text:
    IRWIN H. PIPES v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    March 30, 1916.
    1. PLEADING: Personal Injuries: Action Given by Statute. It is not necessary that the statute of this State or of Congress which gives to plaintiff his cause of action he pleaded; all that is required is that the facts which bring the case within them he stated in the petition. The laws of Congress are not foreign laws that must he pleaded or proven in this State.
    2. INTERSTATE COMMERCE: Personal Injuries: Jurisdiction of State Court. If the petition states the facts which, under the statute of this State and the statute of Congress, constitute a cause of action for personal injuries due to defendant’s negligence, the court should refuse an. instruction directing the jury that if the car which the crew was attempting to couple at the time plaintiff was injured was employed in interstate commerce, their verdict must he for defendant; for, the State courts have jurisdiction to enforce the liability created by those statutes for such injuries so inflicted.

      3. EVIDENCE: Cause of Stopping Cars. Where plaintiff fell from the running board of a oar and was injured, when the drag of sixteen cars, which the crew were attempting to couple with other loose cars, suddenly stopped, it is error to permit plaintiff to testify what caused them to stop and deny that right to defendant — where the cause of the sudden stop is the vital issue in the case.
    Appeal from Jackson Circuit Court. — Ron. Clarence A. Burney, Judge.
    Reversed and remanded.

      White, Rackney & Lyons for appellant.
    (T) The court erred in permitting plaintiff to testify that in his opinion undoubtedly the brakes were set on the engine thereby causing the drag to stop suddenly. Permitting him to answer this question and give his conclusion of the most" vital fact in issue in the case was glaringly prejudicial to the defendant. Landers v. Railroad, 134 Mo. App. 87; Taylor v. Railroad, 185 Mo. 255; Castanie v. Railroad, 249 Mo. 192; Glasgow v. Railroad, 191 Mo. 364; Roscoe v. Met. St. Ry., 202 Mo. 595 '; Gutridge V. Railroad, 94 Mo. 472; Nash v. Dowling, 93 Mo. App. 164; Wesner v. Railroad, 177 Mo. App. 122; 6 Thompson on Negligence, p. 684. (2) But in any event, and on any theory, the court, after having permitted the plaintiff to give his opinion as to what stopped the drag, when the plaintiff was not in a position to see what actually occurred, should have permitted ITogan, of like experience with the plaintiff and who had occupied a position enabling him to tell what stopped the drag, to give an opinion on the same matter on which the plaintiff had given his opinion. If Hogan’s testimony was inadmissible then plaintiff’s testimony was also inadmissible. (3) The plaintiff did not bring his action for damages under the Federal Employers’ Liability Act, but sued under the State law and was not entitled to recover. When it appeared from the evidence that the plaintiff and the defendant were, at the time of the accident, engaged in interstate commerce, the State law was not applicable to the transaction and the rights, duties and liabilities of the parties, but the Federal Employers’ Liability Act having superseded the State law in such a case was alone applicable, and this completely barred the plaintiff’s fight to recover under the State law. The case pleaded by the plaintiff, to-wit, one under the State law was, therefore, disproved, and the ease proved, to-wit, one under the Federal Employers’ Liability Act, was not pleaded, hence there could be no recovery for the plaintiff, and the jury should have been so instructed. Mo-liter v. Eailroad, 180' Mo. App. 84; Eailroad v. Seale, 229 U. S. 156; Eailroad v. Slavin, 236 U. S. 454.

      Percy C. Field and Clarence 8. Palmer for respondent.
    (1) The testimony of the plaintiff as to the cause of the sudden stopping of the train was proper. He was stating a fact made known to him by his trained senses. Eailroad v. Johnson, 38 Ga. 409; Wig-more on Evidence, sec. 659; Hunter v. Halsley, 98 Mo. App. 621; Smith v. Eailroad, 34 Nova Scotia, 22; Bryce v. Eailroad, 129 Iowa, 342. (2) There was ho error in the ruling of the trial court on the admissibility of the testimony of the witness Hogan. He testified to all the facts about which he was asked. (3) The rights of the parties to this action were exactly the same under the facts, whether the case was controlled by the State or Federal law. By no possibility were the rights of the appellant materially affected by the rulings of the trial court on this question, and there should therefore be no reversal. Eailroad v. Wulf, 226’U. S. 570 ; Eailroad v. Slavin, 236 H. S. 306; Sec. 2082, E. S. 1909; Eailroad v. Yurkonis, 220 Fed. 429; Eailroad v. Hayes, 234 U. S. 86; Hogarty v. Eailroad, 245 Pa. St. 443; Railroad v. Nelson, 212 Fed. 69; McIntosh v. Railroad, 182 Mo. App. 288.
   BROWN, C.

This is an action for personal injury suffered by the plaintiff in the course of his employment as a switchman in defendant’s yard at Kansas City., Verdict and judgment for $8000, from which the defendant has taken this appeal.

The petition states, in substance, that the plaintiff was a member of a switching crew employed by defendant in said yard. On June 12, 1914, he, with the crew, which consisted of a foreman, an engineer and fireman who operated the engine, and himself and another switchman, was engaged in handling cars in said yard; that in doing this work the engine was attached to the east end of a drag consisting of sixteen freight cars, for the purpose of shoving it west on one of the tracks to couple it to three freight cars standing’ on said track, and shoving the drag so made up to a gravity lead at the west end of the yard; that in executing the movement it was his duty to get on the top of the cars and pass along the running boards to the head of the drag, or farthest car from the engine; that in pursuance of this duty he mounted one of the cars, climbed to the top, and walked west along the footboard; that while he was doing this the last car had been apparently coupled to the three that were standing on the track so that there were nineteen cars in the drag; that while plaintiff was still walking along the footboard on the top of the sixteenth car toward the head of the drag, and was at the west end of the'sixteenth car, the fireman, who was driving said engine, without any signal to stop, applied the brakes to the engine and caused it to stop suddenly and with a jerk, so that the three front cars which had not been' securely coupled to the one on which he was walking separated from it and plaintiff was thrown from the top of the car to the track below and injured.

It specifies particularly that the “defendant was negligent, in that, the said fireman carelessly and negligently caused said engine and drag to stop with a jerk, when no signal had been given to stop, when the defendant, by and through its agents and servants, in charge of said engine and drag, knew, or by the exercise of ordinary care, could have known that plaintiff was walking upon the running board of said cars of said drag and would be jerked off of said drag and injured by the stopping of said engine and drag with a jerk when no signal to stop had been given;” and that the agents and servants of defendant in charge of said engine and drag carelessly and negligently pushed it along without the three head cars being securely coupled, so that they would separate from the drag being stopped with a jerk, when they knew or by the exercise of ordinary care could have known of the dangerous position of plaintiff and that he was relying on the car being securely coupled.

The answer consisted of a general denial and the ordinary general plea of contributory negligence.

There was no suggestion in any of the pleadings that the employment of the defendant at the time of the injury related in any way to commerce between the States.

There was evidence tending to prove that these three cars had been delivered at the yard that day by the Chicago, Milwaukee & St. Paul Railway Company, which had brought them from Laredo, Missouri, and that one of them had been delivered at Laredo that morning from Ottumwa, Iowa.

There was also evidence tending to prove the allegations of the petition, unless there was a failure with respect to setting the brakes. On this subject the plaintiff testified as follows: “I was standing there looking 'back over my shoulder and just at the time I was looking back the stop came, and the stop was so sudden that undoubtedly the stop was made by the application of the brakes, or else. — ” At this point he was interrupted by an objection from defendant’s attorney, who immediately moved to strike out the statement of the cause of the stopping, on the ground that it was mere speculation. This was overruled by the court and the witness continued, stating that the jerk came with such an abrupt stop that in his estimation or knowledge the brakes were undoubtedly set or the engine reversed — that it was made by the stopping of the engine. The defendant moved to strike out this portion of the answer as being a mere opinion. The objection was overruled by the court and to this action in admitting this evidence and refusing to strike it out the defendant excepted.

The defendant introduced Mr. Hogan, the other switchman of the crew, who testified that at the time Mr. Pipes fell from the top of the car he (Hogan) was standing at about the middle of the original drag of sixteen cars, transmitting to the engines such signals as were given by the foreman, who was at the place where the coupling was to be done. During his examination by Mr. Hackney for defendant (Mr. Field representing the plaintiff), the following took place:

“Q. Could you tell what if anything caused the sixteen cars to stop?
“Mr. Field: Objected to as calling for a conclusion of the witness.
“Q. Could you see what caused it?
“Mr. Field: I suppose that is a conclusion. Let him state what he did see.
“The objection was by the court sustained. To which ruling of the court the defendant then and there duly excepted.
“Mr. Hackney: I offer to show "by this witness that the cars stopped in consequence of striking the three cars and not from the application of the brake on the engine.
“Mr. Palmer: Objected to for the reason that it would be a mere conclusion of the witness unless the witness could see what was being done by the engineer on the engine, which he testifies was eight ears away.
“The objection was by the court sustained. To which ruling of the court the defendant then and there duly excepted. ’ ’

The defendant, at the close of plaintiff’s evidence and again at the close of all the evidence, asked the court to instruct the jury to find a verdict in its favor, which it refused, and defendant duly excepted. It also asked the court to instruct that if the plaintiff was negligent, and his negligence contributed in any way to his injury, they should find for the defendant. This was also refused and exception taken. It also asked the court to instruct that if the jury should find from the evidence that the east car of the three to which the crew were trying to couple the drag “was URT car No. 3832; that said car was loaded, and had been transported in such loaded condition by the Chicago, Milwaukee & St. Paul Railway Company from Ottumwa, Iowa, to Kansas City, Missouri, and there delivered to the Missouri Pacific Railway Company for further transportation or delivery, then regardless of the other defenses in' this case, the plaintiff is not entitled to recover and your verdict must be for the defendant.” This was refused, to which defendant excepted. The cause was then submitted to the jury upon the solé theory, affirmatively expressed in substance in plaintiff’s instructions and negatively in those given for defendant, that the liability of defendant depended upon the fact that after the drag of sixteen cars' struck the east ear of the three to which they were attempting to couple it, and while the engine was pushing the nineteen cars westward, the engineer or fireman operating it, without any signal to do so, suddenly stopped “with a jerk,” letting the three cars, which had failed to couple, pass on, and throwing the defendant from the west end of the sixteenth car on which he was walking.

The appellant assigns for error the action of the court in refusing its instruction intended to direct the jury that if the car to which the crew was attempting to couple was, at the time, employed in interstate commerce, their verdict must be for the defendant. The instruc^ion is without foundation. This is a common-law action excepting in so far as it is modified by the terms of section 5434 of the Revised Statutes of 1909 of Missouri, and by section one of the Act of April 22, 1908 (35 U. S. Statutes at Large, p. 65). The former is as follows: “Every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.” The latter provides that “every common carrier by railroad while, engaged in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury . . . resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.”

These statutes constitute the -law of the State with reference to the liability of railroad companies to their servants for injuries inflicted upon them by fellow-servants in the course of the common employment, and the State courts of'gener al jurisdiction have cognizance of suits to enforce the liability created by them. This 'jurisdiction must be exercised in accordance with the procedure prescribed by the statutes of the State. The procedure provides (Sec. 1794, R. S. 1909) that the petition shall contain a plain and concise statement of the facts constituting the cause of action and the relief to. which the plaintiff may suppose himself entitled. Its sufficiency is judged by the answer to the question, do these facts entitle the plaintiff to relief under the laws in force in this State, and in considering it, the general laws, whether State or Federal, must be considered. It is not necessary that these laws be mentioned or in any way identified in the pleading. It is only required to state the facts which bring the case within them. [Emerson v. Railway Co., 111 Mo. 161, 165; Lore v. Manufacturing Co., 160 Mo. 608, 621; McKenzie v. United Railways Co., 216 Mo. 1, 17; Railway Co. v. Wulf, 226 U. S. 570, 576; Railway Co. v. Gray, 237 U. S. 399, 401.] The laws of Congress are not foreign laws, that must be pleaded and proven in the courts of this State. Had the 'answer in this case pleaded that the injury was suffered while the defendant and its switching crew were engaged in commerce between the States, it would have been no defense, but merely the statement of an immaterial fact attending the creation of the liability, and to have proven it without pleading could have no .greater effect.

Since the trial of this case, the Supreme Court of the United States, which is the. paramount authority upon the construction of the Federal laws, has decided this question in Railway v. Gray, supra. In doing so it said: “ There are differences and similarities between the Wisconsin and Federal statutes, but we do not perceive that there is any difference that made the railway company’s position worse if tried on the hypothesis that the State law governed.” In this case there is no suggestion of any such difference in the application of these statutes; [See, also, C. R. I. & P. Ry. Co. v. Wright, advance sheets U. S. Sup. Ct. Reports, Feb. 15, 1916, p. 185.]

The only case to which our attention has been directed which tends to support the theory of defendant is Moliter v. Railroad, 180 Mo. App. 84. In that case the Kansas City Court of Appeals held that actions upon the liability created by the State and Federal statutes were so essentially different in their nature that they cannot be substituted for each other by amendment to the .petition. This was probably a mere inadvertence, and ought not to be followed.

II. The next question presented will be simplified by bearing in mind the facts upon which the plaintiff depends for his recovery. He was thrown from the top of a freight car over the front end, falling upon the track. The car from which he fell was the last or front car of a drag of sixteen which had been shoved westward to be coupled to the east one of three cars standing upon the same track. The moving car, upon'th'e top of which he was walking forward for the purpose of stepping upon the running board of the other car as soon as the coupling should be made, struck it, but the automatic couplers failed to work, so they were not locked together. Hp to this point there is no difference between the plaintiff and defendant. Here, however, their theories diverge. The plaintiff says that the sixteenth car upon which he stood continued westward, shoving the three before it when the engineer,- without any signal therefor, either by the application of the brakes, or by reversing the movement of the engine, suddenly stopped it with a jerk, and the three cars passed on, leaving a space in which the plaintiff fell to the track. On the other hand, the defendant claims that the sixteen cars stopped by reason of their impact against the three, which, not having coupled, moved away from them by the force of the impact, leaving the space into which plaintiff was thrown by the sudden stop.

The jury were instructed that if they should believe the former theory they must find for the plaintiff; if the latter, they were to find for the defendant. During the occurrences that resulted in the accident Mr. Lonergan, the foreman of the crew, stood at the east end of the three cars, where the coupling was to take place, directing the movement of the engine by signalling with his hands. Mr. Hogan, a switchman, stood about half way between Mr. Lonergan and the engine, for the purpose of transmitting the signals from the former to the latter by repeating them.

Hpon the trial it was admitted that Mr. Lonergan was not available as a witness to either party. The plaintiff testified: “I was standing there looking back over my shoulder and just at the time I was looking back the stop came, and the stop was so sudden that undoubtedly the stop was made by the application of the brakes.” At this point he was interrupted by defendant’s attorney, who objected, and moved to strike out the statement on the ground that it was mere speculation. It was overruled by the court and the witness was permitted to continue, repeating this statement in substance: stating that the jerk came with such an abrupt stop that in his estimation or knowledge the brakes were undoubtedly set or the engine reversed— that it was made by the stop of the engine. The defendant moved to strike out this additional statement as being a mere opinion. The court refused and defendant excepted. These matters are assigned for error.

The defendant introduced Mr. Hogan and asked him if he could tell what, if anything, caused the cars to stop — if he could see what caused it? The plaintiff objected on the ground that the question called for the conclusion of the witness. This objection was sustained and defendant excepted. The defendant’s counsel then said: “I offer to show by this witness that the cars stopped in consequence of striking the three cars and not from the application of the brakes on the engine.” To this the plaintiff objected for the reason that it would be a mere conclusion of the witness, unless he could see what was being done on the engine, eight cars away. The objection was sustained and defendant excepted. These matters are also assigned as error. It will be seen that the question raised upon the admission and exclusion of this testimony was of the most vital importance. It seems to us, that the same reasons upon which the admissibility of the testimony of plaintiff must rest would apply with equal force in favor of the testimony offered through Mr. Hogan. Both were experienced railroad men, and as such, must be assumed to have been equally competent to draw inferences from the facts which surrounded them relating to the operation in which they were engaged. The plaintiff was sixteen cars away from the engine when it stopped, and it is not suggested that he was able to see anything that was taking place in the cab. In fact he places his knowledge upon the nature of the stop alone.

Of course he could hear the rattle of drawbars and couplers as the eight or ten feet of slack of which he testifies were taken up or payed out, and felt the final jerk attending the change from movement to absolute rest. If this was not sufficient to indicate to his trained senses the cause of the stop the admission of his testimony was vital error. If he was qualified to speak in that respect so that the testimony was admissible, Mr. Hogan, a man of equal experience and intelligence, must have been equally qualified. He stood half way between' plaintiff and the engine, his duty requiring him to watch Mr. Lonergan, who stood at the place where the impact "must occur, and in communication, by sight, with the man controlling the engine, to whom he must be prepared to signal with his hands, and who must be in plain sight .of him to receive such signals. His instincts and perceptions were trained like those of the plaintiff. It seems impossible under these circumstances that he should not have been as well prepared as the plaintiff to speak of the cause of the stop' and as to whether it originated from force applied at the engine or at the front end of the drag. "We think it was error to refuse to permit him to say whether or not he could, under the circumstances, tell what caused these sixteen cars to stop and whether or not he could see what' caused it. If he could, he was perfectly competent to state, as the plaintiff stated, the cause, and could be asked what it was, for the purpose of proving-that it was from the impact against the three gars ahead of it, and not from the application of the brakes. We think that the court committed prejudicial error in refusing to permit him to be so examined. It follows that the judgment of the Jackson Circuit Court must be reversed and the cause remanded.

Bailey, G., concurs.

PER CURIAM. — The foregoing opinion ' of Brown, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: FARIS, P. J.

license: Public Domain

text:
    FRANK HOWARD et ux. v. SCARRITT ESTATE COMPANY, Appellant.
    Division Two,
    March 31, 1916.
    1. NEGLIGENCE: Injury to Child: Care of Parents: Instruction. In an action by parents for'the negligent killing of their child of tender years while riding in the passenger elevator of defendant’s office building, an instruction which told the jury that if the failure of either of the child’s parents to guard and look after him “contributed in the least degree” to the happening of the “accident” to the child, the finding should be for defendant, was erroneous. Contributory negligence sufficient to prevent recovery must be negligence that entered into and ■ formed the direct, producing and efficient cause of the casualty. Besides, the instruction should not place the burden of guarding the child upon both parents at the same instant.

      2. -: Customary Method of Operating Elevator: Instruction. Where the effect of closing the sliding doors of a pas- " senger elevator with one hand while the operator threw the speed lever, with the other was that the accelerated car was six or eight feet above the floor before the doors became closely shut, and plaintiff’s child, a passenger thereon, fell through and was killed, an instruction which tells the jury that If they believe from the evidence that the elevator doors were at the time operated “in the usual and customary way that this and other similar elevators and doors in this and other buildings were operated” the defendant was not negligent in the operation thereof, was erroneous. The apparatus is not so intricate as to require expert exposition, or an instruction based thereon.
    Appeal from Jackson Circuit Court. — Hon. T. J. See-horn, Judge.
    Affirmed and remanded.

      Boyle & Howell, Joseph S. Brooks and George L. Boyle for appellant.
    (1) Instructions 7 to 13, inclusive, given on behalf of the defendant, and Instruction 5 for plaintiff, as modified, properly declared the law applicable to the case and it was error on the part of the court to grant a new trial on account of error in the instructions. Minnier v. Railroad, 167 Mo. 120; Spencer v. Bruner, 126 Mo. App. 102; Brunke v. Tel. Co., 115 Mo. App. 39. (2) Under the law and evidence in the case the verdict of the jury was properly returned for the defendant and the verdict of the jury should not have been set aside.

      Ellis, Cooh & Barnett for respondents.
    (1) The court erred in giving defendant’s instruction 10, making failure to use the least degree of care contributory negligence precluding recovery. Oates v. Met. St. Ry. Co., 168 Mo. 535; Moore v. Railroad, 126 Mo. 265; Whalen v. Railroad, 60 Mo. 323; Kennayde v. Railroad, 45 Mo. 255; Klockenbrink v. Railroad, 172 Mo. 688; Hof v. Transit Co., 213 Mo. 468, (2) The court erred in giving defendant’s instruction 9, justifying gross carelessness by custom. Hughes v. Railroad, 127 Mo. 447; Peterson v. Met. St. Ry. Co., 211 Mo. 498; Penney v. Stock Yards Co., 212 Mo. 309; Lee v. Knapp, 55 Mo. App. 390; Reichla v. G-ruensfelder, 52 Mo. App. 43.
   FARIS, P. J.

Plaintiffs, who are husband and wife, sued the defendant, a corporation, engaged in Kansas City in operating an office building, for the alleged negligent killing of their infant son in a passenger elevator in said building. Upon trial the jury found for defendant, whereupon the court granted plaintiffs á new trial, and defendant appealed. The amount sued for being $10,000 and within our jurisdiction, the case is here.

This is the second appeal in this case. Heretofore it was tried and plaintiffs had judgment for $5000. Thereon an appeal was taken to the Kansas City Court of Appeals; wherein for errors, the case was reversed and remanded. [Howard v. Scarritt Estate Co., 161 Mo. App. 552.]

The facts upon, the instant appeal, so far as they are pertinent, do not so greatly differ from those shown upon the first trial and set out in the report of this case in Howard v. Scarritt Estate Co., supra, as to make it necessary to again use space in reciting them. They have been published once and the curious may read them in the book cited above.

Upon the instant trial the testimony tended to show that the operator of the elevator in question had given the two sliding doors (which closed the entrance to the elevator shaft) a shove with one hand while he threw the starting lever over with the other. The starting apparatus' was equipped with five electrical contact points, the office- of which was to start the car with different degrees of rapidity, increasing till the last point of contact was reached, which gave a very rapid movement to the car. The effect of such contemporaneous closing of the sliding doors and throwing on of the speeds, so rapidly accelerated the car as that it was always some six or eight feet above the floor before the doors had time to become closely shut. There was some testimony offered by plaintiffs from the operator of the elevator in question, as well as from other witnesses engaged in operating elevators in the same building and in similar buildings, that the method thus pursued in closing the doors in question in the instant case and in contemporaneously starting the elevator cage, was the usual and customary way of so operating these appliances.

Upon the trial an instruction was offered by defendant and given by the court upon this phase of the case. This instruction will he found set out at length in the opinion herein in connection with the discussion of its alleged incorrectness. The court also upon the trial of the case gave an instruction upon the theory of the alleged contributory negligence of plaintiffs herein in failing to properly guard the child while he was riding in the elevator and just before he fell through and was killed. • This instruction will also be found in the opinion, and so we need not set it forth here.

I. The new trial herein was granted “on account of error in instructions.” Of this error, or errors, no further and more definite specifications are furnished us. Counsel for appellant broadly urge that instructions seven to thirteen inclu-. sive, given for defendant, are each the law, citing us as proof of the faith whiYh is in them to the case of Minnier v. Railroad, 167 Mo. l. c. 120; and to two cases in the Courts of Appeals, Spencer v. Bruner, 126 Mo. App. l. c. 102, and Brunke v. Telephone Co., 115 Mo. App. l. c. 39.

These cases are not in our view authority sufficient to sustain all seven of the instructions complained of; some one or more of which must have been held in mind by the court below.

Among others the court nisi gave for the defendant this instruction, numbered ten in the record, to-wit:

‘ ‘ The court instructs the jury that inasmuch as the son of plaintiffs was a child of tender years, it was their duty at all times to guard and look after him, and that it was the duty of the parents to take care for their child in proportion to the dangers of his surroundings, and if you believe from the evidence that plaintiffs or either of them failed to watch and care for their child in manner and form as defined by these instructions, in the elevator in question, and that such failure on the part of the parents, or either of them, contributed in the least degree to cause the accident to their child, then plaintiffs cannot recover in this suit and it is your duty to return a verdict for defendant. ’ ’

We think it is evident from a mere casual reading that the above instruction is erroneous and that the giving of it alone was a sufficient warrant for the action of the learned court in setting aside the verdict for defendant. For it will he seen that the jury are advised by this instruction that if the failure of either of the parents of the dead child to guard him and look after him “contributed in the least degree” to the happening of the “accident” to the child, then the finding . should be for defendant.

It is not the law that the least negligence of him who is hurt will excuse an otherwise guilty tortfeasor for his negligent act. [Moore v. Railroad, 126 Mo. l. c. 277; Oates v. Railroad, 168 Mo. l. c. 548.] It is plain (and it has so been ruled) that to hold otherwise would he to hold that there exists in this State the doctrine of comparative negligence; a doctrine which has been, when sought to be invoked, always expressly repudiated. [Hurt v. Railroad, 94 Mo. l. c. 264; Oates v. Railroad, supra.] The rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must he such as to enter into and form the direct, producing and efficient cause of the casualty, and absent which the casualty would not have happened.

The unfortunate facts of this casualty present a peculiarly difficult case in which to apply the doctrine of contributory negligence. The circumscribed area in which the child and his parents were confined and the closeness of the child to the door opening, were such that a mere step may have caused his fall and death. We think, however, that defendant was entitled to have this issue presented to the jury by a proper instruction ; we are convinced that the instruction given was improper.

In addition to the error above pointed out this instruction put upon plaintiffs too great a burden of care. It might well be proper to leave to the jury the question of the care of one parent, but to say to the jury, as tiffs instruction in effect does, that unless both parents were guarding the child no recovery could be had, was in a practical sense to instruct the jury to find for defendant. If both parents were negligent in performing the duty of guarding the child then no recovery should be had; but one parent at a time ought to be all the guard a four-year-old child needs in order to ride safely in a passenger elevator.

II. While it necessarily results that this case must for the error noted above be affirmed and remanded for the new trial properly granted by the learned trial court, it may be well to say that in our opinion instruc-. tion nine was likewise erroneous. This instruction reads thus :

“The court instructs the jury that if you believe from the evidence the elevator doors to the elevator shaft were operated at the time in question in the usual and customary way that this and other similar elevators and doors in this and other buildings are operated, then you should not find that defendant was negligent at the time in ques-^011 jn -¿he operation thereof, and your verdict should be in favor of defendant.”

If the matter of time and manner of closing a door to an elevator shaft were a peculiarly intricate one, which, by reason of its abstruseness, the populace, lacking scientific knowledge, are unable to grasp and know and understand, then evidence of experts as to the safeness or unsafeness of a given method of operation might be permissible, and an instruction based on such testimony he allowable. Biut no such case is presented. Rather is this a case analogous in all substantial respects as to this feature to that of Hughes v. Railroad, 127 Mo. 447, wherein it was said at page 454:

‘ ‘ The giving of the instruction would amount to the assertion that a custom, however dangerous to human life it might he, had it been pursued for a period of eight months by defendant without injury to any one up to the date of the injury complained of, might be interposed as a defense, by the party exercising it,' from the consequences of its dangerous continuance.. The duty enjoined upon defendant to exercise care, caution and vigilance is not dependent upon the fact that on some former occasion a like injury had happened at this exact place and under similar circumstances and conditions. The act itself was dangerous. The consequences of it could have been reasonably-foreseen, and injuries from it reasonably been avoided only by the exercise of the greatest care on part of defendant to warn all persons on its platform to be on the lookout.”

Conceding that a rule similar to. that stated in the above instruction exists in matters demanding expert exposition, and likewise as to the duty of the master to furnish only customarily used appliances, and not the very best and newest and most improved appliances, to an employee, we yet do not think it can apply in a. case like this. [Reichla v. Gruensfelder, 52 Mo. App. 43; Peterson v. Railroad, 211 Mo. 498; Penney v. Stock Yards Co., 212 Mo. 309.]

The question of the degree of duty, if any, which defendant owed to plaintiffs upon the facts, is not raised here by appellant,, and while respondent tacitly calls it to our attention, we are not for that called on to discuss it.. But pass it, saying simply that it is not before us upon the record. If it was ever in the case it has been waived in this review.

It results from what is said that the action of the learned trial court in granting a new trial was correct and that the case should be affirmed and remanded for the new trial properly ordered by the court nisi, Let this be done.

All concur.


text:
    I. J. WOLF v. HENRY HARRIS, Appellant.
    Division Two,
    March 31, 1916.
    1. ABSTRACT: Transfer from Court of Appeals. When a case reaches the Supreme Court by transfer from a court of appeals, on the ground that a constitutional question is involved, the rule is not to scrutinize too closely the abstract of the record, lest appellant be caught unwittingly between the rules of that court and of this and thereby be pinched out of any appeal at all.
    :2. PETITION: Cause of Action. The point that the petition does not state a cause of action may be raised for the first time in the appellate court.
    5. INJUNCTION: Publication of Libel. Injunction, when that is the only relief prayed for, will not lie to restrain the threatened publication of either a libel or slander.

      4. -: -: Remedy. The issue of libel or no libel is an issue of law and a matter for the jury; and before plaintiff can have an injunction to restrain a further publication of libelous statements, there must be a verdict of the jury finding the statements to be false and libelous. If he goes to a jury with the alleged libel and obtains a judgment, which owing to defendant’s insolvency he is unable to collect, further publication of a libel of like or similar import may be enjoined in a separate suit; or he may couple a count for injunction in his petition with a count at law for damages, and having sustained before a jury his law count, the court, upon allegation and proof of defendant’s insolvency and threatened continuance of the libelous publication, or to avoid a multiplicity of suits, can enjoin a continued^ publication thereof.
    Appeal from Jackson Circuit Court.- — Hon. W. A. Powell, Judge.
    Reversed.

      T. A. Prank Jones for appellant.
    (1) Under the Constitution defendant had the right to make the publications complained of, being responsible for all abuse of that liberty. Mo. Constitution, art. 2, sec. 14. (2) Under the allegations of the petition plaintiff had no right to an injunction against the defendant. Life Assn. v. Boogher, 3 Mo. App. 173 ;. Flint v. Smoke Burner Co., 110 Mo. 492.

      Kimbrell cB White for respondent.
   FARIS, P. J.

Respondent herein, who was plaintiff below, brought this action in equity in the circuit court of Jackson County to perpetually restrain and enjoin defendant from publishing certain alleged false, defamatory and libelous statements concerning respondent. From a judgment for plaintiff enjoining defendant as prayed, the latter appealed.

The case turns on the application to plaintiff’s petition of section 14 of article 2 of the Constitution of Missouri, which section is pleaded by defendant in his answer. This petition is lengthy and we do not deem it necessary to set it out in haec verba, but will content ourselves with stating the substance of it. It may help toward an understanding of the case to say that the petition sounds in equity only and contains but one count.

The plaintiff, after averring that he is a practicing physician and surgeon in Kansas City, Missouri, and that he has been such for nearly a quarter of a century, and reciting the extent of his studies, practice and experience, avers that he was called to treat a young daughter of defendant, and though exercising in that behalf the utmost care and skill, the patient without fault of plaintiff, died; that thereafter defendant demanded of plaintiff in divers ways, and at divers times and places the sum of $10,000 because of the death of said patient, and threatened that unless said sum was paid, defendant by circulating charges of criminal negligence of plaintiff in connection with the death of the patient aforesaid, would destroy the reputation, business and professional standing and income of plaintiff, which plaintiff avers to he lucrative and large, and that in pursuance of said threats defendant circulated and published more than a thousand copies of a certain false and libelous writing concerning plaintiff. This writing is set out in the petition, and is if untrue-manifestly libelous.

It is further alleged that thereafter defendant' with the same malicious intent and design, published and circulated among plaintiff’s patients, friends and acquaintances, more than five thousand copies of a certain pamphlet, in which were repeated the same, or similar, false, defamatory and libelous statements, and that subsequently defendant procured the printing of a large placard, likewise containing false and libelous statements concerning the plaintiff, and that all this was done for the purpose of wrongfully extorting from plaintiff the said sum of $10,000.

Plaintiff further alleged that all charges so made by defendant touching" the wrong doing and alleged malpractice of plaintiff were false and were known by defendant to be false, and that they were made and circulated solely to gratify the spite and ill will of defendant against plaintiff and for the purpose of ex-' farting money from plaintiff.

It is further alleged that defendant threatens to continue and until and unless restrained and enjoined will continue, to print, publish and circulate the same, or similar libelous statements touching plaintiff; that if plaintiff has any property the same is so wholly encumbered and covered up and so insufficient in quantity and value that plaintiff would be unable to collect any judgment which might be rendered in his favor as. damages in any action at law that plaintiff might bring-on account of the publication of said libelous statements ; that if he were to sue defendant on each successive libelous publication he would be compelled to bring a multiplicity of. actions at law, at great cost,inconvenience and expense and that said actions would 'be so numerous and would for that so encumber the dockets of the courts of Jackson County as to obstruct the administration of justice therein, and so by reason of the premises plaintiff avers that he has no adequate remedy at law and is compelled to resort to his action in equity.

The prayer for relief is substantially followed in the decree as first above stated; that is to say, that defendant be perpetually restrained and enjoined from printing or publishing or attempting so to do, the false, defamatory and libelous statements aforesaid, or any others of like or similar import.

As stated, defendant in his answer invoked the provisions of section 14 of article 2 of the Constitution of Missouri, and denied that when measured thereby, plaintiff’s petition stated any cause of action; denied that defendant is insolvent, but averred his solvency, and being solvent averred that plaintiff had an adequate remedy by an action- at law for damages; further answering defendant pleaded the truth of the statements made by him; that is to say, in substance admitting publication, but averring justification.

The case went first to the Kansas City Court of Appeals, but on account of the invocation of the Constitution by defendant in his answer, the latter court, upon motion, sent the case up to us. . * *

Such further facts as will suffice to make the points clear will be found in the opinion.

OPINION.

As a foreword we may say that the abstract and the brief in this case upon appellant’s part (we have not been favored with a brief from respondent) are exceedingly meagre and are not such as our rules require. But since the case comes here on transfer by order of a Court of Appeals, on account of a constitutional question, the rule in-such case is not to scrutinize too closely the abstract of the record, lest an appellant caught unwittingly between their rules and ours should he pinched out of any appeal at all.

There are set forth in the abstract the petition in full and the answer of the defendant invoking section 14 of article 2 of our Constitution. One point in his brief keeps alive this contention that an absolute defense is afforded him by the Constitution; another point urges that “under the allegations of the petition plaintiff had no right to an injunction against the defendant.” We will treat these points thus coupled together, as we have the right to do under authority, as an attack upon the sufficiency of the petition. For where a petition states'no facts upon which a judgment may be bottomed, in short, where it states no cause of action, that point may be. raised here for the first time. [Sexton v. Metropolitan Street Railway Co., 245 Mo. 254; Monmouth College v. Dockery, 241 Mo. 522.]

^ . Coming then to a consideration of this contention^ are constrained to hold that,the point is well taken; that the petition states no causé of action, because injunction (when as here, that is the sole relief prayed for) will not lie to restrain the threatened publication of either a libel or a slander. Any other view overlooks the spirit if not the letter of the Constitution (Sec. 14, art. 2, Constitution 1875), which substantially guarantees to the citizen the privilege of saying, writing and publishing whatever he desires on any matter, subject only to liability (either civil or criminal, or both), for any abuse of that privilege. So far, it could not be said with any certainty from the bare language set forth, that an abuse of the liberty so guaranteed, when such abuse is so flagrantly present as is conceded by the appellant’s brief to be the fact here, could not be remedied by injunction. If the Constitution had stopped with this we might well say that such a remedy lies. But this section continues: “In all.suits and prosecutions for libel the truth thereof may be given in evidence and the jury under the direction of the co'urt shall determine the law and the fact.” It follows that if the statements made are true the appellant is permitted to publish them when and where and as often as he will, and that he is entitled to a jury of his country to determine whether these statements are true or false. That the statements on which this action is bottomed seem upon their face to be malicious and obviously untrue, does not change the case. It has been so often ruled that in a plain case of slander of the person or slander of title, injunction, will not lie, that reiteration should be unnecessary. [Flint v. Hutchinson Smoke Burner Co., 110 Mo. l. c. 500; Life Association v. Boogher, 3 Mo. App. 173; Thummel v. Holden, 149 Mo. l. c. 685; Clothing Co. v. Watson, 168 Mo. l. c. 148; Sec. 14, art. 2, Constitution of 1875; American Malting Co. v. Keitel, 209 Fed. 356.] In the case of Flint v. Hutchinson Co., supra, at page 500, Black, J., speaking for this court, said:

“We live under a written Constitution which declares that the right of a trial by jury shall remain inviolate ; and the question of libel or no libel, slander or no slander, is one for a jury to determine. Such was certainly the settled law when the various constitutions of this State were adopted, and it is all-important that the right thus guarded should not be disturbed. It goes hand in hand with the liberty of the press and free speech. For unbridled use of the tongue or pen the law furnishes a remedy.. In view of these considerations a court of equity has no power to restrain a slander or libel; and it can make no' difference whether the words are spoken of a person or his title to property. .
“In either ease it is for a jury to first determine the question of slander or libel in an action at law. This, we conclude, is the result of the better cases in this country and in England. ’ ’

The facts before us lacking the element of conspiracy obviously distinguish the instant ease from the case of Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, and from the case of Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471. For the former ease was bottomed upon the theory of conspiracy, while the latter case dealt not only with a false publication amounting to slander of title, but with threats toward , divers and sundry others, and toward all who might buy, or use the alleged patent-infringed article. Besides, the ultimate fact had been already ruled in a proper action, to-wit, that there was no infringement and therefore the alleged slanders of title which the court enjoined had beforehand (but in the same action) been found and declared to be false and therefore as to title, slanderous.

It is stated in the Flint case, supra, that after an action at law in which there is a verdict finding the statements published to be false, plaintiff on an otherwise proper showing could have injunction restraining any further publication of that which the jury has found to be actionable libel or slander, and of slanders or libel of a like or similar import. So say we in this case. If plaintiff had gone to a jury with this alleged libel and obtained a judgment, which owing to the insolvency of defendant he was unable to collect, further publication of a libel of like or similar import ought to he enjoined. Or, even if plaintiff had joined a count at law for damages for libel with a count for injunction on the theory of a threatened continuance of the false publication, and had alleged and proved, either the inadequacy of remedy by reason of the libeller’s insolvency, or, the legal necessity of the remedy sought in order to avoid a multiplicity of suits, the court nisi upon a finding by tlie jury of the libel, and by the court of the said necessary facts on the equity side, could have enjoined continued publication thereof. Since, however, there is in the instant case neither conspiracy, nor threats to others, nor a verdict of a jury upon the fact of libel, we are constrained to say that this judgment cannot stand. Let it be reversed.

All concur.


author: REVELLE, J.

text:
    THE STATE ex rel. FRANK N. ABERCROMBIE v. CHARLES W. HOLTCAMP, Judge of Probate Court, Appellant.
    Division Two,
    March 31, 1916.
    1. ADMINISTRATION: Removal Causes: Ascertainment Before Appointment. Section 50, Revised Statutes 1909, announcing the causes for which letters testamentary or of administration may be revolted, is not to be read intb and made a part of section 14, which designates persons who cannot qualify as; executor or administrator. The probate court cannot refuse to appoint an executor named in the will on the ground that such person if appointed could be removed for the causes mentioned in section 50.
    2. -: Executor: Renunciation. The person named as executor in a will may renounce his right to be appointed, either by an express renunciatiop, or by acts and conduct in pais.

      3. -: -: -: Determination a Judicial Matter. The probate court must determine from the facts whether the person nominated executor in the will has renounced his right to be appointed, and in doing so exercises a judicial function; his act must not be arbitrary, or an abuse of power, or wholly unsupported by facts showing a renunciation; but if such facts áre present, the appointment of another cannot be annulled by mandamus brought by the named executor to compel his appointment.

      4. -: Title to Estate: Domiciliary and Ancillary Executor. The executor who has duly qualified in the domiciliary jurisdiction succeeds to the title of all testator’s estate, wherever situated, and continues to hold such title until an ancillary administrator is appointed, whereupon the title to the estate in the ancillary jurisdiction vests in the latter.
    5. -: Executor: Acts of Renunciation: Recall. Testator ■ died in Ohio, leaving a will which named relator and two women as executors. All qualified in Ohio, but within a few days relator filed his resignation, which was accepted. He did not qualify in the. Missouri city in which he lived and where the most of testator’s property was situate. He also immediately resigned as director of the corporation in which testator’s Missouri assets were principally invested, and avowedly severed all relations with the management and preservation of the estate, and did other things which tended to establish a renunciation in pais: ’ Held, that the probate court did not act arbitrarily, in holding relator had renounced his rights under the will and in appointing another administrator with the will annexed; and the renunciation being complete, it could not be recalled, but was lost to relator forever.
    6. WILL: Intention as to Executors. The rule that the expressed intention of the testator must be the guide in construing a will, applies to every part of it — to the expressed desire that a nominated executor should administer the whole estate, the assets in the State where testator died and those in other States, as well as to other parts of it.
    7. ADMINISTRATION: Executor: Renunciation of Domiciliary Right: Is Renunciation of Ancillary Right. A resignation in the domiciliary jurisdiction by an executor named in the will who is qualified under the laws of the various jurisdictions in which the estate is located, is a renunciation of his right to administer so much of the estate as is ' situate in the ancillary jurisdiction in which he resides. So that where relator, a resident of this State, who was named executor in the will of a testator who died in Ohio, qualified in that State and soon afterwards resigned, his resignation, there accepted, operated automatically as a renunciation of his right to administer so much of the estate as was located in this State.
    Appeal from St.' Louis City Circuit Court.— Hon. George H. Shields, Judge.
    Reversed (with directions).

      Jones, Eocker, Hawes & Angert and George B. Webster for appellant. ■
    (1) The circuit court was without jurisdiction to entertain mandamus because the action of the probate court was the exercise by it of a judicial function. 4 Words and Phrases, p. 3850; State ex rel. v. County Court, 227 Mo. 460; State ex rel. v. Guinotte, 113 Mo. App. 319; 1 Bouvier, 884. (2) An executor appointed under a will need not accept such appointment, but may renounce or resign his appointment at any time prior to intermeddling with the affairs of the estate or doing any act which amounts to an acceptance of the trust. Woerner’s Administration, sec. 234. (a) This renunciation may result from acts in pais. Thornton v. Winston, 4 Leigh. 152; Solomon v. Wixon, 27 Conn. 520; Ayers y. Weed, 16 Conn. 291; Wood v. Sparks, 1 Dev. & Bat. 395. (3) Abercrombie was competent to act as executor under the will both in Ohio as regards the primary administration and in Missouri as regards the ancillary administration. Woerner’s Administration, sec. 230. (4) Abercrombie had the option to accept the office of executor or to resign and renounce the same. He had not the option to accept in part and renounce in part. Having resigned or renounced his office as executor under the will, that resignation being filed in and accepted by the court administering primary administration, operated as a resignation of his office in toto, and not in part only. Ross v. Barclay, 18 Pa. St. 179. (5) A renunciation once made and accepted cannot be recalled. State ex rel. v. Romyne, 136 Mo. App. 658; Thornton v. Winston, 4 Leigh. 164; Wood v. Sparks, 1 Dev. &Biat. 296; Stock-dale v. Conaway, 14 Md. 99; Lutz v. Mahan, 80 Md. 237; Estate of Kirtlan, 16 Cal. 161; Triplett v. Wells, Littell’s Cases (Ky.)., 49; Carpenter v. Jones, 44 Md. 625.

      Jeptha D. Howe for respondent; Marshall & Henderson of counsel.
    (1) Mandamus is the proper remedy. There is no merit in the appellant’s contention that the judge of the prohate court exercised judicial discretion in appointing Steininger administrator with the will annexed. The will appointed relator as executor and the probate court had no power to refuse to permit him to qualify, it being conceded that he was a resident of the State of Missouri. Flick v. Schenk, 212. Mo. 275; State ex rel. v. Guinotte, 113 Mo. App. 339; State ex rel. v, Fowler, 108 Mo. 465'; State ex rel. v. Reynolds, 121 Mo. App. 699. (2) The resignation of relator as executor applied only to the administration in Ohio and'did not apply, and was not intended to apply, to the right of relator to qualify as executor in Missouri. (3) Even if the resignation of relator, directed to the probate court in Ohio, should be held to apply also to Missouri, nevertheless relator had the right to retract his renunciation as to the administration in Missouri at any time before an administrator, with the will annexed, was appointed in Missouri, .and this relator did, and the probate court in St. Louis had no power or jurisdiction to refuse to allow him to qualify as such executor in Missouri and no power or jurisdiction to appoint Steininger administrator with the will annexed. ,1 Woerner’s Am. Law of Adm., pp. 229, 230, 513; Casey v. Gardiner, 4 Bradf. 13; Robertson v. McGeoch, 11 Paige’s Chan. 640; Taylor v. Tibbatts, 13 B. Mon. (Ky.) 177; Davis v. Inscoe, 84 N. 'C. 396; Wood v. Sparks, 1 Dev. & Bat. 389; Staunton v. Parker, 55 Hun, 60; McDonnell v. Prendergast, 3 Haag. E’cc. 216; In re Benton, 2 Hayw. & H. (U. S.) 315; 30 Fed. Cas. 18234; Thompson v. Dixon, 3 Haag. Ecc. 212; Dempsey’s Estate, Tuck. (N. Y.) 51; In re True, 120 Cal. 352; Judson v. Gibbons, 5 Wend. 224; Codding v. Newman, 3 Thomp. & C. 364; Percy v. DeWolf, 2 R. I. 103.
   REVELLE, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis granting a peremptory writ of mandamus, commanding the probate judge of that city to permit relator to qualify as executor under the will of Martin Stanford Robison, deceased, and to revoke the appointment theretofore made of Edward A. Steininger as administrator with will annexed.

The material facts are as follows:

On March 24, 1911, Martin Stanford Robison, a citizen of the city of Cleveland, Ohio, died, leaving a will, in which Mrs. Sarah C. II. Robison, Mrs. Helene H. R. Britton and relator were named executors. Mrs. Robison and Mrs. Britton were at the time of the death of testator residents of the State of Ohio, while relator was then, and yet is, a resident of the State of Missouri. Immediately upon the death of the testator relator proceeded to the city of Cleveland to attend the funeral, and while there, to-wit, on March 28, 1911, the will was admitted to probate in the county of testator’s residence, and relator, Mrs. Robison and Mrs. Britton duly qualified as executors. On April 6> 1911, relator filed his resignation as executor of the will, and on April 7th the probate court accepted same. Three days after the death of testator, to-wit, on March 27th, letters of administration were granted to Edward A. Steininger by the probate court of, the city of St. Louis, upon the written request of the legatees named in the will, these letters going only to the ancillary administration.

It appears that the greater portion of testator’s estate consisted of property located in Missouri, he being the dominant owner of the stock of a Missouri corporation' owning the baseball club known as ‘ The Cardinals.” On June 19, 1911, the public administrator of the'city of St. Louis filed in the probate court" of that city an authenticated copy of the will, and at the same time filed his notice that he had taken charge; of the estate. On the same day Edward S. Steininger, who had theretofore been granted letters of administration, also filed in the probate court of the city of St. Louis another copy of the will, whereupon a dedimus was issued to take the testimony of the subscribing witnesses who lived at Cleveland, Ohio. On the 29th of June relator applied to the probate court for leave to qualify as executor under the will. On July '8th Steininger filed a certified copy of the resignation of relator, which had been filed with the probate court of Ohio, said copy having been procured on April 12th. On June 20th-the public administrator filed a motion in the probate court to quash the dedimus theretofore issued to take the testimony of the subscribing witnesses to the will; and on June 80th filed a motion to require’ Steininger to settle with him as administrator with will annexed. The hearing on these various applications and motions began in the probate court on July 10th, and, upon completion thereof, the probate court found, from the facts adduced in evidence, that relator had no absolute right to qualify as an executor, because he had theretofore renounced and waived such right. After so disposing of relator’s claims, it appointed Steininger administrator with the will annexed.

The evidence discloses that at about the same time that relator tendered his resignation to the probate court of Ohio, he also resigned as a director in the Missouri corporation in which the testator’s assets were chiefly invested. It also appears that three days after the death of testator, and before relator resigned in Ohio, he had arranged for his bond as ancillary ex-editor, but after he resigned in Ohio he made no effort whatever to qualify in Missouri until the time and after the occurrences heretofore recited.

At the hearing before the probate court relator testified that some differences had arisen between him and one of the principal legatees, and that he did not desire to be in a position where it would embarrass this party, and that he therefore resigned as executor under the will and as a director of the Missouri corporation, and had entirely severed his connection with the estate. On: April 10th, following his resignation on April 6th, he wrote a letter to Mrs. Robison clearly indicating his intention to have nothing further to do with the management or administration of any part of the estate.

I. At the inception we are confronted with appellant’s insistence that mandamus is not a proper and available remedy, for that the action of the probate court, which the writ seeks to control, involved the exercise of both a judicial discretion and function. On the other hand, it is contended that, since the will nominated and appointed relator as executor, the duty of the court was purely ministerial, and after the probate of the will it had no authority to do other than grant letters testamentary to relator.

A determination of this question makes necessary an examination of the statutory provisions relating to wills.

Section 19, Revised Statutes 1909, provides: “After probate of any will, letters testamentary shall be granted to the persons therein appointed executors . . . If all such persons refuse to act, or be disqualified, letters of administration shall be granted to the person to whom administration would have been* granted if there had been no will. ’ ’

Section 14 provides that “no judge or clerk of any prohate court, in his own county, or his deputy, and no male person under twenty-one years of age, or female person under eighteen years of age, or of unsound mind, shall be executor or administrator. No married woman shall be executrix or administratrix, nor shall the executor of an executor, in consequence thereof, be executor of the first testator. ’ ’

Section 17 provides: “Letters testamentary and of administration may at any time be granted to any person deemed suitable if the person or persons entitled to preference filed their renunciation thereof, in writing, with the clerk of the court, or if proof be made that no such persons reside in this State.”

Section 50 provides: “If any executor or administrator become of unsound mind, or be convicted of any felony or other infamous crime, or has absented himself from the State for a space of four months, or become an habitual drunkard, or in anywise incapable or unsuitable to execute the trust reposed in him, or fail to discharge his official duties, or waste or mismanage the estate, or act so as to endanger any co-executor or co-administrator, or failed to answer any citation and attachment to make settlement, the court” (upon written complaint and after notice and hearing) ‘ ‘ shall revoke. the letters granted. ’ ’

It is insisted on the part of appellant that the. causes announced in section 50' for which letters may be revoked must be incorporated and read in connection with section 14 which designates the persons who cannot be appointed and who cannot qualify as executor or administrator, and that when the probate court is called upon to grant letters testamentary it is not only its privilege but duty to judicially ascertain and determine whether any of the removal causes exist.

With this we do not agree, as it is clear that section 50 relates only to persons who have already qualified, while section 14 prescribes the class of persons who can neither be appointed nor qualified. We further find from the administration laws that an appeal is allowed from orders and judgments revoking letters for the causes mentioned in section 50, but no such right is given in cases where letters testamentary or of administration are denied to persons lawfully thereto entitled. [Flick v. Schenk, 212 Mo. 275; Marshall v. Estate, 164 Mo. App. 429.] That relator possessed the qualifications required, and was not disqualified by reason of any of the disabilities mentioned in section 14, is conceded, and we have abundant authority in this State for giving relief by mandamus when, under such circumstances, the probate court fails to perform its plain legal duty. [State ex rel. v. Guinotte, 113 Mo. App. 399 ; State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Reynolds, 121 Mo. App. 699; Flick v. Schenk, 212 Mo. 275; State ex rel. Knisely v. Holtcamp, 266 Mo. 347; State ex rel. v. Homer, 249 Mo. 58.]

We, therefore, conclude that, unless other facts appear which preclude relator from asserting his original rights to letters testamentary, such rights were absolute, and mandamus is a proper remedy to compel the probate court to grant to him such letters. [Cases supra.]

This, however, does not dispose of the subject, in so far as this case involves it, as the pleadings and evidence disclose that the refusal of the probate court to grant letters to relator was predicated upon its findings of fact, that relator had, prior to making his demand for letters, duly and completely renownced and tvaived his rights thereto.

The law is well-settled that, although an executor, if not disqualified by statute, has the absolute right to letters testamentary upon the probate of the will, he is not required to exercise this right or accept this position of trust and responsibility. He is free, if he s© desires, to renounce Ms rights thereunder, and this he can do by an express renunciation, or by acts and conduct in pais. [Thornton v. Winston, 4 Leigh, 152; Solomon v. Wixon, 27 Conn. 520; Ayres v. Weed, 16 Conn. 291; Wood v. Sparks, 1 Dev. & Bat. l. c. 395.]

In case of such renunciation it becomes the duty of the probate court to appoint another, and it is clear that in performing its duty, that is, appointing the person entitled thereto, that court must determine, from the facts, whether there has been a renunciation. It may be conceded that in such a case the court’cannot act arbitrarily, or abuse its power, or make a finding which is wholly unsupported; but, absent these, it cannot be gainsaid that the court, when determining this question, exercises a discretion and performs a judicial function. In the instant case we find no. such arbitrary abuse of power as to warrant outside interference or the use of the extraordinary writ. The relator had duly qualified in the domiciliary jurisdiction as executor of the will, and as such, was in charge of the principal and primary administration. The law is that such an executor succeeds to the title of all of testator’s estate, wherever situated, and continues to hold such title until an ancillary administrator is appointed, when the title to the estate in the ancillary jurisdiction vests in the latter. [13 Am. & Eng. Ency. Law, 931.]

When relator voluntarily resigned he did not state in his resignation that he was attempting to resign only in Ohio, but made it general. He followed this up by immediately resigning as a director in the corporation in which the Missouri assets were principally invested, and avowedly severed all relations with the management and preservation of the Missouri estate. He wrote a letter to Mrs. Eobison clearly indicating an intention to have nothing further to do with the estate, or any part thereof. For a period of about ■ three months, although a resident of the city where the property was located, and well knowing that the estate was in the process of administration by another, he took no interest therein, and made no effort to file the will or qualify thereunder, and when the will was finally presented it was not by him, but by another. He had made arrangements for his bond as executor in Missouri in March, but, after resigning in Ohio, he abandoned these. He testified at the hearing, in explaining some of his actions, that his relations with the interested parties had become unfriendly and unpleasant, and that he had no desire to embarrass them by continuing his relations with the business.

In view of these facts, it cannot be reasonably said that the probate court, in determining the question as to whether relator had renounced his right, acted.arbitrarily and without sufficient facts; and for this reason, if no other, the writ should be denied, unless relator is correct in his insistence that, notwithstanding he had renounced, he, nevertheless, had the right to change his mind and accept the trust at any time after the will was filed and before another person was appointed with the will annexed.

In State ex rel. v. Romjue, 136 Mo. App. 650, the Kansas City Court of Appeals held that where a person entitled to administer renounced his right thereto, it was forever lost and could not be recalled, and this notwithstanding that there was coupled with the renunciation an express condition that certain other persons should be appointed to administer. In that case^ the court held that this right was purely a personal privilege, and that if the members of the privileged class renounce their right, or lose it by failing to exercise it, then the duty devolves upon the probate court of selecting another. The court in that connection said (l. c. 658-9):

“We regard the renunciations filed by relators as unconditional, and pass to the question of whether relators could retract them at any time before the appointment of an administrator. In our opinion, the better doctrine is that when the privilege once is renounced- or waived, it is lost forever and cannot be recalled. Two very potent reasons may be given in support of this doctrine. First, as a general rule, the estates of deceased persons demand speedy attention and injury would result from delays that might be caused if resident heirs could renounce and recall their privilege at will, and, second, the right of revocation, if it existed, might be used as was attempted in the present case, not in g'ood faith for the purpose of enjoying the privilege, but as a club to hold over the probate court to compel it to appoint, not the persons whom the court in the exercise of its judgment found were best qualified to administer, but those whom the resident heirs favored. The doctrine just announced is abundantly, though not unanimously, sustained by the authorities. We refer to the briefs of counsel where the authorities for and against it are collated. We conclude that respondent acted within the scope of his right and duty in refusing to acknowledge the right of relators to recall their renunciations and, as the appointment made by him appears to have been the result of the exercise of sound judgment and not of an arbitrary abuse of power, we find no occasion to interfere. ’ ’

And we might add, that when the choice of the testator refuses to act, the duty of preserving the estate and the selection of another person to act becomes important and immediately necessary, and this incurs expense and trouble, a part of which would be made useless and wasteful if the vacillating person who first refused to serve, and then changed his mind, were permitted to play thus fast and loose. [Stocksdale v. Conaway, 14 Md. 99; Estate of Kirtlan, 16 Cal. 161.]

Again, in cases like the present, where a full administration had been in progress (although not under the will) for three months, the right to revive should, not exist. During that period relator stood idly by, watching others handle the laboring oar, and failing and refusing to perform the very duties which gave life to his'right. To permit him to then claim his voluntarily-waived right would be to pervert the very object of his appointment and reward his dereliction. It would mean that he could accept a part of the trust, and reject the remainder, even in the same jurisdiction.

We are, therefore, of the opinion that the probate court was not only called upon to determine the legal effect of the resignation filed in Ohio, but also the question of fact as to what relator’s intentions were, and how far he had renounced in pais; and, in this connection, it had a perfect right to weigh and consider all of relator’s acts and conduct. This required the exercise of judicial discretion, and it is too well settled to even warrant the citation of authorities that such discretion cannot be controlled by mandamus.

II. In the preceding paragraph we have not directly dealt with one question which the record presents, namely: whether, under the law of administration, an executor who is qualified under the laws of the various jurisdictions in which' the estate is located, can, as a matter of absolute right, accept a part of the trust and reject that which he deems undesirable; or can refuse to act in the principal jurisdiction and yet retain his absolute, rights in the ancillary jurisdiction. The absolute rights of an executor to letters testamentary are derived solely from the act of the testator in naming him as such. [18 Cyc. 74, and cases cited.] The dominant object of a testator in naming a person as executor is not to bestow favor, but to impose duties — the duty of managing, directing and administering upon Ms estate and carrying out Ms expressed wishes, and we give effect to his nomination, not because of inherent rights in the person nominated, but because of the expressed desire and intention of the testator. A testator may have good reasons for confiding his whole estate to one person, and for wanting the same person to administer upon it in its entirety, and thus have pursued one general and harmonious policy in relation thereto. In many cases the property and estate are of such a character that such a policy is absolutely essential to a profitable preservation and distribution thereof. Is it not reasonable to assume that all testators desire this uniformity of action and administration when they name persons as executors for all purposes, and refrain from naming some for one jurisdiction and others for other jurisdictions? A testator, if capable of making a will, knows the location of his property, its particular character, as well as the laws of the States'', where located, and how he desires it handled-. He se-' lects his representative with all this in mind and with reference thereto.

In this case testator knew that a resident of this State was legally qualified to become the legal representative of both the principal and ancillary administration. He named relator executor of his whole will, not a part thereof, as he might have done had such been his desire and intention. [Hunter v. Bryson, 25 Am. Dec. 313; Despard v. Churchill, 53 N. Y. 192; Mordecai v. Boylan, 59 N. C. 365; Gibbons v. Riley, 7 Gill, 81.] In construing wills we have always said that the expressed intention of the testator must guide and govern us, and tMs applies to every part of the will. It was the expressed desire and intention of testator that relator act as one of the legal representatives of both the principal and ancillary administration, and we are unwilling to hold that this intention can not only be defeated, but may be used for tbe purely personal advantage of the person defeating it. He should not be permitted to select from the trust thus imposed the things which he deems pleasurable and profitable, and reject those which may seem burdensome and unprofitable. He should accept or renounce the whole, thus giving full effect to the intention of the one who created his right. In 18 Cyc. 80, it is said: “A person nominated as an executor cannot be compelled to act as such, but the office may be accepted or refused at discretion, although one should refuse entirely or not at all.”

It has been held in some jurisdictions that the right of renouncement is available only in the tribunal of the testator’s domicile, and that after a person has qualified as executor in that tribunal his resignation in an ancillary jurisdiction is absolutely void. [Ross v. Barclay, 18 Pa. St. 179. See, also, Slaughter v. Garland, 40 Miss. 172; Wilson v. Cox, 49 Miss. l. c. 542; Lindsley v. Patterson, 177 S. W. l. c. 833.] This, as well as the proposition that when there is a resignation in the domiciliary jurisdiction it applies to ancillary rights, seems entirely sound. The principal administration of an estate must take place in the jurisdiction of the deceased’s domicile, and to this all ancillary administration is subordinate and subservient. [18 Cyc. 67; In re Estate of Gable, 79 Iowa, 178; Spraddling & Keeton v. Pipkin, 15 Mo. l. c. 134.] The tribunal there has the exclnsive power to admit the will to probate, and the right to issue letters testamentary or to receive resignations and renouncements is an inch dent to that jurisdiction; and when there made should operate automatically as a renouncement in all ancillary jurisdictions. We so hold.

For the reasons heretofore assigned the judgment is reversed with directions to quash the peremptory writ of mandamus.

Paris,P. J., and Walker, J., concur.


author: WILLIAMS, C.

text:
    LOUIS BERNERO, An Infant, by His Curatrix, LORAINE T. BERNERO, Appellant, v. THERESA L. GOODWIN et al.
    Division Two,
    March 31, 1916.
    1. ADOPTED CHILD: Right of Heirs to Inherit. If an adopted ■child dies during the life of its adopting parent, leaving children, such children inherit as grandchildren upon the death of such adopting parent intestate.
    2. -: -: Statute. Section 1671, Revised Statutes 1909, providing that a person may, hy deed, “adopt any child or children as his or her heir,” hy the use of the word “heir,” and section 33.2-, providing that the estate of an intestate shall descend “to his children, or their descendants,” mean that the child of an adopted child who dies during the lifetime of the adopting parent, inherits from such adopting parent dying intestate. An adopted child is a child within the meaning of the descent laws, and the words in section- 332 mean the same as if they had read that the estate shall descend “to his children (either natural-horn or adopted), or their descendants.”
    3. -: -: How Determined. The rights of the natu- ' ral child of the adopted child to claim a distributive share in the estate of the adopting parent is not limited solely to the adoption statutes and the deed of adoption, to the exclusion of all rights given hy the statutes of descents, hut those statutes lay down the general rules of inheritance, and 'the deed of adoption created the status of the adopted child, or gave to him the status of an heir.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, ¿Pudge.
    Reversed and remanded.

      Thomas D. Cannon; Moses N. Sale, D. Goldsmith, E. P. McCarthy aud John A. Burke for appellant.
    (1) Tbe legal status of tbe child of an adopted child is that of grandchild to the adoptive parent. R, S. 1900, secs. 332,1671,1672; 1673; Healey v. Simpson, 113 Mo. 340; Gray y. Holmes, 57 Kan. 217; Power v. Hafley, 85 Ky. 671; Pace v. Klink, 51 Ga. 220; In re Estate of Walworth, 85 Yt. 322; In re Winchester’s Estate, 140 Cal. 468; Harle v. Harle, 166 S. W. (Tex.) 676; Fiske v. Lawton, 124 Minn. 85; Yidal v. Commagere, 13 La. Ann. 516; Note to 118 Am. St. 688; Humphries v. Davis, 100 Ind. 274; Gilliam v. Trust Co., 186 M Y. 127; -1 Corpus Juris, 1367, p. 1401; 1 R. C. L. 613. (2) The legal status in this State of an adopted child is the same as that of a child born in lawful wedlock with respect to the statute of descent and distribution. R. S. 1909, secs. 332,1671,1672,1673; Posburg v. Rogers, 114 Mo. 122; Moran v. Stewart, 122 Mo. 299 ; In re Estate of Moran, 151 Mo. 557; Thomas v. Malonéy, 142 Mo. App. 198; Horton v. Troll, 183 Mo. App. 693. (3) The law places no limit upon the age of the child adopted. The child adopted may be over the age of twenty-one years. In re Estate of Moran, 151 Mo. 557.

      McShane & Goockvin and Steivart, Brycm & Williams for respondents; John M. Goodwin and George E. Williams on brief.
    (1) Where one inherits a share in an estate which his deceased parent would have inherited, he inherits not from the latter, but directly from the intestate. Barnum v. Barnum, 119 Mo. 67; Records v. Fields, 155 Mo. 325; Heady v. Crouse, 203 Mo. 119; Wattenbarger v. Payne, 162 Mo. App. 436;- Hockaday v. Lynn, 200 Mo. 470. (2) Sec. 332, R. S. 1909, does the same thing for the grandchildren of an intestate that section 546 does for the grandchildren of a testate; the latter makes the child of a deceased parent an original legatee of the grandfather, and the former makes him an heir, taking in his own right directly from the intestate by virtue of their propinquity of blood. Wattenbarger v. Payne, 162 Mo. App. 434; Hockaday v. Lynn, 200 Mo. 470. (3) The right of inheritance is purely statutory, and lie who claims a share in the inheritance must point to the law which transmits it to him. Goldstein v. Hamm ell, 236 Pa. St. 309; Wattenbarger v. Payne, 162 Mo. App. 440. (4) The statutes of adoption being in .derogation of the common law are strictly construed as against the adopted child. Hockaday y. Lynn, 200 Mo. 464; Reinders v. Koppelmann, 68 Mo. 482; Clark-son y. Hatton, 143 Mo. 58; Sarazinv. Railroad, 153 Mo. 485; Beach v. Bryan, 155 Mo. App. '50; Purguson v. Jones, 17 Ore. 204; Baker v. Clowser, 43 L. R. A. (N. S.) 1056; Thomas v. Maloney, 142 Mo. App. 197; Van Der Lyn v. Mack, 137 Mich. 146; Phillips v. McConica, 59 Ohio St. 9. (5) Consanguinity is so fundamental in statutes of descent and distribution that it should only be ignored by construction when courts are-forced so to do either by terms of express statute or by inexorable implication. (6) The general statutes of inheritance are modified and set aside by statutes regulating the effect of adoption, only so far as' there is some specific provision in the statutes of adoption inconsistent with the application .in such cases of the general inheritance statutes. Like an invading force upon a hostile domain, the adoption law prevails only so far as its lines extend. Beyond those limits all remains under the original control. Baker v. Clowser, 43 L. R. A. (N. S.) 1056; In re Jobson, 164 Cal. 312, 43 L. R. A. (N. S.) 1065; Reinders v. Koppelmann, 68 Mo. 482; Clarkson v. Hatton, 143 Mo. 47. (7) The Missouri statute of adoption is silent as to the children of ■ adopted children. Laws 1856-7, p. 59, secs. 1-4; G. S. 1865, p. 478, secs. 1-4; R. S. 1879, secs. 599-602; R. S. 1889; secs. 968-971; R. S. 1899', secs. 5246-5249; R. S. 1909, secs. 1671-1674; Reinders v. Koppelmann, 68 Mo. 496; Beach v. Bryan, 155 Mo. App.'53. (8) Where the statute is silent, since nothing can be supplied except by inexorable implication, the right of inheritance must be determined by the statutes of descent and distribution and against the children of the deceased adopted child. Phillip’s E'state, 17 Pa. Snp. Ot. 103; Gnldstein v. Hammell, 236 Pa. St. 305; Reinders v. Koppelmann, 68 Mo. 482; Hockaday v. Lynn, 200 Mo. 456’; Clark-son v. Hatton, 143 Mo. 47; Yan Der Lyn v. Mack, 137 Mich. 146; Phillips v. McConica, 59 Ohio St. 9. (9) The adopted child is let into inheritance only for the purpose of preserving’ in full its right of inheritance from its adopting parent; and the door to inheritance is shut and its holt shot at that precise point. Hockaday v. Lynn, 200 Mo. 468; Phillip’s Estate, 17 Pa. Super. Ct. 103. (10) There is no shooting of holts as to “kindred” or “relatives by blood” under the statutes of descent and distribution; under those statutes all property of an intestate ‘ ‘ shall descend and be distributed to his kindred without end. ” R. S. 1900, sec. 332. (11) By the act of adoption the child is entitled to inherit, from his adoptive parent as his heir in the degree of a child. Hockaday v. Lynn, 200 Mo.’ 465. (12) The act of adoption creates a contractual relation between the adopter and adoptive. Reinders v. Koppelmann, 94 Mo. 344; Clarkson v. Hatton, 143 Mo. 58; Hockaday v. Lynn, 200 Mo. 473. (13) And this contractual relation is purely personal to the foster-parent and the child. Helms v. Elliott, 89 Tenn. 446; Merritt v. Morton, 136 S. W. (Ky.) 429; Kettel v. Baxter, 100 N. Y. Supp. 529; Lawson on Contracts, sec. 115. (14) The laws of Missouri recognize two classes of persons to whom rights of inheritance go: (1) Those who are designated as heirs by our statutes of descent and distribution called “heirs at law,” “heirs by law” or “right heirs;” (2) those who take as an heir by contract of adoption called “heirs by contract.” Both classes are separate and distinct, and heirs by contract of adoption do not partake of any of the rights or attributes of heirs at law, unless the statute authorizing such contracts and the contract itself gives such right. Reinders v. Koppelmann, 68 Mo. 482, 94 Mo. 338; Clarkson v. Hatton, 143 Mo. 47; Hockaday v. Lynn, 200 Mo. 456. (15) The adopted child, hy the event of the adoption, has itself ex contractu the right of inheritance from its adoptive parent, and nothing more. Hockaday v. Lynn, 200 Mo. 473; Thomas v. Maloney, 142 Mo. App. 198.
   WILLIAMS, C.

This is a suit to contest the validity of what purports to be the last will and testament of Theresa Bernero, deceased, on the- ground of undue influence and unsoundness of mind. The proceeding was instituted in the circuit court of the city of St. Louis. Some of the defendants filed a pleading in the nature of a plea in abatement, which alleged that plaintiff would have no interest in the estate of de* ceased in the event there hacl been no will and,- therefore, he did not have such an interest as to entitle him to bring the suit. Trial was had by the court which resulted .in a judgment finding that plaintiff did not have such an interest in the estate as would entitle him to maintain the action to contest the will. The plaintiff thereupon duly perfected an appeal to this court.

The facts are undisputed and may be stated, substantially, as follows•

Louis Bernero, Sr., and Theresa Bernero (the alleged testatrix) were husband and.wife. The husband died in August, 1904. On April 10, 1905, said Theresa Bernero, by deed of adoption, executed and acknowledged as provided by the- statutes, adopted Emanuel C. Bernero as her child and heir. The deed of- adoption recites that said Theresa and her husband, in 1880, while in Italy, agreed with the parents of said Emanuel to adopt him and brought him home with them to the city of St. Louis, where he lived with them as their child and as a member- of the family, but no deed of adoption was ever recorded as required by the statutes. The deed of adoption further recites that it was made so as to comply with said statutes.

At the time of the deed of adoption, Emanuel Bernero, the adopted child, was twenty-eight years of age. On November 30, 1904, said Emanuel Bernero, the adopted son, married Loraine Thompson, now Loraine T. Bernero, appearing as the curatrix of the plaintiff infant in this suit. There was born of this marriage, on October 14, 1905, Louis Bernero, plaintiff in this case. Emanuel Bernero, the natural father of plaintiff, died in April, 1910, leaving surviving him his widow and his son Louis Bernero, the plaintiff. On July 15,1911, said Theresa Bernero (alleged testatrix) died in the city of St. Louis. It does not appear that she left any natural children or their descendants sur-, viving her, 'but that she left surviving her two sisters. After her death, her alleged will, dated June 25, 1910, was admitted to probate by the probate court of the city of St. Louis. The present plaintiff was made beneficiary under the will in the sum of ten thousand dollars. The remainder of her property was left to several different legatees and devisees.

The condensed facts, therefore, appearing from the record, necessary to a determination of the question here raised, are that an adopted child died during the life of his adopting parent and left surviving him a natural child (the plaintiff herein), and, thereafter, the adopting parent died, leaving a will. Plaintiff brings this suit to contest the validity of the will. Defendants raise the issue that plaintiff could not inherit, from the adopting parent in the event she died intestate, and that, therefore, plaintiff had not such an interest as would permit him to contest the will. Plaintiff contends that he inherits from the adopting parent, of his natural father the same as if his father had been the natural child of the adopting parent.

The question now presented for our review is whether or not the natural child of an adopted child shall share in the distribution of the. estate of the adopting parent dying intestate, the adopted child having predeceased the adopting parent.

This identical question has never been before the court for determination.

After a careful consideration of the question, we have reached the conclusion that the question should be answered in the affirmative.

< The rule, here applicable, and supported by the great weight of authority, is stated in 1 R. C. L. 614, as follows:

“If an adopted child dies during the life of its adopting parent, leaving children, such children are for most, if not for all, purposes regarded as natural grandchildren of the adopting parent, and are entitled to represent their parent and to receive from the estate of his adopting parent what he would have been entitled to receive had he lived until after such parent’s death.”

' To the same effect and directly in point are the following authorities: Gray v. Holmes, 57 Kan. 217; Power v. Hafley, 85 Ky. 671; Pace v. Klink, 51 Ga. 220; In re George Walworth’s Estate, 85 Vt. 322; In re Estate of Winchester, 140 Cal. 468; In re Webb’s Estate, 95 Atl. 419 (Pennsylvania Supreme Court, not yet officially reported); 1 Corpus Juris, 1402, sec. 137.

It appears that in the majority of the foregoing authorities, the principal argument or reason given in favor of the holdings is that since adoption was a creature of the civil law and unknown to the common law, the courts would look to the civil law for aid in construing the respective statutes; that under the civil law the children of an adopted child stood in the position of grandchildren of the adopting parent.

In the case of In re Webb’s Estate, supra, the reason given in support of the holding was that the word "heir” used in the adoption statute of Pennsylvania, “ex vi termini, implies representation” and that, therefore, upon the death of, an adopted child her children succeeded to her rights as heir of the adopting parent. Respondent attacks the correctness of the reasoning given as a justification for the holdings in some of the above entitled cases.

Without here undertaking to determine whether the respective reasons given in the authorities cited would be sufficient to sustain a like result in the present case, we will state that we think a sufficient reason can be given in justification of the conclusion reached in the present case without' calling to our aid the precepts of the civil law or without relying upon the implication of representation springing from the word "heir” as discussed in the Pennsylvania case.

We have reached the conclusion .that, in this State, the natural child of an adopted child-(the adopted child having predeceased the adopting parent), inherits from the adopting parent for the following reasons:

Section 1671, Revised Statutes 1909, provides that a person may, by deed, " adopt any child or children as his or her heir,” etc. The deed of adoption in the present case was in compliance with that statute. Section 332, Revised Statutes 1909, being one of the statutes of descent of the estate of an intestate, provides, among other things, that the estate " shall descend and be distributed in parcenary to his kindred, male and female, subject to the payment of his debts and the widow’s dower, in the following course: First, to his children, or their descendants, in equal parts.”

It has been held by this court that an adopted child was a child within the meaning of the above quoted statute on descents. [Fosburgh v. Rogers, 114 Mo. 122, l. c. 133.] And also that an adopted child is a child within the meaning of other sections of the descent laws. [Moran v. Stewart, 122 Mo. 295, l. c. 299.] The above mentioned portion of the statutes on descent as construed, therefore, means the same as if it read: “First, to his children (either natural-born or adopted) or their descendants in equal parts.’’

Since Emanuel C. Bernero (the adopted child) was the inheriting child of Theresa Bernero (the adopting parent) within the meaning of the foregoing statute of descent, and since Louis Bernero, appellant here, was the blood child and, therefore, unquestionably the descendant of said Emanuel, deceased, we think it inevitably follows that, under the statute of descent, Louis is entitled.to the said distributive share in said estate in the event said Theresa died intestate.

As we have gathered it, from the 'briefs and oral argument, respondent’s main contention is that the appellant, the blood child of the adopted child, must receive its rights to a distributive share, if any, solely under the deed of adoption executed by his natural father and the adopting'' parent, and that since the adoption statute makes no provision for the descendants of the adopted child, and since the rights created by the deed of adoption are personal between the contracting parties and not such as extend to other parties, the appellant can receive no share in the estate of the adopting parent. The error of the above position, as it appears to us, is in assuming that the rights of appellant to claim a distributive share in the estate is limited solely to the adoption laws and deed of adoption, to the exclusion of all rights given by the statute on descents.

It was pointed out in the case of Fosburgh v. Rogers, supra, that the statute of descents merely laid 'down the general rules of inheritance, but did not undertake to accurately define “how the status is to be-created which gives the capacity to inherit” (Id. l. c. 133), and that this status might be created elsewhere, as for example, by compliance with the adoption law or the law providing a way for making illegitimate children legitimate. In the present case, appellant, the natural child of the adopted child, does not, in a proper sense, take under the deed of adoption. The deed of adoption created the status of an inheriting child in appellant’s father, and the right of appellant to represent his father is given him by the statute of descents, by use of the words, ‘ ‘ or their descendants. ’ ’ ■

So, as in the first instance, it is not necessary to refer to the civil law to ascertain whether an adopted child, in Missouri, is thereby given the right to be an heir — this because the Missouri adoption statute expressly-says he is an heir, neither is it necessary, in the second instance, to look to the implication of representation arising from the use of the word “heir” in the adoption statute — this because the statute of descent takes hold of the matter when once the status of an inheriting child is given the adopted child and provides for representation or succession by use of the words “or their descendants.”

The fact that the courts of other States have reached the same conclusion as herein reached, but by a-different process of reasoning, but strengthens the soundness of the result herein reached. An examination of the adoption laws of the different States cited above, where the question has been discussed, discloses that the rights of an adopted child to inherit from the adopting parent in those States, so far as they affect the point now discussed, are the same, in effect, as the rights of inheritance given the adopted child in Missouri. In none of those States, as well as in Missouri, does either the adoption statutes or the descent statutes expressly say that the natural child of an adopted -child inherits from the adopting parent, but in each case cited the same result has been reached as we have reached in the present case.

We do not consider that anything herein decided conflicts in any manner with the ruling in Hockaday v. Lynn, 200 Mo. 456, which held that the adopted child -does not inherit from the collateral kindred of the adopting parent. '

The judgment is reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM. — The foregoing- opinion by Wil-

liams, 0., is adopted as the opinion of the court.

All the judges concur.