author: BLAIR, J.

text:
    THE STATE ex rel. JOHN T. THOMPSON v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    June 2, 1916.
    1. CORPORATION: Liability of Subscriber for Subscription. One bound by a contract whereby he subscribes for a named amount of stock in a business corporation which he assists in originating and which he authorizes his agents and attorneys-in-fact to bring into existence, although he does not sign the articles of association, cannot, after such agents and attorneys-in-fact have organized the corporation, pursuant to his written authorization to do so, repudiate his contract, abandon his associates, take the benefit of the common enterprise, and escape liability to pay the amount of his subscription. [Restricting Sedalia, Warsaw & Southern Ry. Co. v. Wilkerson, 83 Mo. 235, o the particular facts there in Judgment, or overruling it.]
    2. CERTIORARI TO COURT OF APPEALS: Removal of Conr flict in Decisions: Judgment. Where the case has been by writ of cwtiorwi brought to the Supreme Court on the ground the decision of the Court of Appeals is in conflict with a prior decision of the Supreme Court, and that prior decision is overruled or so far restricted as not to apply-the decisions of the Court of Appeals distinguishing such prior decision from its own, refusing .0 follow it and affirming the judgment of the trial court on other grounds-the result reached by the Court of Appeals will he approved and the writ guas.ied, since, that prior case out of the way, conflict of decisions no longer exists.

      Certiorari to St. Louis Court of Appeals.
    Writ quashed.

      Marshall & Henderson for relator.
    (1) If the Court of Appeals did not follow the last previous decision of the Supreme Court, hut rendered judgment contrary thereto, the Supreme Court, upon certiorari, will quash its judgment. State ex rel. v. Ellison, 260 Mo. 129; State ex rel. v. Reynolds, 257 Mo. 19. (2) In deciding the question of the liability of relator as a stockholder of the De Giverville Land Company, the Court of Appeals violated section 6 of the Amendment of 1884 to article 6 of the Constitution in that it did not follow the decision of the Supreme Court in the case of Railroad v, Wilkerson, 83 Mo. 235, which is the last previous ruling of the Supreme Court on that question. (3) In holding that relator is es-topped to deny that he is a stockholder of the De Giver-ville Land Company, the Court of Appeals did not follow the decision of the Supreme Court in Haskell v. Worthington, 94 Mo. 573, which is the last previous ruling of the Supreme Court on that question. ' (4) In holding that the plaintiff, the De Giverville Land Company, can maintain- the action against relator, the Court of Appeals did not follow the decisions of cthe Supreme Court in the cases of Dickey v? Porter, 203 Mo. 1; St. Louis v. Contracting Co., 202 Mo. 310; Bank v. Burrus, 178 Mo. 719; Christman Co.- v. Mfg. Co., 168 Mo. 634, and Roddy v. Railroad, 104 Mo. 234, which are the last previous ruling of the Supreme Court on that question. (5) In deciding that the De Giverville Land Company could maintain the action against the relator, on the theory that the land company is a trustee of an express trust within the meaning of Sec. 1730, R. S. 1909, the St. Louis Court of Appeals did not declare the true law and did not correctly apply section 1730 to the facts in judgment, especially as this action is not predicated upon any such theory. (6) In deciding that where one signs a preliminary proposition to take stock in a corporation thereafter to he organized, which proposition is never accepted by the corporation, but the corporation is organized by other persons and the authorized capital is fully paid up in cash by other persons, and the person sought to be held as a stockholder was not named as a stockholder in the articles of association, never participated in any way in the organization, meetings or business of the corporation, never had any notice of any meetings, never received or was offered any stock and no demand was ever made upon him to pay for any stock until after the corporation was fully organized, and where no call was ever made for unpaid stock subscriptions, the Court of Appeals did not follow the decision of the Supreme Court in Haskell v. Worthington, 94 Mo. 573, and did not follow the mandate of Sec. 3339, R. S. 1909, and did not declare the true law of this State. (7) In saying that the corporation accepted relator’s proposition to become a stockholder, the Court of Appeals was guilty of an inconsistency, for the opinion of the court shows that the proposition was not accepted, as relator was not mentioned in the articles of association as a stockholder, and-also says the shares of stock for which relator is held liable stands in the name of another person and that they were fully paid for. This being so, there is nothing due the corporation for those shares from any one.

      James A. Seddon for respondents.
    (1) This writ of certiorari was improvidently issued because the record shows no ruling of the respondents in the ease of De Giverville Land Company which conflicts with any decision of the Supreme Court. The argument of the relator in its last analysis is only that the St. Louis Court of Appeals erred generally in rendering its judgment in favor of the respondents. Admitting, e gratia, such error, the judgment of that court cannot he annulled here however erroneous it may otherwise he, unless its opinion conflicts with the decisions cited by the relator. It is not sufficient merely to show other error. State v. Smith, 176 Mo. 90; State v. Hobart, 73 Mo. 398; State v. Robinson, 132 S. W. 21. (2) The opinion of the St. Louis Court of Appeals does not conflict with the decision of this court in the case of Sedalia Railroad Co. v. 'Wilkerson, 83 Mo. 235; because the language of the act construed in the De Giverville case is so radically different from the language of the act construed in the Wilkerson case that they cannot give rise to conflicting rulings. The sections of the two acts construed are neither the “same nor similar” in legal effect. State ex rel. v. Reynolds, 175 S. W. 575. (3) The opinion of the St. Louis Court of Appeals does not conflict with the rulings of this court in any of the following cases cited by the relator: Haskell v. Worthington, 94 Mo. 573; Dickey v. Porter, 203 Mo. 1; Bank v. Burrus, 178 Mo. 719; Christmann v. Mfg. Co., 168 Mo. 634; St. Louis v. Contracting Co., 202 Mo. 312; Roddy v. Railroad, 104 Mo. 234; because the facts in those cases are neither “the same-nor similar” in legal effect to those in the De Giverville case and could not therefore give rise to conflicting rulings. None of the points discussed in these cases is the same or similar to those discussed in the De Giverville case.
   BLAIR, J.

— Certiorari. Relator seeks to quash the record of the St. Louis Court of Appeals affirming a judgment rendered against him by the St. Louis City Circuit Court in an action instituted by the De Giver-ville Land Company, a corporation, .to recover on a stock subscription agreement. It is contended the decision of the Court of Appeals conflicts with certain decisions of this court.

The relevant facts are that relator was. one of a large number of persons owning realty in the vicinity of a railroad switchyard. To rid the community of the noise and smoke emanating from this place it was determined to organize a corporation and purchase the property from the railroad. Relator and 127 other property owners affected participated in this movement in its beginning. They signed an agreement whose pertinent provisions are: “The undersigned, each acting herein for himself and not for the other, hereby subscribe for the number of shares set- opposite his or her name, in a corporation to be organized under the laws of the State of Missouri, as hereinafter provided.” Then follow paragraphs stating the purpose of such corporation to be the acquisition of the switchyard mentioned, and proceeding: “And we do hereby appoint as a committee” six named persons “as our attorneys in fact and agents ’ ’ to make the purchase and take, or designate a taker of, title “for the benefit of the subscribers hereto, in the proportion of their respective subscriptions. The said committee is hereby authorized' by the undersigned to cause a corporation to be formed, with a capital stock equal to the total amount of the subscription hereto, to which corporation, when organized, the above described real estate.is to be conveyed.” Further, the committee, or its nominee, was authorized to borrow on the property any sum needed over and above the aggregate of the subscriptions. All subscriptions were made payable on demand of the committee, when in their judgment the amount subscribed justified the purchase of the switchyard property. Relator and 127 others signed this agreement and, as therein stated, set opposite their names the amount of their respective subscriptions. Relator’s subscription was $2500, the principal of the sum for which the circuit court gave judgment against him. The subscriptions aggregated $100,000. The gentlemen authorized by the quoted agreement to do so, incorporated the De G-iverville Land Company, their names alone appearing in the articles of association as stockholders. The corporation thereupon purchased the desired tract of land, paying • therefor $100,000 in cash and mortgaging the property for the remainder of the purchase price. The several subscribers, except relator, paid in their subscriptions as they had agreed. Relator, when demand was made upon him in July, 1910, refused to pay, and subsequently the action mentioned was begun against him. The $2500 relator had subscribed was advanced to the corporation by another. Relator was not named in the articles of association.

I. It is contended the opinion of the Court of Appeals is in conflict with the decision of this court in Sedalia, Warsaw & Southern Ry. Co. v. Wilkerson, 83 Mo. 235. In that case this court held a railroad corporation organized under section 764, Revised Statutes 1879, could not recover upon a subscription agreement, saying that the relation of stockholders in a corporation could not, under that section, be created in any mode other than by exact compliance with the statutory provision; i. e., that Ably those became stockholders who signed the articles of association and set out therein the number of shares they took; that in that manner only could one, in the first instance, come into the company as a stockholder. Under other sections one might subsequently acquire stock and become a stockholder, but a contract purporting to bind him to take stock in the company, entered into before the company was organized, was not obligatory. We shall not enter upon an effort to distinguish -the statute (Secs. 3339 et seq., R. S. 1909) under which the De Giverville Land Company was organized, from that involved in the case to which we have just referred, In the ease at bar we are to determine whether it is the law that one bound by a contract whereby he subscribes a named amount of stock in a business corporation he assists in originating and which.he authorizes his agents and attorneys-iii-fact to bring into existence, can, after such attorneys-in-fact and agents have organized the corporation, pursuant to his written authorization so to do, repudiate his contract, abandon his associates, take the benefit of the common enterprise and escape liability.

It is unnecessary to examine at length the criticisms which have been made of the rule approved in the Wilkerson case. The rule supported by reason and the weight of authority is quoted in Railroad v. Crow, 137 Mo. App. l. c. 466: “First, that the co-adventurers who sign such contract obligate themselves to each other and that the promise of each is a consideration for the promise of the others. Second, that the subscription is in the nature of a standing and continuing proposal to the corporation which is contemplated by the parties, and that when the corporation is called into existence and accepts the proposal, the minds of the contracting parties meet and the contract is obligatory. ’ ’

In the case just referred to and in that before us the Court of Appeals has collected the authorities and they need not be set out here.

The rule is stated thus in 7 R. C. L. 222, sec. 192: “The law is fairly well settled that where parties propose to form a corporation, and become shareholders therein, and such parties intend to become such shareholders, without further act upon their part, upon the incorporation of the company, and the agreement remains open and is unrevoked, and the corporation is formed in pursuance of it, and thereafter acts upon it by accepting the same, such agreement is valid and binding as a subscription to the capital stock of such corporation.” This rule we think applicable to the facts of this case. The authorities referred to lead to the conclusion that, at all events, the decision in the Wilkerson case, in so far as it conflicts with this holding, should be overruled. At least its application should be restricted to the particular facts in judgment in that ease.

II. Other questions are discussed in the briefs. These arise chiefly out of the discussion by the Court of Appeals of problems confronting it in its effort to distinguish the Wilkerson case. Since we have disposed of that obstacle these matters become unimportant. Upon them it is un- necessary for us to express an opinion. We do not deem it necessary further to examine the opinion upon questions whose vitality is destroyed by the view we take of the Wilkerson case. 'The conclusion of the court was correct. The grounds upon which it distinguished the Wilkerson case cannot, in view of our conclusions as to the rule in that case, be considered as authoritative. With this qualification as to those portions of the Court of Appeals opinion, our writ is quashed.

All concur. Bond, J., in result.


source: Caselaw Access Project

author: REVELLE, J.

license: Public Domain

text:
    TOWN OF MONTEVALLO, Plaintiff in Error, v. VILLAGE SCHOOL DISTRICT OF MONTEVALLO.
    In Banc,
    June 2, 1916.
    1. DEDICATION OF LAND: For General Public: Application to Public School Use. Property designated on the plat by the owner as a “public square” and granted to the village “for the full use and enjoyment” of the entire public forever, cannot he diverted by the village tc a single or e- — lusive public use. After such grant the village was without authority to change the purposes of the original grant, and had no authority to appropriate it to the exclusive use of the public school district, which is a decidedly more limited and restricted use than the dedication warranted. [Overruling Reid v. Board of Education of Edina, 73 Mo. 295.]
    2. -: -. -. Estoppel. Where a village to which a public square had by the, owner been granted for the full use and enjoyment of the entire public forever, appropriated it to a public school use, it appropriated it to that extent, at least, to one public use within the scope of its authority; and when, on the faith of such appropriation, the school district erected a costly school building and for nearly thirty years has continued to use it for public school purposes without objection, and has continued to improve it for such use, the doctrine ■ f estoppel should be applied against the village, and the village prohibited from recovering it for general public uses so long as it continues to be used for public school purposes.
    3. ESTOPPEL: Laches: Against Municipal Corporation. Estoppel cannot ordinarily be applied to a municipal corporation; but there may grow up, in consequence of the acts of the corporation itself, rights of more persuasive force than those of the public and wherein justice requires an equitable estoppel to be asserted; and particularly should this he the ruling in a case where it is one class of the public as against another class, and where by the affirmative action of the village corporation the school district was directed to take and use a public square for school purposes, and where justice and right demand that the equitable principle of estoppel or laches be applied to prevent injury and wrong.
    Error to Yernon Circuit Conrt. — Hon. B. O. Thurman, Judge.
    AFFIRMED.

      J. B. Journey for plaintiff in error.
    (1) A city or town may control and regulate tbe use of ground dedicated to tbe public, but it cannot sell tbe land or devote it to private use, and thereby destroy tbe trust created for tbe benefit of tbe public. Cummings v. St. Louis, 90 Mo. 259; Board of Regents v. Painter, 102 Mo. 464; G. S. 1865, chap. 44, sec. 8; R. S. 1909, sec. 10294. Nor is the establishment of a public school therein a compliance with the purpose of the dedicator. Board of Regents v. Painter, 102 Mo. 464. (2) The act of the town board of the plaintiff on July 19, 1886, in ceding the public square or block of ground in question to the Montevallo Village School District, for school purposes, did not pass any title to said land to the defendant in error. It merely gave them a very donbtful right. In fact it did not give them any right at all. The act was ultra vires, because it was a diversion of the land from the purpose for which it was dedicated. The town board had no right to make such an order. Board of Regents v. Painter, 102 Mo. 464; Thomas v. Hunt, 134 Mo. 402; Refining Co. v. Grain Co., 82 Mo. 121; Ferrenbach v. Turner, 86 Mo. 419. (3) The court in rendering his decision found that the plaintiff in error, the town of Montevallo, had abandoned the land in question. The facts in testimony will not sustain any Such finding.. But if true, there could be no such thing as abandonment— the public cannot be held responsible for the neglect of duty of its officers and agents. St. Louis v. Railway, 114 Mo. 13.

      Scott & Bowker for defendant in error.
    (1) No unincorporated town or village can take . and hold the legal title to land conveyed by deed, for-the reason that there is no grantee in being in whom the title can vest. Miller v. Rosenberger, 144 Mo. 292; Kansas City v. Scarritt, 169 Mo. 471. (2) Where there is no party grantee in being at the time of the grant made for a public use, as in the case here, the legal title remains in the grantor, and .where the public use is abandoned the whole title reverts to the original grantor. Kansas City v. Scarritt, 169 Mo. 471. (3) In all cases of a grant of land for a public use, in case of an abandonment thereof, the title reverts to the original grantor. Kansas City v. Scarritt, 169 Mo. 471; Campbell v. Kansas City, 102 Mo. 326; Gaskins v. Williams, 235 Mo. 563.
   REVELLE, J.

— This is an action brought in the circuit court of Vernon County upon section 2535, Revised Statutes 1909, to determine the title and interest of the respective parties to and in a tract of land in the town of Montevallo in said county. The respective claims are as follows: On December 1, 1866, one Samuel Manatt laid off a town in Vernon County which was named in the plat the Town of Montevallo, which seems to be in all respects in conformity with the provisions of the . statutes on that subject. [G. S. 1865, pp. 247-248.] A block three hundred feet square near the middle of the plat is undivided into lots and marked “public square.” The statutory dedication written upon this plat is as follows: “We do hereby endorse and confirm the survey as made and described in the within plat, and in consideration thereof we have and do dedicate, give, and grant the public square, streets, alleys, and other grounds therein described for public use forever, hereby granting unto the public the full use and enjoyment of said square, streets, alleys, and squares in said town of Montevallo.” This plat was filed in the office of the recorder on November 25, 1881.

On April 17,1871, by an order of the county court, a town including the Manatt plat was incorporated by the name of the Inhabitants of the Town of Montevallo, which is the plaintiff in this case.

On July 19,1886, the board of trustees of the town of Montevallo made upon its record an order, the effective portion of which is as follows: “It is ordered by the board of trustees'of the town of Montevallo, that the block or square of ground near the center of said town of Montevallo, and dedicated in the recorded plat of said town by Samuel Manatt and wife, in the year 1868, to the citizens of the town of Montevallo, for public purposes, be and is hereby ceded to C. W. Bullock, John T. Campbell, Eobison Pierce, James L. Dickson, and W. T. Taylor, directors of the Montevallo Village School District, and to their successors in office, for school purposes.”

Before that time th A square had been fenced with an oak board fence and used by* one Pierce as a feed yard for hogs and cattle and was sometimes cultivated in crops. Along in the seventies it was abandoned, and grew up in brush and briars. Upon the making of the foregoing order in 1886 the school board procured a deed from Manatt, took possession of the square, and built thereon a stone school house costing about $3000 which has been maintained ever since, and used for the purpose of maintaining and holding the public school of the district, without protest from anybody so far as the record shows, until this suit was instituted.

The finding and judgment in this case, so far as it relates to the question involved in this appeal, are as follows:

“The Village School District of Montevallo is the owner of the tract of land in the town of Montevallo, known as the Public Square, for school purposes as long as the same may be used by the defendant, the Village School District; of Montevallo, for that purpose, and that the fee in the land in question, is in the plaintiff, the town of Montevallo, and that the same reverts to the plaintiff, the town of Montevallo, when the defendant, the Village School District of Montevallo, ceases to use the same for school purposes.
“It is therefore ordered, adjudged and decreed that the defendant, the school district of Montevallo, is the owner of the block of ground known as the Pub-lie Square, and is entitled to the possession thereof so long as. the same may be used for school purposes by the defendant, the Village School District of Montévallo, and that the fee in the land in question, is in the plaintiff, the Town of Montevallo, and that the right, title and possession thereof reverts to the plaintiff, the town of Montevallo, when the defendant, the Village District of Montevallo, shall cease to use the same for school purposes.”

The terms of the judgment, as well as the pleadings, present two questions: (1) whether or not the village of Montevallo was authorized under the terms of the dedication in the Manatt plat to appropriate the property to the exclusive use of the school district; and, if not, (2) whether the'doctrine of estoppel upon the facts stated can he invoked as against the village.

The grant to the village in this case was of a “ public square,” and “for the full use and enjoyment” of the entire public forever. Respondent contends that a public school use is of such a general public nature that it is “a full use and enjoyment” by the public so as to meet the requirement that it be enjoyed for all public purposes, and in this is supported by the decision of this court in Reid v. Board of Education of Edina, 73 Mo. 295, in which case the facts were substantially the same as those disclosed by this record. It is our opinion that the doctrine announced in that case is not sound, and that the same should he overruled. The grant for a public school use is decidedly more limited and restricted than the original dedication warranted, and the village was without authority to change the purposes of the original grant. It is going too far to say that in dedicating this property to a single public use, and particularly the use of another separate and distinct public corporation, as is a school district, the requirements of this original grant are complied with.

I agree that in appropriating this property to a public school use the village was appropriating it to, at least, one public use, and, to this extent, was acting within the scope of its authority and the original dedication. Can then the doctrine of estoppel or laches be applied as against this municipal corporation? We think so; and, upon this theory, the judgment should be affirmed, this being the defense pleaded.

While I recognize the general rule that estoppel cannot ordinarily be invoked against a municipal corporation, yet I think there is authority abundant to the effect that there may grow up in consequence of the acts of a municipal corporation rights of more persuasive force in the particular case than those of the public, and where- justice requires it an equitable estoppel will be asserted even against such corporation, particularly in cases of this character where it is one class of the public as against another class. Judge Dillon in his work on Municipal Corporations (5 Ed.) sec. 1194, says: , ■

“There is no danger in recognizing the principie of an estoppel in pais as applicable to exceptional cases, since this leaves the courts to decide the question, not by mere lapse of time, but upon all the circumstances of the case to hold the public estopped or not, as right and justice may require.”

In Simpson v. Stoddard County, 173 Mo. 421, this court approvingly quotes as follows:

“It is a mistake to assume that the doctine of laches or delay, or the doctrine of estoppel, does not apply to a county or other municipal corporation. Indeed, it may be said that there is no State, or any of the political subdivisions of a State, against which the doctrine of estoppel or laches may not in certain instances be urged. . . . The doctrine of estoppel is not only a very old doctrine, but, it may be said, is one that ‘has grown with the growth’ of human affairs. It is a principle whose existence is not to be deprecated, for' its enforcement not only prevénts the commission of a wrong upon those who are innocent, hut it teaches the moral lesson to all persons that they shall not today dispute the truth of what they said yesterday, to the financial injury of others. 'Its foundation is laid in the obligation which every man is under to speak a<id act according to the truth of the case.’ ”

While the rights of corporations representing the public at large cannot be defeated by the force of the Statute of Limitations, yet, in my mind, there is no doubt but what we should apply the principle of estoppel or laches where justice and right demand it, and where it is necessary to prevent wrong and injury being done to others. There are many cases to be found in the books wherein this doctrine has been applied. [Knight v. K. C., St. J. & C. B. R. R. Co., 70 Mo. 231; Hovelman v. K. C. Horse R. R. Co., 79 Mo. 632; Senter v. Lumber Co., 255 Mo. 590; Wilson v. Drainage Dist., 257 Mo. 266; Hannibal & St. J. R. R. Co. v. Marion County, 36 Mo. 294; Edwards v. Kirkwood, 147 Mo. App. 599; Union Depot Co. v. St. Louis, 76 Mo. 393; Simpson v. Stoddard County, 173 Mo. 421; State v. Dent, 18 Mo. 313; O’Leary v. Metropolitan St. Ry. Co., 87 Kan. 22; Leavenworth v. Douglass, 59 Kan. 416; City Ry. Co. v. Citizens St. R. R. Co., 166 U. S. 557; Sanitary Dist. v. Railway Co., 241 Ill. 622; Chicago v. Railway Co., 244 Ill. 220; Paine Lumber Co. v. Oshkosh, 89 Wis. 449; Colorado Springs v. Colorado City, 42 Colo. 75; Sioux City v. Railroad, 129 Iowa, 694; In re Melon St., 192 Pa. St. 331; Baldwin v. Trimble, 85 Md. 396; Simplot v. C. M. & St. P. Ry. Co., 16 Fed. 350; Davies v. Huebner, 45 Iowa, 574; Pella v. Scholte, 24 Iowa, 283; Lee v. Town of Mound Station, 118 Ill. 304; Railroad v. Joliet, 79 Ill. 25; Gregory v. Knight, 50 Mich. 61; Bradley v. Appanoose Co., 76 N. W. 519; Quinn v. Baage, 114 N. W. 205; Iowa v. Carr, 191 Fed. 257; Meltzer v. City of Chicago, 152 Ill. App. 334; Town of New Castle v. Hunt, 93 N. E. (Pa.) 173; Boise City v. Wilkinson, 102 Pac. (Idaho) 148; City of Chicago v. Steel Co., 82 N. E. (Ill.) 286.]

The record discloses that, by an affirmative action of the authorized officers of the town of Montevallo, the school district was authorized in 1886 to take this property and use same for school purposes. In compliance therewith, the school district erected a building costing several thousand dollars, and from that time until the institution of this action, no one questioned the title or right of the school district to use and enjoy the property. Valuable improvements were made thereon by the school district, and as between the town and the school district any judgment other than that rendered by the court nisi would result in the perpetration of a wrong and rank injustice. It is my opinion that this is one of the exceptional eases in which the doctrine of abandonment and estoppel should he applied as against a municipal corporation. For this reason the judgment should he affirmed, and it is so ordered..

Blair, Baris, Walker and Graves, JJ., concur; Woodson, C. J., and Bond, J., concur in result.


author: FARIS, J.

text:
    THE STATE ex rel. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES ELLISON et al., Judges of the Kansas City Court of Appeals.
    In Banc,
    June 2, 1916.
    1. NEW TRIAL: Weight Of Evidence: Discretion of Trial Court. Trial counts have a broad discretion in passing upon the weight of evidence in their consideration of motions for a new trial. Where a trial judge exercises his discretionary power of setting aside a judgment on the ground that it is against tin. weight of 268 Mo. — 15 the evidence, his action in so doing wiL not be reviewed-upon appeal except upon a showing that no verdict in favor of the party to whom the new trial is granted should be allowed to stand.
    2. -: -: -: Ruling Adversely On Motion. .Whenever the trial court has ruled adversely upon a motion for the new trial and has rut its seal of approval upon the verdict in matters having reference to the weight of evidence, the verdict must oe upheld if there is any substantial evidence to support it.
    3. -: Punitive Damages: Excessive: Remittitur.. Irial and and appellate courts have the same power of supervision over verdicts for punitive damages that they have over verdicts fot compensatory damages, and the rule permitting either court to require a remittitur applies as well to punitive damages as to compensatory damages.

      Í. -: -: -: -: Granting New Trial. The trial court has power, upon the filing of a motion for a new trial charging that the verdict for a tort is contrary to the weight of the evidence, to require a remittitur of a part of the verdict for punitive damages, as a condition for overruling the motion, and upon a failure to file such remittitur, to- sustain the motion; and its discretion in so doing will not be interfered with on appeal, if there is any substantial evidence to uphold its ruling that the jury’s award of such damages is excessive.
    5. -: -. Proof. There may be evidence of much or little malice or recklessness in the case — to be deduced from the criminality, the insolence of manner and demeanor, or the insulting words and acts of the tortfeasor, all relating themselves to the circumstances of the case, such as the age, the sex, the health of the person wronged, the weather prevailing, the time and place of the tort, the persons present thereat and the standing in affluence and influence of the tortfeasor, and this proof bearing on the quantum of punitive damages the trial judge should be left free to weigh on the hearing of a motion lor a new trial just as he is to weigh any other evidentiary fact of the case, and to set aside the verdict if the punitive damages are not supported by the evidence.

      6. CERTIORARI TO COURT OF APPEALS: Judgment of Supreme Court. .On a hearing of a writ of certiorari directed to the Court of Appeals on the ground that its decision in a certain cause is contrary to the last previous ruling of tne Supreme Court on a certain question of law, the Supreme Court has no authority to render a final judgment in the original case, but all it can do is to quash the record of the Court of Appeals, state on the point of contrariety of decision the rule that ought to govern that court upon another hearing, and remaní the cause to it for final hearing and determination.

      Certiorari to Kansas City Court of Appeals.
    Judgment quashed.

      Culver & Phillip for relator.
    (1) The assessment of punitive damages and the amount thereof rests in the sound discretion of the jury, and the court will not interfere except in flagrant cases of bias, prejudice and oppression. Clearly a penalty of five hundred dollars against a railway company for a continuing violation of law extending over a period of more than seven years, is not an abuse by the jury of the discretion reposed in it. Summers v. Keller, 152 Mo. App. 636; Canfield v. Eailroad, 59 Mo. App. 366; Mill Co. v. Prenzler, 100 Iowa, 540; American Sand & Gravel Co. v. Spencer, 103 N. E. (Ind.) 426; Luther v. Shaw, 147 N. W. (Wis.) 18. (2) The trial court did riot set aside the verdict because such verdict was in the opinion of the court the result of bias, prejudice and oppression, but because the amount awarded by the jury for punitive damages did not' coincide with the opinion of the court as to the extent of punishment that should be imposed upon defendant for its act. Clearly, this is an invasion of the province of the jury. (3) The damages allowed by the jury were extremely modest. In cases involving no greater actual damage and where the circumstances did not so clearly disclose malice and oppression on the part of defendant, verdicts for much larger amounts have been sustained. T.rauerman v. Lippincott, 39 Mo. App. 478; Kuth v. Transit Co., 98 Mo. App. 19; McNamara v. Transit Co., 182 Mo. 676; White v. Eailway, 132 Mo. App. 339; Phettiplace v. Eailroad, 20 L. E. A. 483; Eailroad v. Hennigh, 39 Ind. 509; Eailroad' v. McDonald, 53 Ind. 289; Eailroad v. Kranfield, 46 So. 71. (4) While courts have a supervisory power over verdicts for punitive damages, the court will rarely interfere with the award of exemplary damages on the ground that such award is excessive. Luther v. Shaw, 147 N. W. (Wis.) 19. (5) Granting a new trial because the verdict is excessive is granting a new trial because the verdict is against the evidence, and this court has so held. McCloskey v. Publishing Co., 163 Mo. 32; McCarty v. Transit Co., 192 Mo. 396.

      Charles F. Strop and Graham & Silverman for respondents.
    (1) This court will not act by certiorari unless there has been a clear, real, and substantial failure by the Court of Appeals to follow the decisions of this court. State ex rel. v. Reynolds, 257 Mo. 35. (2) The reason assigned by the trial court for the granting of a new trial was that the verdict was excessive as to the punitive damages. This was a denial of all other grounds contained in the motion. Miller v. Madison Car Co., 130 Mo. 517; Gould v. St. John, 207 Mo. 631; Jiner v. Jiner, 182 Mo. App. 159. Among such other grounds alleged by relator in its motion for new trial was “that the verdict was against the weight of the evidence and unsupported by any evidence in the case. ’ ’ (3) The opinion of the Court of Appeals is in accord with the decisions of this court in the following cases:' Brown v. Printing Company, 213 Mo. 653; Brown v. Knapp & Co., 213 Mo. 697; Hartpence v. Rogers, 143 Mo. 638; Morgan v. Ross, 74 Mo. 324; Carson v. Smith, 133 Mo. 617. (4) There is no ruling of this court in which the question decided by respondents has been presented or given consideration. If ■ this statement is correct there can be no" failure to follow'the decisions of this court, and the writ of certiorari herein must be quashed.
   FARIS, J.

— This in an original proceeding by certiorari, to bring up the record of the Kansas City Court of Appeals in the case of H. C. Smith, appellant, v. Atchison, Topeka & Santa Fe Railway Company, respondent, lately pending in that court, and wherein the judgment of the court nisi was reversed and the case remanded with directions to enter judgment helow in accordance with the verdict. [Smith v. Railroad, 192-Mo. App. 210.] From this it will be seen that the appellant Smith had judgment below, which upon motion of respondent therein, was set aside and Smith appealed.

The facts in the case of Smith v. Railway are brief and these facts, together'with the action of the jury and the court nisi therein, are thus stated by the learned Kansas City Court of Appeals in their opinion now before ns:

“Plaintiff boarded defendant’s electric passenger car at Gower, Missouri, for the purpose of being carried as a passenger to St. Joseph in the same State, a distance of twenty miles. He did not have a ticket, stating that he had not time to purchase one after his arrival at the' station. The legal rate of fare was two cents per mile, and according to that rate he tendered the conductor forty cents for the full distance he wished to go. The conductor refused the offer and demanded sixty cents, which would be three cents per mile. Plaintiff refused to pay it and the conductor, in the presence of the passengers,' told him he would stop the car and put him off. Plaintiff persisting in his refusal, the conductor stopped the car, took plaintiff by the arm and led him to the door and put him off. After being put off he stated to the conductor that he was a deputy sheriff and he ‘would like to go on.’ The conductor replied with an oath that, he did not care who he was, he would not take him.
“Plaintiff brought an action for one thousand dollars compensatory and the same amount as punitive damages. A trial was had and a verdict returned for five dollars for the former and five hundred dollars for the latter. On motion for a new trial the court suggested that the punitive damages were excessive and that if plaintiff would remit four hundred dollars the motion for new trial would be overruled; if he did not it would be sustained. Plaintiff refused and a new trial was thereupon granted.”

The Court of Appeals, as forecast above, held that the action of the court nisi in granting a new trial to defendant railroad, for the failure of plaintiff Smith to enter a remittitur therein, was wrong, and thereupon reversed and remanded the case with directions to the trial court to enter judgment on the verdict as returned by the jury. As reasons for its action in such behalf the Court of Appeals 'said:

“But defendant insists that instead of looking into the record to see if there was any evidence in plaintiff’s favor tending to support the verdict, we should endeavor to ascertain if there was any evidence in defendant’s favor tending to support the conclusion of the trial court that the verdict was excessive. It being conceded that if a trial court granted a new trial on the ground that the verdict was against the' weight of the evidence an appellate court will only look to see if there is any substantial evidence supporting the courts’ order, defendant claims that there is no difference in that instance and the case at bar. It therefore claims that as there was substantial evidence in the record tending to show the punitive damages assessed by the jury were excessive, we should affirm the order granting a new trial.
“We think defendant misconceives both what the court did and what it had the power to do. In the first place the trial court did not grant a new trial to defendant because the court thought no case was made against it, or that there had ‘been any error in the trial. The court found that plaintiff had a case, both for compensatory and punitive damages, and would have overruled the motion for new trial except the court took upon itself the duty of measuring the punitive damages and in so doing found they were too much and that unless plaintiff would remit down to one hundred dollars, a new trial, would be granted. Plaintiff’s refusal to do so was the sole ground and immediate cause of granting a new trial. Therefore, as we have said, there being substantial evidence to support the verdict, it should be allowed to stand, unless the trial court properly ordered it to be reduced.
“If there is evidence in a case which tends to support a verdict for punitive damages the court cannot interfere as to the amount except it be so disproportionate to the wrong committed by the defendant as to strike all reasonable men that the jury in fixing upon the sum found, have acted corruptly, or from passion and prejudice. It is a species of allowance made to the plaintiff not because it is his due, but as a punishment to the defendant and a deterring example to others. While a plaintiff has an absolute right to compensation for a wrong committed against him, he has no absolute right to demand that the defendant be also punished. The jury may inflict the punishment, but it is left absolutely with them. ’ ’

Relator contends that the judgment in said case of Smith v. Railway ought to be quashed and for naught held, for that it is contrary to the decision of this court in the case of McCloskey v. Publishing Co., 163 Mo. 22, and other cases ruled by us, which either expressly or tacitly followed the McCloskey ease.

Toward an ascertainment and discussion of this contention what we say below will be directed.

I. Our statute (Sec. 2022, R. S. 1909), and the decisions of all of the appellate courts construing it, have been peculiarly benevolent and encouraging to the trial courts in the matter of giving such courts a broad discretion in passing upon the weight of the evidence in their consideration of motions for a new trial. The statute is definitely expressive of a few phases of the court’s inherent powers, and our own rulings upon it are so sanctified by age- and uniformity as to have become almost elementary. Regardless of the seeming weight of the evidence opposed to the action of the court nisi in setting aside a verdict of a jury on this ground, we do not interfere so long as there is any substantial evidence to bolster up the trial court’s action. It is only when, had the verdict been the other way about, we would not for lack of supporting evidence have permitted it to stand, that we interfere with the trial court’s discretion.

In a late case in Banc, Lyons v. Corder, 253 Mo. l. c. 561, Bond, J., properly and succinctly stated the trial court’s powers in these behalves thus:

“The law is well settled in this State, that where a trial judge exercises his discretionary power of setting aside a judgment on the ground ‘that it is against the weight of the evidence,’ his action in so doing will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. In which event, the exercise by the trial court of his power to grant a new trial although put upon a' discretionary ground, is deemed to be unjudicial, and it is the duty of this court to reverse his ruling in that respect. [Foley v. Harrison, 233 Mo. l. c. 507, 508; Smoot v. Kansas City, 194 Mo. l. c. 532; Casey v. Transit Co., 186 Mo. l. c. 232; Fitzjohn v. Transit Co., 183 Mo. l. c. 78, 79, 80.] ”

II. But the moment the trial court has ruled adversely upon the motion for a new trial and has thus put the seal of its approval upon the verdict of the jury, the point of view of the appellate court upon matters having reference to the weight of the ev^enceJ changes1 diametrically and all presumptions are to be exercised in favor of the verdict (Gould v. St. John, 207 Mo. 619), and it must be upheld if there is any substantial evidence to uphold it. Hence, the seeming contrariety of ruling and the futility of citing cases which rode off upon the latter point in aid of a state of facts in which the former point is presented. For it is manifest that when an appellate court is discussing the propriety of the action of a trial court in overruling a motion for a new trial, which motion is bottomed on the contention that there is no substantial evidence to sustain the verdict, we again apply the same test (but from the wholly converse standpoint) of whether there is any substantial evidence to sustain the action of the court and jury. [State ex rel. v. Ellison, 256 Mo. l. c. 661.]

Generalizing thus for premises, we come to the only two points which we find it necessary to discuss, viz.: (a) what power, if any, has the trial court over a. verdict for punitive damages? and (b) does the determination of the excessiveness of such a verdict so far involve an examination into the weight of the evidence as to permit the full application of the well-settled rule above set out?

III. At common law the rule is said to have been that unless the amount of exemplary damages awarded by a jury was so outrageous as to “so impress all mankind at first blush,” the court had no power to interfere. [Hanna v. Sweeney, 78 Conn. 492.] But it has never been the law that it was not within the province of the trial court to say whether or not the facts shown warranted as a matter of law the awarding of punitive damages. The determination of this matter has been always one of law for the court. [13 Cyc. 118.] However, we cannot find that in this State juries have ever ■ been allowed so comprehensive a power to award damages of this sort as they were allowed at common law. In a very early case here the jury awarded plaintiff the sum of $800, largely as punitive damages. The trial court seems to have required (the opinion says “suggested”) a remittitur of $350, rendering judgment for the balance. This court said: “In this case exemplary damages were permissible, but that would not justify arbitrary damages, growing out of the caprice or prejudice of tbe jury. But we must see that manifest injustice has been done before we would be authorized to interfere.” [Walser v. Thies, 56 Mo. l. c. 92.]

This rule does not in the last analysis differ so very greatly from the rule defining the power of the court to require the entry of a remittitur for excessiveness of a part of an award of compensatory damages, as a condition of the approval of the verdict. It is difficult to see any reason for any distinction, except the procedural one arising from the inherent difficulty of proving the fact of excessiveness. For compensatory damages are obviously more often capable of certain and exact determination than are punitive damages. Sometimes compensatory damages are determinable with mathematical accuracy; while punitive damages, being bottomed on the malice (express or implied), or on the wantonness, of the tortfeasor’s act, are always impossible of exact measurement and determination.

But be this as may be, the modern rule in this (Cook v. Globe Printing Co., 227 Mo. 471), as well as in a great majority of other jurisdictions, is trending toward the fixed view that trial and appellate courts have the same power of supervision over the one sort of damages as they have over the other sort. [8 R. C. L. 680, 681.] The differences are only in degree, growing out of difficulties met by the courts in exercising this power. [Sperry v. Hurd, 267 Mo. 628.]

In the late and most excellent compilation of the concensus of leading cases above cited, it is said upon this question:

“It is difficult to lay down any rule by which to test the question of excess in a verdict for'punitive or exemplary damages. At common law the amount was left almost entirely to the jury, and the courts generally refused to grant a new trial on the ground that the award was excessive, and would do so only in a glaring case of outrageous damages, and which all mankind at first blush must think so. It is now generally held, however, that the jury is not at liberty, unrestrained, to award by way of punitive damages any amount, regardless of how large» it may be. While their verdict will not be set aside unless it is so large as to satisfy the court that it was not the result of an honest exercise of judgment, an award of exemplary damages is subject to revision by the court to the same extent as awards of compensatory damages, and will be set aside if it is grossly excessive or appears to be the result of passion or perjudice or improper sympathy. The court will not interfere except in extreme cases, however, and where it appears that an injustice has been done, and, perhaps, will proceed with more caution in such a case than where only compensatory damages are involved. ” [8 R. O. L. 680, 681.]

IV. Coming back to the rule we state above, which is, to-wit, that an appellate court should sustain the action of a trial court in granting a new trial on the weight of the evidence below in all cases wherein the verdict would have been by an appellate court allowed to stand if such verdict has been in favor of the party to whom the new trial was granted, we come to the other point involved herein and above reserved, viz: Does this same rule apply, and do appellate courts hold toward the courts nisi the same benevolent and encouraging attitude in a ease wherein a new trial is granted because the verdict awards excessive punitive damages? On principle we think this rule ought to, and does apply. While we have said but little on this point, that little sustains this view. In the case of McCloskey v. Publishing Co., 163 Mo. l. c. 32, it was said:

“So we are of opinion, that the ground of excessive damages, as a reason why defendant should be granted a new trial, is covered by the second, third and fourth grounds of defendant’s motion for a new trial.
‘ ‘ The second ground asserts that there was no evidence whatever authorizing the verdict for compensatory damage, and that the verdict should have been for nominal damages only.
“The third ground asserts that there was no evidence whatever to support the verdict for punitive damages.
“That is, in both these grounds it is in effect declared that the verdict for compensatory, as well- also as for punitive damages, was excessive. It, therefore, logically follows that where the motion for a new trial asserts that the defendant was only entitled to nominal damages, that any damages- over and above nominal damages are excessive.
“So with the fourth ground, which asserts that the verdict was against the law and the evidence, it is clear that if the damages are excessive, the verdict was againt the evidence.
“While it is true that appellate courts are very slow to grant new trials solely upon the ground that verdicts are excessive, it is also true, that they defer very largely to the action of the trial courts with respect to such matters, and that a judgment is rarely ever reversed upon the ground of the unwarranted exercise of the power of such courts under such circumstances.
“But where it is manifest that a verdict is excessive, the court is remiss in its duty if it does- not, upon motion,-set it aside and grant a new trial, and this duty rests almost entirely within the province of the trial court, and this court will not interfere with the exercise of such discretion unless it appears to have been unreasonably or arbitrarily exercised.”

We are forced to conclude that the views expressed by the learned Kansas City Court of Appeals in the excerpt quoted above from their opinion, are not in accord with what we held in the McCloskey case. It would seem that there can in reason be no difference between a verdict which is not supported by the evidence as to the amount thereof, and one which is not supported by the evidence at all. It is manifest, at least, that the difference lies solely, in degree, and the same rule ought to control. A verdict is to be upheld or not, according as there is evidence or not to uphold it; surely, it will not be contended that absent any evidence, a verdict in any sum would be sustained by any court. On the contrary, a verdict of almost any size might be sustained if only there be sufficient evidence to support it.

There may be evidence in the case of either much or little malice, or recklessness; all to be deduced from the quantum of the criminality, or from the insolence of manner and demeanor, or from the insulting words and acts of the tortfeasor, and the facts and circumstances of the case — the age, or sex, the health or lack of it, of the person wronged or injured; the weather prevailing and the time and place of the tort complained of; the persons present thereat, and the standing in affluence and influence of the doer of the tort. All these things, or any one or more of them, may be pertinent as evidence in the case. They are developed upon the trial in front of the trial judge, and he ought to be left by us as free to weigh them on the hearing of a motion for a new trial as he is to weigh any other fact or issue in the case? If any general criticism were pertinent it would seem to be that' as a rule the learned nisi prius judges exercise their great and inherent powers of control to prevent injustice too little, rather than too much.

It follows that in our opinion the trial court had the right to set this verdict aside on the ground that the weight of the evidence in the whole case did not support the amount of punitive damages found by the triers of. fact, and that our learned brethren of the Kansas City Court of Appeals applied to the determination of the correctness in that behalf of the action of the court nisi, an erroneous test. That test should have been whether on the whole case there was any substantial evidence to support the action of the court nisi.

V. We are urged by relator’s learned counsel to quash the judgment of the Kansas City Court of Appeals and render now and here final judgment in the case of H. C. Smith, appellant, v. Atchison, Topeka & Santa Fe Railway Co., respondent, 192 Mo. App. 210. Absent a statute so permitting — and we have none— we have no earthly power to do this. We can undo what the Court of Appeals has done; we can state on the point of contrariety of decision the rule which in our opinion ought to govern that court upon another hearing, and we can send the record back to them to be heard anew by them (Majestic Mfg. Co. v. Reynolds, 168 S. W. 1072), but in the Kansas City Court of Appeals alone lies the jurisdiction to hear and to correctly and finally determine the case to which the instant proceeding is ancillary.

Let the judgment of the Kansas City Court of Appeals in the case of Smith v. Atchison, Topeka & Santa Fe Railway Company be quashed and for naught held.

All concur, except Bond, J., who dissents as to the result only.


text:
    THE STATE ex rel. DETROIT FIRE & MARINE INSURANCE COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    June 2, 1916.
    1. INSTRUCTION: Criminal Element in Civil Case. In an action on an insurance policy where the defense is that plaintiff set or caused the fire in order to defraud the defendant, an instruction telling the jury that, in order to find for defendant on that issue, they must look for proof of a more conclusive character than in ordinary civil cases, is erroneous.
    2. -: -. Circumstantial Evidence: Preponderance: Inconsistent with Plaintiffs Innocence. In a suit on policies against an insurance company where the ,defense is that the insured set the fire, an instruction telling the jury that to warrant a finding on circumstantial evidence that the plaintiff burned or caused to be burned the property In question, “the circumstances must be proved to your satisfaction by a preponderance of the evidence, and when the circumstances are so established they must point to the said plaintiff and must be inconsistent with any other reasonable hypothesis;” and another instruction telling the jury that “the burden of proving by a greater weight of the believable evidence that plaintiff did set the fire that burned said property is on defendant; and you are further instructed that in civil suits (like this one), just as in the trial of a person charged with a crime, in a criminal case, the law presumes that the person charged with the wilful burning of property is innocent and the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case,” introduced a criminal element into a civil case, and in effect required the proof of the circumstances to be beyond a reasonable doubt; and the Court of Appeals in holding said instructions were not erroneous, failed to follow the last previous rulings of this court in Rothschild v. Insurance Company, 62 Mo. 356; Gay v. Gillilan, 92 Mo. 250; Edwards v. Knapp, 97 Mo. 432; Dakan v. Chase & Son Merc. Co., 197 Mo. 238; and ' Smith v. Burrus, 106 1. c. 101. In civil cases the circumstances may be explicable on more than one reasonable hypothesis, and the jury may choose the more reasonable one; but in criminal cases the jury can act upon the hypothesis of guilt only when it is the only reasonable one.

      3. -: -.....: Presumptions. A presumption of law is not evidence, but, in a criminal case, is a conclusion which, in the absence of evidence upon the exact question, the law draws from other proof made or facts judicial!-, noticed. Presumptions of fact include rebuttable or disputable presumptions of law, and despite such a presumption, the party upon whom it casts its burden in a civil case, makes out his case when he adduces evidence proving his allegation of fact, even though it charges a crime, to be more probably true than untrue. To say in an instruction in a case of a rebuttable presumption, after evidence has been introduced on the question, that “the law presumes” so and so and that such presumption “must be overcome” or “overthrown” by evidence, is sometimes useless, sometimes prejudicial and always illogical.
    4. -: Presumption: Injecting Criminal Rule in Civil Case: Preponderance: Cured by Adversary’s Instruction. To instruct in a civil case in which the defense is arson which bars plaintiff’s right to recover, that “in civil suits (like - the present one), just as in the trial of a person charged with a crime, in a criminal case, the law presumes that the person charged with the wilful burning of property is innocent,” is in contravention of the rule laid down in Rothschild v. Insurance Co., 62 Mo. 356, in that it is calculated to impress the jury with the belief that greater caution should be exercised by them and greater proof of a more conclusive character should be required to prove, in a civil case, facts constituting a crime than is required in ordinary civil cases; nor is the error cured by an added clause that “the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case;” nor by the fact that the defendant asks an instruction in all respects the same as the instruction given in the Rothschild case less the last clause.

      Certiorari to Kansas City Court of Appeals.
    Record quashed.

      I. J. Ringolsky and Fyke & Snider for relator.
    (1) Relator contends that instruction No. 2 given for the plaintiff and approved by the Court of Appeals is erroneous and the opinion of the court in approving that instruction is in direct conflict with the opinions of this court in the following cases: Rodan v. Transit Co., 207 Mo. 392; Mockowik v. Railroad, 196 Mo. 571; State v. Kennedy, 154 Mo. 268, and Morton v. Heidorn, 135 Mo. 608. (2) Eelator contends that the opinion of the Court of Appeals in upholding instruction No. 3 given for the plaintiff is in direct conflict with the decisions of this court in the following cases: Eothschild v. Insurance Co., 62 Mo. 356; Edwards v. Knapp, 97 Mo. 439; Marshall v. Insurance Co., 43 Mo. 586; Smith v. Burrus, 106 Mo. 101; Dakan v. Chase & Son, 197 Mo. 238, and Gray v. Gillilan, 92 Mo. 250. (3) t Eelator further contends that instruction No. 3 given for the plaintiff is inconsistent with and in absolute conflict with instruction No. 8 given for defendant. Eothschild v. Insurance Co., 62 Mo. 356. It will be observed by the court that instruction No. 3 given for the plaintiff imposes upon the defendant, relator, the burden of proving beyond a reasonable doubt that Ben Weinberg burned, or caused to be burned, the property in question, whereas instruction No. 8 given for defendant advises the jury that a preponderance of the evidence establishing that fact is sufficient, and instruction No. 2 given for the plaintiff tells the jury that in civil suits just as in the trial of a person charged with a crirAe in a' criminal case, the law presumes that the person charged is innocent. Such is not the rule in Missouri in civil cases; in all civil cases whether the commission of a crime be involved or not, the rule in this State is, that a preponderance of the evidence is sufficient to warrant a verdict against the party charged with the commission, of the offense.

      Ed. E. Yates and Perry S. Rader for respondents.
    (1) The Court of Appeals had jurisdiction, on appeal, of the case of W. J. Eice et al. v. Detroit Fire & Marine Insurance Company, and its jurisdiction cannot be ousted by the fact that its opinion is erroneous, unless such error amounts to a failure to follow “the last previous rulings of the Supreme Court” and is therefore a jurisdictional error. It is a constitutional court, and had power to “hear and determine” “the said cause” on appeal (Amendment of 1884, sec. 4; Constitution, art. 6, sec. 12), and having such jurisdiction,, it had power to render a wrong opinion as well as a right one, except on the one point that its opinion must be in harmony with “the last previous rulings of the Supreme Court.” State ex rel. v. Robertson, 264 Mo. 678; State ex rel. v. Smith, 173 Mo. 414. (2) Unless the opinion of the Court of Appeals is in conflict with “the last previous rulings of the Supreme Court” on some question of law arising therein, this court has no jurisdiction of this cause, has no authority to maintain its writ of certiorari and said writ should be quashed. Constitution, Amendment of 1884, sec. 6; State ex rel. v. Reynolds, 257 Mo. 20; State ex rel. v. Ellison, 263 Mo. 514; State ex rel. v. Robertson, 264 Mo. 668. (3) There is no conflict between the opinion of the Court of Appeals and “the last previous rulings of the Supreme Court:” Either in the approval of plaintiffs’ instruction number 2. Cornelius v. Cornelius, 233 Mo. 36. Or in the approval of plaintiffs’ instruction number 3. Fritz v. Railroad, 243 Mo. 77. (4) There is no conflict between the opinion of the Kansas City Court of Appeals in approving plaintiffs’ instruction numbered two and the previous rulings of the Supreme Court. It never has been decided by this court, in a civil case to recover the amount of an insurance policy upon property destroyed by fire, where the defense was that the plaintiff “conspired and confederated together with other persons to cause said fire, and said fire was intentionally caused by” the said plaintiff “for the purpose of defrauding defendant,” that “the person charged with the wilful burning of the property” is not presumed to be innocent, or that it is error to tell the jury that the person so charged is entitled to that presumption of innocence. The cases of Rodan v. Transit Co., 207 Mo. 392; Mockowik v. Railroad, 196 Mo. 571; State v. Kennedy, 154 Mo. 288, and Morton v. Heidorn, 135 Mo. 608, are cited as the eases with which the opinion of the Court of Appeals approving plaintiffs’ instruction numbered two, is supposed to be in conflict. Not one of those cases, which are cited as “the last previous rulings of the Supreme Court” with which the opinion of the Court of Appeals is supposed to conflict, has any application whatever to this case. The three civil cases cited deal with a presumption of fact which the law allows to be indulged in the absence of evidence. Not one of them deals with a presumption of law. A presumption of fact is one thing; and a presumption of law is another. A presumption of fact is an inference of an unknown fact to be drawn from known or proven facts. Proof of the continuance of a fact may be presumed or drawn from proof of an existing fact; for instance, if a pedestrian, about to cross a street, is seen to stop and look and listen for an approaching street car, the law, in the absence of any evidence on the subject, will authorize an instruction telling the jury to presume that he continued to look and listen until the car struck him. Presumptions of law are “assumptions made by the law that a strong inference of fact is prima-facie correct, and will therefore sustain the burden of evidence, until conflicting facts on the point are shown.” For instance, it is a presumption of law that the holder of a negotiable note is its owner; that a public officer will do his duty; that the possessor of recently stolen goods is the thief. Neither presumptions of fact nor such presumptions of law are conclusive. Neither is for the court. Both are for the jury, and both may be abolished by testimony. The difference is that no presumption of fact is indulged in the presence of proof going to establish or disprove the fact, for then the law does not permit the fact to be inferred from other facts; but a presumption of law adheres throughout the case, in the presence of proof or its absence, and is a matter always for the jury’s consideration. 16 Cyc. 1050 and 1073. Cornelius v. Cornelius, 233 Mo. 1,' holds that where the law clothes a party to a suit with a presumption of law, he is entitled on request to have the jury told that the law so presumes. (5) In view of that case, the only point that remains to be considered, under this division of the , assignment, is, does the law presume that a plaintiff, suing on an insurance policy for loss by fire, and charged with having “conspired and confederated with other persons to cause said fire,’’ and with having “intentionally caused” said fire “for the purpose of defrauding defendant,” was innocent 1 1st. That such a presumption does exist is overwhelmingly shown by 17 Cyc. 757; 22 Ency. Law (2 Ed.), p. 1282; Knope v. Insurance Co., 74 N. W. (Wis.) 795; Monohaghan v. Insurance Co., 18 N. W. (Mich.) 797; Decker v. Insurance Co., 66 Me. 408; Thoreson v. Insurance Co., 12 N. W. (Minn.) 154; Bank v. Insurance Co., 52 Pac. (Ore.) 1054; Sprague v. Dodge, 48 111. 144; Ins. Co. v. Usaw, 4 Atl. (Pa.) 357; Bradish v. Bliss, 35 Yt. 326; Ellis v. Buzzell, 60 Me. 209; Wagoner v. Wagoner, 10 Atl. (Md.) 224; Lyon v. Fleahman, 30 Ohio St. 156. The writer has been unable to find any decision of this court holding that, in a suit on a fire insurance policy, where the defense is that plaintiff intentionally set the fire or caused it to be set for the purpose of defrauding the insurance company, the plaintiff is not entitled to the presumption that he is innocent of that charge, or that he is not entitled to have the jury instructed that he is presumed to be innocent of that charge. Nor has defendant’s counsel cited any such case, in any of their briefs. We are, therefore, justified in concluding that there is no such case. Therefore, the opinion of the Court of Appeals could not be in conflict with “the last previous rulings of the Supreme Court ’ ’ on the point, and hence this court has no jurisdiction on that ground. 2nd. The charge that plaintiffs’ second instruction injected a “criminal element” into the case, is answered by Judge Ellison’s opinion, wherein he says that when the instruction is read in connection with defendant’s instruction number 8 (he inadvertently said number 7) all tendency of the instruction “to suggest that the same character of proof must be produced in a civil action as in a criminal prosecution” is lost. The plaintiffs’ instruction is technically- correct, according to all the authorities, many of which are cited in our brief in that court. If it was error it was so not because it was not technically accurate, and in harmony with the law, but only because at the worst it had a tendency to mislead the jury. But defendant’s instruction absolutely removed that tendency. That instruction lugged in a “criminal element” more emphatically than did plaintiffs’. It specifically told the jury that “the rule in civil cases like the present is different from what it is in criminal cases. ’ ’ It went further and -told the jury what is the rule in criminal cases, and what is the rule in civil cases. Plaintiffs’ instruction simply told the jury that “in civil suits (like this one), just as in the trial of a person charged with crime in a criminal case, the law presumes that the person charged with .the wilful burning of the property is innocent. ” So if either instruction injected a criminal element into the case, both did. The error was common to both sides, and for mutual and common error neither side can complain. Eiggs v. Eailroad, 216 Mo. 319; Smart v. Kansas City, 208 Mo. 204; Lange v. Eailroad, 208 Mo. 475; Moore v. Board of Eegents, 215 Mo. 705. Besides, we again invoke the rule that the holding of Judge Ellison that defendant’s eighth instruction cured any wrongful tendency in plaintiffs ’ and prevented the jury from being misled, is not in conflict with the decisions of this court, for the point has never been decided by this court. It never has been held that these two instructions when read together constituted reversible error, nor has such point ever been discussed. (6) Instruction number 3 for plaintiffs is in harmony with the last previous rulings of the Supreme Court. Fritz v. Railroad, 243 Mo. 77. Defendant lodges only one objection to that* instruction in this court, which is that it “imposes upon thé defendant the burden of proving beyond a reasonable doubt that Ben Weinberg burned, or caused to be burned, the property in question.” The instruction certainly does not expressly do that. It expressly requires the circumstances to be proved “by a preponderance of the evidence. ” • It does not use the words “beyond a reasonable doubt.” If defendant’s charge that said instruction “imposes upon defendant the burden of proving beyond a reasonable doubt that Ben Weinberg burned, or caused to be burned, the property in question,” is true, it can be true only on the theory that the words “inconsistent with any other reasonable hypothesis ’ ’ have the same meaning as and are in every sense equivalent to “beyond a reasonable doubt.” The propriety of the instruction number 3 has been settled by “the last previous rulings” of this court, in Fritz v. Railroad, 243 Mo. 62. This case is cited in our brief filed in the Court of Appeals, and it is therefore reasonable to suppose that that court had it in view when rendering its opinion. But even if the question were one of first impression in this State, it ought not to be held that an instruction which requires circumstances to be “inconsistent with any other reasonable hypothesis” means the same thing as an instruction which requires a defendant’s guilt to be established “beyond a reasonable doubt. ’ ’ There is a wide distinction between requiring the “circumstances” to point to the said plaintiff and to be “inconsistent with any other reasonable hypothesis” and requiring the “guilt” of a defendant to be established “beyond a reasonable doubt.” The requirements are not the same; circumstances are one thing, and guilt is another thing. Our third instruction required that “the circumstances must be proved to your satisfaction by the preponderance of the evidence,” and that the jury, in arriving at the preponderance of the evidence, must find that the circumstances pointed “to the said plaintiff” and were “inconsistent with any other reasonable hypothesis.” So it is all-important to observe that the instruction required the circumstances to be established by a preponderance of the evidence and only required them to be “inconsistent with any other reasonable hypothesis#” To believe defendant’s explanation of the origin of the fire (its charge that Weinberg set it or procured it to be set) “beyond á reasonable doubt” was to be convinced to a moral certainty that such charge was true. Those words would have required the jury to search their hearts for an abiding conviction that defendant’s charge was true. Such a conviction implies the exercise of reason, but it does not depend wholly upon logical deduction. It calls into activity the instinct of the juror’s soul, its inherent love of truth, that intuitive faculty that forces the conclusion that the man is guilty. But ‘ ‘ inconsistent with any other reasonable hypothesis” calls for the exercise of reason only; it appeals, to his intellectual powers; it bespeaks logical deduction; it requires the placing of fact against fact, the balancing of circumstance against circumstance, and it therefore calls for the preponderance of the evidence.
   BLAIR, J.

— In the Jackson Circuit Court, Benjamin Weinberg and W. J. Eice recovered judgment against relator on a fire insurance policy. On appeal the Kansas City Court of Appeals affirmed that judgment, and our writ of certiorari is invoked to quash the record.

Eice was a creditor of Weinberg and his interest arose out of an assignment of the policy to him to secure his claim. The answer averred the fire causing the loss was of incendiary origin and that Weinberg was responsible, with others, therefor. There was evidence tending to prove this averment and evidence tending to refute it and to show the defense was concocted.

Relator contends the Court of Appeals failed to follow the controlling decisions of this court in ruling upon assignments of error lodged in that court against the following instructions:

“2. The court instructs the jury that one of the defenses set up by defendant in this case is the wilful burning of the insured property by the plaintiff, Benjamin "Weinberg. Now, upon this issue, the court instructs you that the burden of proving by the greater weight of the believable evidence that Benjamin Weinberg did in fact intentionally set or cause to he set the fire that burned said property, is on the defendant; and you are further instructed that in civil suits (like this one) just as in the trial of a person charged with a crime, in a criminal case, the law presumes that the person charged with the wilful burning of the property is innocent and the presumption continues until he is proven guilty by a preponderance of the credible evidence in the ease.
“3.. The jury are instructed that to warrant a finding on circumstantial evidence in this case that plaintiff, Benjamin Weinberg, burned or caused to he burned the property in question, the circumstances must be proved to your satisfaction by a preponderance of the evidence, and when the circumstances are so established, they must point to the said plaintiff and must be inconsistent with any other reasonable hypothesis.”

Relator contends these instructions imposed upon it the burden of making out its defense by a weight of evidence greater than a mere preponderance and thus violate the settled rule in civil cases and run counter to designated decisions of this court.

I. The Court of Appeals held the evidence warranted an instruction on circumstantial evidence, and then held that instruction “3” was free from prejudicial error.

Relator contends the final clause of the instruction exacted evidence beyond a mere preponderance and that the holding to the contrary is in conffiet with Rothschild v. Insurance Co., 62 Mo. 356; Edwards v. Knapp, 97 Mo. 432; Marshall v. Insurance Co., 43 Mo. 586; Smith v. Burrus, 106 Mo. l. c. 101; Dakan v. Chase & Son Merc. Co., 197 Mo. 238; Gay v. Gillilan, 92 Mo. 250.

The instruction, in effect, requires proof, by a preponderance of the evidence, of the circumstances relied on to show Weinberg was guilty of arson and then requires that the circumstances so proved “must be inconsistent with any other reasonable hypothesis than 'that of his guilt.”

In Rothschild v. Insurance Co., supra, in which the defense set up to the policy was, as in this case, arson, this court held it was error so to word an instruction as to impress the jury “with the belief that greater caution should be exercised by them and proof of a more conclusive character should be required” to prove, in a civil case, facts constituting a crime than was required in “ordinary civil cases.” By this last was meant cases in which no criminal act was in issue. The Court of ’Appeals quoted this rule, but held, as stated, instruction “3” contained no prejudicial error.

In Gay v. Gillilan the question was presented. *In that case the trial court had given an instruction on the issue of undue influence in procuring the execution of a will which instruction contained, among other things, this direction — “and in order to set aside the will of a person of the sufficient mental capacity aforesaid, on the ground of undue influence, it must be shown that the circumstances of its execution are inconsistent with any other hypothesis than such undue influence, which cannot be presumed but must be shown in connection with the will, and it devolves upon.those contesting the will .to show such undue influence by a preponderance of the testimony.” The instruction was held erroneous on several grounds. -The court said the rule it laid down was more stringent than that applicable to criminal cases, but that even if the words ‘ ‘ reasonable hypothesis” had been employed instead of “hypothesis.” alone, yet the instruction would have been erroneous.

Instruction 3 introduces into this case the rule of the criminal law. Proof of circumstances which exclude every “other reasonable hypothesis” makes out the proof beyond a reasonable doubt. This appears from the language itself. If, on the facts, the only reasonable hypothesis is that one charged with crime is guilty, obviously there is no reasonable doubt of his guilt. A given set of circumstances reasonably may be explicable on more than one reasonable hypothesis. In a criminal case the jury is not at liberty to take either of two equally reasonable hypotheses and find the defendant guilty. Neither may it find him guilty upon an hypothesis more probably true than another which yet is reasonable. It can act upon the hypothesis of guilt only when that is the only reasonable one. In a civil case the jury may, as between two or more hypotheses, choose the more reasonable and find against the less reasonable one which may accord with innocence.

The approval of this instruction by the Court of Appeals brought its opinion into conflict with the decisions cited and the principle they announce and necessitates the quashal of the record brought here by our writ.

The decision of this court in Fritz v. Railroad, 243 Mo. l. c. 77, 78, is not in conflict with that conclusion. In that case the burden was upon plaintiff to prove that one of defendant’s locomotives communicated the fire which caused the loss of which the petition complained. This proof plaintiff sought to make by circumstantial evidence. The court quoted several definitions of circumstantial evidence which support the idea that “the force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove.” The court stated its own view to be that “in cases turning on circumstantial evidence, the proof should have a tendency to exclude any other reasonable conclusion than the principal fact.” It held the evidence in that case had no such tendency and, in effect, that the circumstances proved supported no reasonable theory that could render defendant liable. Eunning through the opinion is also a tacit recognition of the rule that in case the evidence tends to prove two causes of loss or injury, for one of which defendant is responsible, and for one of which he is not, the burden is upon plaintiff to adduce evidence tending to show it to be more probable that the loss or injury resulted from the cause for which defendant is liable. We do not think the opinion can be understood to mean that under no circumstances can circumstances proved be said to be explicable, for the practical purposes of a law suit, on more than one reasonable hypothesis. That this is not the doctrine of this court is implied by the language of all instructions in criminal cases on circumstantial evidence requiring that it exclude every other reasonable hypothesis save that of defendant’s guilt. The Fritz case is not opposed to the conclusion reached.

II. In passing upon instruction “2,” tbe Court of Appeals (citing the decisions in Edwards v. Knapp & Co., 97 Mo. 432; Smith v. Burrus, 106 Mo. l. c. 101; and Rothschild v. Ins. Co., 62 Mo. 360 et seq.) held that “in civil cases involving a charge of crtme> the rule in this State is that the rights of the parties are to be determined by a preponderance of the evidence, while in a criminal prosecution the crime must be proved beyond a reasonable doubt.” It further held that “instructions are to be condemned as prejudicial which directly or indirectly suggest to the jury that the measure of proof required to establish the existence of a crime in issue in a civil case is affected by the criminal nature of the act under investigation,” following Rothschild v. Insurance Co., supra. It pointed out that in that case this court condemned an instruction because it was Held ‘ ‘ calculated to impress the jury with the belief that greater caution should be exercised by them and proof of a more conclusive character should be required than in ordinary civil cases.” The instruction held erroneous in the Rothschild case, in which case the defense set up to the policy was the same as in this, was like that approved in Marshall v. Insurance Co., 43 Mo. 586, except that the trial court added to the statement of the rule as to the requisite weight of evidence in such cases the clause “regard being had, however, to the serious nature of the charge, in determining the preponderance or weight of the evidence.” This added clause this court held vitiated that instruction.

Discussing instruction “2” involved here, after quoting the rule and authorities mentioned above, the Court of Appeals in this case said: “The instruction under consideration came perilously near the line of error marked out in the cited case (Rothschild v. Ins. Co.) in saying that the presumption of innocence in a civil case is the same as that in a criminal case, not, however, because the definition is inaccurate, but that for the saving clause we shall note, it would have been calculated to induce the belief that the same degree of proof was required as in a criminal prosecution for the same offense.’.’ The court then held that the presumption of innocence applied with equal force, whatever the character of the proceeding in which an alleged crime is brought under judicial investigation but held that, with respect to the presumption, “the difference' between the two kinds of actions” (civil and criminal) “is that in a criminal proceeding the presumption must be overcome beyond a reasonable doubt, while in a civil suit it may be overcome by a preponderance or mere weight of evidence. This the jury were clearly told in the concluding clause, ‘the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case.’ We must assume the jury were men of common sense and ordinary understanding and if they were, we do not see how they could have been misled by the instruction into the belief that defendant had a greater burden than the law imposed upon it.”

A rehearing was granted and the cause re-argued, and the Court of Appeals handed down a supplementary opinion in which it said the re-argument left it “convinced of the correctness of the opinion delivered at the first hearing.” This opinion then proceeded:

“There, perhaps, should have been omitted from plaintiff’s instruction 2, set out in the original opinion, the following words: ‘just as in the trial of a person charged with crime in a criminal case.’ If, ■standing alone, those words would have a tendency to suggest to the jury that the same character of proof must be produced in a civil action as in a criminal prosecution, thereby coming within the case of Rothschild v. Ins. Co., 62 Mo. l. c. 359, that tendency is lost when the instruction is read in connection with defendant’s number 7. For in that instruction defendant itself has the court to bring to the jury’s attention the difference between a civil and a criminal action and instructing them that while in a criminal action there must be evidence to convince beyond a reasonable doubt, such rule did not obtain in a civil action and explaining the difference in requisite of proof in the two classes of eases. The instruction is taken bodily from that given in the Rothschild case, save the last clause, added by the circuit court and condemned by the Supreme Court. When the two instructions are read together, there can be no reasonable ground for the suggestion that the jury was misled. If it was improper for plaintiff to have referred, at all, to a criminal case, it was an impropriety adopted and joined in by defendant; a fault condoned. ’ ’

Relator contends the opinion of the Court of Appeals, in so far as it approves instruction “2,” is in conflict with Rodan v. Transit Co., 207 Mo. 392; Mockowik v. Railroad, 196 Mo. 571; State v. Kennedy, 154 Mo. 268, 288; and Morton v. Heidorn, 135 Mo. 608.

(a) In Morton v. Heidorn, this court condemned an instruction which told the jury that a will executed and published by one of sound mind was “presumed to be his free and voluntary act, and you cannot in such case find against said will on the ground of undue ■ influence, unless the charge of undue influence has been proven to your satisfaction by a preponderance of the evidence.” It was held that the use, without explanation, of the words “preponderance of the evidence” was not necessarily erroneous, but that their use in connection with the words “proven to your satisfaction” and the direction as to the asserted presumption, would lead the jury to infer naturally that the “preponderance of the evidence must be such as to overcome the presumption which the court declared to exist as a matter of law. ’ ’ The opinion proceeds: 1 ‘ That declaration is not entirely correct. When the cause was submitted to the jury, there was no presumption of the law that the document was testator’s ‘free and voluntary act.’ There was evidence before them which all the parties and the court alike interpreted as tending to prove undue influence. Both adversary parties asked and obtained instructions on that theory. In that state of the case it was not proper to give proponents of the will the benefit of a so-called presumption which is merely one of fact, applied in the absence of any evidence permitting a different inference.”

The Mockowik and Rodan cases apply a like rule to efforts to rely upon the presumption of ordinary care on the part of injured persons when there is evideuce tending to prove the actual facts respecting that matter. Our reports contain numerous decisions upon this question, and the rule approved in Morton v. Heidorn often has been applied.

Counsel for respondent, however, contend this principle applies only to what are termed “presumptions of fact” and not to “presumptions of law;”» that the presumption of innocence is one of law and therefore outside the rule. Frequently, in applying the rule, this court has, as in Morton v. Heidorn, pointed out that the “presumption” under consideration was a “presumption of fact.” In other decisions it is stated the presumption is “disputable” or “rebuttable,” as appears from cases cited in Morton v. Heidorn and cases they cite. In Ham v. Barret, 28 Mo. 388, this court, however, held the rule applicable to all presumptions of fact and held that all rebuttable presumptions are presumptions of fact. It thereby included under the head of presumptions of fact what this court now more frequently denominates rebuttable or disputable presumptions of law. With this understanding of the difference in terminology, now and then, that decision is authority against respondent’s present position that the rule relator relies upon is inapplicable to a rebuttable presumption of law, as this court employs those terms in its classification of presumptions.

The doctrine written in Cornelius v. Cornelius, 233 Mo. l. c. 36 et seq., directly supports respondent’s contention on this point. No judge concurred in that opinion in such manner that his concurrence necessarily included his agreement to the proposition that it was reversible error to refuse to tell the jury there was a presumption in that case against malice. What was said of that case in Knapp v. Knapp, 183 S. W. 576, did not have reference to any question whether the presumption should be stated in instructions. It must be confessed, however, that in numerous instances this court has approved instructions, despite the presence of evidence on the point, instructing juries that the law presumed this or that when the presumption was what we call one of law; though rebuttable. It is also true that there are many decisions (see briefs) in other jurisdictions holding it necessary that the jury be instructed as to the presumption of innocence in civil cases in which crime is in issue.

In these circumstances, if this court cannot, in a case like this, review on certiorari any holding not in conflict with our own decisions, it cannot be held the Court of Appeals erred in approving that portion of instruction 2 which merely told the jury there was a presumption of innocence of crime even in a civil case.

(b) The rule laid down in Morton v. Heidorn, supra, ought not, in the writer’s opinion, to be restricted to “presumptions of fact.”

The presumption of innocence is not in itself evidence, as this court in effect held in State v. Kennedy, supra, when it refused to follow United States v. Coffin, 156 U. S. 433, wherein that presumption was held to be evidence for defendant and a failure to declare the presumption to the jury was, on that ground, held reversible error. The Coffin case frequently has been criticised, and even the court which rendered it seems to have receded, in part at least, from the position it took therein. The propriety, affirmed in State v. Kennedy, supra, of instructing on the presumption of innocence in a criminal case, therefore, depends upon something besides evidentiary force in the presumption itself. This may be said to be the law’s anxiety to present the defendant, in such cases, to the trial jury in such manner that he shall not be handicapped by the inference which might arise from his arrest, commitment, indictment, etc. This reason is, obviously, inapplicable to an ordinary civil ease, even though the commission of crime is in issue. In such case the presumption of innocence places the burden of proof upon the party alleging a crime was committed, and, in the absence of evidence of its commission, warrants a direction of a verdict against the charge of crime. That is usually and logically the sole effect of rebuttable presumptions of law, which generally may be defined as conclusions which, in the absence of evidence upon the exact question, the law draws from other proof made or from facts judically noticed or both. The burden of proof cast by such presumptions is satisfied by the adduction of evidence sufficient to convince the jury that the probabilities of truth are against the party whom the presumption relieves of the burden of proof. The presumption itself is not evidence. It is not a thing to be “overcome” by evidence in the sense that it, of itself, adds anything to the strength of the evidence of the party invoking it. Despite the presumption, the party upon whom it casts the burden in a civil case makes out his case when he adduces evidence proving his allegation of fact to be more probably true than is the contrary. In argument the facts giving rise to the presumption may be invoked and the legitimate inferences from them employed to convince the jury the evidence offered by the party having the burden of proof does not establish the fact he contends is true. To say, however, in an instruction to a jury, in the case of a rebuttable presumption, and when evidence has been introduced upon the question, that “the law presumes” so and so and that such presumption “must be overcome” or “overthrown” by evidence, is sometimes useless, sometimes prejudicial and always illogical. As suggested under (a) there are Missouri decisions not in accord with this conclusion.

(c) In any event, however, to instruct in a civil case, in which the defense is arson, that “in civil suits (like this one), just as in the trial of a person charged with crime, in a criminal case, the law presumes that the person charged with the wilful burning of the property is innocent” is in contravention of the rule laid down in the Rothschild case, cited above. The added clause that “the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case” does not, for the reasons given in the Rothschild case and in Gray v. Gillilan, supra, cure the error. Nor was the error either invited or condoned by instruction 8 given at defendant’s request. This was the instruction referred to as “Instruction 7” in the opinion of the Court of Appeals on rehearing. As stated in that opinion, it is taken bodily, less the added clause this .court held erroneous, from Rothschild v. Ins. Co., 62 Mo. l. c. 358, 359. That instruction did not mention the presumption of innocence. It was designed to inform the jury as to the difference in the weight of evidence requisite to convict in a criminal case and to warrant a verdict in a civil case. Among' other things, it specifically told the jury that “in civil questions like the present there is no question whether any crime has been committed. The question in this case is merely a question of greater or less probability, and the jury in order to find a verdict for the defendant need not be satisfied of the complicity of the plaintiff in the burning in any other way, or with any different degree of satisfaction than if the question were an ordinary question in a civil case.”

That instruction constituted no invitation to the court so to instruct as to impress the jury that, in order to find for defendant on the issue of arson, they must look for “proof of a more conclusive character . .' . than in ordinary civil eases.” This is what we think the court did by giving instruction 2 for plaintiff.

The record of the Court of Appeals is quashed.

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