source: Caselaw Access Project

author: BOND, J. GRAVES, O. J.

license: Public Domain

text:
    AUGUST HAHN v. MARY LOU HAMMERSTEIN et al., Appellants.
    In Banc,
    November 17, 1917.
    1. WILL CONTEST: Action at Law. A will contest is a statutory-legal action triable by - a jury, whose verdict, if supported by substantial evidence on the issues properly submitted, is conclusive on appeal, absent error in the trial and in the giving and refusal of instructions.
    2. ILLEGITIMATE CHILD: Eight to Contest Will. Unless the plaintiff can prove a lawful marriage between testator and his mother, either before or after his birth, and thus establish his heirship and consequent right to attack the will, he must establish, in some other way, a status giving him a financial, interest in testator’s estate which would be benefitted by a setting aside of the will. No such interest can arise from the fact that he is the natural but illegitimate child of the testator, for in such case he has no heritable right except through his mother.
    3. -:-: Financial Interest: Devisee Under Former Will. No such financial interest in testator’s estate as authorizes him to contest the will is established by a showing that he was the devisee in a former will which was taken by testator after its execution into his own possession and kept until it was destroyed by him prior to the execution of the will in contest.
    4. TESTAMENTAEY CAPACITY: Tests. The tests of testamentary , capacity are: first, the testator must understand the ordinary affairs of his life; second, he must know both the nature and extent of his property and the persons who are the natural objects of his bounty; and, third, he must know that he is disposing of his property in 'the manner and to the persons mentioned in the will. Tested by these rules, the testator, aged eight-eight, had sufficient capacity to make the will in suit.
    5. --:-: Application of Tests: Old Age. A failure of memory resulting from old age or sickness, forgetfulness of the names of persons testator has known, idle questions, a requiring of the repetition of information, personal eccentricities and oddities, are not evidence of such mental disease and deterioration as render testator incapable of disposing of his property by will.

      Held, by GRAVES, C. J., dissenting, that the court should not .take single facts and say that each, standing alone, is insufficient to justify the submission of mental incapacity to the jury, but that if the combined circumstances tend to show incom- • petency, the question should be submitted to them; and that the fact that the will was made in April and the testator died in August of softening of the brain, a rather slow but progressive disease, is a strong circumstance tending to show mental incapacity.
    6. -:-: Old Age, Fall and Fainting Spells. The fact that at the age of eighty-five testator made a misstep on the stairway and fell, striking on his head, the fall producing unconsciousness, and that following the fall he was subject to fainting spells, during which he could remember nothing until he got over them, and that his memory grew less distinct as his age advanced, did not deprive him of the power to will his estate, provided after the fall he was still able to attend to his ordinary affairs as usual and otherwise at the time he actually made the will possessed the qualifications of competency as defined in the accepted test rules.
    7. -: -: Misc.ly Conduct. Misc.ly conduct in hoarding money, or keeping it on his person or in his room, or piling it up in a safe deposit box, does not legally detract from testator’s capacity to make a will.
    8. -: -: Mistakes in Money Calculations:.’ Fault of Memory. The fact that the testator was mistaken as to the amount of money he had on a certain occasion deposited in a bank'was a mere fault of memory, and does tend to prove a lack of testamentary capacity.
    9. -:-: Coarse Habits. Testimony that in his old age testator was occasionally very lightly clad in summer time; that at one time he was seen in a state of nudity; that when reproached about the impropriety of his dress, he replied it was hot; that he Was rough, strong in mind and physical constitution, coarse in habits and unrefined in tastes, miserly in disposition and vulgar in behavior, does not tend to establish testamentary incapacity at the time of making the will.
    10. -: -: Apoplexy: Soundness,on Date of Will: Hypothetical Questions. The facts that a few months prior to making the will, and again a few months after, testator, eighty-eight 3 ears of age, had a fainting spell and a slight attack of apoplexy, and could give to his physician no intelligent statement of the history of his illness or of his condition, were not a’sufficient basis for hypothetical questions relating to his testamentary competency propounded to experts, first, because of their intrinsic lack of probative force, and, second, because the undisputed testimony was that on' the day the will was written, in pursuance to a prior appointment, he spoke freely and without reserve of his purposes in making the will, dictated its contents and approved and signed its draft, and the circumstances of- his condition on that day as established by that testimony were omitted from the hypothetical questions.
    11. -: Undue Influence. The facts that the testator, a very old man, whose wife had long been dead, in his will disposing of an estate valued at fifty-seven thousand dollars, gave three hundred dollars to a woman who had rendered him many personal services, in consideration that she take care of his burial ground, gave the bulk of his estate to his daughter, and named her son by a former marriage as executor, who the evidence shows was chosen because of his business training and abilities and whom he placed in management of his affairs after the will was made but to whom he gave nothing, do not tend to establish undue influence on the part of any of them.
    Appeal from Franklin Circuit Court. — Hon. R. A. Breuer, Judge.
    Reversed.

      Jesse M. Owen, W. L, Colt, Jesse H. Schaper and Casey & Wright for appellants.
    (1) Give to the facts, circumstances and conditions their fullest force, they off or d no proof of the fact of marriage between Joseph Ehreiser and plaintiff’s mother, nor do they afford the slightest basis from which a marriage might be reasonably and fairly' inferred. Mooney v. Mooney, 244 Mo. 372; Conner v. Railroad, 181 Mo. 397; Higgins v. Railroad, 197 Mo. 300. Plaintiff could derive no financial interest in the estate' of Joseph Ehreiser from the fact that plaintiff might have been the natural but illegitimate child of Joseph Ehreiser, because both at common law and under the statute no heritable right is given plaintiff except through his mother, Johanna Hahn. R. S. 1909, sec 340; Moore v. Moore, 169 Mo. 432. Respondent wholly failed to make out a primafacie case on the issue of his legitimacy and the instruction in the nature of a demurrer to the evidence offered by appellants at the close of all the evidence should have been given. Mooney v. Mooney, 244 Mo. 372; Watson v. Richardson, 110 Iowa, 673; Markey v. Markey, 108 Iowa, 373; 17 Cyc. 817. The law presumes that testator destroyed the prior will with the intention of revoking the same before the execution of the will in suit; this presumption stands in the place of positive proof. Hamilton v. Crowe, 175 Mo. 634; Willitt’s Estate, 46 Atl. 519; Woerner, Law of Administration (2 Ed.), 91, 95; 2 Schuler on Wills, sec. 1084, p. 987. (2) There was no substantial evidence of testamentary incapacity. Holton v. Cochrane, 202 Mo. 410; Roberts v. Bartlett, 190 Mo. 696; Winn v. Grier, 217 Mo. 420; Sayre v. Trustees, 192 Mo. 95; Southworth v. Southworth, 173 Mo. 59; Brinkmann v. Rueggesick, 71 Mo. 553; Sehr v. Lindemann, 153 Mo. 276; Von de Veit v. Judy, 143 Mo. 364; Riley v. Sherwood, 144 Mo. 365; Giboney v. Foster, 230 Mo. 131. There was no evidence to show that Ehreiser had any mental failing whatever. There was not even evidence that he acted “childish” or “funny.-” The evidence must be substantial. Mere* forgetfulness, or peculiarities and eccentricities of character of the testator, are not sufficient. Fulbright v. Perry County, 145 Mo. 443. Imperfect memory, caused by old age or sickness, forgetfulness of names, and idle questions requiring repetition of information, will not establish incompeteney. Mc-Fadin v. Catron, 120 Mo. 252; McFadin v.' Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Sehr v. Lindemann, 153 Mo. 288.

      James Booth and John W. Booth for respondent.
    (1) Legitimacy of a child is properly proven by the proof of the marriage of its parents and the birth of the child after the marriage. In order to make proof of the facts of marriage of the parents and of the subsequent birth of the child it is not necessary "that the evidence of the facts should be made by means of writings or of .any official record, or certificate, or by direct and positive testimony; if the evidence be such that if from a consideration of all the facts and circumstances in evidence in.the particular case, a jury may reasonably believe that the parents were married, and the child born to them thereafter, the question of legitimacy should when properly in the case be submitted to the jury. In this cáse the facts were controverted but there was substantial evidence in support of the legitimacy. The jury found for respondent, and the court approved their verdict. In'all this there was no error. Mooney v. Mooney, 244 Mo. 372. (2) Appellants in their brief, by way of argument of the proposition as they state it that respondent is not “a person interested” in the probate of the will in controversy, wander to the proposition that the evidence on the trial showéd a state of facts, on which the law presumes a revocation of the will of 1905. This is erroneous, and ignores the evidence of the impaired mind of the testator, and the evidence tending to show'the existence of the will up to the time testator’s mind became so impaired that he was no longer competent to make a will and tending to show that the defendant, Wm, Hammerstein, obtained it from the testator* ostensibly for safe keeping and made way with it. (3) The evidence in this case tending :to show opportunities of some of the defendants to have, possessed themselves of the will of 1905, testator’s statements, as, for example, his statement that he took the same to Iiammerstein to keep for him, are admissible in evidence on the issue of revocation, together with other evidences, favorable to the theory that the testator did not revoke it. Turner v. Anderson, 236 Mo. 523. (4) Respondent’s instruction as to the test of testamentary capacity, is unobjectionable. Naylor v. Mc-Ruer, 248 Mo. 462; Andrew v. Linebaugh, 260 Mo. 623; Ray v. Westall, 267 Mo. 130; Bensberg v. Washington University, 251 Mo. 659, delusions at 659 to 661. (5) Respondent’s instruction is in line with the law concerning undue influence. Wendling v. Bowden, 252 Mo. 647;' Naylor v. McRuer, 248 Mo. 432; Bensberg v. University, 251 Mo. 641; Byrne v. Byrne, 250 Mo. 632; Thomas v. Thomas, 186 S. W'. 993; Grundman v. Wilde, 255 Mo. 109. (6) The facts alleged in respondent’s petition are such that, whether or not he be an heir of Joseph Ehreiser he has a pecuniary interest entitling him under the laws of this State to prosecute this action. Gruender v. Frank, 267 Mo. 713; State ex rel. v. McQuillin, 246 Mo. 691. (7) Judicial notice will not be taken of the laws of a foreign. country. It follows that since respondent was born in ■ the Grand Duchy of Baden prior to the year 1845,.of parents who were inhabitants of the Grand Duchy of Baden, and there is no evidence in this case of what the laws of Baden relating to solemnization and recording evidences of marriage were, the question of the legitimacy of plaintiff was a proper one to be by the court left to be determined by the jury on all the evidence admitted on the trial. Charlotte v. Chouteau, 25 Mo. 465.
   BOND, J.

I. In April, 1911, Joseph Ehreiser, eighty-eight years of age, executed his last will. On August 28, 1911, the testator died after a ten days’ illness of softening of the brain, contributed' to by cerebral hemorrhage.

The will and codicil were probated September 8, 1911. In November, 1912, this action to contest the will was brought by August Hahn, who claims to be a son and heir of the testator, and also that under a prior will executed in 1905 he was a devisee of about one-half the estate of the testator, which latter will was revoked by the one executed in 1911.

The grounds of the action are testamentary incapacity and undue influence, alleged to have been exerted by the defendants Louisa Letter, a daughter of the testator, to whom and her children by a former husband, he devised the bulk of his estate, Mrs., Emma Kleissele and William Hammerstein, who was named as ,executor, of the will contested.

It is alleged in the petition that after the making of his former will in 1905, the testator became incompetent to manage his affairs and that his .daughter, Louisa Letter, Emma Eleissele and William Hammerstein induced him to put the management of his business affairs in the hands of William Hammerstein, and through undue influence procured the execution of'the last will in 1911.

On the first trial of the case the jury failed to agree and on the second trial rendered a verdict for the plaintiff, from which defendants duly appealed.

The evidence shows that the testator Joseph Ehreiser was born March 1, 1823, in Eisénthal, a small town in the grand dnchy of Baden, Germany; that the plaintiff is the son of one Johanna Plahn and was born on March 1, 1845. There is no record of a ceremonial marriage between Joseph Ehreiser and Johanna Hahn, but there is a record of the date of the birth of the plaintiff and the date of his baptism on March 3, 1845. This record recites that he was the “illegitimate son” of his “unmarried” mother, giving the names of her mother and father and their occupation.

About a year and one-half after the birth of August Hahn, Joseph Ehreiser fled from Germany as the result of a killing on his part growing out of a fight following a dance. He settled in America about 1852, and there married Magdalena Rutschmann, who bore him. a daughter named Louisa, now the defendant Louisa Letter. Shortly after the death of his wife Magdalena, he married Eva Beckerly, who lived with him until her death at Pacific, in 1897. Ño children were born of that marriage.

In 1861, the plaintiff August Hahn came to America and made his home with an uncle, Prank Hahn, at Kansas City, Missouri. Some time after he left Germany his mother Johanna Hahn married one Wurtz. A child Amelia was born of that union, where after the mother, father and child also came to Kansas City.

In 1866 plaintiff, August Hahn, on returning from a trip to St. Louis, stopped at Pacific and called upon Joseph Ehreiser. Plaintiff testified that Joseph Ehreiser told plaintiff he was his son and stated that he had married his mother in Germany and that “she was a good woman.” Plaintiff .returned to Kansas City where he continued to live and reared a family, engaging in the saloon business. Joseph Ehreiser was called to Kansas City at one time to attend a funeral, on which occasion he visited plaintiff at his saloon, but did not go to plaintiff’s home, nor meet any of the members of his family. Plaintiff made several visits to Pacific, Missouri, to see the testator and during such visits was sometimes referred to by the testator as “his boy.”

About a year before the death of the testator he caused the local bank at Pacific to send plaintiff a cashier’s check for $1600.

The testator at the time of his death possessed about fifty-seven thousand dollars, which he had earned by habits of rigid economy as a merchant and as a money lender. He was a stockholder, director and vice-president of one of the local banks at Pacific. Some three years prior to his death he suffered a fall from the stairs-leading to the second story of a house which he had rented to Mrs. Thomas, he having reserved two rooms on that floor for his own use,' requiring the tenant, Mrs. Thomas, to care for him and furnish his food. As he grew older his suspicions seem to have been very easily aroused and he often declared that some person was trying to steal his papers and that an attempt had been made to chloroform him. He grew careless in his dress and at times wore little, if any, clothing.

On March 25, 1911, the testator sent for William Hammerstein, whom he had known for many years and who had long been an officer in the Bank of Commerce of St. Louis, and informed him that he desired to make a will and wished Mr. Hammerstein to draw it. Mr Hammerstein replied that testator should get a lawyer. The testator declined to do this, and thereupon Hammerstein agreed to draw the will and fixed the fourth day of April as the day when he could come out to Pacific, for the reason that it fell upon a holiday. Before the drawing of the will in pursuance of this request, the following conversation took place between the two:

“ ‘Mr. Ehreiser, I have heard a great many rumors around-town about your having a son, and if I am to draw this -will for you I want you to answer one question. ’ And he says, ‘All right,’ and I says, ‘I want you to answer me that question truthfully’ and he says, ‘well, what is it?’ And I says, .‘Mr. Ehreiser, I have heard that you had a son by the name of August Hahn ; is August Hahn your son?’ He looked at me for a few seconds and says, ‘ So sure as there is a God in heaven, no,’ he says, ‘I have not many more years to live, and so sure as there is a God in heaven, August Hahn is not my son.’ ‘Well, I said, ‘Now Mr. Ehreiser, I will tell you why I asked you that question. If August Hahn is your son, it is no more than right and proper that you should make some provision for him of a substantial nature, monetary consideration.’ ‘Yes, yes,’ he says, ‘I know that, but August Hahn is not my son. ’ ”

On April 4, 1911, Mr. Hammerstein drew the will in contest, which bequeathed to Emma Kleissele $300, to August Hahn $1, and the remainder of his property to his daughter Louisa Letter and her children, William Hammerstein and Louisa Letter being named as co-executors. This will was delivered to William Hammerstein for safe-keeping, and on April 11, 1911, a codicil was executed, the purport of which was to make William Hammerstein sole executor, without bond. This codicil was also given to Mr. Hammerstein for safe-keeping. On April 22, 1911, Joseph Ehreiser executed a general power of attorney to William Hammerstein to' transact all business matters for him, which he continued to do up to the time of the death of Ehreiser.

On the same day upon which this suit was brought, plaintiff filed an application in the probate court for the admission to probate of the will of 1905. The court rejected said application.

II. A will contest is a statutory legal action triable by a jury whose verdict, if supported by substantial evidence on the issues properly submitted, is conclusive on appeal in the absence of any intervening error on the trial or j[n the giving or refusal of instructions. [Winn v. Grier, 217 Mo. l. c. 430; Sehr v. Lindemann, 153 Mo. l. c. 288; Hayes v. Hayes, 242 Mo. l. c. 168; Roberts v. Bartlett, 190 Mo. l. c. 695, 696.]

One of the vital questions in this case is whether plaintiff is the child of Joseph Ehreiser, born after lawful wedlock between him and Johanna Hahn, the mother of plaintiff. As it is not claimed that any such marriage topk place after the birth of plaintiff (R. S. 1909, sec. 3'41) the only basis of the legitimacy of plaintiff must rest upon proof of a lawful marriage between Joseph Ehreiser and Johanna Hahn in Eisenthal, Germany, before March 1,1845, the date of plaintiff’s birth.

Unless plaintiff can thus establish his heirship and consequent right to attack the will, he must establish, in some other way, a status giving him a financial interest in the estate of the testator which would be benefited by the setting aside of the will. [R. S. 1909, sec. 555; Gruender v. Frank, 267 Mo. 713; State ex rel. v. McQuillin, 246 Mo. 674.] No such interest could arise from the fact that plaintiff might have been the natural but illegitimate child of Joseph Ehreiser, for in such case he would have no heritable right except through his mother Johanna Hahn. [R. S. 1909, see. 340; Moore v. Moore, 169 Mo. 432.] Neither was such financial interest shown by plaintiff through his claim as the devisee of a prior will, and his application for the probate thereof (which was rejected.) The record in this case shows that said prior will was taken by the testator from his safe-deposit box about one year before he made.the present will, and there is not a scintilla of evidence in the record that it ever left the possession of the testator from that time. It was not found among his papers, nor elsewhere after his death,, and he stated to the executor, Hammerstein, that he had destroyed it. Plaintiff gave no evidence whatever, contradicting the force of the legal presumption of a revocation arising upon these facts and circumstances. Indeed in Ms application for the probate of said will, plaintiff admitted that it had been destroyed. In this dearth of contradictory evidence, the legal presumption obtains that the testator destroyed the prior will before making the one now contested. Hence plaintiff can deduce from that will no interest in the property devised in the one under review which would qualify him under the statutes to bring this action. [Hamilton v. Crowe, 175 Mo. l. c. 647, 648; Willitt’s Est.y 46 Atl. 519; Woerner, Law of Adminstration (2 Ed.), 91, 95; 2 Schouler, Wills (5 Ed.), sec. 1084, p. 987.]

It follows that the case for plaintiff, as to Ms financial interest in the setting aside of the present will, depends solely upon proof by him of his status as a legitimate son and heir at law of Joseph Ehreiser, and unless the record contains substantial evidence sustaining the claim of plaintiff on that preliminary inquiry, he had no authority to institute this action.

In the event plaintiff’s right to sue should be sustainable under the facts in this record, it would still follow that the verdict of the jury setting aside the will would have to be reversed, unless the record discloses some substantial evidence that the testator at the time of the execution of his will had no legal capacity to perform that act, or that his will when made, did not reflect his own wishes in the disposal of his property, but expressed the different designs and objects of other persons having such dominance over his mind as' to enable them to influence him to make a will which he would not have done had he been free from such foreign control. [Hayes v. Hayes, 242 Mo. l. c. 169, and cases cited.] In short, that the instrument when made was not his will, but was the will of others.

As these questions of testamentary incapacity and undue influence go to the root of the case in any view which may be taken of the suable capacity of the plaintiff, we will first dispose of them. In that connection it may not be amiss to state the rule of law as to the capacity of a testator to make a valid will under the statutes authorizing such method of transmission of property. [R. S. 1909, secs. 535, 536, 537.] Wills devising lands, both in this country and England, are rights secured by statute or act of Parliament; they had. no recognition as such at common law and for about five hundred years there was no English statute providing for the making of wills. [40 Cyc. 996, 997; 4 Kent, 504; Stats. 32, 34, Henry VIII.] Our statutes on the subject have received repeated interpretations and constructions by the courts and certain fixed rules gauging the capacity of the testator to make a will, though variously expressed in some of the cases, have been recognized in all of the decisions as prescribing the following tests of testamentary capacity at the time' of the doing of the act: First, the testator must understand the ordinary affairs of his life; second, he must know both the nature and extent of his property and the persons who are the natural objects of his' bounty; third,/ he must know that he is disposing of his property in the manner and to the persons mentioned in his will. The foregoing are the essential elements of testamentary capacity under the statutes and decisions of this State. Different methods of expression are occasionally used, but the rule as above stated is the correct measure of the testamentary capacity-of the maker of a will in this State. [Holton v. Cochran, 208 Mo. l. c. 410; Roberts v. Bartlett, 190 Mo. l. c. 696; Winn v. Grier, 217 Mo. 420; Sayre v. Trustees of Princeton University, 192 Mo. 95; Southworth v. Southworth, 173 Mo. 59; Brinkman v. Rueggesick, 71 Mo. 553; Sehr v. Lindemann, 153 Mo. 276; Von De Veld v. Judy, 143 Mo. l. c. 364; Riley v. Sherwood, 144 Mo. l. c. 365; Gibony v. Foster, 230 Mo. l. c. 131.]

In the application of this rule it has long been adjudged that a failure of memory resulting from old age, or sickness, “forgetfulness of the names of persons one has known, idle questions 'requiring a repetition of information, personal eccentricities and oddities are not evidence of such mental disease and deterioration as render one incapable of disposing of his property by will.” [Gibony v. Foster, 230 Mo. l. c. 131; Winn v. Grier, 217 Mo. 420; Southworth v. Southworth, 173 Mo. 59; Bensberg v. Washington University, 251 Mo. l. c. 658.]

There is nothing in any of the testimony offered on behalf of plaintiff which takes the case out of the application of this rule. Although the testator at the time of his decease-had attained great age, still it is undisputed (except in the particulars -referred to by the evidence adduced for plaintiff to be discussed hereafter) that he was a man of unusual vigor, of body and brain, and that he thoroughly comprehended the affairs of business occurring in the. course of his respective callings as lumberman, merchant and lender of money, and transacted all of his own' business • until after the execution of this will. His ability to transact ais business affairs personally, with judgment and success, seems- to have been beyond question. Some time after making his will he executed a power of attorney (April 22, 1911) at which time he also produced and turned over to his appointee a considerable sum of cash and gave him specific directions to loan it to the Boatman’s Bank in St. Louis, for the reason that it paid four per cent on such certificates. Thenceforward he attended to all matters of a strictly personal nature until a few days before his death. It is not claimed by respondent that the testator was -at all incompetent to make a will in 1905 (when the prior will was executed. The evidence adduced since that date relating to this point will be now adverted to.

It was shown that about February, 1908, the testator made a misstep on a stairway and fell, striking on his head, producing unconsciousness. He was rubbed by Mrs. Thomas until he recovered himself and received one visit from Dr. Booth and soon thereafter he-was able to attend to his ordinary affairs as usual, collecting loans, making interest-bearing deposits and attending a meeting of the board of directors of a local bank, of which he was elected vice-president in March, 1911. These duties he attended to-until a few days before his death.

Conceding that following his fall and his increasing years, the testator was, as stated by Mrs. Thomas, subject to fainting spells, during which he could remember nothing until he got over them, and that his memory grew less distinct as his years advanced, such facts would not deprive him of the power to will his estate, provided he still possessed the qualifications of competency as defined above when he actually made his will. Nor was he deprived of that power by evidence showing that it was his custom to keep some money on his person and in the rooms where he lived. The evidence, however, disclosed that when one of his fellow-directors in the bank spoke to him about the risk of such practices, he made an appointment and put $2500 of his private hoard in the form of an interest-bearing loan to the bank and $740 in his safe-deposit box. It is clear that his conduct in this respect only evidenced a miserly instinct and did not logically or legally detract from his capacity to make a will. Attention is also called to the fact that at one time the testator deposited $2000 in the bank and insisted afterwards that he was entitled to an additional credit of $390, in paper money, stating that he recollected taking both sums to the bank and that Mrs. Thomas had counted the money with him. His statement as to the counting of the money previous to taking it to the bank in the presence of Mrs. Thomas, was confirmed by her. It seems the mistake as to this deposit arose from the fact that a part of it was gold coin and-the other paper money. The testator thought there were two thousand dollars in gold and $390 in paper, whereas there were only two thousand dollars of both. The 'evidence shows that pending the controversy as to this deposit, he deemed the cashier had not accounted for the $390 of paper money delivered to the bank and spoke of him in harsh terms. Assuming that the testator’s recollection was inaccurate in this matter, that fact would not tend to prove a lack of testamentary capacity. Such a mistake might be made by an average business man without creating a suspicion of lack of intelligence. It was at most a mere fault of memory.

The evidence tended to show that in his old age the testator was occasionally very lightly clad in the summer time; that at -one time he was seen in a state of nudity; that he was coarse in his conduct and when appealed to about the impropriety of his dress, replied that it was hot.

In February, 1911, testator had a fainting spell — a slight attack of apoplexy. Dr. Booth, who was called in to see him, stated that he could not get a clear statement from the patient as to the history of his illness, nor as to his condition; that the patient would not, or could not tell. The evidence was that after his recovery from' this attack he attended to his business as usual until July, 1911, when the doctor was again called in to see him for a faint attack of apoplexy; when observing that he had difficulty in walking, the doctor objected to bis going up and down' steps. Tbe doctor could get no satisfactory explanation as to bis condition from tbe testator, who said he though somebody had put something in the room and drugged him and that he felt badly thereafter. Hé did not recover from this illness,*but died in August, 1-911.

These incidents were relied upon by respondent to establish the mental incapacity of the testator, in connection with the answers of two physicians upon the putting to them of a hypothetical question reciting the circumstances supposed by appellant to relate to the competency of the testator.. After hearing the question read the two doctors, upon the assumption of the truth of the hypotheses contained in the question, said-they would not consider the testator of sound mind on April 4, 1911, when the will was executed. In addition to the lack of probative force intrinsic in the assumptions contained in the hypothetical question, the record shows that it contained no reference to the uncontradicted testimony as to the conduct and behavior of the testator on the day Mr. Hammerstein came, according to previous appointment, to draw his will. The undisputed evidence is that on the occasion in question, a number of persons were present and the testator spoke freely and without reserve of his purposes in making the will, dictated its contents and approved and signed the. draft. In the circumstance of the omission of this undisputed testimony bearing on the competency of the testator in the hypothetical question, and the evidentiary impotency of the facts and circumstances recited in the question, we hold the answers of these two physicians should not have been admitted in evidence. [Root v. Railway, 195 Mo. l. c. 377; Fullerton v. Fordyce, 144 Mo. l. c. 531; Russ v. Railway, 112 Mo. l. c. 48; Mammerberg v. Street Ry. Co., 62 Mo. App. l. c. 567.] One of the physicians had attended.the testator in the few instances of his illness, and this physician was not asked his judgment or opinion of the sanity of the testator based upon the facts observed by him during social acquaintance; for he, equally with any lay witness, might express an opinion on that subject upon a statement of facts showing the basis of such opinion. [Farrell’s Admr. v. Brennan’s Admx., 32 Mo. l. c. 334; State v. Erb, 74 Mo. l. c. 205; State v. Speyer, 194 Mo. l. c. 468; State v. Klinger, 46 Mo. l. c. 229; Cram v. Cram, 33 Vt. 15; 17 Cyc, 139, and cases cited.] Indeed, respondent did not call any witness to prove permanent insanity on the part of the testator at any time, or adduce any testirnony that he was temporarily insane on April 4, 1911. As to the occurrences on that date, the testimony for the proponents of the wilí is clear and positive to the effect that the testator possessed full knowledge of his affairs, gave specific directions for the execution of his will, was able to attend to his business, knew who were the natural objects of his bounty and designated the persons named .in his will to enjoy the devises therein and point-blank refused to make any bequest to Mrs. Thomas, for the. reason that he had paid her fully for all of her services. The full tendency of the proof adduced on behalf of respondent was to show only that impairment of memory and decline of mental vigor which often accompanies, under biological laws, the impairment of bodily strength in very old persons and which experience teaches may coexist with the retention by the subject of full intelligence and the substantial use of his mental faculties. Neither singly nor in conjunction did the circumstances adduced by respondent tend to show any lack of the essential requisites required to make a valid will under the settled law of this State. The testator was a rough man, of strong mind and physical constitution, coarse in his habits and unrefined in his tastes, miserly in his disposition and vulgar in his behavior; but the evidence totally fails to show any basis for a reasonable inference that he was, on April 4, 1911, lacking in that degree of competency prescribed by law for the making of a will.

We must hold, therefore, that the learned trial judge erred in submitting to the jury the issue of the competency or testamentary incapacity of the testator to make the will in question.

III. Neither is there any evidence in this record which justified the submission of the issue of undue influence under the established principles of law defining the meaning of that phrase. [Andrew v. Linebaugh, 260 Mo. l. c. 661; Fullerton v. Fordyce, 144 Mo. 519; Maddox v. Maddox, 114 Mo. l. c. 48.] It is charged that this dominance over the mind of the testator was the result of the-joint efforts of his daughter, Mrs: Letter, the executor of the will, Mr. Hammerstein and Mrs. Kleissele. Mrs. Kleissele, who, the evidence shows, had rendered many personal services to the testator during a -long acquaintance, was given $300 in consideration of taking care of his burial ground. Mrs. Letter, the daughter of the testator, was given the bulk of his estate. The executor was given nothing, but was selected to take the trust, as” the evidence tends to show, on account of his training, experience and ability. as a business man. There is not a fact in the record which tends to show any concerted action on the part of any of these three persons to induce the testator to make any of the- bequests contained in the will. The only suggestion made to him by the executor, as has been shown, was that if the respondent was the natural child of the testator, he ought, to make some provision for him. This the uncontradicted evidence shows the testator declined to do in his will, though the record shows that about a year before the making of the will the testator sent a sum of money to the respondent. We do not see the slightest evidence in this record reflecting on any one of the persons charged with unduly influencing the testator in the disposition of his estate. The facts shows that Mr. Hammerstein did not manage the testator’s business affairs prior to the making of the will nor subsequently, until Mr. Ehreiser sent for him and handed him two thousand dollars to deposit in the bank and appointed him his attorney in fact to attend to his business matters. None of the persons charged occupied any fiduciary relation to the testator before the making of the will.

Having reached the conclusion that the record does not show any substantial evidence, either that the testator was mentally incapable of making his will at the” time and date of its execution, or that his mind was then subject to the influence of the defendants so that the will in question reflected their wishes and not his own volition, we are constrained to hold that the judgment in this- ease must be reversed. It is so ordered.

PER CURIAM: — The foregoing opinion of Bond, J., in Division No. One is adopted as the opinion of the Court in Banc.

Walker, Faris, and Woodson, JJ., concur; Graves, G. J., dissents in separate opinion; Blair and Williams, JJ., dissent.

GRAVES, O. J.

(dissenting) — I think there is sufficient evidence in this case to justify the submission of the case to the jury upon the question of mental incapacity. This court has long since departed from the theory of taking single acts, and saying that each, when standing alone, is not sufficient to justify the submission of the question of mental incapacity. If these combined-circumstances tend to show mental incapacity, it is a question for the jury.

The whole question has been so recently and fully gone over by Lamm, C. J., in Turner v. Anderson, 260 Mo. l. c. 16, that we will not reiterate. Under the facts in this record the present opinion is in full accordance with the dissenting opinion in Turner v. Anderson, but not in accord with the majority views in that case. The very fact that the will was made in April and the testator died in August of softening of the brain, a rather slow, but progressive disease, is a strong circumstance tending to show mental incapacity. This with other recited facts justify the submission of that question. We should not take a step backward, and depart from the rulings in Turner v. Anderson, supra; Wendling v. Bowden, 252 Mo. l. c. 692; Teckenbrock v. McLaughlin, 209 Mo. l. c. 538, and Mowry and Kettering v. Norman, 204 Mo. l. c. 193.

I therefore dissent to the ruling in the majority opinion on this question, and from the result.


author: BLAIR, J.

text:
    CHARLES H. HOLMAN v. PATRICK H. CLARK et al; CITY OF ST. LOUIS, Appellant.
    In Banc,
    November 17, 1917.
    1. INDEPENDENT CAUSES: Explosion of Dynamite: Substantial Evidence: Question for Jury. The rule that when the evidence discloses two independent causes of the injury, for one of which defendant is liable and for the other of which he is not, it is incumbent upon the plaintiff to show that the cause for which defendant is liable produced the injury, imposes upon the plaintiff the duty of offering substantial evidence tending to show that the cause for which defendant is liable produced the injury; and that having been done, the jury, under proper instructions, passes upon the question of fact thus involved, just ?' upon any other such question,. and the quantum of evidence necesary to sustain a finding thereon differs not at all from that required on other issues of fact. The appellate court cannot weight conflicting evidence upon such an issue.
    2. EXPLOSION OF DYNAMITE: Independent Contractor: Liability of City. The use of explosives by an’independent contractor in the construction of a sewer, of such character as to necessitate blasting, must be foreseen by the city; but such use is lawful, and having in readiness, near the work, dynamite in proper quantities for use in blasting, is neither necessarily nor so palpably dangerous, when managed in the ordinary way, as to constitute a thing inherently dangerous; and if the explosive so held,in readiness becomes, in the circumstances of a particular case, a nuisance by reason of the independent contractor’s negligence of method, without more, provided he is not incompetent, he alone, and not the city, is liable for injuries resulting from explosions.
    3. -: Negligence in Storing: Proof of Particular Causal Acts. In determining, after an explosion, whether or not the independent contractor, engaged in constructing a sewer necessitating blasting, had created a nuisance in the street, the locality, the quantity and manner of keeping must be considered, as well as the nature of the explosive and its liability to accidental explosion; and in deciding whether or not a public nuisance existed in connection with the storage of the material which exploded, the question of the manner in which it was kept may enter into consideration; but when it is once determined upon sufficient evidence that such nuisance was maintained, then no particular causal act directly contributing to the explosion need be shown.

      4. -: Nuisance on Private Property: Liability of City. A city is not ordinarily liable for failure to abate a nuisance upon property of a private owner, no injury to the users of the street being threatened,-'since that is but a failure to exercise a governmental power.
    5. -: Nuisance in Street: Maintained by Contractor: Liability of City. The fact that the independent contractor was engaged in work for the city has nothing to do with the question of whether the city is liable to an owner of property, adjacent to a street, for damages to said property resulting from a' nuisance created by said contractor in the street.
    6. -: -: -: -: Notice. In the absence of notice to the city and of facts from which notice can reasonably be inferred, that the contractor, engaged in the construction of a sewer requiring blasting, had taken into the shed erected in the street, in which were a gasoline engine supplied with fuel and used in drilling rock and a large tank containing a reserve supply of gasoline and placed a few feet from the engine, some sticks of dynamite, taken from the usual place of storage near by, which did not explode, the city is not liable in damages for injury to private property abutting on the street, resulting from an explosion in the shed, in which there was no habitual storage of dynamite.
    Appeal from St. Louis City Circuit Court, — Hon. J. Hugo Grimm, Judge.
    Reversed.

      Charles H. Danes and H. A. Hamilton for appellant; Holland, Rutledge & Lashly, A. E. L. Gardner and John T. Fitzsimmons, of counsel.
    (1) In many jurisdictions it is ruled that a contract for blasting is like any other contract; that the defense of independent contractor is a complete defense, and that one making a contract for blasting, is not liable for the negligence of the contractor, even in the actual operation of the blast itself. Blum v. Kansas City, 84 Mo. 112; Frensch v. Yicks, 143 N. Y. 90; Herrington v. Lansing-burgh, 110 N. Y. 145, 6 Am. St. 348; Pack v. Mayor, 8 N. Y. 222; Kelly v. Mayor, 11 N. Y. 432; McCafferty v. Railway, 61 N. Y. 178, 19 Am. St. 267; Hill v. Schneider, 13 N. Y. App. Div. 299; "Wiener v. Hamm ell, 14 N. Y. Supp. 365; Edmonson v. Railroad, 111 Pa. St. 316; Tibbitts v. Railroad, 62 Me. 437; Berg v. Parsons, 156 N. Y. 109, 41L. R. A. 391. (2)- Those cases which hold that one making a contract for the doing of blasting .is to be held liable for the consequences to third parties upon the ground that he has contracted for the doing of a thing inherently dangerous, have carefully limited the doctrine to injuries which result from the actual operation of blasting, and have at great pains distinguished such injuries from injuries resulting from purely collateral acts, such as the negligent handling of dynamite by the contractor not incident to the operation of blasting itself. For negligence of the contractor in matters purely collateral to the contract the employer is not liable. The principle is that applicable to all contracts for the doing of work which threatens injury. The employer is responsible only for the work which he has contracted shall be done, and not for negligence - of the contractor in matters collateral thereto. Water Co. v. Waer, 16 Wall. 556; 12 Am. & Eng. Ency. Law (2 Ed.), 512; Brannock v. Elmore, 114 Mo. 55; Salmon v. Kansas City, 241 Mo. 14; 16 Am. & Eng. Ency. Law (2 Ed.), 201; Loth v. Theater Co., 197 Mo. 354; Horner v. Nicholson, 56 Mo. 221; Dillon on Mun. Corps., sec. 1723; 19 Cyc. 9; Carmon v. Ry. Co., 4 Ohio St. 399; St. Paul v. Seitz, 3 Minn. 297; Chicago v. Murdock, 212 111. 9; Railroad v. Yonley, 43 Ark. 508; Lancaster v. Ins. Co., 92 Mo. 460; Ardesco Oil Co. v. Gleason, 63 Pa. St. 146; Robbins v. Chicago, 71 U. S. 657; Joliet v. Harwood, 20 Am. St. 17, 86 111. 110; Railroad v. Tow, 66 L. R. A. 941, and note. All of the above cases show that blasting operations are legal and are recognized as such by the law. (3) The evidence in this case showed that dynamite is not of such a character as to threaten injury where small quantities are in possession of a contractor and are delivered to him from day to day as the work progresses. (4) Plaintiff failed to show whether the explosion was an explosion of dynamite or an explosion of gasoline vapor. If there are two causes which might have produced an injury, the burden is upon the plaintiff to show that the damage actually resulted from the cause alleged. Fuclis v. St. Louis, 167 Mo. 635; Epperson V. Postal Tel. Co., 153' Mo. 346; Warner v. Railroad, 178 Mo. 125; Breen v. Cooperage Go., 50 Mo. App. 202; Searles v. Railroad, 101 N. Y. 661; Dobbins v. Brown, 119 N. Y. 188. (5) There was an improper joinder of causes of action. The code does not contemplate that one may’ have numerous tort claims assigned to him without consideration and then bring suit upon them in one petition.

      James R. Van Style for respondent.
    (1) One who uses or stores dynamite-on his property is liable to his neighbor for injury or damage caused by its explosion, whether he is careful or not in the use and keep of same. Scalpino v. Smith, 154 Mo. App. 524; Black-ford y. Cons. Co., 132 Mo. App. 162; Faust v. Pope, 132 Mo. App. 287; Carson v. Cons. Co., 189 Mo. App. 120; Hoffman v. Walsh, 117 Mo. Apip. 287; Knight v. Donnelly, 131 Mo. App. 162; Salmon v. Kansas City, 241 Mo. 14. (2) The city is under obligation to keep its streets safe. Salmon v. Kansas City, 241 Mo. 14. (3) The city is under the same liability and responsibility for the work it causes to be- done as a private owner. Salmon v. Kansas City, 241 Mo.. 53. (4) When work is caused to'be done which is inherently dangerous and attended with danger to others either in methods necessarily employed or agencies necessarily used the principal is liable even if independent contractor is employed. Salmon v. Kansas City, 241 Mo. 47; Loth v. Theatre Co., 107 Mo. 351; Dillon v. Hunt, 105 Mo. 154; Carson v. Cons. Co., 189 Mo. App. 120; Wiggins v. St. Louis, 135 Mo. 558; Crenshaw v. Ulman,- 113 Mo. 640; Eberson v, Continental, 118 Mo. App. 67; Gas Co. v. Nor-walk, 63 Conn. 527; Chicago v. Murdock, 212 111. 9; St. Ry. Co. y. Smith, 146 Ala. 316; Logansport v. Dick, 70 Ind. 65; Mullins v. Siegel-Cooper Co., 183 N. Y. 129; Haracker v. Idle Dist. Council, 1L. R. Q. B. 335. (5) The nature and power of dynamite has been demonstrated by universal experience and it is a matter of common knowledge that its use or presence is inherently dangerous and of this the courts will take judicial notice. Carson v. Cons. Co., 189 ■Mo. App. 120; Fitzsimmon v. Braun, 199 111. 394; Salmon v. Kansas City, 241 Mo. 67; Scalpino v. Smith, 154 Mo. App. 523; 16 Cyc. Law & Proc. 855; 17 Am.' & Eng. Ency. Law, 909. (6) Judicial notice justifies finding even against evidence. 16 Am. & Eng, Ency. Law, 852. (7) Plaintiff’s petition alleges contractor kept stored and used dynamite in city street, which exploded, causing damage to plaintiff and his assignors. This states a cause of action alone, aside from other allegations, against contractor. (8) Plaintiff’s evidence conclusively shows presence of dynamite at place of explosion immedately before occurrence, an explosion, and that dynamite has disappeared. The court finds the fact to be that dynamite exploded. This finding is conclusive. (9) If causes of action were improperly joined in separate counts defendant waived this defect by filing its answer. Barrie v. U. B. Co., 138 Mo. App. 640; Jaurdan v. Transit .Co., 202 Mo. 418. (10) The assignment being in writing and made before institution of suit, the causes of action being assignable, plaintiff can prosecute action for himself and assignors. .Gfuerney v. Moore, 131 Mo. 650; Dean v. Chandler, 44 Mo. App. 341; Gay v. Orcutt, 169 Mo. 406; Both v. Wire Co., 94 Mo. App. 261; Peters v. By. Co., 24 Mo. 588; Snyder v. By. Co., 86 Mo. 613; Doering v. Kenamore, 86 Mo. 588; Chouteau v. Baughton, 100 Mo. 406.
   BLAIR, J.

The city of St. Louis appeals from an adverse judgment in an action instituted against it and others to recover damages for injuries to certain residences from an explosion of dynamite in the posses-sion of a contractor who was constructing a sewer. Judgment went against the contractor, also, but it did not appeal. The finding for respondent was upon twelve' counts, the first of which is typical of the rest and al-. leged, substantially: that respondent owned certain realty and the buildings thereon, in St. Louis City; that certain defendants had contracted with the city to build a sewer; that the city,' prior to letting the contract, had tested the ground along the line of the proposed sewer in order to ascertain the nature thereof and thereby discovered that in the process of construction it would be necessary to remove large quantities of rock by blasting near respondent’s property; that the city knew or, had it exercised ordinary 'care, could have known, that the use of high explosives would be necessary in order to remove the rock under the terms of the contract; that the contractor would bring and store in or near the street in which the work was to be done quantities of high and dangerous explosives; and knew that portion of the city along the line of the proposed sewer was thickly settled and that the storing and using of said explosives necessary for the performance of the work under the contract would be “inherently dangerous” to persons and property in the vicinity of the proposed sewer; and that the city, during the progress of the work, knew, or by the exercise of ordinary care could have known, that the contractor was storing and using large quantities of dynamite, a high and dangerous explosive, in and near the city streets for- the purpose of blasting rock in order to remove it, under the contract; that the. contractor and other defendants, in the performance of the work, on November 18, 1910,. and for a long time prior thereto, “used, kept and maintained in the said city of St. Louis, near and upon a public street of said city of St. Louis, known as Canterbury Avenue, and in the immediate vicinity of the property of plaintiff herein, high and dangerous explosives which were a menace and threatened danger to the persons and property in said vicinity, and that the keeping and maintaining of said high explosives in said city in said city street was an inherent danger and attended with danger to the persons and property in said vicinity, all of which facts plaintiffs state were known to the city of St. Louis, or could have been known by the exercise of ordinary care;” that at the time it let the contract the city knew or by the exercise of reasonable care could have known that the contractor was inexperienced, unskilled, irresponsible and incompetent to perform the contract work, and also knew or in the exercise of ordinary care could have known that the contractor was conducting the work in a dangerous manner, i. e., allowing quantities of dynamite to be collected and remain in a public, street without any guard or watchman; and knew the contractor and other defendants had purchased dynamite, etc., for use in the sewer work, without making any affidavit as to the purpose for which it was to be used, in violation of the statute; that an ordinance of the city (pleaded) prohibited the keeping or storing of dynamite in the city in. quantities. greater than thirty pounds and the keeping of more than twenty-five pounds more than thirty minutes in a city street, and that the contractor, with the city’s knowledge, violated this ordinance; that the defendants other than the city on November 18, 1910, and for a long time prior thereto kept and stored .in or near Canterbury Avenue, near respondent’s property, high and dangerous explosives, which it was their duty to use a high degree of care to guard and safely keep and prevent danger by reason of the explosion thereof; that “so keeping dynamite and causing' work to be done requiring thé keeping of said dynamite in and near the city streets was an inherent danger and threatened danger to persons and property in said vicinity and more particularly to the property of plaintiff herein, and that on said date, said high and dangerous explosives did explode and as a result . . . plaintiff’s property was damaged,” etc.

The other counts were based upon injuries from the same explosion to the properties of other persons who had assigned their causes of action to respondent Holman.

The city’s answer consisted of (1) a general denial; (2) a plea.of misjoinder; (3) a plea that contractor was an independent contractor; (4) a specific denial that the sewer contract required the bringing, and storing in the street or elsewhere, near the property of respondent or his assignors, “any large quantity of dynamite;” and (5) that the “explosion, if any, . . . did not occur in and was not incident to the performance of anything required, to be done by the contract of this defendant, with its said contractors, but occurred in a matter entirely collateral to the performance of said contract.”

The briefs proceed upon the theory that the relation between the city and the corporation constructing the sewer was that of contractee and independent contractor. Respondent does not contend the relation was any other, and our attention has been called to nothing in the contract which discloses anything warranting a different conclusion.

The evidence tends to show the plans disclosed it would be necessary, in the construction of the sewer, to remove large quantities of rock, and tends to show that, in the circumstances, the only practical method of removing such rock involved blasting operations, and that dynamite was customarily employed for such purpose, being the safest explosive available therefor. It further tends to show the contractor had installed in a shed erected in Canterbury Avenue, near appellant’s residence, a gasoline engine, equipped to operate an air-compressor, a device employed in drilling into the rock in preparation for blasting; that a small gasoline tank was connected with the engine and directly supplied it with fuel, while a larger tank, containing a reserve supply of gasoline, was placed a few feet from the engine; that dynamite, in a box or boxes, once or twice previously had been seen in the same shed. There was also evidence that one of appellant’s policemen two days before the explosion had observed a box marked “dynamite” just outside of the shed; and that boxes simi larly labeled had once before the explosion been seen in the shed, and at least one box containing dynamite was seen in the shed about an hour .before the explosion; that just before nine o’clock A. M., November 18, 1910, the shed mentioned was observed to be on fire and soon thereafter there was an explosion which demolished the shed, destroyed the large gasoline tank, broke the muffler of the engine, created a hole in the ground about two feet deep and four or five feet across, broke an iron pipe and injured dwellings for several blocks around, shattering glass five or six blocks away. There was evidence strongly tending to explain or contradict that upon which the above statement is based, but the finding for respondent is taken as settling the conflict. Other facts may be detailed in the course of the opinion.

I. Appellant contends respondent failed to show whether the explosion was one of dynamite or gasoline vapor, and invokes the rule that when the evidence discloses two independent canses of injury, for one of which , a defendant is liable and for one of which he is not, it is incumbent upon the plaintiff to show that the cause for which the defendant is liable produced the result. Typical eases cited are Warner v. Railroad, 178 Mo. l. c. 134, and Fuchs v. St. Louis, 167 Mo. l. c. 635.

(a) That rule imposes upon a plaintiff, so far as any question of law is concerned, the duty of offering substántial evidence tending to show that the cause for which defendant is liable produced the injury. The trier of the facts, under proper instructions, passes upon the question of fact involved just as upon any other such question, and the quantum of evidence necessary to sustain a finding thereon differs not at all from that required on other issues of. fact. We can no-more weigh conflicting evidence on such an issue than on any other.

(b) Even if appellant’s apparent view, that this court will weigh the -evidence on this issue, were correct, we have no hesitancy in saying that the record discloses the evidence preponderates in favor of the conclusion that there was an explosion of dynamite.

II. The sewer was being constructed by an inde-. pendent contractor. The evidence justified a finding (which,we must assume was made.) that the character of the work contracted for necessitated blasting. The damages sued for did not result from firing blasts and no question respecting the city’s obligation to. require proper precautions, in that particular process, is involved. Explosion of dynamite in the street gave raise to this case. Blasting being necessary, the use of explosives must have been foreseen by the city, but such use is- lawful; and having in readiness, near the work, dynamite in proper quantities for use in blasting is neither necessarily nor so palpably dangerous, when managed in the ordinary way, as to constitute a thing inherently dangerous. If, therefore, the explosive so held in readiness becomes, in the circumstances of a particular case, a nuisance by reason of the contractor’s negligence of method, without more, provided the contractor is not incompetent, he alone is liable. [Cuff v. Railroad, 35 N. J. L. l. c. 22.]

III. Is the city liable for failure to put an end to the use of the street in the manner which resulted in the damages sued for!

(a) The trial court was justified in finding, and we assume it did find that at the time of the explosion there were fifty or a hundred pounds of dynamite in the shed; that the neighborhood was populous, and that in the shed, constructed of pine boards, was a gasoline engine equipped with a gasoline supply tank beneath it, and that in the same shed there was a large separate gasoline tank which was partially empty — which condition usually results in the formation of an explosive mixture of air and gasoline vapor; that attached to the engine was a muffler which might “back fire” with some violence ; that at the time of the explosion several sticks of dynamite had been left near the muffler, probably for the purpose of thawing them, the weather being cold.

These facts, if found, taken most strongly against appellant, warranted-the conclusion that the contractor had created a nuisance in the street. “In determining the question [whether or not a nuisance] the locality, the quantity and manner of keeping will all be considered, as well also as the nature of the explosive and its liability to accidental explosion.” [1 Wood on Nuisances, sec. 140.] In some eases, negligence of a character to make that a nuisance which otherwise would be lawful may appear in the attending circumstances; therefore, after an explosion, when deciding whether or not a public nuisance existed in connection with the storage of the material which exploded, the question of the manner in which it was kept — whether negligently or otherwise — • may enter into the consideration; but when it is once determined upon sufficient evidence that such a nuisance was maintained, then no particular causal act of negligence directly contributing to the explosion need be shown; it is 'sufficient to prove facts which justify the finding of a public nuisance, and when the explosion is a thing that could naturally flow therefrom, then, since that possibility is one of the very elements which go to make up the nuisance, in the absence of testimony to the contrary, the explosion will be assumed to have followed as a result thereof. If the “place and manner of keeping the quantity and kind of dynamite here involved, considering its liability to explode (according to the facts in that particular as the jury may find them), created a danger beyond that which ex necessitate always attaches to the lawful possession of such a material, and that this danger amounted to a, menace to life and property in the neighborhood, then they properly could determine that the defendants had maintained a public nuisance which resulted in the destruction of plaintiff’s building, and bring in their verdict accordingly, even though no particular act of negligence directly responsible for the explosion were shown.” [Forster v. Rogers Bros., 247 Pa. l. c. 59, 60.]

Waiving for the moment the question whether there was any evidence of such “storing” and “keeping” of dynamite in the shed, we shall assume a finding bringing the case within the rule quoted.

(b) The rule that a city is liable to persons lawfully using the streets for' injuries resulting from nuisances which, with notice, it suffers to continue therein, even though created by its independent eontractor, is not applicable to the facts of this case, since the damages sued for were not inflicted upon any one using the street as a way. A city ordinarily is not liable for failure to abate a nuisance upon property of a private owner, no injury to users of the street being threatened, since that is but a failure to exert a governmental power. On the other hand, a city ordinarily is liable for damages from a nuisance created and maintained by it upon property o vned and controlled by it 'in its private capacity.

(c) The question in this case is whether the city is liable to an owner of property, adjacent to a street, for damages resulting from a nuisance created by another in the street. The fact that the person creating the nuisance in this ease was a contractor engaged in work for the city has nothing to do with the actual question to be decided. Is the character of the city’s control over its streets such that it owes to owners of adjacent property a duty to abate nuisances in the streets like that an individual owes with respect to the abatement of such nuisances on his own land? Or is its obligation one due only to users of the street, and is its duty to adjacent owners comparable only to its duty with respect to nuisances upon private property and of such character, with respect to adjacent owners, as to call merely for an exercise of governmental power, a failure to exert which imposes no liability? The decisions almost invariably have to do with injuries to users of the street. With respect to them, the city for injuries resulting from its sufferance, with notice, of a nuisance in the streets, is liable because of its duty to keep its streets in reasonably safe condition for use by persons who, in the exercise of ordinary care, travel upon them. It is obvious this rule is not broad enough to solve the question in this case. No decision has been called to our attention which has sustained a recovery on facts like those in this case.

In Smyth v. New York, 203 N. Y. l. c. 111, the city was held not liable for damages resulting from the explosion of an excessive amount of dynamite kept by contractors in a city street, without proper precautions being-taken to prevent an explosion. It was held the street, in that case, was not under the city’s control, having been withdrawn therefrom, and also held that the city had no notice of the storing’ of an excessive amount of explosives. In this case the city had the usual control of the street except in so far as it was in actual use and occupation by the contractor in prosecuting the contract work. In this case there was no substantial evidence that there was any habitual storing of dynamite in the shed. Sufficient notice, to the city cannot be implied from the mere fact that dynamite was seen in the shed about fifteen minutes, perhaps an hour, before the explosion occurred. The contractor had, distant from the shed, a place prepared for keeping dynamite in quantities appropriate and adequate to meet its need of the explosive as the blasting progressed. This quantity was replenished about every other day. No injury resulted from this. Notice of this fell far short of notice there was dynamite in the shed. Two days before the explosion a police officer saw a box marked “dynamite” outside the shed and saw a workman, at another time, take a few sticks of .it into the shed- and bring a - few sticks out of it. Whether the box the officer saw contained dynamite, or anything at all, he did not pretend to know. The evidence shows no habitual keeping of dynamite in the shed and, except as to the morning of the explosion, does not show at all satisfactorily that there was dynamite there. The knowledge of a police officer that a box whose contents are unproved, two days before the explosion, stood for a little time outside the shed, and that at another time a workman carried a few sticks of the explosive into the shed and carried a few sticks out of it does not, in our opinion, justify an imputation to the city of knowledge that dynamite in dangerous quantities was habitually stored inside the shed. Lacking notice, the city cannot be held in this case on the ground that it suffered the maintenance of a nuisance in .the streets. The question whether the evidence tends to show a nuisance was maintained need not be further considered. The judgment is reversed.

PER CURIAMThe foregoing opinion is adopted as the opinion of the Court in Banc'.

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


author: RAILEY, C.

text:
    ROBERT A. CREASON v. DAZARENE YARDLEY and Unknown Heirs of OLIVER MYERS; DAZARENE YARDLEY, Appellant.
    In Banc,
    November 17, 1917.
    1. PROCESS: In Name of the State. The provision of the Constitution requiring that “all writs and process shall run in the name of the State of Missouri” is directory and not mandatory in its nature.
    2. -: -: Order of Publication. An order of publication which conveys the same information that it would impart if running in the name of the State is neither void nor voidable, although it is not made to run in the name of the State; and being neither void nor voidable, but a substantial compliance with the law, it cannot upon motion be quashed because it does not so run. [Overruling Obiter dicta in Doan v. Boley, 38 Mo. l. c. 450.] '
    3. MERITS OF ACTION: Disregard of Technical Errors. Where the court has jurisdiction of the subject-matter and by a substantial compliance with the law has obtained jurisdiction of the persons of defendant, it should disregard a failure of the writ or process to technically comply with constitutional provisions or statutes that are purely 'directory, if such process imparts to defendant the same information as would a technical compliance therewith.
    Appeal from Sullivan Circuit Court. — Hon. Fred Lamb, Judge.
    Affirmed.

      D. M. Wilson for appellant.
    (1) All writs and process sliall run in tlie name of tlie State of Missouri. Sec. 38, art. 6, Mo. Constitution. (2) Although this requirement of tlie Constitution is directory, and its omission only an irregularity, yet it can be taken advantage of (as was done in this case) by motion to quash. Doan v. Boley, 38 Mo. .449. . (3) Error apparent on the face of the record, which includes the pleadings, summons (order of publication) and judgment, may be taken advantage of in the Supreme Court whether any motion was made or exceptions taken in the court below or not. Bateson v. Clark, 37 Mo. 31. (4) The order of publication shall be directed to the non-residents. Sec.. 1770, R. S. 1909. (5) Jurisdiction of the person can only be acquired by a strict compliance with the requirements of the statute, and if the statutory provisions authorizing service by publication are not complied with the judgment against the appellant is void. Parker v. Burton, 172 Mo. 91; Kelly v. Murdagh, 184 Mo. 377. (6) An order of publication must be in strict compliance with the statute. Schell v. Leland, 45 Mo. 289; State ex rel. v. Field, 107 Mo. 451; Harness v. Cravens, 126 Mo. 246-253; Lumber Co. v. Keener, 217 Mo. 529; Stanton v. Thompson, 234 Mo. 7. (7) Although the record of a court of general jurisdiction' recites that the defendant has been duly served with process, it is competent to overthrow such recital by showing by other parts of the record that such recital is not true. Williams v. Monroe, 125 Mo. 584. (8) The order of publication shall state briefly the object and general nature of the petition. Sec. 1770, R. S. 1909. And the true meaning of the statute is that it shall go tó the extent of a substantial statement of all the objects of the suit. Bobb v. Woodward, 42 Mo. 489.

      E. B. Fields for respondent.
    (1) The provision requiring process to run in the name of the State of Missouri is directory merely. State. v. Foster, 61 Mo. 449; Cape Girardeau v. Riley, 52 Mo. 424; Davis v. Wood, 7 Mo. 162; Bick v. W'ilkerson, 62 Mo. App. 31. (2) The order of publication is sufficient in substance. It advises the defendant of the commencement of the suit and its object and general nature (that it is to ascertain and determine the interests of the respective parties to the lands described in the petition and order of publication). This is all that is required. Sec. 1770, R. S. 1899; Jasper County v. Wadlow, 82 Mo. 172; Hambel v. Lowry, 264 Mo. 168. (3) This publication is sufficient in substance and form and is a copy almost ver

      batim of the order in the ease of Miller v. Keaton, 260 Mo. 708, set out in full on page 714. Hambel v. Lowry, 264 Mo. 168. This is the form that has been published in every revision of the statutes since 1855: Form 86, vol. 2, E. S. 1855; Form 86, O. S. 1865, p. 993; Form No. 86, vol. 2, Wagner’s Statutes, p. 1411; Form No. 86, E. S. 1879, p. 716; Form 91, E. S. 1889, p.- 2248; Form 87, vol. 1, E. S. 1899; Form 129, E. S. 1909, p. 3760. Thus it had the legislative sanction for more than fifty years, in which no other form was ever given and it is doubtful if any other form was ever used in the general practice of this State and it has met with frequent approval of the appellate courts of this State. Authorities supra. (4) The defendants had notice as the appellant appeared and made the motions referred to in the record. There is no pretense that her rights were in any way prejudiced or that she was deprived of any opportunity to make her defense, and merely commencing the order with the words, “The State of Missouri to Da.zarene Yardley,” would not have helped her cause in the least. The objection is entirely too technical. State v. Foster, 61 Mo. 551.'
   RAILEY, C.

On February 2,1914, plaintiff filed in the circuit court of Sullivan County, Missouri, his petition against the' above named defendants, to quiet title to the northwest quarter of the southwest quarter of Section 36, Township 61, Eange 21, located in Sullivan County, Missouri. Said petition avers:

“That the defendants and each of them claim and assert title to the aforesaid real estate, and that the claims of said defendants are adverse and prejudicial to the title and interest of plaintiff in said real property. Wherefore, plaintiff prays the court to try, ascertain and determine the estates, title and interests of plaintiff and defendants of, in and to the said real estate hereinbefore described, and by its decrees to adjudge, determine, settle, quiet and define the respective rights, titles, interests and estates of plaintiff and defendants to said real property; . . . and for all other proper orders and relief in the premises.”

Said petition was verified by tbe affidavit of plaintiff, which contained the following:

“And affiant further states that the defendants are non-residents of the State of Missouri.”

On February 2, 1914, the clerk of the circuit court aforesaid entered of record, the following:

ORDER OF PUBLICATION.
State of Missouri, County of Sullivan — -ss.
In the Circuit Court, May Term, 1914. Robert A. Creason, Plaintiff, v.. Dazarene Yardley, and the Unknown Heirs, Consort, Devisees, Alienees and Immediate, Mesne, Remote, Voluntary and Involuntary Grantees of Oliver Myers, Deceased, Defendants.
Now at this day comes the plaintiff herein by his attorney, E. B. Fields, and files his petition and affidavit alleging among other things that defendants Dazarene Yardley and the unknown heirs, consort, devisees, alienees and immediate, mesne, remote, voluntary and involuntary grantees' of Oliver Myers, deceased, are not residents of the State of Missouri; whereupon it is ordered by the clerk in vacation of court that said .defendants be notified by publication that plaintiff has commenced a suit against them in this court, the object and general nature of which is to try, ascertain and determine the estate, title and interest of plaintiff and defendants in and to the following described real estate,' lying and being in Sullivan County, Missouri, viz., the northwest quarter of the southwest quarter of section thirty-six in township sixty-one of range twenty-one; and that unless the said defendants be and appear at this court at the next term thereof to be begun and holden at the, court house "in the city of Milan in said county on the 4th day of May next and on or before said day answer or plead to the petition in said cause, the same will be taken as confessed, and judgment will be rendered accordingly. And it is further ordered that a copy hereof be published according to law in the Milan Standard, a newspaper published in said county of Sullivan, for four weeks successively, published at least once a week, the last insertion to be at least thirty days before the first day of said next May term of this court.
A. D. Mobbison,
Circuit Clerk.

A' duly certified copy of this order was published in the Milan Standard on the 5th, 12th, 19th and 26th days of February, 1914, and proof of publication duly filed.

On May 5,1914, being the first day of the May term, 1914, of said court, the defendant, Dazarene Yardley, filed her motion to quash the order of publication and the service thereof. Said motion, without formal parts, reads as follows:

Comes now the defendant Dazarene Yardley for the sole purpose of making this motion, and for that purpose only moves the court to quash the order of publication and service of process in this case, and for grounds of her said motion, says:
1. That said order and process is defective and irregular in this, that'it does not comply with the provisions of Section 38 of Article 6 of the Constitution of the State of Missouri.
2. That said order and process is defective and irregular in this, that it- does not comply with the provisions of Section 1770, R. S. of Missouri, 1910.
3. That said process and order does not run in the name of the State of Missouri as required by law.
4. That said order and process is not directed to the non-resident defendant Dazarene Yardley as required by the statute.
5. That said order and process does not state the object and. general nature of the petition as required by the statute.”

This motion was overruled on' May 7, 1914.

Afterwards, during said May term, and on May 14, 1914, the court entered its judgment, as follows:

Now on this 14th day of May, 1914, the above cause comes on to be heard, and it appearing to the court that each of the above named defendants had been duly notified and served by publication according to law, and the issues all and singular being - submitted to the court upon the pleadings and evidence adduced by the plaintiff, the court doth find, ascertain and determine .that the plaintiff Robert A. Creason is the owner in fee simple of the land described in his petition, to-wit, the northwest quarter of the southwest quarter of section thirty-six in township sixty-one of range twenty-one in Sullivan County, Missouri, and that the defendants neither of them have any right or title in said lands. It is therefore ascertained, determined, decreed and adjudged by the court that the plaintiff is the owner in fee simple of the said lands, to-wit, the northwest quarter of the southwest quarter of section thirty-six in township sixty-one of range twenty-one in Sullivan County, Missouri, and that the defendants and each of them and all persons claiming by, through or under them be and are hereby forever barred from claiming or asserting any right or title to said lands or any part thereof. It is further adjudged that plaintiff pay the costs of this proceeding taxed at the sum of........dollars.

On May 15, 1914, defendant, Dazarene Yardley, filed herein the following motion:

Comes now the defendant Dazarene Yardley .and entering her appearance for the purpose of making this motion and for that purpose only moves the court to set aside its finding and judgment in this case for the following reasons:
1. Because the order of publication in this ease is invalid and void, and its service conferred no jurisdiction on this court over this defendant.
2. Because the court erred in overruling defendant’s motion to quash the order of publication and the service thereof.
3. Because the court has obtained no jurisdiction over this defendant.

On May 16, 1914, this last motion, was overruled, and on the same day, said defendant, Dazarene Yardley, filed a motion in arrest of judgment, which said motion reads as follows:

Comes now the defendant Dazarene Yardley and entering her appearance for the purpose of making this motion and for that purpose only moves the court to arrest the judgment in this case, and for grounds of her said motion says.:
1. That upon the whole record in said cause the judgment is erroneous.
2. That the- court obtained and had no jurisdiction over this defendant.
3. That the court has no jurisdiction to render the judgment it rendered against this defendant.
4. That the order of publication in this case is invalid and void.

This motion was likewise overruled, and the cause duly appealed to this court by defendant, Dazarene Yardley.

Dazarene Yardley, is the sole appellant in this court, and has assigned several alleged errors of the trial court, as grounds for reversal.

I. It is claimed that the circuit court committed error in overruling appellant’s motion to quash the order of publication, issued in this cause, and the service thereof. The order of publication is heretofore set out and speaks for itself. It does not purport to run in the name of the State of Missouri.

Section 38 of article 6 of our Constitution provides that:

“All writs .and process shall run ... in the name of the ‘State of Missouri.-’ ”

Section 24 of article 4 of the Constitution reads as follows:

“The style of the laws of this State shall he: ‘Be it enacted by the General Assembly of the State of Missouri as follows.’ ”

It is not provided in section 38, supra, or elsewhere in the Constitution, that if the order of publication, in a case of this character, conveys the same information which it would impart if running in the name of the State of Missouri, that said process should be void or even voidable. This court, in discussing the above sections of our organic law, have always held them to be directory and not mandatory in their nature. [Davis v. Wood, 7 Mo. 162, 165; Jump v. Batton’s Creditors, 35 Mo. l. c. 196; Doan v. Boley, 38 Mo. 449-50; City of Cape Girardeau v. Riley, 52 Mo. 424; City of St. Louis v. Foster, 52 Mo. 513; State v. Foster, 61 Mo. 549; Keating v. Skiles, 72 Mo. l. c. 101; Riesterer v. Land & Lbr. Co., 160 Mo. l. c. 151 et seq.; State ex rel. v. Cook, 178 Mo. 189, 193; Hansford v. Hansford, 34 Mo. App. l. c. 272; Bick v. Wilkerson, 62 Mo. App. l. c. 32-3; In re Mathiason Mfg. Co., 122 Mo. App. l. c. 444; Newcombe v. Kramer, 189 Mo. App. l. c. 541.]

The foregoing authorities clearly hold that section 38 of article 6 of our Constitution requiring that all writs and process shall run in the name of. the State is merely directory.

Suppose the order of publication in this case, after setting out the names of the defendants, had contained the following: “The State of Missouri, to all of the above named defendants, greeting.” Would it have imparted to the defendants, or either of them, any additional information in respect to the prospective litigation, not contained in the foregoing order of publication? We' think not. Every person who read said order of publication knew that the plaintiff, Robert A. Creason, had sued defendant, Dazarene Yardley, and the unknown heirs, etc., of Oliver R. Myers, deceased, in the Circuit Court of Sullivan County, Missouri; that said cause was returnable to the next May term of said court; that the object and general nature of the action was to try, ascertain and determine the estate, title and interest of plaintiff and defendants, in and to the real estate in controversy. Every person who read the publication was advised that defendants were required to appear and answer or plead to the petition at the next term of said court, which was to be begun and held in the city of Milan, in the county aforesaid, on the 4th day of May, 1914. They were further advised that unless said defendants so appeared and answered or plead to said petition the same would be taken as confessed and judgment rendered accordingly. We are of the opinion that if said order of publication had contained all the alleged requirements pointed out by appellant, it would have afforded no more practical information than that contained in the order of publication as made.

In the brief filed.by counsel for appellant it is said:

“Although this, requirement of the Constitution is directory, and its omission only an irregularity, yet it can be taken advantage of (as was done in this case) by motion' to quash. ”'

It is true that this court, in Doan v. Boley, 38 Mo. l. c. 450, said:

“It is not contended that the writ was entirely void by reason of not running in the name of the State, but that it was simply voidable. Undoubtedly it would have been quashed on motion of the ogurt below, or it might have been amended on a direct application for that purpose. It has been held that the provisions of the State Constitution requiring all writs and process to run in the name of the State of Missouri is merely directory, and therefore an omission to comply with the requirements would be merely irregularity. [Davis v. Wood, 7 Mo. 162.] . . . The process here was certainly defective; it might have been taken advantage of at the proper time, but, as the parties did not avail themselves of the defect, it is cured by virtue of the statute. [R. C. 1855, p. 1255, sec. 19.]” (Italics ours.)

The italicised portion of said opinion is relied upon by appellant in this case. It was not necessary to a decision of said cause, and, hence, was obiter dicta. If section 38 of article 6, supra, is simply directory, and the order of publication, as made, imparted the same information, as though it had run in the name of the State, we hold that it was, as published, in- substantial compliance with the law, and that the trial court acquired jurisdiction over the person of appellant by said publication, although it did not run in the name of the State. Upon the filing of the petition in this cause, the circuit court of Sullivan County became vested with jurisdiction over the subject-matter of the action, and through said order of publication acquired jurisdiction over the person of appellant for the purpose of quieting the title to said property, although no personal judgment was, or could have been, éntered against her, as she only appeared specially for the purpose of raising the question of jurisdiction.

It is to the interest of the Republic that the titles to real estate should be speedily settled. The appellant in this ease had information as to the pendency of this action on or before the return day of said process. She has seen fit to rely upon technicalities to defeat the action, which do not go to the merits of the controversy. The publication in this case is no more subject to special attack than if the appellant had made no appearance to the action. The language referred to in Doan v. Boley, 38 Mo. supra, which is in conflict with the conclusion above announced, as well as that contained in other eases along the same line of reasoning, should not be followed.

Section 2082-, Revised Statutes 1909, provides that:

“The Supreme Court, or Court of Appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.”

The above, in connection with Section 2119, Revised Statutes 1909, justifies us in holding that the trial court committed no error in overruling appellant’s motion to quash the order of publication.

II. In view of the conclusion reached in the preceding proposition, we do not deem it necessary to prolong this discussion by reviewing the other alleged grounds of error. We are of the opinion that the order of publication in this ease was sufficient; that the trial court, by reason thereof, was vested with jurisdiction over the subject-matter and properly entered judgment in favor of respondent upon the service thus made.

The judgment of the trial court is accordingly affirmed.

PER CURIAM: — The foregoing opinion of Railey, 0., is adopted as the opinion of the Court in Banc.

Graves, G. J., and' Walker, Blair and Williams, JJ., concur. Faris and Woodson, JJ., concur in result. Bond, J., dissents. „