author: BROWN, C. PER CURIAM. WOODSON, J.

text:
    LEONORA M. PHILLIPS v. WESTERN UNION TELEGRAPH COMPANY, Appellant, and SAMUEL KENZELL, a minor.
    In Banc,
    May 22, 1917.
    1. TOUT: Messenger Boy: Eight to Street. A messenger boy sent out by a telegraph company to deliver a telegram does not travel on the street by permission of the company, but in the exercise of a valuable public right; that right is a part of his own equipment for the service in which he engaged; and for his torts, committed in playfulness in no wise connected 'with the performance of his work or inconsistent with the terms of his employment, the company is not liable.,
    .2. -: -: Eunning Into Pedestrian. A messenger boy with a telegram in his hand ran along the sidewalk on which plaintiff was standing, and coming up to a newsboy with a bundle of papers under his arm asked him for a paper, and being refused snatched one from the bundle and ran, and looking over his shoulder as he ran collided with plaintiff with such force as to knock her ten feet into the street and seriously injure her. Held, that the telegraph company was not liable in damages for the tort.

      Held, by WOODSON, J., dissenting, that the same rule of law applies as would apply if the injury had been inflicted by the telegraph company’s automobile instead of the messenger boy’s body coming into negligent collision with plaintiff; that he was performing the master’s business at the time the injury was inflicted, and had he not been so engaged he would not have committed the tort, and the mere fact that he side-stepped a few feet from his journéy to gratify some personal desire does not change the rule.
    Appeal from St. Louis City Circuit Court. — Hon. Rhodes . E. Gave, Judge.
    Reversed.

      Albert T. Benedict, Franklin Ferriss and Henry T. Ferriss for appellant.
    (1) Where the injury to a third party is caused by the servant’s negligence in the performance of his duties and the liability of the master is based solely on the doctrine of respondeat superior, each is severally liable to ,the injured party, although for different reasons, but they are not joint tortfeasors and cannot be sued jointly. Campbell v. Phelps, 1 Pick. 65; Parsons v. Winchell, 5 Cush. 592; Mulchy v. Methodist Society, 125 Mass. 487; Page v. Parker, 40 N. H. 47; Brewing Co. v. Przbyiski, 82 111. App. 361; McNemar v. Conn, 115 111. App. 36; Bailey v. Bussing, 37 Conn. 349; Tel. Co. v. Olsson, 40 Colo. 264; Campbell v. Sugar Co., 62 Me. 566; Clark v. Fry, 8 Ohio' St. 377; French v. Construction Co., 76 Ohio St. 509; McGinnis v. Railroad, 200 Mo. 359; Waras y. Railroad, 72 Fed. 637. (2) Plaintiff’s evidence failed to sustain the claim that the collision was due to the negligence of Kenzell in respect to any act or deed required by or incident to his employment; on the contrary, the plaintiff’s evidence demonstrated that the collision was directly occasioned by Kenzell’s conduct outside the scope of his duties. Hillsdorf v. City, 45 Mo. 94; Walker v. Railroad, 121 Mo. 575; Farber v. Railroad, 32 Mo. App. 381; Hartman v. Muehlbach, 64 Mo. ‘ App. 566; Collette v. Rebori, 107 Mo. App. 720; Grattan v. Suedemeyer, 144 Mo. App. 723; Slater v. Thresher Co., 5 L. R. A. (N. S.) 598; Geraty. v. Ice Co., 16 App. Div. N. Y. 177; Railroad v. Harvey, 144 Fed. 806; Guille v. Campbell, 49 Atl. 938; Thurston v. Railroad, 168 S. W. 236; Mfg. Co. v. Roofing Co., 183 S. W. 659. With respect to his manner of walking along the streets, Kenzell’s position was analogous to that of an independent contractor; the telegraph company would not be liable for his negligence in so doing.
    William H. McClarin and Jones, Hooker, Sullivan & Angert for respondent.
    (1) The defendants are jointly or severally liable in this case, and they were properly'joined as defendants in this suit. Therefore, the court did not err in overruling the appellant’s motion to elect, or its demurrer, or its objection to the introduction of evidence, grounded on non-joint -liability. Harriman. v. Stowe, 57 Mo. 99 ; ' Stetnhauster y. Spraul, 114 Mo. 551; Kan-field v. Railroad, 59 Mo. App. 362; Jewel v. Bolt & Nut Co., 231 Mo. 206; Schwyhart v. Barrett, 145 Mo. 332; Stotler v. Railroad, 200 Mo. 119; Lanning v. Railroad, 196 Mo. 656; McGinnis v. Railroad, 200 Mo. 358; Hutchinson v. Safety Gate Co., 247 Mo. 71; Whiteaker v. Railroad, 252 Mo. 450, 239 U. S. 421; Railroad y. Thomson, 200 U. S. 206; Railroad v. Bohon, 200 U. S. 221; Railroad v. Dixon, 179 U. S. 131; Railroad' y. Miller, 217 U. S. 209; Railroad v. Willard, 220 U. S. 413; Sec.- 1734, R. S. 1909. The appellant, by answering to the merits and not standing on its demurrer and motion to -elect, waived the point raised thereby. White v. Railroad, 202 Mo. 561; Hansen v. Neal, 215 Mo. 277. (2) The evidence on the part of plaintiff conclusively showed that defendant Kenzell was in the employ of the defendant and at the time was engaged in and about its business as its servant. Fleischman v. Fuel Co., 148 Mo. App. 117; Long v. Nute, 123 Mo. App. 209; Hays v. Hogan, 180 Mo. App. 237; O’Malley v. Construction Co., 255 Mo. 386; Curley v. Vehicle Co., 68 App. Div. (N. Y.) 21; Seaman v. Koehler, 122 N. Y. 646; Wilde v. Railroad, 53 N. Y. 156; Pearlstein v. Express Co., 177 Mass. 530; Tuomey v. Fogart Co., 22 N. Y. Supp. 930; Slothower v. Clark, 191 Mo. App. 105; Phillips v. Tel. Co., 184 S. W. 958. (3) Kenzell’s negligence having been committed in the course of the performance of his duties, was the negligence of the master. Ryan v. Keane, 211 Mass. 543, 47 L. R. A. (N. S.) 142; Phillips v. Tel. Co., 184 S. W. 958; Whiteaker v. Railroad, 252 Mo. 438; Garretson v. Duenckel, 50 Mo. 104; Meade v. Railroad, 68 Mo. App. 92; Brill v. Eddy, 115 Mo. 596; Voegeli v. Co., 49 Mo. App. 643; Schamp v. Lambert, 142 Mo. App. 573; Winfrey v. Lazarus, 148 Mo. App. 388; B'ouilon v. Light Co., 148 Mo. App. 473; Red v. Railroad, 161 Mp. App. 522; Moore v. Light Co., 163 Mo. App. 270. (4) Kenzell not having stopped in grabbing the paper mentioned in the evidence, but having grabbed it while on his way to appellant’s office, had not deviated from nor abandoned the pursuit of his duties to the appellant, so as to relieve it from liability, inasmuch as he was continuing on to the office of the appellant when he struck Mrs. Phillips. This was a question of fact which has been resolved against the appellant by the jury. Long v. Nute, 123 Mo. App. 209; Slothower v. Clark, 191 Mo. App. 105; Vaneman v. Laundry Co., 106 Mo. App. 592;'Jones v. Weigand, 134 App. Div. (N. T.) 644; Lovejoy v. Lackland, 66 Neb. 469; Whiteaker v. Railroad, 252 Mo. 452.
   BROWN, C.

— This is a suit for damages suffered by plaintiff under the following circumstances:

The defendant Western Union Telegraph Company is a New York corporation engaged in the business of receiving, transmitting and delivering communications by telegraph between different places in the United States, including the city of St. Louis, in which it had offices for that purpose, among which was an office on the southwest corner of Olive Street and Grand Avenue. Olive Street, at that place, extends east and west while Grand Avenue crosses it, ■ extending north and south. The defendant Kenzell, at the time of the injury, which occurred about December. 28, 1912, was a messenger boy sixteen years old, in its service, whose duty it was to deliver telegrams. The evidence tends to show that about seven o’clock in the evening of that day the plaintiff was standing on Grand Avenue in front of the show window of a candy store on the southeast corner, waiting for an approaching automobile to pass, so that she could step down into the street and cross to the southwest corner, on which the telegraph office was situated. A news boy with a bundle of papers under his arm stood on the sidewalk about seven feet north of her when the defendant Kenzell came running from the east along the sidewalk on the south side of Olive Street with a telegram in his hand, and said to the news boy “give me a paper.” The news boy refused, when Kenzell snatched one from the bundle and ran, looking over his shoulder, and collided with plaintiff with such force that she was knocked ten feet into Grand Avenne and very seriously injured. There was a verdict and judgment for $10,000 against both defendants, from which the Telegraph Company alone has taken this appeal. It does not complain of the amount, but does strenuously insist that it is not liable upon the facts as above stated, and this is the point to which our attention will be given.

In going into the consideration of this case it is well to have in mind that the boy who caused the injury which is the subject of the Suit was not traveling on the street by permission of his co-defendant, but in the exercise of a public right valuable to himself as a facility for gaining a livelihood as well as to his employer. Had he not possessed this right his employer could not have conferred it nor taken it away. It went with his service as far as it was necessary to the performance of the duty involved and no further. In all other respects and for all other purposes it remained his own. It was, like his health and strength, a part of his own equipment for the service in which he was engaged. We cannot arbitrarily assume that by the terms of his employment, he was forbidden to seek, while on these trips, his own pleasure or profit in any.manner consistent with the performance of his whole conventional duty, nor was the defendant under any obligation to so restrain his liberty of action, in the ordinary use of the public easement, although, should it authorize him to commit a wrong, as by inciting him to dangerous speed in a crowd, it would be liable for the consequences upon familiar principles unconnected with any issue in this case, and having no connection with the relation of master and servant.

On the other hand, neither beasts nor inanimate things participate in these public uses of their own right, but only have status in the public highway by right of their owners. For this reason one who employs a beast upon the street must do so under such management and control as will provide reasonably for the safety of persons and their property. • Had this boy been furnished by the defendant with a horse to ride or an automobile to transport him in the performance of his duties, his management of these facilities would have been the management of his master, which would have been liable for his acts and omissions in such management.

These principles are familiar to all, and are firmly embedded in the foundation of our jurisprudence, and we would not feel that it is necessary to mention them were it not tfiat this unfortunate accident has already been the subject of'adjudication by an appellate court of this State in a suit brought by the husband of plaintiff (Phillips v. Western Union Telegraph Company, 194 Mo. App. 458), in which the liability of the appellant was upheld. While this does not constitute an adjudication of the right in favor of this respondent, it is persuasive, authority as the decision by a distinguished court of the same question, and is the only authority to which counsel has directed our attention bearing upon the question which seems to us to be the controlling one in this case.

Eespondent’s counsel meets these simple rules with the proposition that human legs, while safe and proper instruments of transportation when carefully used, are, like automobiles and other things of a similar nature, dangerous when used negligently, and that the master has as much control over thé legs of his servant as over his own animal or machine; and cites Ryan v. Keane, 211 Mass. 543, as an authority, and the same case is cited and quoted by the St. Louis Court of Appeals in Phillips v. Western Union Telegraph Company, supra. In the Massachusetts case the accident occurred in the stable yard of a livery, in which a customer waiting for a conveyance he had ordered was roughly pushed, run against and injured by the employee who had been serving him, and who was on foot. We do not see the relevancy of this case, in which the employer failed in the duty of protecting his customer from negligent injury by his own servant upon, his own premises to which he had been invited, to the duty of the master to control the movements of his messenger while walking upon the public street.

The respondent has also cited the decision of this court In Banc in Maniaci v. Interurban Express Co., 266 Mo. 633. In that case the defendant express company had in charge of its office and business at Edwardsville, Illinois, one Joiner, “a person of violent temper, quarrelsome disposition and without control over his passions” and “a dangerous and unfit person to place in such a position,” which it well knew; a dispute had arisen between Joiner and plaintiff over the refusal of plaintiff to sign a receipt for a consignment of fruit previously delivered to him; and Joiner had telephoned him to come to the office; and while he was doing so intercepted Mm, presented the receipt, demanded that he sign it and while he was doing so “under protest” shot him. In holding the express company liable- under the circumstances this court said: “The plaintiff was there upon the invitation of defendant for a legitimate purpose. He and Joiner were in the midst of the vevy business which had called them together, at the time said shooting occurred. In addition thereto, the petition alleges that plaintiff was in the very act of signing the receipt when he was suddenly shot.” It also cited a number of authorities sustaining the principle clearly stated by Judge Cooley, Cooley on Torts (3d Ed.) sec. 626, as follows: “'The master is liable for the acts of Ms servant', not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do; while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but the wrongful acts he was suffered to do, that the master must respond.

There is nothing in any of these authorities which applies the doctrine of respondeat siiperior, or the principles on which it rests, to the facts of this case as already stated, and we are not surprised that the diligent search indicated by the briefs of eminent counsel in this case have failed to disclose one. Had the messenger boy, charged as the direct perpetrator of the injury to plaintiff, been charged by the Telegraph Company with the duty of delivering a telegram to her and taking a receipt therefor, and he had presented it and demanded the receipt, and had a quarrel arisen between them as to the proper method of executing it, in which he had lost his temper by reason of her protests, and thrown her upon the pavement -or otherwise chastised her to her injury, the Maniaci case would be a direct authority in favor of the master’s liability. The same principle is supported more or less directly by the authorities which it cites. They all put the master’s liability upon the ground that in the performance of'those acts which can be done only by the use of its powers and under its direction, it is responsible for the conduct of the servant, even though, in the accomplishment of that obje'ct, he commits a wilful tort. There is nothing in any of them that implies the duty to regulate the gait of one who walks along the street for such purpose. Had economy indicated that the duty of delivering telegrams be united in the boy with the duty of delivering medicine for the drug store in which defendant’s office was situated, a search of his pockets might disclose either telegrams or medicine or both, but we do not think their presence would fye of value to fix upon either druggist or telegraph company a liability for his want of circumspection in using the easement which was freely open to him for himself despite the objections of either or both.

We have already referred to the paucity of authority upon the liability of the master for the use by his servant of the public street. The most of us frequently send our servants to the post office or the store, or, if we have no one regularly employed to do these errands, expend a nickel or a dime for a special messenger for such purposes. Traveling salesmen in the employ of com-, mercial houses go from store to store and house to house in the pursuance of their calling. Boys engaged in this’ employment frequently encounter their juvenile enemies and we, who employ them, do not think of worrying over our financial responsibility for the result. The youth who goes to the post office with our letter on a Fourth of July morning may carry, a bundle of fire crackers'and distribute them freely along the route, or the festive drummer on a holiday occasion may fall over a slight and quiet traveler, or the boy who carries a parcel may, at the same time,- try to control his boon companion, the bull pup, with a string. Many of us have seen painful accidents resulting from such conditions, but have seen no legal authority for holding the master liable in damages growing out of the rollicking movements of his servants, on the street, even though his own business may have taken them to the very place at that very time, unless he instigates the wrong which caused the injury.

Nor are we prepared to hold that a corporation is, in this resjject, subject to'a more stringent rule of liability than a natural,person,

The judgment of the circuit court for the city of St. Louis is therefore reversed.

Railey, C., not sitting.

PER CURIAM.

— The foregoing opinion of Brown, C., is adopted by the Court In Banc as the opinion of said court.

All the judges concur, except Woodson, J., who dissents in an opinion filed.

WOODSON, J.

(dissenting)-. — I dissent from the majority opinion for the reason that the same rule of law applies to the facts of this case as if the injury had been inflicted by an automobile instead of being caused by the messenger’s body negligently coining in physical contact with the plaintiff. The messenger was performing the master’s business at the time he injured the plaintiff, and had it not been for that fact he would not have been pursuing the journey which resulted in the injury, and the mere fact that he sidestepped a few feet to gratify some personal desire does not change the rule. In that case, as in this, he would have been about the master’s business and the negligence in the one is identical with that in the other; the authorities cited abundantly so hold.


source: Caselaw Access Project

author: WILLIAMS, J. PER CURIAM:

license: Public Domain

text:
    THE STATE ex inf. VIRGIL CONKLING, Prosecuting Attorney, ex rel. JOHN C. HENDRICKS et al. v. JAMES M. SWEANEY et al., Plaintiffs in Error.
    In Banc,
    May 22, 1917.
    1. BILL OF EXCEPTIONS: No Order of Court. It is not a necessary prerequisite, in a case arising.since the passage of the Act of 1911, to the right to file a bill of exceptions, that the trial court should make an order during the term at which exceptions were taken granting leave to file the bill thereafter. If the exceptions which comprise the bill were taken at the May term, 1912, and no entry or order was made at that term granting leave to file the bill thereafter, a bill presented, allowed and filed at the November term, 1914, being prior to the time plaintiffs in error were required to serve their abstract, .will be considered for purposes of review.
    2. VILLAGE OR TOWN SCHOOL DISTRICT: Division Into Two or More Districts. Section 10881, Revised Statutes 1909, does not provide a way for dividing a town, city or consolidated school district into two or more districts. Nor do any other statutes provide any direct way by which such division can be accomplished.
    Error to Jackson Circuit Court. — Hon. William O. Thomas, Judge.
    Affirmed.

      Smart & Strother for plaintiffs in error.
    (1) The division of the School District of Dallas as shown hy the record herein, was authorized by law. RS. 1909, secs. .10837, 10839, 10840, and 10881; School District No. 1 v. School District No. 4, 94 Mo. 620. (2) In construing statutes “words and phrases shall be taken in their plain or ordinary and usual sense,” and “if possible, some meaning must'be given every word in an act.” R. S. 1909, Sec. 8057; Collier Estate v. Paving & Supply Co., 180 Mo. 379; St. Louis v. Lane, 110 Mo. 258. (3) “Where a court of last resort construes a statute, and that statute is afterwards re-enacted or continued in force, without any change in its terms, it is presumed that the Legislature adopted the cohstruction given to it by the court.” Handlin v. Morgan County, 57 Mo. 116; Northcutt v. Eager, 132 Mo. 277. (4) Statutes are to be construed as to give effect to all •their provisions and to harmonize their various provisions with each other, and so as to effectuate the legislative intent. State to use v. Hernán, 70 Mo. 451; State ex inf. v. Bulkhead, 187 Mo. 35; State ex rel. v. Gordon. 261 Mo. 646-649; Lexington v. Bank, 130 Mo. App. 692. (5) The proceedings leading up to the division of the .School District of Dallas were in strict accordance with the statutes. R. S. 1909, secs. 10837,10879; State ex rel. v. Andrae, 216 Mo. 617; School District v. Chappel, 155 Mo. App. 498.

      Sebree, Conrad & Wendorff for defendants in error.
    (1) The bill of exceptions was not filed for over two years after the term at which the motion for new trial was overruled had elapsed, and no leave was ever granted extending the time for filing such bill of exceptions; consequently, the case must be decided upon the record proper. Sec. 2029, R. S. 1909; Laws 1911, p. 139. (2) The attempt of plaintiffs in error to disorganize the School District of Dallas and cut off the eastern portion and form thereof a common school district was without authority of law and void, and the judgment of the lower court ousting plaintiffs in error was right and should be affirmed. State ex rel. v. Pry, 186 Mo. 198; School District v. McFarland, 154 Mo. App. 411; State ex rel. v. Fisher, 119 Mo. 351; Ex parte Snyder, 64 Mo. 61; State ex rel. v. Woodson, 128 Mo. 514; Heidelberg v. St. Flancois Co., 100 Mo. 74; State ex rel. v. Stobie, 194 Mo. 57; Capen v. Garrison, 193 Mo. 348; Williamson v. Brown, 195 Mo. 328.
   WILLIAMS, J.

— -This is a proceeding by quo warranto instituted in the circuit court of Jackson County, by the then prosecuting attorney of said county, at the relation of the directors of the School District of Dallas, situated in said county, against the therein named defendants, whereby it is sought to oust the defendants from acting as school directors over territory which it is claimed by relators is embraced within the School District of Dallas. The circuit court entered judgment in favor of the relators and issued a writ of ouster against the defendants'. Thereafter and in due time the defendants brought the suit to this court by writ of error.

The facts necessary to a determination of the issues involved may be stated substantially as follows.

The School District of Dallas is what is known as a town or village school district and was so organized in 1903 and the legality of said organization was affirmed by this court in the case of State ex rel. v. Grill, 190 Mo. 79. The relators now comprise the board of directors of said school district as originally organized, unless it should be determined in this proceeding that the original School District of Dallas had, prior to the institution of this suit, been divided into two school districts.

In the spring of 1912 a portion of the inhabitants of said school district, proceeding under and by virtue of section 10837, Revised Statutes 1909, undertook to divide the School District of Dallas into two separate districts. It appears that all of the matters required by said section were complied with and that the School District of Dallas' was divided into two districts if there was legal authority so to do. The defendants, plaintiffs in error, are the directors of the new district attempted to be carved out of the old district. It is the contention of the relators, defendants in error, that there is no provision of law for dividing a town, city or consolidated school district into two districts and that, therefore, the whole proceeding was void and that the defendants were without authority to act as school directors of any portion of said territory. The contention of the defendants, plaintiffs in error, is that under Section 10881, Revised Statutes 1909, authority is to be found for the division which was made.

I. Before proceeding with the merits of the appeal there is one preliminary question-* that must be determined. Defendants in error contend that the bill of exceptions was not filed within time an,d that, therefore, onr review must be limited to the record proper.

The facts underlying this point are as follows: The exceptions, which comprise the bill of exceptions, were taken at the May term, 1912, of said circuit court, which, of course, was after the Act of 1911 (Laws 1911> PP- 139-140), relating to filing of bills of exception, became operative. During the said term of court the trial court did not make or enter of record an order granting leave to file the bill of exceptions thereafter. At the November term, 1914, plaintiffs in error presented their bill of exceptions and the trial court by order entered of record duly allowed the same and ordered the same to be filed and made a part of the record in the case. This, in point of time, was prior to .the time the parties were required, under our rules, to serve their abstract of record.

Defendants, in error, however, insist that since the court, during the term at which the exceptions Avere taken, did not'make an order granting leave to thereafter file the bill of exceptions, the same was, therefore, filed without authority. We are unable to agree with this contention. We are of the opinion that the bill of exceptions was duly allowed and filed within proper time, as authorized by the Act of 1911, supra.

That said act contains much surplusage becomes apparent at a mere glance. It should be noted that all through the act the conjunction “or” is used and the perhaissive term “may be filed” is employed and not the imperative “shall be filed.” If a law should be passed by the Legislature saying that an act “may be done, within five, ten, twenty or thirty days” from a given time, could it be properly said that the act had to be done within five days? Would not the proper construction be that the act could be done at any time within thirty days and that the other portions of the law likewise giAring permission to do the act in a shorter period were surplusage. That is very much the situation with the Act of, 1911. It provides that bills of exception “may be filed:”

(1) 'during the term of the court at which it is taken, or within such time thereafter as the court may by order entered of record allow, which time may be extended by the court or judge in vacation for good cause shown;

(2) or within the time the parlies to the suit or their attorneys of record may in writing agree upon;

(3) (or) at any time before the appellant shall be required by the rules of the appellate courts to serve his abstract of record; provided, that if for any reason the bill of exceptions cannot be filed within that time then upon proper certificate from the circuit judge to the appellate court the appellate court shall continue or reset the case a sufficient time to allow the bill of exceptions to be filed and' that the bill of exceptions may then be filed at any time before the rules of the appellate court require the abstract to be served by reason of the re-setting.'

The provisions (1) and (2) above were formerly contained in section 2029, Revised Statutes 1909. That section was expressly repealed by the Act of 1911 and by said Act re-enacted with the portion (3) above, together with some rather indefinite directions as to .what action the appellate courts should take in affirming cases, and an emergency clause putting the act into effect forthwith To undertake to elucidate the legislative intent to such degrees of refinement as would give life to every part of the act would appear to be an impossibility. Why the act is in its present form, only facts dehors the record could possibly explain.

In the case at bar the right to file a bill of exceptions occurred after the Act of 1911 went into effect and we, therefore, have not before us the situation involved in the case of Craig v. Railroad, 248 Mo. 270 (later followed in the cases of Bridge Company v. Corrigan, 251 Mo. 667, and Mitchell v. Sparlin, 255 Mo. 124), wherein it was held that the enlarged rights granted by the Act of 1911 did not apply to those cases arising prior thereto in which the right to file a hill of exceptions had terminated before tbe act became operative.

In the case of State v. Rogers, 253 Mo. 399 (a case wbicb arose after tbe Act of 1911 was passed), in construing tbis act it was held that a bill of exceptions filed after tbe time granted by tbe court bad expired, was filed in time under tbe provisions of tbe Act of 1911, if it were filed before tbe appellant was required by tbe rules of tbe appellate court to serve bis abstract of record. We are of tbe opinion that that case was correctly ruled.

If then a bill of exceptions can be said to be properly filed after tbe expiration of tbe time granted by tbe trial court, why could not tbe same bill of exceptions be so filed on tbe same date, although no extension of time bad ever been granted? Under tbe Act of 1911 what peculiar force or virtue is added to tbe right to file a bill of exceptions by tbe act of tbe coiirt in term time granting an extension of time that is not to be utilized? None whatever, we must admit, except in those cases arising prior to tbe passage of tbe Act of 1911 where such extension of time would be necessary under tbe bolding of tbe Craig case, supra, to keep alive and carry forward tbe old right under Section 2029, Bevised Statutes 1909, until it came, within tbe operation of tbe Act of 1911.

We, therefore, bold that with reference to all cases arising since the passage of the Act of 1911, it is not a necessary prerequisite to tbe right to file a bill of exceptions, that tbe trial court should make an order during tbe term at wbicb exceptions are taken granting leave to thereafter file tbe same.

II. Tbe only question presented upon tbe merits of tbis appeal involves a construction of Section-10881, Be-vised Statutes 1909. Said section is as follows:

“All tbe provisions of section 10837, relating to tbe changes of boundary lines of common school districts, and all tbe provisions of sections 10839 and 10840, relating to tbe division of property between common school districts, shall apply to town, city and consolidated districts.”

Plaintiffs in error contend that the above section authorizes the division of a town, city or consolidated school district into two new school districts, while defendants in error contend that it merely provides for changing the boundary lines of such school district, but does not provide for dividing the same into two new districts. After careful consideration of the statute, we have reached the conclusion that the above section does not provide a way for dividing a town, city or consolidated school district into two new districts. If Section 10881, snpra, had provided that all the provisions of section 10837, Revised Statutes 1909, should apply to town, city and consolidated districts, then there could be no question but that provision had been made for so dividing such districts, because Section 10837, supra, expressly provides for dividing one common school district into two new districts. But instead of the Legislature saying that all the provisions of section 10837 should apply to town districts, it merely said that “all the provisions of section 10837 relating to the changes of boundary lines of common school districts” should apply. Referring then to Section 10837 we find that the only express provision therein for changing boundary lines is the provision for changing “the boundary lines of two or more districts.” Other express provision is made for dividing one district into two new districts. It, we think, becomes at once apparent, that the provision for changing the boundary lines of two or more districts- could not, by any process of construction, be held to provide a way for dividing one district into two new districts. Section 10881,- in its present form, was enacted in 1909 (Laws 1909, p. 819, see. 130). Prior to that time it had been expressly held by this court that the law providing for division of common school districts did not apply to village school districts. [State ex rel. v. Fry, 186 Mo. 198.] Such being the case the Legislature, when it enacted Section 10881, knew that the provisions of Section 10837, relating to the division of one common school district into two new districts, would not apply to town or consolidated districts unless it so provided in the act, and knowing this- to be true and failing to so provide it would be but to do violence to the plain language used to hold that it. expressed an intention to apply provisions other than those expressly mentioned. To so hold would be to violate the well known canon of statutory construction, viz.: That the expression of one thing is the exclusion of another.

Upon a reading of the revised school act passed in 1909 (Laws 1909, p; 770 et seq.), it would appear that there was a very good reason why the Legislature did not provide that the provision for dividing a common school district into two new districts should also apply to town, city or consolidated districts. Section 119 of said act (now Sec. 10870, R. S. 1909), provides that town, city or consolidated school districts may disorganize, upon certain proceedings had as therein specified, only when authorized by a vote of two-thirds' of the resident voters and taxpayers of said district, and then provides that the territory thereof, after disorganization, may be organized into a common school district.

It, therefore, becomes apparent that should we construe Section 10881 as plaintiffs in error contend, it would virtually render nugatory the provisions of Section 10870, supra, and would, in effect, provide that the district could be disorganized without the vote of two-thirds of the voters and taxpayers. Of course, if a town, city or consolidated district should by a two-thirds vote disorganize the territory thereof could, under the provisions of Section 10870 be organized into a common school district and this common school district in turn, under the provisions of Section 10837, be divided into two new districts. Plaintiffs in error, however, did not undertake to proceed by that route, but have undertaken to accomplish the same result by the decision of a board of arbitration acting by appointment of' the county superintendent of public schools, as provided by Section 10837, supra. We are of the opinion that the provisions of Section 10837, under which plaintiffs in error acted, have no application to town, city or consolidated school districts.

Plaintiffs in error, however, contend that the construction which we have given Section 10881 renders useless that portion of said section which provides that ‘ ‘ all the provisions of Sections 10839 and 10840 relating to the division of property between common school districts shall apply to town, city and consolidated districts,” because, as they contend, said Sections 10839 and 10840 apply only when new districts are created, and if it is held that a town, city or consolidated district cannot be divided into new districts then said sections could never apply and the “fundamental rule of statutory interpretation, that, if possible, some meaning must be given every word in an act,” is thereby violated. Defendants in error contend that this result would not follow and that Sections 10839 and 10840 do not apply exclusively to the situation arising from the formation of a new district. We will not here undertake to construe. Sections 10839 and 10840. To do so would amount to nothing more than an obiter dictum in this case, for the reason that, even though the view of plaintiffs in error be correct that under our above construction the provisions of Sections 10839 and 10840 could never apply to town, city or consolidated districts, yet our above construction does not violate the spirit of the above rule of construction mentioned by plaintiffs in error. The rule referred to says that if possible such construction should be given as will give meaning to every word. We do not consider it possible (within the meaning of the above rule), proper regard being had for all the rules of construction, that said Section 10881, when read in the light of its own clear and unequivocal terms and in the light that the Legislature at the same time provided another method for disorganizing town, city or consolidated districts, can be properly construed differently from the construction which we have given it.

It therefore follows that the plaintiffs in error were without authority to exercise the functions of school directors over any portion of the territory embraced within the original School District of Dallas and that the judgment of ouster rendered against them was properly so entered.

The judgment is affirmed.

All concur.

PER CURIAM:

— The foregoing opinion of ‘Williams, J., in Division Two is hereby adopted by the court in Banc.

All concur.


author: WALKER, P. J.

text:
    THE STATE v. SWIFT & COMPANY et al., Appellants.
    Division Two,
    May 29, 1917.
    1. CONSTITUTIONAL QUESTION: Untimely Raised. A constitutional question is neither timely nor otherwise sufficiently raised by an assignment in the motion in arrest that “the facts stated in said information do not constitute a charge or offense under the Constitution and laws of this State” and by an allegation in tne assignment of errors that the statute in question is in violation of section 8 of article 1 of the Constitution of the United States.
    2. -: Assignment Must Be Specific. To raise a constitutional question the particular provision of the Constitution alleged to be violated must be pointed out.
    3. -: Previously Decided. A plea of unconstitutionality will not confer jurisdiction where the Supreme Court has theretofore held the statute in question valid.
    4. -: Appeal: Transfer to Court of Appeals. If the constitutional question was neither timely nor otherwise sufficiently raised and the statute under which defendant was convicted of a misdemeanor has previously been adjudged to be constitutional, the case will be transferred to the proper Court of Appeals for final determination.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Galvin N. Miller, Judge.
    Transferred to st. louis court of appeals.

      A. & J. F. Lee and James A. Waechter for appellants.

      Frank W. McAllister, Attorney-General, and S. E. Skelley, Assistant Attorney-General, for the State.
   WALKER, P. J.

— The defendants were charged under section 651, Eevised Statutes 1909, with having offered for sale or kept on hand a colored substance composed of animal fat or vegetable oil in imitation of butter. This offense -is denounced as a misdemeanor. [Sec. 658, E. S. 1909.] Upon a trial defendants were found guilty and their punishment assessed at a fine of $50. They thereupon perfected an appeal to this court. The appellate jurisdiction of this court is invoked on the ground that a constitutional question is involved, although the record prior to the filing of the motion in arrest of judgment contains no intimation of this ground of jurisdiction. In the motion in arrest is found this allegation: “(2) that the information filed against defendants had been materially changed, altered and modified after it was filed against said defendants and did not constitute an information within the meaning of the Constitution of this State;” and further in paragraph 5 of said motion appears the following: “because the facts stated in said-alleged information do not constitute a charge or offense under the Constitution and laws of this State.” The only reference thereafter to the question of jurisdiction is found in the assignment of errors, where it is alleged that the statute in question is in violation of article 1, section 8, of the Constitution of the United States.

There is here neither a timely nor otherwise sufficient raising of the' constitutionality of the statute to give this court jurisdiction. The point . , , , . . , , . , might have been raised by a demurrer to the information or by a demurrer to the testimony supplemented by preserving the plea in the motion for a new trial.

However,' if the objection to the statute had been timely it was not sufficiently definite to entitle it to consideration. To raise a constitutional question the particular provision alleged to be violated must be pointed out. [Lohmeyer v. Cordage Co., 214 Mo. 685.]

But it appears that the validity of section 651, Revised Statutes 1909, has been passed upon by this court and held not to be inimical to the Constitution. [State v. Bockstruck, 135 Mo. l. c. 356.] This is therefore not a live question and hence not a ground upon which the jurisdiction of this court can be invoked. [Schmidt v. Sup. Ct. U. O. F., 259 Mo. 491; State v. Evertz, 190 S. W. 287; State v. Wild, 190 S. W. 273; State v Campbell, 214 Mo. l. c. 364; Dickey v. Holmes, 208 Mo. 664; Jones v. Anheuser-Busch Brewing Assn., 188 S. W. 82.]

The constitutionality of the statute in question not having been raised on a timely or sufficient manner and the same having been heretofore determined by this court, this case should be transferred for final determination to the St. Louis Court, of Appeals, and it is so ordered.

All concur.


author: PER CURIAM: GRAVES, C. J.

text:
    Ex parte CHARLES L. HOLMAN, Petitioner.
    In Banc,
    June 1, 1917.
    HABEAS CORPUS. The opinion of the St. Louis Court of Appeals, quashing a writ of habeas corpus issued on behalf of petitioner, is adopted as the opinion of the Supreme Court, and the subsequent writ of habeas corpus issued by the Supreme Court in the same case is likewise quashed.
    Habeas Corpus.
    Writ quashed,
    I. H. Lionberger for petitioner.

      Charles H. Daues for respondent.
   PER CURIAM:

— The opinion of the Court of Appeals! when the same case was in that court, is adopted as the opinion of this court in this case, and the writ is quashed, and the petitioner remanded to the custody of the officer.

All concur; Graves, G. J.,.in a separate opinion, in which Faris, J., concurs; Bond, J., concurs in result only of the Court of Appeals opinion:

GRAVES, C. J.

(Concurring). — By agreement this court determined to express its views upon the opinion of the St. Louis Court of Appeals, when Holman asked for writ of habeas corpus there. Upon this theory I concur in the result of the opinion of the St. Louis Court of Appeals. I do not concur in its adoption of the views of this court in City of St. Louis v. United Railways, 263 Mo. 387. To my mind the instant case does not necessarily require a determination of the mooted questions involved in the United Railways case, supra. But even if it did, there are other questions which would authorize the proposed investigation by the committee, all of which were fully covered in the resolution, and other proceedings of the legislative body and its committee. I therefore concur in the result of the opinion of the St. Louis Court of Appeals, leaving the questions involved in United Railways case open, so fár as I am concerned, until the same are squarely passed upon by the United States Supreme Court, which to this date has never been done.

Faris, J., concurs in these views.


author: GRAVES, C. J. BOND, J.

text:
    GRANITE BITUMINOUS PAVING COMPANY v. PARK VIEW REALTY & IMPROVEMENT COMPANY, ISAAC H. ORR, NINA REALTY COMPANY et al., Appellants,
    Nos. 17593, 17594 and 17595.
    In Banc,
    June 30, 1917.
    REHEARING GRANTED: Immediate Decision Without Rehearing. After a Court of. Appeals has granted a motion for a rehearing, it cannot at the same time and Immediately without a rehearing and without a re-submission, render judgment. When a rehearing is allowed the case stands for re-argument and re-submission, and a judgment rendered without re-submission is coram non judieo and void.

      Held, by BOND, J., dissenting, that the Court of Appeals had jurisdiction of the cause, and its judgment was at its worst a mere erroneous exercise of that jurisdiction, and in no sense a violation of the constitutional power vested in it to decide cases; and one of the judges of that court, deeming the judgment to be in conflict with certain designated decisions of the Supreme Court and 'of another court of appeals and having for that reason caused the case to be certified to the Supreme Court, that certification gave this court jurisdiction of the whole case, and it is before ,the Supreme Court for determination on the merits, just as if it had been brought to it by direct appeal from the circuit court, in total disregard of the error by which the judgment was reached in the Court of Appeals.
    Appeal from St. Louis City Circuit Court. — Now. Eugene McQmllin, Judge.
    Remanded to st. louis court of appeals.

      Collins, Barker & Britton for appellant.
    Wlien the Supreme Court on a proper transfer has jurisdiction of a cause, it will hear and determine the entire cause and not merely dispose of the point of difference in the Court of Appeals. Sutton v. Cole, 155 Mo. 206; Fulkerson v. Murdock, 123 Mo. 292.

      Sturdevant & Sturdevant for respondent; Charles W. Bates, amicus curiae.

   GRAVES, C. J.

— These three cases are actions upon special tax bills. In each the lower court found for the plaintiffs. Appeals were taken to the St. Louis Court of Appeals, where the three were seemingly heard as one case, and they are so submitted here. The eases are in a very peculiar situation here. Upon a hearing in the Court of Appeals the judgments in the lower court were reversed, Caulfield, J., not sitting.

Motions for rehearing were filed, and evidently the two sitting judges who had joined in reversing the judgments divided in opinion, or at least one of them was shaken in his views. The result was that the motions for rehearing were set down for argument, and Hon. R. E. Rombauer in some manner appeared as special-judge on this hearing had upon the motions for rehearing. The result of this hearing upon the motions for rehearing is thus expressed in the judgment before us:

“Now again come the said parties by their respective attorneys and the court having fully considered respondent’s motion for rehearing doth order that same be sustained, and that the judgment of reversal heretofore entered herein be set aside and for naught held and esteemed; and that said cause be remanded to said circuit court, city of St. Louis, with directions to that court to strike from the record so much of the judgment entry of that court as contains the words ‘with interest at the rate of' eight per cent per annum from the date of the judgment until paid,’ and that the judgment thus amended, stand in full force and effect; and that said respondent recover of said appellants its costs and charges herein expended and have execution therefor. Opinion filed. But as Judge Nortoni deems the opinion of this court to be in conflict with the decision of the Supreme Court in the case of Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241. 146 S. W. 1142, and with that of the Kansas City Court of Appeals in the case of Forrey v. Holmes, 65 Mo. App. 114, and asks that this cause be certified to the Supreme Court for a final determination, it is so ordered. Dissenting’ opinion by Nortokt, J., filed. ’ ’

Judge Rombauer wrote the. opinion on the motion for rehearing, and properly styles it thus: “Opinion on Motion for Rehearing.”

It should be noted that the first judgment of the Court of Appeals is an absolute judgment of reversal, and further that the last attempted judgment is one of affirmance, with a slight modification of the judgment nisi as to interest. It must be further noted that the judgment before us shows that the court granted a rehearing and that without á rehearing in fact or in law, instantly entered up a new and different judgment. So speaketh the only record before us.

In one breath the Court of Appeals says you are entitled to a rehearing of your case upon its merits, and in the nest breath it enters, instanter, another and directly opposite judgment, without a further resubmission of the cause and without a rehearing in fact, after the motion for rehearing was sustained. By the same opinion such court both grants’ a rehearing and enters a new judgment. That the court had the right to hear argument on the motion for rehearing there can be no question. That with only two sitting judges in the case,' a condition might 'arise which would call for the selection of a special judge there is no question. The trouble with the record is that it shows that there was no rehearing and no re-submission for judgment, after the motion for rehearing was sustained. "When a rehearing is granted, it means what the term “rehearing” indicates, i. e. that the case is for re-argument and resubmission, before judgment can be entered therein. We do not mean that a prior judgment and opinion cannot be modified upon a motion for rehearing, and the motion then overruled, for that is often done in appellate practice, but what we do mean is, that when, upon a hearing had upon a motion for rehearing (whether that hearing be upon oral argument or otherwise) the said motion for rehearing is sustained, then no new judgment can be rendered without a re-submission and actual rehearing of the cause. At least, • absent a resubmission, no new judgment can be'entered after a motion for rehearing has been sustained. The sustaining of such motion leaves the case just where it was when filed in the court.'

This exact point has not been ruled in this State, so far as -1 find, but an analogous question has been specifically ruled. Thus in Hurley v. Kennally, 186 Mo. 225, we had before us a case in equity. Upon a trial nisi the chancellor found for the defendant and so entered his judgment. Upon motion for a new trial being filed by plaintiff he heard the motion, and sustained the same, and immediately entered judgment for the plaintiff on the merits. The cause was appealed here as indicated above, and Valliant, J., said:

“But when the motion for a new trial was sustained, the cause was at issue for trial again, the court had no authority to enter a judgment without another trial.
“Granting a new trial put the case in condition, so far as that court was concerned, as if there had never been a trial, and no judgment could thereafter be rendered upon the merits until a trial was had.”

In principle the point there decided is the point here in issue. In 3- Cvc. 219, the rule is thus stated:

“When a rehearing is granted, generally, the cause is before the court for examination and decision as though it had never been considered and decided.”

It follows that the judgments of affirmance entered in these cases without re-submission and rehearing, after motions for rehearing, had been sustained, are cor am non-judice, and void, and the cases are yet before that court for final determination. The court was without jurisdiction to enter a judgment of affirmance upon the mere hearing held upon a motion for rehearing directed to a judgment of reversal.

To the end that they may be finally determined by that court, we remand the cases to the St. Louis Court of Appeals.

All concur, except Williams, J., not sitting, and Bond, J., who dissents in opinion filed.

BOND, J.

(dissenting). — I cannot concur in the discussion or result reached in the learned majority opinion. My reasons are these: The judgment of the court of appeals upon the motion for re-hearing involves, in substance, the sustention of that motion and the entry of a new judgment affirming with some modifications, the judgment of the trial court, which it had previously reversed. This final conclusion of the Court of Appeals was dissented from by one of its judges who deemed it to be contrary to- certain decisions of this and the appellate courts, wherefore this cause w.as certified to this court and is before us for determination as provided in the Constitution. There is nothing in the record which discloses that the action of the dissenting judge was not in perfect conformity with the provisions of the Constitution, providing for such action on the part of one of the judges of Courts of Appeals, when he deems an opinion of his brethren to be contrary to the “last previous ruling” or controlling decision of this court. The cause is, therefore, before us for full determination on its merits as if it had been brought here 'by direct ap~ peal from the circuit court.

Neither can that conclusion be escaped by the suggestion in the learned majority opinion that in the particular act of rendering its final judgment the Court of Appeals was shorn of jurisdiction. If that premise were true, the conclusion might logically follow that this court, in virtue of its power of superintendence, might deal with the judgment of the Court of Appeals by an appropriate original writ. But the assumption of the premise is not correct; for the action of the Court of Appeals did not in any respect exceed its “power to act” in cases properly appealed to that court. It may be that the judgment rendered on the motion for rehearing was crass error, bnt the rendition of an erroneous judgment is not a violation of the constitutional power invested in the Courts of Appeals to decide cases ; it would be only an erroneous exercise of that power. The error of the majority opinion is that it mistakes the erroneous exercise, for the lack of jurisdiction. Of course it is not claimed that the instant case did not lie within the strict limits of its appellate jurisdiction, except upon the motion that it fell outside of those limits on account of the erroneous judgment of the Court of Appeals on the motion for rehearing. The ease cited in the majority opinion (186 Mo. 225) does not support it. In that case Judge Yalliant was speaking, on a review by appeal, of the incorrect or illegal procedure of the trial court. He did not hold that the trial court had no jurisdiction.

If, as is held in the majority opinion, the Court of Appeals had no right to render the judgment it did render upon consideration of the motion for rehearing without a rehearing in fact, then the party affected by that judgment i ould have be.en entitled to file a motion for rehearing and, in default of the sustention of such motion, might have had recourse to any other redress provided by law. No such action was taken, and the cause having reached a final judgment, was certifiable to this court in the manner and for the reasons shown in the order sending it here.

It seems to me that this is a ease in which there is a palpable propriety for the language used by Chief Justice Marshall in reply to an argument intended to prevent the exercise of jurisdiction by the Supreme Court of the United States in a matter complained of, when he said to the objector, viz.: “That this court does not usurp power is most true; that this court does not shrink from its duty is no less true.” This case having been lodged here in the manner prescribed by the Constitution, we should not shrink from the duty imposed on us by the organic law to determine it fully. Hence I dissent from the learned majority opinion.


text:
    WILLIAM ZOLLIE JONES v. CLIFFORD PATTERSON, Appellant.
    Division Two,
    May 29, 1917.
    1. CHARITABLE TRUSTS: Certainty of Objects and Terms. An es-' sential requisite to the validity of a charitable trust is that the language creating it be clear, definite and certain, by which is i .eant that the words of creation must announce a definite subject and a certain object and that the terms of the trust be sufficiently declared.
    2. -: Missionary Purposes. By the words “for missionary purposes” used in the language creating a charitable trust nothing more is meant than the propagation of religion, and if the word “Savior” is used in connection with them they mean that the fund is to be used for the propagation of the religion of Jesus Christ.
    3. -: -: Mode of Application. The fact that the languago creating the charitable trust declares the fund is to be used for the propagation of religion will not defeat it, if the particular mode of application may be rendered susceptible of direction by a court of equity; but if the charity does not, by the language used, fix itself on a well defined object, but is general and indefinite, it must fail.

      4. -: -: Void for Uncertainty. The owner of land, by her will, gave it to her husband for life, and declared that “upon his death I want it placed in the hands of Clifford Patterson (my nephew) to be used for missionary purposes in whatever field he thinks best to use it, so it is done in the name of my dear Savior and for the salvation of souls.” Held, that no particular form of the Christian religion was intended to be propagated or advanced, the scope of the field in which the trustee is empowered to exercise the charity is as unlimited as human thought, no court could supervise his application of the fund, for it fixes upon no definite object, but in effect makes him the owner of the property, and is void for uncertainty; and consequently the property descends to the testatrix’s heir at law.
    Appeal from Platte Circuit Court. — Eon. Alonzo D. Burnes, Judge.
    Affirmed.

      Norton B. Anderson and Minor Moore for appellant; Geo. W, Day of counsel.
    (1) Charitable trusts are recognized, enforced and protected by the courts of chancery of this State as a part of the general jurisdiction, not based upon — nor does it need the support of — the Statute 43d Elizabeth; nor is it dependent upon any prerogative power, but is inherent in a court of chancery. Chambers v. St. Louis, 29 Mo. 543; Academy v. Clemens, 50 Mo. 167; Howe v. Wilson, 91 Mo. 45; Powell v. Hatch, 100 Mo. 592; Woman’s Ch. Assn. v. Kansas City, 147 Mo. 103; G-oode v. McPherson, 51 Mo. 126; Schmidt v. Hess, 60 Mo. 591; Mo. Hist. Society v. Academy of Science, 94 Mo. 459; Barkley v. Donnelly, 112 Mo. 561; Lackland v. Walker, 151 Mo. 242. (2) Where the general objects of the bequest are pointed out, or if the testator has fixed the means of doing so by the appointment of trustees with the power in them, then the gift must be treated as sufficiently definite for judicial cognizance and will be cairied into effect. Howe v. Wilson, 91 Mo. 52. (3) A charity is a gift for a public use, as a gift in, and of the poor, to learning, to religion, to a humane object. Kam v. Gribboney, 101 U. S. 362. In general, a gift of property to be lawfully applied for ■an indefinite number of persons, by bringing them under the influence of religion, is prima-facie charitable in the legal sense. Turner v. Ogden, 1 Cox, 316. (4) No object is more clearly charitable in the sense of the law than the advancement of religion and education. 6 Cyc. 913; Fairbanks v. Lamson, 99 Mass. 533. (5) A liberal construction will be given by the court to bequests for the support of Christianity; and objections drawn from technical theology will have little weight when urged in avoidance of such bequests. Trustees v. Phillips Academy, 12 Mass. 545. (6) The provisions of the will in the ease at bar being sufficiently clear according to the accepted meaning of the words used, how is such a charitable use as is therein created regarded by the law of this State? Has not such a charitable use always received favorable consideration from our courts? Chambers v. St. Louis, 29 Mo. 543; Academy v. Clemens, 50 Mo. 167; Schmidt v. Hess, 60 Mo. 541; Howe v. Wilson, 91 Mo. 45; Mo. Hist. Soc. v. Academy, 94 Mo. 459'; Powell v. Hatch, 100 Mo. 592; Barkley v. Donnelly, 112 Mo. 561; Sa,ppington Will Case, 123 Mo. 32; Shaw Will Case, 157 Mo. 210; Hadley v. Forsee, 203 Mo. 426; Strother v. Barrow, 246 Mo. 250.

      Francis M. Wilson and Boy D. Williams for respondent.
    The language “for missionary purposes in whatever he [the appellant] thinks best, so it is done in the name of my dear Savior, and for the salvation of souls,” is too indefinite in its purposes and objects to he enforceable as a legal and valid trust. Dulany v. Middleton, 72 Md. 67; Reeves v. Reeves, 5 Lea, 650; Carpenter v. Miller, 320 Va. 174; Bridges v. Pleasants, 4 Ired. Eq. 26, 44 Am. Dec. 94; White v. Fisk, 22 Conn. 31; Owen v. Missionary Society, 14 N. T. 38, 67 Am. Dec. 160; Fifield v. Van Wyck, 64 Am. St. 756; In re Schmucker’s Estate v. Reel, 61 Mo. 596; Jones v. Jones, 223 Mo. 450; 2 Perry on Trusts, sec. 719; Howe v. Wilson, 91 Mo. 50; Hadley v. Forsee, 203 Mo. 428; Board of Trustees v. May, 201 Mo. 360; Moran v. Moran, 73 N. W. 620; Lepage v. McNamara, 5 Iowa, 124; Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 691; Coleman v. Oleary, 70 S. W. 1068; Spalding v. Industrial School, 54 S. W. 200; McHugh v. McCole, 72 N. W. (Wis.) 631; In re Seymour’s Will, 124 N. Y. S. 637; Stoepel v. Satterthwaite, 127 N. W. 673; In re Robinson’s Will, 96 N. E. 925; In re Compton’s Will, 131 N. Y. S. 183; Arnett v. Trust Co., 73 N. E. 930.'
   WALKER, P. J.

This is an action to quiet title under section 2535, Revised Statutes 1909. The property in controversy consists of 160 acres of land in Platte County.

A trial before the circuit court of that county resulted in a judgment for the plaintiff, from which the defendant has appealed.

The plaintiff is the sole heir at law of Fannie R. Lytle, who died testate in Los Angeles, California, in June, 1911, seized in fee of' the land in question. The defendant is the nephew and co-executor with the husband of testatrix. The terms of the will of Mrs. Lytle, so far as concerns the matter at issue, are as follows:

“I, Fannie R. Lytle, hereby make my last will and testament. I give all my property which I now possess (both real and personal) in the State of California, Los Angeles County, and also the rent of my farm consisting of one hundred and sixty acres of land in Platte County, (Missouri, to my husband during his lifetime; he is to use the income off of this property for his own use and benefit, and at his death, I want it placed in the hands of Clifford Patterson (my nephew) to be used for missionary purposes in whatever field he thinks best to use it, so it is done in the name of my dear Savior and for the salvation of souls.”

The defendant claims title to the land under the will in trust for the purpose therein set forth. The plaintiff, on the contrary, contends on account of the indefinite nature of the language employed that no valid trust was created and as a consequence that he is entitled to the land by descent as the heir of his mother. The determination of the title to this land, so far as the parties hereto are concerned, is of course subject to the life estate of testatrix’s husband, concerning the validity of which devise no question is raised.

The validity of that portion of the will declaratory of the desire of the testatrix as to the disposition of her land in Missouri at the death of her husband is therefore the matter in issue.

On account of the frequency of the creation of charitable trusts there is no dearth of legal literature here and elsewhere on this subject. The philanthropic spirit manifested in this disposition of property prompts the courts to sustain same wherever the devise or bequest is of such a nature as to conform to well established precedents liberally construed. [Hadley v. Forsee, 203 Mo. l. c. 426.] An essential requisite to the validity of such a trust as is here under consideration is that it be clear, definite and certain; by which is meant that the words of creation announce a definite subject and a certain object and that the terms of the trust be sufficiently declared. [Jones v. Jones, 223 Mo. l. c. 450.] These measures of sufficiency appearing in the terms of the instrument, courts will not concern themselves with the wisdom or propriety of the trust or the character of the beneficiary.

The words “missionary purposes” employed by the testatrix in the creation of this trust constitute the subject of same, the object, as the context discloses, being the propagation of religion, limited in this instance to the Christian religion by a familiar reference to its founder, and the generally accepted doctrine as to his mission. But by missionary purposes nothing more is .meant than the propagation of religion. Hence the subject and the object of the trust are synonymous and the definition of one necessarily includes that of the other. This fact, however, need not militate against the validity of the trust if the creator’s purpose may, from the language employed, be definitely determined, or in other words, if the trust has been sufficiently declared. By this sufficiency- of declaration is meant the use of such words as will enable a court of equity to enforce the performance of the duty imposed on the trustee.

The reason for this limitation was clearly expressed by the English High Court of Chancery in the beginning of the last century in the case of Morice v. Bishop of Durham, 9 Vesey, Jr., l. c. 405, where the Master of the Rolls, speaking for the court, said: “There can be no trust over the exercise of which the court will not assume control, for an uncontrollable power of disposition would be ownership and not trust.”

The fact that the interest may be generally expressed will not necessarily cause the trust to fail on account of the uncertainty of the object (Sappington v. Sappington School Fund Trustees, 123 Mo. 32; First Baptist Church v. Robberson, 71 Mo. 326), if the particular mode of application may be rendered susceptible'of direction by a court of equity. [Morice v. Durham, supra; Brennan v. Winkler, 37 S. C. 457; Webster v. Morris, 66 Wis. 366, 57 Am. Rep. 278.] Notwithstanding the permissibility of a general declaration, if the charity does not by its own terms fix itself on a well defined object or is not susceptible of such interpretation by the courts but is general and indefinite, it must fail. [Hadley v. Forsee, supra; Howe v. Wilson, 91 Mo. 45, 60 Am. Rep. 226; Fairfield v. Lawson, 50 Conn. 501, 47 Am. Rep. 669; Hunt v. Fowler, 121 Ill. 269; Gumble v. Pfluger, 62 How. Pr. 118.]

If a trust was created, therefore, in the instant ease, the language of the testatrix will, under the rule above announced, enable it to be so determined. Without repeating her language, it may be said that the purpose sought to be effected was the propagation of the Christian religion, the resultant effect, as declared by the testatrix, being the salvation of souls. Certainly no more comprehensive words could have been used. It is true when we speak of the Christian religion we mean usually that particular form of belief to which we have given our allegiance, just as when we say, “All the people have gone to the seashore,” or, “Everybody obeys the law” we mean and are so understood, indifferent as we may be intellectually to caste or class distinctions, to include only our associates or those with whom we come in daily contact. This limitation, however, will not be permitted in the interpretation of an instrument of the solemnity of a will. When the testatrix attempted to confer the power on the trustee to use the income of her property, we should he enabled front the terms employed to determine what particular form of the Christian religion was intended to be propagated or advanced. It is in no wise intimated whether one or the other of the most general classifications that have been made is meant, to-wit, the. Arminian or Calvinistic or if under the more limited classification the activities of the trustee were to be exercised in behalf of the Catholic or Protestant faith or one of the multiform other subdivisions of the followers of Christ-The scope of the field in which the trustee is intended to exercise this charity is as unlimited as human thought when applied to the determination of what constitutes a belief in the Christian religion. Thus given free rein in the exercise of his powers, no court could determine whether or not he was abusing his trust, or in other words, he would be free from judicial supervision. Under such circumstances it cannot be reasonably concluded that the trust created is of such a nature as to enable it to be controlled by the courts, 'or in other words, the trustee on account of the absolute power attempted to be conferred, may from the words used, not inappropriately be classified as an owner of the property rather than one charged with the execution of a trust. ,

Further than this, the generality of the words employed is such that it cannot be known what class of persons are entitled to the benefit sought to be conferred or what that benefit will consist in. The entire matter is, in fact, left to the wisdom, or it may he, the whim or caprice of the trustee. Strong and far-reaching as is the arm of equity in upholding a charity, the one here sought to be created is beyond its grasp.

"We are not left to the terms of this trust in determining its validity. Many well reasoned cases containing similar words to those here employed have, upon judicial analysis, been held insufficient to create valid trusts.

In Board of Trustees v. May, 201 Mo. 360, where a testatrix gave to a person named in her will a portion of .her estate “to use as he may desire in the Master’s work,” it was construed as an ineffectual attempt to create a trust, because the objects of the testatrix were so indefinite that a court could not direct the manner in which her intention should he carried out.

In Schmucker’s Estate v. Reel, 61 Mo. 592, it was held that a trust to be'applied according to the best discretion of the trustee must, fail for uncertainty of purpose.

Likewise in Carpenter v. Miller, 3 Va. 174, it was held that a trust for the propagation of the Cospel in foreign lands was too indefinite to be upheld.

And in Bridges v. Pleasants, 4 Ired. Eq. (N. C.) 26, a bequest to foreign missions and the poor saints was held not to create a trust because of uncertainty.

In Owens v. Missionary Society, 14 N. Y. 380, 67 Am. Dec. 160, a bequest to preach the gospel to the poor was held ineffectual for its generality.

In Reeves v. Reeves, 5 Lea (Tenn.), 644, a bequest to be held by the testator’s wife as agent for Christian Church of the United States to be used in a manner best to promote the interests of said church in the cause of Cod, was declared not to be a definite trust and hence could not be upheld.

In Fifield v. Van Wyck, 94 Va. 557, 64 Am. St. 745, a bequest was made to certain trustees for the benefit of the New Jerusalem Church as they deemed best. The court held the purpose to be wholly indefinite, the discretion of the trustees being unlimited except that the fund must be for the benefit of the church named, and hence unenforcible in equity and void.

The Tilden Will Trust case (Tilden v. Green, 130 N. Y. 29, 27 Am. St. 487), is a leading authority on this subject. It involved the validity of the will of Samuel J. Tilden. Among other powers he sought to give his trustees authority to promote such scientific and educational objects as they should designate. The court in construing this will said among other things: “As the selection of the objects of the trust was delegated absolutely to trustees, there is no person or corporation that could demand any part of the estate or maintain an action to compel the trustees to execute the power in their favor. This is the fatal defect in the will. The will of the trustees is made controlling and not the will of the téstator.”

Terms of like import appear in testatrix’s will. There is no limit upon the trustee’s authority except his discretion. It therefore follows that so far as the will attempts to create a trust in the lands in question, it is void.

Where a devise in trust is invalid in not being fully expressed or clearly defined, the property descends to the heirs at law. [Stonestreet v. Doyle, 75 Va. 356; Ruth v. Oberbrunner, 40 Wis. 238; Brewster v. McCall, 15 Conn. 274; Columbian Univ. v. Taylor, 25 App. D. C. 124; New Orleans v. Hardie, 43 La. Ann. 251; Maught v. Getzendanner, 65 Md. 527; Nichols v. Allen, 130 Mass. 211.]

From this it follows that the judgment of the trial court should be affirmed and it is so ordered.

All concur.


author: FARIS, J.

text:
    THE STATE v. PEARL BAIRD, Appellant.
    Division Two,
    May 29, 1917.
    1. INFORMATION: Failure to Use Felonious Before Intent. An information charging that defendant “feloniously . . . did then and there make an assault with intent him . . . then and there to kill” charges' a felony and is not had because it does not use the word “felonious” before the word “intent.” [Overruling State v. Clayton, 100 Mo. 516.]
    2. ASSAULT: Intent: Proof of Both: Instruction. In a prosecution for assault with intent to kill, the intent with which the assault was committed is a necessary element which must be proved, whether a wound be inflicted or not, but the fact that a wound Was inflicted may be proven as -evidence of intent; and an instruction that requires the jury to find both an assault with intent to kill and a wounding by that assault places an unnecessary burden on the State, but it is an error of which defendant cannot complain; it does not require him to purge himself of two crimes before he can be acquitted. [Distinguishing State v. Melton, 102 Mo. 683.]
    3. REPUTATION: Outside of Issues. In a prosecution for assault to kill, impeachment testimony that the reputation of a witness for defendant for peace and quietude is bad, and that the reputation of defendant’s father for good citizenship and for abiding by the law is bad, is inadmissible, and reversible error. Their reputation in those respects is outside the issues. Only their reputation for truth and veracity is involved.
    4. -: Of Defendant: No Exception. Whether an inquiry as to the reputation of the defendant, charged with felonious assault, for peace and quietude made before he had himself put that reputation in issue, was error, will not be decided, unless the record shows a proper preservation of the complaint.
    5. DEFENDANT AS WITNESS: Failure to Clive Instruction. A judgment of guilty will not be reversed because the trial court refused to1 instruct in 'conventional terms that the defendant was a competent witness in his own behalf.
    Appeal from Pemiscot Circuit Court. — Ron. Sterling R. McCarty, Judge.
    Reversed and remanded.

      Sam J. Corbett, Ray Cr. Garrison and J. E. Duncan for appellant.
    The information is fatally defective, in that it fails to inform the defendant of the charge against him. It is in the exact language of the information in State v. Clayton, 100 Mo. 516. See also State v. Davis, 121 Mo. 404; State v. Norman, 136 Mo. 1, and State v. Bond, 191 Mo. 555. (2) The court erred in permitting the State to prove that Kit Brandon had a bad reputation for being a la'wabiding citizen, the only proper inquiry being his reputation for truth and veracity for the object of impeachment. (3) A defendant cannot be convicted of an assault with intent to kill where the evidence shows that he shot at one man and hit another, for the reason that he must have a felonious intent to shoot the man that was shot. State' v. Mulhall, 199 M¡o. 202. (4) Instruction No. 1 is erroneous, because: (a) It tells the jury to find the. defendant guilty if they “find and believe from the evidence that the defendant with a loaded pistol did then and there shoot and wound the said Mitt Pruitt with said pistol, and (b) that he did so feloniously, willfully and on purpose with the intent to kill the said Mitt Pruitt, ” there being no charge in the information that the defendant shot and wounded Mitt Pruitt, but only the charge that he made an assault. The assault could have been made without either a shooting or wounding. The defendant was not charged with shooting Mitt Pruitt, but by this instruction he was convicted for it. This was error. State v. Melton, 102 Mo. 685; State v. King, 111 Mo. 578; State v. Johnson, Í29 Mo. 26.

      Frank W. McAllister, Attorney-General, and Lewis E. Cook for the State.
    The information in this case is sufficient in form and substance. It contains every essential allegation to constitute the crime charged, follows the language of the statute and the approved forms of this court. R. S. 1909, sec. 4482; State v. Dunldn, 237 Mo. 195; State v. Helton, 234 Mo. 559; State v. Hendrickson, 165 Mo. 262; Kelley’s Crim. Law & Proe., sec. 579.'
   FARIS, J.

Defendant, charged by an information filed in the Pemiscot Circuit Court, under Section 4482, Revised Statutes 1909, with an assault with intent to kill one Mitt Pruitt, was found guilty by the trial jury and his punishment assessed at imprisonment in the penitentiary for a term of three years. Prom the resulting sentence following this verdict he has, in.the conventional way, appealed.

The facts of the case run briefly thus: On the 23rd of August, 1915, a number of persons, including Mitt Pruitt, the man who is said to have been assaulted, were driving in farm wagons across the corn field of defendant with the intention of proceeding to a neighborhood cemetery in order to bury the body of a small child. It seems that the route which was- being followed by this burial procession had formerly been a road, but that defendant (whether wrongfully or not does not appear) had fenced the same up and had planted it in corn. "While this procession was in the field of defendant the latter suddenly appeared near the wagon occupied by one Kit Brandon and after the use of the conventional opprobrious epithets and after having expressed his intention of exterminating the living portion of the entire procession, began shooting at Brandon. The first shot struck Brandon, who thereupon either jumped from the wagon or fell out of it. After Brandon fell and while he was on the ground defendant shot at him twice more, striking him each time, wounding him seriously hut not mortally. Mitt Pruitt, the person charged in the information herein as having been assaulted, was riding in a wagon in the rear of the one occupied by Brandon. According to the testir mony offered by the State, Pruitt asked defendant, while the latter was engaged in shooting Brandon, not to shoot any more. Immediately thereafter defendant turned to Pruitt and with an oath said to the latter, “I will kill you too,” and immediately fired, shooting Pruitt through both legs and the scrotum.

Although the entire attitude and language of defendant, as we find them among the res gestae of the case, indicate that his anger had been caused by, and the reason of his shooting Brandon and Pruitt was that, the funeral procession was driving through his field without his permission and against his consent, yet his defense was that he had not intentionally shot Pruitt, but shot the latter accidentally while firing at Brandon. The reasons given by defendant when testifying as a witness for himself for his assault upon and his shooting Brandon were that the latter had been criminally intimate with his (defendant’s) wife. Upon the trial, remarkable to say, Brandon, who had then recovered from his somewhat serious wounds, testified for defendant and admitted his intimacy with defendant’s wife, and the fact that knowledge thereof had come to defendant shortly before the shooting. Brandon also swore that defendant was not shooting at Pruitt, but was shooting at the witness. Upon this latter question,,however, the preponderance of the evidence was against defendant and the jury evidently found against him thereon, as their verdict conclusively shows, and we need not trouble ourselves with this point.

Following the case of State v. Mulhall, 199 Mo. 202, the trial court instructed in substance that if defendant weip in fact shooting at Brandon with the intent to kill the latter and in so doing without intending so to do shot and wounded Pruitt, he should go acquit. Notwithstanding this instruction the jury found defendant guilty and assessed Ms punishment at three years’ imprisonment in the penitentiary.

Such further facts as shall serve to make clear the points urged upon our attention will be set forth in connection with our discussion of these points.

Three points alleged to be meet for reversal are urged upon our attention: (a) The insufficiency of the information; (b) the badness of instruction numbered 1, and (c) errors in' the admission of certain evidence.

I. ■ Taking these up in the order in which we set them out, we note the information, omitting verification, venue and merely formal parts, which are conventional and m no wise questioned, is m the following form, to-wit:

“Comes now C. E. Bragg, prosecuting attorney for and within the county of Pemiscot and State of Missouri, who upon his official oath as such prosecuting attorney informs the court that, in the county of Pemiscot and State of Missouri, upon or about the 23d day of August, 1915, one Pearl Baird, upon the body of one Mitt Pruitt, then and there being feloniously, on purpose and wilfully, with a certain deadly weapon, to-wit, a pistol, loaded with gunpowder and leaden balls, which he, the said Pearl Baird, then and there had and held, did then and there make an assault with the intent him, the said Pruitt, then and there to kill, against the peace and dignity of the State.”

While an information similar to the above was held bad in the case of State v. Clayton, 100 Mo. 516, the latter case did not follow precedents, nor has it been followed consistently, but on the contrary wholly ignored by practically all of the later cases. [State v. Hendrickson, 165 Mo. 262; State v. Helton, 234 Mo. 559; State v. Duncan, 237 Mo. 195; Kelley’s Crim. Law & Proc., sec. 579.] The alleged phase of badness and that decided so to be in the Clayton case, consists in the failure to specifically prefix before the allegation of intent the word “felonious.” Stripped of intervening verbiage the information herein charges that defendant “upon the body of one Mitt Pruitt, then and there bemg, feloniously . . . did then and there make an assault with the intent him the said Pruitt then and there to kill. ” It is a little difficult to discover upon a careful scrutiny of the above language, any solid ground on which to bottom the specific criticism leveled against this information. It seems to charge that the assault was feloniously made with the intent to kill the person assaulted. So closely is the averred felonious assault coupled with the alleged' intent with which such assault was made that it seems wholly captious to contend that the pleader, merely in order to comply with the constitutional mandate of apprising defendant óf the crime with which he stands charged, must go yet farther and again use the word “feloniously” in specific designation of and in juxtaposition with the intent. The allegation that the assault was made feloniously, in our opinion, sufficiently complies with the rule that all felonies must be charged to have been done feloniously. [State v. Dixon, 247 Mo. 668.] For if the assault was made (as averred) feloniously, and the intent to kill by such felonious assault is proven, it follows that a felonious intent to kill is sufficiently charged, if not clearly charged. W.e do not think that the case of State v. Clayton, 100 Mo. 516, should be longer followed and so we overrule this contention of defendant; suggesting in passing, however, that the books are full of better and more elastic precedents than the form of the indictment found herein and in the Clayton case. The lack of - elasticity in the precedent herein followed is the direct cause of the mooting, of the alleged error next below discussed.

II. The court nisi gave the below instruction, of which defendant complains, to:wit:

“The court instructs the jury that if you find and believe from the evidence in this case, beyond a reasonable doubt, that at the county of Pemiscot and State of Missouri, on or about the 23rd day of August, 1915, ^ c|efenciant pear] Baird, did then and there make an assault upon the prosecuting witness Mitt Pruitt with a pistol, loaded with gunpowder and leaden balls, and did then and there shoot and wound the said Mitt Pruitt with said pistol and that he did so feloniously, wilfully and on purpose with the intent to kill the said Mitt Pruitt, you will find the defendant guilty of assault with intent to kill as charged in the information and assess his punishment at imprisonment in the penitentiary for a term not exceeding five years or in the county jail not less than six months or hy a fine not less than $100 and imprisonment in the county jail not less than three months or hy a fine not less than $100.”

The specific complaint is that hy this instruction two <rimes are coupled together, and it is urged that defendnt must purge himself of both crimes (with one of which he is not charged in the information) set out in this instruction before he can be acquitted of either'. Upon this contention our attention is directed to the case of State v. Melton, 102 Mo. 683. We do not think the latter case furnishes any sufficient authority for the defendant’s position. It is settled law that upon a prosecution for assault with intent to kill, while thq assáult may exist, be perpetrated and be proven, whether a wound be inflicted or not, yet as the intent with which the assault was made is a necessary element in the case of which proof, direct or circumstantial, must be made, it has been held almost uniformly that the fact that a wound was inflicted is permissible to be proved as evidence of intent. In the case called to our attention the instruction was bad, for it coupled the two offenses by the disjunctive, and clearly allowed the defendant therein to be convicted if the jury found either state of facts to exist. Here, in the instant case, the conjunctive is used, thus requiring the jury to find both state of facts existed before defendant could be convicted at all. In short, an extra burden is put upon the State by requiring as a condition precedent to conviction that the jury find both an assault with intent to kill and a wounding by that assault before defendant shall be found guilty of any offense. A bare reading of the instruction here, in parallel columns with the one condemned, shows the difference in the two cases, and discloses the vice of the latter. The State could well have complained, if the State could appeal and were appealing, for that this instruction broadened the issues, but it helped defendant; it did not harm him. and in short was error committed in his favor for which he may not be heard to complain: [Sec. 5115, R. S. 1909.] We are for these differences constrained to disallow this contention likewise.

III. Upon the trial the learned court nisi permitted the witness Kit Brandon, who testified for defendant, to be impeached as to veracity, for that in the opinion of impeaching witnesses his reputation for peace quietude was bad. This latter reputation was not in issue, and this was error.. Likewise the court allowed testimony to come in over defendant’s objecti.jl' and exception, as to whether one Tobe Baird, the father of defendant and a witness for the latter, possessed a good reputation for good citizenship, and for abiding by the. law.

In both of these instances the impeaching witnesses gave it as their opinions that the reputations inquired about in the behalves mentioned were respectively either bad, or badly mixed. This was error. Brandon and the elder Baird were but witnesses in the case; so alone the question of their reputations.for truth and veracity was involved, or at most this phase of reputation and that of morality. There was no place in the case for inquiries as to the phases of peace and quietude and lawabidingness — if to express the thought clearly we may coin a word — unless we may judicially notice, as we may not, that a citizen who is not lawabiding or who is not quiet and peaceful, is always a perjurer.

Complaint is also made that the learned court nisi permitted the State to inquire as to the reputation of the defendant himself for peace and quietude, before he had himself put that reputation in issue. This is true, but while this was a potential error of much gravity no proper preservation of it is shown by the record and we are therefore precluded from noticing it.

IV. Complaint is made in the motion for a new trial that the trial court erred in refusing to instruct in conventional terms that the defendant is a competent wit-, ness in his own behalf. [Cf. State v. Maguire, 69 Mo. 197, and cases cited in dissenting opinion in State v. Finkelstein, 269 Mo. 612.]

In view of the fact that this court In-Banc has recently in the Finkelstein case, snpra, held that it is reversible error to give such an instruction, we may he pardoned for refusing to consider further an assignment of error bottomed on the failure to give it; a fortiori, since if the instruction had been given, defendant would he here now urging the giving thereof as error, and citing the Finkelstein case as authority for such contention.

For the errors noted let the case he reversed and remanded for a new trial.

All concur.