a) The defendant stood upon the proposition that the deceased was not upon the track at all, and it was admitted that no signals were given and no effort to stop was made. This was pleaded in the answer, announced to the jury in the opening statement of counsel, appears throughout the record and defendant’s witnesses so testified, (b) The questions of insufficient warning or of the engineer relying upon the deceased to step aside in due time, or of the ability of the engineer to stop the train, are not in the case. The respondent defended on the ground that deceased was not on the track at all and the cases cited by appellant have no application, (c) Appellant was not prejudiced by such refusal because the court gave his instruction Number 3 telling the jury it was the duty of the defendant to whistle and ring, and appellant’s counsel were permitted to discuss the matter before the jury and to allude to the fact the defendant failed to give any warning whatever of the approach of its train, (d) The issue before the jury was square-cut as to whether deceased was on the track at all; this was the only issue, (e) The testimony offered by plaintiff and refused by the court relating to failure to ring and whistle at the Midway Mine a quarter of a mile south of scene of the accident was too remote, (f) It was not alleged or proven that the deceased was killed at a crossing, and hence the crossing cases cited by appellant have no application. (2) Defendant’s Instruction Number 2 on the burden of proof and authorizing a verdict for the defendant if the jury was unable to determine the manner in which the deceased met his death is predicated on the evidence, does not purport to cover the whole case and incorporates all the elements necessary. (a) The physical facts and circumstances and defendant’s testimony indicated that the deceased met his death while attempting to climh on the train, (h) The issue of fact in this case was whether the deceased was or was not on the track. Prom appellant’s standpoint defendant’s negligence consisted in not seeing deceased, not in failing to warn him after he was seen. Defendant denied deceased was on the track at all. (c) This instruction applied the facts to the law from defendant’s standpoint and should be considered in connection with plaintiff’s instructions numbered 2 and 3. (d) Plaintiff’s instruction numbered 3 presents appellant’s theory on failure to give warning signals and he had the advantage of same before the jury notwithstanding there was no evidence to support it. (e) This instruction does not purport to cover the whole case, hence need not 'refer to failure to give signals, even if the evidence showed such failure and it was material. (3) Defendant’s Instruction Number 3 submitting the question of a mere accident was proper under the facts in this case,- and appellant was not injured thereby. Simon v. Met. St. Ry., 178 S. W. 449; Sawyer v. Rail: road, 37 Mo. 262; Henry v. Grand Ave. Ry. Co., 113 Mo. 525; Beauvais v. St. Louis, 169 Mo. 500; Peary v. Railway, 162 Mo. 99. (4) The defendant’s demurrer at the close of all the testimony should have been sustained. A verdict will not be set aside because of erroneous instructions or on account of errors in admitting testimony if on the whole record the verdict was for the right party. Bartley v. Street Ry., 148 Mo. 143; Baustian v. Toung, 152 Mo. 325; Homuth v. Street' Ry., 129 Mo. 643,- Kelly v. Railway, 153 Mo. App. 114.
   WALKER, P. J.

This is an action brought by an administrator for damages for the death of one Arthur Beard, alleged, to have been caused by the negligence of the defendant. The cause of action arose in Lafayette County, where the suit was instituted, but upon a change of venue it was tried in Saline County, resulting in a majority verdict for defendant, from which plaintiff appealed.

The deceased was killed February 28, 1913, by being struck by a loaded coal car; it was one of ten of a like character then being pushed or backed along a spur track by one of defendant’s engines. This engine was narrower than its tender, which was between the engine and the cars, and was also loaded with coal, as were the cars for about a foot or more above the top of each. The length of the train, exclusive of the engine, was about 500' feet. No one saw the car strike deceased, but the facts adduced in evidence, accompanied by the attending circumstances, sustained the conclusion that the deceased was at the time walking in the middle of the track with his back to the train when the engine backed the cars down on him and killed him. There was no one at the end of the last ear from the engine at the time. One of the brakemen had a few minutes before been left at a switch. The conductor had gone into the mine office near the track to get the coal billing. The other brakeman was setting the brakes on .the ninth and tenth cars from the engine and as he says at the same time “looking straight down the track” when he dropped off.200 feet south of where the deceased was’ struck and was not aware of it until after he had gotten down on the ground and saw a miner’s bucket roll out from under the cars.

The spur track upon which the killing occurred had been built and was then being used by defendant to connect its main line with certain coal mines located about two and one-half miles south of the city of Lexington. The deceased was a miner and was en route from the mines to his home when killed. The tracks run north and south at the place where the killing occurred. About 200 feet south of where the body of the deceased was found a public road crossed the tracks. No bell was- rung or whistle blown when the train crossed this road. Seventy-five feet further south the switch or s-pur track leaves the main track in a southeasterly direction. The train before backing down upon the deceased, stopped just north of the divergence of the switch track from the main line. Many miners and others lived in .the immediate neighborhood. In the middle of the spur track there’ was a beaten pathway which for years had been -used, with defendant’s knowledge and without its protest, by pedestrians. Miners used it in going to and from their work; women used it in going to and from Lexington and other parts of the neighborhood; and children used it in going to and from school and for other purposes. So general was this use that a former employee' of the defendant,- a conductor, stated that when he ran a train over this spur it was often necessary to whistle to get women and children off the track; and that this pathway had been thus used ever since the spur track was put in. This use is explained by the fact that the smooth surface between the rails afforded a better place for walking than on either side where the ground was rough and sloped abruptly from the ends of the ties.

It was snowing and the wind was blowing from the north at the time of the killing. The last time the deceased was seen alive was four or five minutes before he was killed; he had just left the mine where he had been at work and was walking with his dinner bucket in his hand in a northerly direction in the middle of the spur track. Persons who first arrived upon the scene saw the tracks of one person between the rails in the snow leading northward from the public crossing to the place where deceased was struck; this place was located by the tracks of the person terminating abruptly, followed by marks in the snow as though a body had been pushed along from that point with the toes dragging on the ground. Following this the snow had been rubbed off of the west rail, and from thence to where the body was found the rail was smeared with blood and pieces of flesh for a distance of about 120 feet. Witnesses for the plaintiff testified a specifically in regard to this phase of the case as follows: “We found his tracks right there where he had been walking down the middle of the track right between the rails. We noticed where he was struck. We could tell from his toe prints where the train hit him. The train just raised him up and dragged him along for about ten feet and there were no marks at all after that until where he hit the rail on the west side. It looked there like somebody had been drug and then on the first joint was where the flesh and blood was torn off; and further on it was torn off all the way. The distance the body had been .dragged was about four rails. They were thirty-foot rails. When we went back to make the examination there was just one track between the rails and our tracks on each side where we had walked down to him. ’ ’

This rule of the defendant was introduced in evidence: “102. Where cars are pushed by an engine (except when shifting and making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need. ’ ’

The theory of the defense is that the deceased was not walking between the tracks- when killed, but that .he was outside of the rails, and the inference deduced, in the absence of testimony, from the statements of the engineer and brakeman, because they state they did not see him, is that he was not struck while walking between the rails, but while on one side of the track in an attempt to climb on one of the cars. The testimony of the engineer in this regard is that he was sitting m the cab of the engine when the accident occurred and in looking out .over the ten cars he could see fifty or seventy-five feet ahead of the last car but saw nothing on the track. The brakeman, who was at the time on the ground going back towards the engine, also says he saw nothing on the track. His testimony in this regard is contradicted by a witness for the plaintiff who testified that the brakeman told him immediately after the occurrence that he had “seen a man on the track in front of the cars who suddenly disappeared and he didn’t see him any more until his dinner bucket rolled out and he looked and saw his body on the track. ’ ’

The conductor, who was apprised of the killing by the brakeman after the latter had jumped from the train, stated on direct examination that he noticed at the crossing where a man had come off of the side of the road and started down on the outside of the track; that these tracks extended down about 150 feet from the crossing where they turned in directly towards the track. There the snow was raked off of the outside of the rail for about fifty feet from where the body of the deceased was found, on the ties next to the rail; that the wheels of but one' car and one pair of trucks of another car had passed over the body. A former statement of this witness, taken under oath soon after the occurrence, was introduced, wherein he stated that he had examined the car's to see if there was blood on them and that he found blood on the tenth or last car from the engine and that six cars and one pair of trucks had passed over the body.

A synopsis of the pleadings will enable the issues submitted to be more readily understood.

Following the usual formal allegations necessary in a case of this character the petition alleges the frequent use by pedestrians of the spur track on which the killing occurred, defendant’s consent to such use, the negligent killing of the deceased by the backing of defendant’s ears down upon him while he was walking northward on the track unaware of the approach of the train; that through the exercise of ordinary care on the part of the defendant’s employees operating the train they could have become aware of the presence of the deceased on the track and have thus averted striking and killing him; that they negligently failed thus to do and thereby caused his death; that they failed to sound the usual or ordinary signals in time to avert the killing of the deceased in that they did not at any time sound the whistle or ring the bell or give any other signal by which the deceased might have been warned of the near and dangerous approach of the train; and that they failed to have stationed at the front end of the foremost ear going northward on said train at the time of the killing a brakeman or switchman to be on the lookout for persons on the track so that the engineer, thus informed, might have been enabled by stopping said train to have averted injury to persons on the track as required by the rules of said company, and that the train was not equipped with air-brakes connecting the ears with the engine with a whistle attached so that the train, might be stopped in time to avert injury to persons on the track; that the train was not being operated with a sufficient crew as required by law and by reason of its negligent and careless operation by defendant’s employees and their failure to comply with defendant’s own rules and the laws of the State the death of the deceased was caused. Following this is the usual prayer.

After a general denial the answer avers that the deceased went upon defendant’s property as a trespasser and that his death was due solely to his own negligence in so doing; and that he disregarded his own safety by placing himself in a position of peril with reference to defendant’s moving train where he well knew he was in great danger of being injured and killed, all without the knowledge or negligence of the defendant; that the death of the deceased, who was at the time a trespasser, was the result of his own negligence in placing himself in-dangerous proximity to defendant’s moving train, as defendant avers and believes, in his attempting to climb upon said moving train without the knowledge and consent of the defendant and without negligence on its part. This is followed by counts alleging the unconstitutionality of Section 5425, Revised Statutes 1900, not here insisted upon as error.

The reply was a general denial.

The instructions given at the instance of defendant, of which complaint is made, are -as follows:

“2. The court instructs the jury that the burden is on the plaintiff to make out his case to your reasonable satisfaction by a preponderance of the evidence. And if you are unable to determine from the testimony and all the facts and circumstances in evidence whether the deceased, Arthur Beard, was struck by the defendant’s train while walking on the track, and that the defendant’s employees saw, or by the exercise of ordinary care, could have seen him, and that they discovered or by the exercise of ordinary care could have discovered that he did not intend to step aside before the train struck him, and after discovering that he did not intend to so step aside, could have stopped the train in time to avoid striking him, or whether he fell or was thrown under the train while áttempting to climb thereon, then your verdict must be for the defendant.
“3. The court instructs the jury that if you find and believe from the evidence the death of Arthur Beard was the result of mere accident, then your verdict must be for the defendant.
“4. The court instructs the jury that if you believe and find from the evidence that the deceased, Arthur Beárd, attempted to climb upon the defendant’s train for the purpose of nding thereon, and that in doing so he fell or was thrown under the wheels of the same and killed, then your verdict must be for the defendant.
“6. The court instructs the jury that there is no liability on the part of the railroad company from the mere fact, if you find it to be a fact, that one- of its cars struck the deceased while he was walking on defendant’s track, nor is there any presumption that the defendant of its employees were guilty of any negligence because of the fact that the deceased was struck by one of its cars, for it was the duty of the deceased to look for approaching trains and to take all possible precautions for his own safety. ’ ’

I. Error is assigned in the exclusion of testimony as to whether the bell was rung or the whistle sounded just before and at the time of backing the loaded coal cars over the right-of-way where the deceased was killed. It will be recalled

that 150 feet south of where the killing occurred there was a public crossing over -defendant’s track, and the trial court, acting evidently upon the theory in the exclusion of the proffered testimony that it should be limited in behalf of persons about to use, using or who had just used this crossing, held, under a number of authorities here and elsewhere (Stillson v. Railroad, 67 Mo. 677; Bell v. Railroad, 72 Mo. l. c. 58; Dahlstrom v. Railroad, 96 Mo. 101; Burger v. Railroad, 112 Mo. 246; Everett v. Great Northern Ry. Co., 100 Minn. 309; Randall v. Railroad, 109 U. S. 478; Gibson v. Leonard, 143 Ill. 182, 17 L. R. A. 588), that the testimony was inadmissible. From the above citations we have excluded those in which the injured party was an employee of the defendant.

If the defendant’s negligence which caused the injury had been predicated upon its failure to give one of the signals required by the statute (Sec. 3140, R. S. 1909) at the crossing, the exclusion of the testimony would have been authorized under the cases cited. The defendant, in the absence of any modifying facts, would have had the right to expect a clear track except at or near the crossing, and the deceased under such circumstances if injured elsewhere would have been entitled only to those rights accorded by law to a trespasser, viz., freedom from wanton or wilful injury by the employees of the defendant if they knew of ' his presence or after discovery of same could by the exercise of ordinary care and prudence have avoided injuring him. [Frye v. Railroad, 200 Mo. l. c. 405; Barker v. Hannibal & St. Joseph Ry. Co., 98 Mo. l. c. 53.]

Modifying facts, however, impose a duty upon the defendant in addition to that required by the statute (Sec. 3140). While the defendant’s track did not at the point where the deceased was injured run through a town, the vicinity was thickly settled on each side of the road and like physical reasons existed for the giving of such signals as aré necessary in a city or town; there was no fence enclosing the right-of-way -and the use of the middle of the track each day by hundreds of pedestrians had been acquiesced in for years by the defendant. The track was a switch or a spur, not a part of the main line. It was used incidentally for the public convenience but principally to enable the defendant to transport coal from the mines to its main line. Trains did not run over this spur at regular intervals and hence the public could not know when the track would be occupied. The infrequent operation of trains thereon naturally lessened the apprehension of danger which otherwise might have been felt by persons using- the track as a footpath and as a consequence rendered its use for that purpose more general. None of the convincing facts existed which would have authorized the defendant to expect a clear track as the same is defined by Lamm, J., speaking for this court in Frye v. Railroad, supra. It could not, therefore, have been presumed that such a condition existed.

The acquiescence of the defendant for years in the use of. its track by pedestrians raised the presumption that the operatives of its train knew of such use at the point where the deceased was killed. He was, therefore, not to be regarded as a trespasser in so using the track and the defendant owed him the duty of exercising every reasonable precaution to avoid injuring him. [Frye v. Railroad, 200 Mo. 377, 98 S. W. 566, 8 L. R. A. (N. S.) 1069; Ahnefeld v. Wahash Ry. Co., 212 Mo. 280, 111 S. W. 95; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S. W. 967; Hufft v. Railroad, 222 Mo. 286, 121 S. W. 120; Cotner v. Railroad, 220 Mo. 284; Burger v. Railroad, 112 Mo. 246.] One of these precautions, in addition to keeping a lookout for his presence on the track, was that it use the resonant warnings, to-wit, the bell or whistle, with which its engines are equipped. There was no defect in any of the physical senses of the deceased. Walking away from the train he could not see it; but being only 150 feet distant from the point where the train ran upon the track most used by pedestrians, if either the bell had been rung or the whistle sounded it is reasonable to conclude that he would have heard it and this calamity would have been averted. Testimony, therefore, as to whether or not this precaution was ' used is relevant to determine if the defendant was in this regard negligent; the trial court, therefore, erred in its exclusion.

II. The giving of instruction numbered 2 at the instance of the defendant is assigned as error. It directs a verdict for defendant unless its employees saw or by the exercise of ordinary care could have seen ,, -, -, • ... „ ., to, the deceased m a position of peril and after discovering that he did not intend to leave the track they could have stopped the train in time to have avoided injuring him, or if he fell or was thrown under the train in an attempt to climb on the cars. It was incumbent upon the defendant to use every reasonable precaution in approaching' the frequently used portion of its track to avoid injury to anyone who might be thereon. One of these precautions was that the bell should he rung or the whistle sounded. A statement of this prerequisite to free the defendant from negligence and its consequent liability is absent in this instruction. We held in Morgan v. Wabash Ry. Co., 159 Mo. 262, that it was the duty of the engineer to give such warning signals at hand as the situation reasonably demanded. If it was necessary as one of the conditions to free the defendant from negligence that the bell be rung or the whistle sounded upon approaching the frequently used portion of its track, then it was equally necessary that this duty be defined in the instruction as one of the conditions to defendant’s freedom from Lability. This is especially true where, as in this case, the facts point forcibly to the conclusion that the failure to give one or the other of these signals tended to cause the injury. [Hinzeman v. Railroad, 182 Mo. l. c. 625.]

When the Hinzeman case was here on a second appeal (199 Mo. l. c. 64), in discussing the duty devolving on a defendant to use every reasonable precaution to avoid an injury, we said that an instruction was erroneous which limited the duty of the defendant in the emergency named to stopping the train, and if the peril was discovered too late to accomplish this end the defendant was not liable. This we held left out of view the sounding of the whistle, which under the plain evidence was an obvious duty. Its use under such circumstances is emphasized in the holding that the ringing of the bell alone may not suffice. It is true in the instant case that the conductor and brakeman state that they did not see the deceased before he was struck, but the fact of their failure to see him did not lessen their duty to use every reasonable precaution to prevent injury to anyone who might be upon this frequently used portion of the track. Under such circumstances the failure to ring the bell or sound the whistle was negligence and it was proper that the jury be so instructed.

There is no evidence either by express testimony or the presence of any circumstances from which the conclusion can be reasonably drawn that the deceased attempted to climb on the cars. The only testimony from which even an inference of this fact can be drawn is the statement of the conductor that he saw some tracks on the outside of the rail leading down to the point where the deceased was struck, which turned into the middle of the track. The only effort made to support this conjecture, for it' is nothing more, first that these were the tracks of the deceased and second that he attempted to climb on one of the cars, was the statement of this same witness, expressly contradicted by him in a former sworn statement and by all of the other testimony, that there was no blood on the front car. From this the inference is sought to be drawn that the deceased was killed in an effort to climb on the third or fourth car. The latitude of our procedure, ample as is its extent, has never reached the point where it will authorize the giving of an instruction which' attempts through the medium of an inference based on conjecture to define the limit of a defendant’s liability in a case of this character. The assumption, therefore, that the death of the deceased was caused by his attempting to climb on the cars was without foundation and the instruction was in this respect erroneous.

Instruction numbered 3, given at the instance of the defendant, is also assigned as error. Under a proper state of facts an instruction is proper which authorizes an acquittal if the jury believe that the injuries sustained were the result of mere accident. Some of the cases cited by defendant in this regard are of this character, others are to the contrary. Where, as in the instant case, the death of the deceased was caused either by the negligence of the defendant or by that and the contributory negligence of the deceased, there is no authority for the giving of this instruction. [Simon v. Railway Co., 178 S. W. 449.] In this case Roy, C., carefully reviews the cases pro and eon on this subject.

Defendant’s instruction numbered 4 is erroneous for the same reason which led to the condemnation of the latter part of instruction numbered 3, viz., that there was. no testimony on which to base the hypothesis that the deceased was attempting to climb on one of the cars at the time he was killed.

Instruction numbered 6, given at the instance of the defendant, is erroneously based upon the assumption that the deceased was a trespasser at the time he was killed and the liability of the defendant is as a .conseIquence improperly limited.

In view of what has been said it is not necessary to discuss the question as to whether the defendant was negligent in not having some one on the lookout on the last car of the train during the entire time that the train was backing over the frequently used portion of its track. This would have been not only in conformity with defendant’s own rule, but the employment of ordinary care' not shown to have been exercised when only one brakeman was on the rear end of the front car setting brakes until a short time before the deceased was struck, when he, the brakeman, jumped off to throw a switch or cut .out the engine, at which time the deceased was run down and killed.

From all of which it follows that the judgment of the trial court herein should be reversed and remanded that the ease may be tried in accordance with this opinion. It is so ordered.

All concur; Faris, J., in result.


author: ROY, C.

text:
    THE STATE ex rel. N. A. AREL v. JOHN S. FARRINGTON et al., Judges of Springfield Court of Appeals.
    Division Two,
    October 9, 1917.
    1. CERTIORARI TO COURT OF APPEALS: Conflict of Opinions: Different Conclusions from Similar Facts. Where the facts in a case before the Court of Appeals are so similar to the facts in a case previously decided by the Supreme Court as to require that the same rule of law should be applied to the facts of both cases, the Supreme Court will on certiorari quash the judgment of the Court of Appeals if the two opinions conflict.
    2. -: -: -: Action on Insurance Policy: Fraudulent Representations: Question for Jury. The Supreme Court has not ruled 'that the fraudulent intent of -the insured in making misrepresentations as to the value of the goods insured or the extent of the injury must always he submitted to the jury. The rule is that where the evidence is such that the jury may reach a conclusion one way or the other on the question of fraudulent intent, the case must go to the jury; but where the evidence conclusively shows a fraudulent intent in making the misrepresentations a demurrer to the evidence should be sustained. And whether the Court of Appeals was right or wrong in holding that the insured’s evidence conclusively showed fraudulent misrepresentations as to material facts by him, their ruling in that respect was not in conflict with any prior ruling of the Supreme Court, and for that reason cannot be quashed by' certiorari.

      Certiorari.

    Writ quashed.

      Walker & Musgrave and G. G. Lydy for relator.'
    (1) The statement, claiming damage of $750 on account of the iron boiler because the laundry plant was rendered useless by the. fire, is a mere conclusion from facts known by the insurer through personal inspection by its agents in company with the insured, before the proofs of loss were executed, and did not and could not deceive the insurer. Arel derived and could derive no advantage from it, and the insurance company received and could receive no detriment from-it. In any.event it is the province of the jury to say whether the statement was the honest assertion of an erroneous claim, or whether it was wilfully made with the purpose to deceive the insurer. The Court of Appeals erred in not so holding, and failed to follow the last controlling decision of this court. Marion v. Ins. Co., 35 Mo. 14-8; Schulter v. Ins. Co., 62 Mo. 236. The doctrine in Missouri is sustained by the overwhelming weight of authority. The cases are collated in 39 Am. & Eng. Annotated Cases, p. 453. (2) In disposing of a demurrer to the evidence, plaintiff’s evidence and his explanation must he taken as true and he is entitled to every legitimate inference therefrom. Thorp v. Met. St. Ry. Co., 177 S. W. 851; Peak v. Taubman, 251 Mo. 390. (3) Counsel in advising Arel in preparing his proofs of loss relative to the big iron boiler, relied on the.doetrine of the following cases, holding that if the destruction by fire be such as would render the property insured of no value for the purpose for which it was used, then the loss would be regarded total, although there might not be a total extinction of all the parts. Havens v. Fire Ins. Co., 123 Mo. 423; Clase v. Templeton, 184 Mo. App. 532.

      John Schmook and Hogsett & Boyle for respondents.
    Plaintiff’s evidence conclusively established the fact that Arel swore falsely in the proofs of the loss, which false swearing as a matter of law barred his recovery. (1) False swearing as to one item of loss avoids the entire policy. Hall v. Ins. Co., 106 Mo. App. 476; Hamburg v. Ins. .Go., 68 Minn. 335; Fowler v. Ins. Co., 35 Ore. 559; Ins. Co. v. Connelly, 104 Tenn. 93; Richards on Insurance (3 Ed.), p. 316. (2) The testimony of Arel himself conclu: 'sively and without contradiction proves that he intentionally swore the boiler was a total loss when he positively knew it had suffered no damage whatever. (3) False swearing consists-in knowingly and intentionally stating upon oath what is not true, or the statement of a fact as true which the party does not know to be true and which he has no reasonable ground for believing to be true. 19 Cyc. 855; Atherton v. Assurance Co., 92 Me. 289; Linscott v. Ins. Co., -88 Me. 497, 51 Am. St. 435. (4) Arel swore ho had sustained a total loss on the boiler, which was not true, and he knew it was not true, and he had no reasonable ground for believing it to be true. (5) The question of fraud or no fraud is a matter of law for the court, not a question for the jury, when the facts relating thereto are conceded and uncontroverted and show a case so plain that reasonable minds could not differ concerning it. Gee v. Drug Co., 105 Mo. App. 34; Marble Co. v. Achuff, 83 Mo. App. 47; Mathews v. Loth, 45 Mo. App. 459; Frankenthal v. Goldstein, 44 Mo. App. 191. (6) It is not only the right, but the positive duty of the trial court, to direct a verdict for the defendant where the undisputed facts show no liability. Gilmore v. M. B. A., 186 Mo. App. 455; May v. Crawford, 150 Mo! 83; Powell v. Railway, 76 Mo. 83; Gee v. Drug Co., 105 Mo. App. 27; Carter-Montgomerie Co. v. Steele, 83 Mo. App. 215. - (7) When fraud is once established, and the necessary consequence of such fraud is to deceive and defraud someone else, the law will conclusively presume a fraudulent intent. This on the ground that a party must he presumed to have foreseen and intended the necessary consequences of his own act. Snyder v. Free, 114 Mo. 376; Bank v. Meyers, 139 Mo. 653; Richards on Insurance (3 Ed.), p. 314. (8) The evidence in the original case established the existence of false swearing as a matter of law, operating as a complete bar to all recovery by Arel. Ha'll v. Western Underwriters’ Assn., 106 Mo. App. 476; Cloak & Suit Co. v. Ins. Co., 141 N. Y. Supp. 553; Richard D ’Aigle Co. v. Ins. Co., 136 La. 777; Claflin v. Ins. Co., 110 U. S. 97 ;-Kavooras v. Ins. Co., 167 111. App. 220; Rovinsky v. Assurance Co., 100 Me. 112; Sternfield v. Ins. Co., 50 Hun, 262; Ins. Co. v. Vaughn, 88 Va. 832; Vaughn v. Ins. Co., 102 Va. 541; Dohmen v. Ins. Co.', 97 Wis. 38; Anibal v. Ins. Co., 82 N. Y. Supp. 600; 4 Cooley’s Briefs on Insurance, pp. 3423, 3431; Boynton v. Andrews, 63 N. Y. 93; Moore v. Ins. Co., 28 Graft. (Va.) 508, 26 Am. Rep. 373; Home Ins. Co. v. Connelly, 104 Tenn. 93. (9) The Court of Appeals’ opinion is not in conflict with the decision in Marion v. Great Republic Ins. Co., 35 Mo. 148. The Marion case- simply holds that the false statement by the insured, in order to operate as a defense must be (1) an intentional misstatement of a material matter (2) made with the purpose to deceive the insurer. Marion v. Great Republic Ins. Co., 35 Mo. 151. The Court of Appeals’ opinion affirmatively finds in the plaintiff’s testimony both of these elements. Arel v. Fire Ins. Co., 190 S. W. 78. Arel’s own testimony shows that he inserted the false statement of loss in the proof of loss with the intention that the insurance companies should rely thereon, and pay him the insurance money in reliance thereon. Therefore, his own testimony < shows that he had am intention to deceive.
   ROY, C.

This is a proceeding by certiorari originating in this court, having for its object the quashing of the judgment of the Springfield Court of Appeals in the case of N. A. Arel and the Drovers Bank of Springfield v. First National Fire Insurance Company, reported in 195 Mo. App. 165, and in 190 S. W. 78. This proceeding does not in any way affect the rights of said Bank.

The suit above mentioned was brought on' a policy of fire insurance issued to Arel on the machinery and other personal property of a laundry owned and operated by him in the city of Springfield, subject to a chattel mortgage to said bank.

That policy contained the usual provisions avoiding it in case the insured had concealed or misrepresented any material fact' concerning said insurance or the subject thereof, or in case of any fraud or false swearing by the insured touching any matter relating to said insurance or the subject thereof, whether before or after a loss.

The answer contained a general denial, set. out the above provisions of the policy, and alleged that Arel had been guilty of making false and fraudulent misrepresentations to the defendant wherein he exaggerated the value of said insured property at the time that said policy was issued, and that Arel in his proofs of said loss made to the defendant false and fraudulent misrepresentations as to the extent of the injury done by the fire to said property, and as to the amount of Arel’s loss by reason of said fire.

There was a trial before a jury.- At the close of plaintiff’s evidence, the court, at the instance of the defendant, gave a peremptory instruction .to find for the defendant, and a verdict was rendered accordingly. In due time the trial court, on the motion of the plaintiff,' set aside said verdict and granted the plaintiff á new trial. Thereupon, in proper time, the defendant filed its motion to set aside the order granting the plaintiff a new trial, which motion was overruled, and the defendant prosecuted its appeal to the Springfield Court of Appeals, where the order of the trial court setting aside the verdict and granting a new trial to the plaintiff was held to be erroneous and the cause was remanded with instructions to the trial court to set aside its order granting the plaintiff a new trial and to reinstate the judgment previously rendered. Then followed this proceeding in which it is contended that the opinion of the Court of Appeals above mentioned is in conflict with the case of Marion v. Great Republic Ins. Co., 35 Mo. 148, and with the case of Schulter v. Merchants’ Mutual Ins. Co., 62 Mo. 236, which hold that a mistake or an unintentional error or a misstatement as to an immaterial matter, or a statement of opinion as to matters concerning which opinions may reasonably differ, or a statement not made with intent to deceive, will not avoid the policy.

We deem it unnecessary to set out the evidence on which the trial court gave the peremptory instruction to find for the defendant.

We can discover no conflict whatever between the opinion of the Court of Appeals and the prior decisions of this court cited by the relator. The Marion case, supra, is not cited in the opinion of the Court of Appeals, but that opinion very clearly holds that to avoid the policy such false statement must be fraudulent (that means intentional) and must not be>a mere mistake or unintentional error, or a misstatement of an immaterial fact, or a mere statement of opinion concerning matters as to which opinions may reasonably differ.'

We fully recognize the rule laid down by Faris, J., in State ex rel. Hays v. Robertson, 271 Mo. 475, l. c. 481, decided by this court In Banc, where, in speaking of, the power of this court in such certiorari cases, it was said: “If this decision be opposed to what we said, or the conclusion which we reached upon similar facts (if the facts are similar) in the Ramlose case, we ought to quash the judgment of the Court of Appeals.”

Undoubtedly, where the facts in a case before one of the Courts of Appeals are so similar to the facts in a case previously decided by this court as to require that the same rule of law should be applied to the facts in both cases, this court will on certiorari quash the judgment of the Court of Appeals when its opinion conflicts with a previous opinion of this court on that point. But this court has not in its prior opinions cited by the relator declared the law on facts similar to the facts in this case.

The relator’s brief contends that the Marion and Schulter cases hold that the question as to the fraudulent intent of the insured in making any misrepresentation must be submitted to the jury. Those cases do not hold that such question must always be submitted to the jury. Where the evidence is such that the triers of fact may reach a conclusion one way or the other on that point, the case must go to the jury; but where the evidence for the plaintiff conclusively shows a fraudulent intent in making the misrepresentation a demurrer to that evidence should be sustained.

Whether the Court of Appeals was right or wrong in holding that plaintiff’s evidence conclusively showed fraudulent misrepresentations by the plaintiff as to material facts, its ruling in that respect is not in conflict with any prior ruling of this court, and is, for that reason, beyond our reach.

The preliminary writ of certiorari herein should be quashed, and it is so ordered.

White, Co., not sitting.

PER CURIAM: The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


text:
    LYNNE R. LITTLEFIELD, Appellant, v. EDWIN C. LITTLEFIELD.
    Division Two,
    October 9, 1917.
    APPELLATE JURISDICTION: Constitutional Question: Not Raised at Trial. Unless a constitutional question was both timely raised and decided by the trial court and preserved for review no such question can be considered or decided in the appellate court. A court of appeals is not authorized to transfer a case to the Supreme Court on the ground that to properly determine the case it would be compelled to decide a constitutional question, where no such question had been raised by either party.
    Appeal from Johnson Circuit Court. — Hon. A. R. Whitsett, Judge.
    Transferred to Kansas City Court of Appeals.

      Geo. W. Barnett and C. C. Kelly for appellant.

      N. M. Bradley and J. W. Suddath & Son for respondent.
   WALKER, P. J.

This is a suit in equity brought in the circuit court of Johnson County to annul a decree of divorce alleged to have been obtained through fraud. A trial resulted in a finding for the defendant, from which the plaintiff appealed to the Kansas City Court of Appeals.

The right of action in this case rests upon our ruling in Dorrance v. Dorrance, 242 Mo. 625, in which we held that Section 2381, Revised Statutes 1909, should be so construed as to exclude from its purview an equitable action for relief against fraudulent judgments of divorce, and hence that said section was unconstitutional in so far as it was sought to apply it to this class of cases.

The Court of Appeals on its own motion upon an examination of the record, no constitutional question having been raised by either party, certified the case to. this court on the ground that in determining the same it would be compelled to- decide a constitutional question and that it was therefore divested of jurisdiction.

Appellate proceedings in the Supreme Court and the Court of Appeals are regulated by well defined rules of procedure based upon constitutional and statutory provisions. The jurisdiction of these courts, so far as the consideration of appealed cases is concerned, is limited to • a review of the proceedings of trial courts as disclosed by the records of the latter. The proper preservation, therefore, of such proceedings is a prerequisite to the right of review, in which is included jurisdiction to hear and determine. The provision of the State Constitution which gives the Supreme Court exclusive jurisdiction of appeals in cases involving a construction of the State or Federal Constitution (Sec. 5, Amdt. of 1884 to Art. 6, Constitution Mo.) while general in its terms and appearing to preclude a review by the Courts of Appeals under any circumstances of a case in which it may be made to appear that the consideration of a constitutional question is involved, is subject to certain well defined limitations, a conformity with which, under numerous rulings of this court, is necessary in determining its jurisdiction. In defining these limitations we have held that the record should show that the constitutional question was raised in' the trial court. [Bennett v. Railroad, 105 Mo. 642.] Our definitive declaration in that case, which is but a type of many others, since determined, of like import, was that- the question of appellate jurisdiction was not to be ascertained from anything that had been done in the appellate court, but from the record as it was when the appeal was taken; that the record is then fixed and subsequent action cannot alter it. As a sequitur to this reasoning the conclusion was reached that unless the record as existing at the time of the appeal showed that a constitutional question was fairly and directly raised in a trial court under a recognized method of procedure, the question was not so involved as to confer jurisdiction upon this court.

In State ex rel. K. C. Loan Guarantee Co. v. Smith, 176 Mo. 44, in which will be found cited numerous cases (p. 48) asserting a like doctrine, we held, in express approval of the Bennett case, supra, that in determining the court to which the appeal must go or in fixing the jurisdiction, it must appear from the record made in the trial court that a constitutional question was essential to the determination of the case or that the protection of the Constitution, expressly invoked, was denied by the trial court, that its action in that behalf was excepted to and the exception saved in an appropriate manner.

In Shell v. Pac. Ry. Co., 202 Mo. 339, a constitutional question was raised by the defendant’s answer and thereafter abandoned, as the record discloses no reference thereto in the progress of the trial, either in the introduction of testimony or the giving or refusing of instructions or the motion for a new trial and the trial court was not requested to rule upon a constitutional question. From an adverse judgment defendant appealed to the Kansas City Court of Appeals. In the presentation of his case there the defendant neither in his brief nor argument made any reference to there being a constitutional question in the case. The Court of Appeals, however, on its own motion certified the case to the Supreme Court on the alleged ground that a constitutional question was involved. This court, in remanding the case to the Court of Appeals, held that it was obvious that all of the constitutional questions raised in the answer had been eliminated on the trial and that they were not there for determination; that to give the Supreme Court jurisdiction of an appeal on the ground that a constitutional question was involved it must appear that the same was raised at the first opportunity in the due course of ordinary procedure. [Lohmeyer v. Cordage Co., 214 Mo. 685; Hartzler v. Met. Street Ry. Co., 218 Mo. 562; Hanks v. Hanks, 218 Mo. 670; State v. Boehler, 220 Mo. 4; Miller v. Connor, 250 Mo. 677; King v. Estate of Stotts, 254 Mo. 198; Moore v. United Rys. Co., 256 Mo. 165; Trust Co. v. Lyon, 195 S. W. 1032; State v. Swift & Co., 195 S. W. 996; Hardwicke v. Wurmser, 264 Mo. 138.]

Section 3938, Revised Statutes 1909, providing for the transfer of cases from the Supreme Court to the Court of Appeals and vice versa, should be construed in conformity with the rule as above announced so far as the presence of constitutional questions therein is concerned. Rulings of Courts of Appeals, therefore, are in error which hold that such courts in determining their jurisdiction in appealed cases may séttle same whether the question involved has been raised by the parties thereto. Bingaman v. Hannah, 171 Mo. App. 186, is a case of this type.

As we have shown, if the question has not been planted in the record and continued therein on appeal it can in no way affect the jurisdiction; and however much a Court of Appeals may be impressed with its presence, such presence is only academic so far as a determination of a case is concerned.

In the instant case there is nothing to indicate that a constitutional question was raised by either party; upon an examination of the record the court came to the conclusion that it was necessary to the determination of the case to consider a constitutional question, which was erroneous because same had not been preserved in the record and was therefore not a ground of complaint.

In this view of the case the jurisdiction is properly in the Kansas City Court of Appeals and this cause is therefore ordered transferred to that tribunal for final determination.

All concur.