author: GRAVES, J.

text:
    NEIL MURPHY et al., Appellants, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division One,
    February 28, 1913.
    J. EVIDENCE: Foreign Statute: Not Pleaded. A petition, for loss of machinery caused by fire, alleged to be due to the negligence of a railroad company and to have occurred in Kansas, and which pleads a section of the Kansas fire act as a basis for the plaintiffs right to recover attorney’s fees, in addition to other damages, must be considered, not a suit based upon the law of the forum, but one based on the law of Kansas; and defendant, though its answer is only a general denial, has the right to introduce in evidence a certain section of said Kansas fire act fixing the measure of its liability.
    2. FIRE: Caused by Railroad: Kansas Law: Burden of Proof. The owner of property who sues under the Kansas statute for damages from fire caused by a railroad, makes out a primafacie case by showing that the fire originated from a railroad engine and that damages resulted, and then the burden shifts to defendant, which may show that the fire was not the result .of its negligence. And where plaintiff by his petition seeks to recover under the Kansas law, defendant may introduce a statute of that State declaring it may overcome plaintiff’s primafacie case by showing it was not negligent, and if correct instructions were given on that theory and no error was committed in the admission and exclusion of evidence, a verdict and judgment for defendant will be .affirmed on appeal. The Kansas statute is very different from the Missouri statute.
    Appeal from Jasper Circuit Court. — Hon. D. E. Blair, Judge.
    Affirmed.

      S. C. Westcott, Fyke & Snyder, and Clay é Davis for appellants.
    (1) If tlie law of Missouri is to control, instruction 1 should have been given. Matthews v. Railroad, 142 Mo. 645. (2) . If the law of Kansas controls, instruction 2 should have been given. Railroad v. Grib- ■ son, 42 Kan. 34; Railroad v. Kerroker, 46 Kan. 511. {3) If the law of Missouri is to control, defendant’s instructions 3, 4 and 5 were improperly given. They are erroneous in any event because they do not place the burden of proving that defendant was not negligent, upon the defendant. (4) Defendant’s own evidence showed that one of the engines was not constructed with the latest and most improved means for preventing the escape of sparks. (5) There is not a word of evidence that the engineer or fireman were at the time properly operating the engines or either of them, or what they were doing as the trains passed Caleña. Railroad v. Kerroker, supra. To leave it to the jury to say whether o,r not the engine was properly operated, was error. Moreover, the evidence showed without dispute, that one of the trains was an unusually heavy train. If the train was so overloaded as to put an unusual burden upon the engine, that might amount to negligence. (6) Defendant’s instruction 5 is erroneous, because while if it be true that plaintiff’s prima-facie case might be overcome, nevertheless it was improper to tell the' jury that if defendant had done certain things that it was overcome. It was for the jury to weigh the evidence and determine from all the facts whether defendant was or was not negligent. (7) The statute of Kansas was not pleaded, and was therefore improperly admitted in evidence. McDonald v. Life Assn., 154 Mo. 618; Cibson v. Railroad, 225 Mo. 473. It will not be presumed that the common law is in force in Kansas. Mathieson v. Railroad, 29 Mo. 542. Kansas was never subject to the common law. Therefore in this case the law of Missouri controls: Floto v. Mulhall, 72 Mo. 532; Coldsall v. Burk, 80 Mo. 631; Hurly v. Railroad, 57 Mo. App. 675; Cuinochio v. Railroad, 155 Mo. App. 163.

      W. F. Evans and Mann, Todd & Mann for respondent.

      (1) The Kansas statute introduced in evidence by the defendant, section 5923, is a negligence statute. According to the reading thereof, as well as according to the construction put thereon by the Supreme Court of the State of Kansas, all a plaintiff is required to do is to prove by the preponderance or greater weight of the evidence that defendant’s engine communicated the fire, and this is presumptive evidence of negligence on the part of the railroad, and the burden is thereupon simply shifted to it to show the absence of negligence. There is no attempt to make a railroad liable in the absence of negligence, but it simply shifts the burden of proof upon the company when a fire is shown to have been caused by the operation of its road. Railroad v. Merrill, 40 Kan. 404; Railroad v. Gibson, 42 Kan. 34. And if the Kansas law should cover this case, instructions given on behalf of defendant are correct. Railroad v. Fortley, 51 Kan. 287. (2) If the law of Kansas controls, plaintiff’s refused instruction 2 was properly refused, and no error was committed. According to the allegations of the petition and the evidence, the fire occurred in the State of Kansas, and the law of Kansas controls. Still, plaintiff’s instruction 2 was properly refused for the reason that every proposition and hypothesis therein contained is fully covered in instructions 3, 4 and 5, given by the court, at the request of plaintiffs and on their behalf, and to have given instruction 2 would have been a mere repetition. Connolly v. Ptg. Co., 166 Mo. 447; State v. Thornhill, 177 Mo.- 691; State v. Barring-ton, 198 Mo. 23; Wright v. Kansas City, 187 Mo. 678; Waddell v. Railroad, 213 Mo. 8. (3) Appellants contend that the statute of Kansas was not pleaded, and was, therefore, improperly admitted in evidence on the part of the defendant. The statute of Kansas was pleaded by the plaintiff, but imperfectly pleaded. The sixth clause in plaintiff’s petition alleges, by a fair inference, that the action is brought under the Kansas statute, and pleads a section thereof other than that providing for the cause of action. The case was tried throughout without objection upon the theory of negligence on the part of the defendant in communicating the fire. And it was permitted, without -objection, to introduce testimony tending to show that it was not guilty of such negligence in any of the particulars specified in plaintiff’s petition. Having been so tried, the court will not reverse and remand the case to the end that the pleading may be amended and made more specific and the case retried with the pleadings made more specific upon exactly the same theory *and with exactly the same evidence, and with presumably precisely the same result. Frye 'v. Railroad, 200 Mo. 408; Wise v. Railroad, 85 Mo. 188; Bragg v. Railroad, 192 Mo. 357. Where it is apparent upon the face of the petition that the action is an action upon foreign statute, and the record shows that it is tried upon that theory, plaintiff after judgment against him shifts his position on appeal and contends that he states the cause of action otherwise, he is estopped. No attempt was made to state a cause of action under the statutes of Missouri. Mathieson ,v. Railroad, 219 Mo. 549; Ham v. Railroad, 149 Mo. App. 205.
   GRAVES, J.

By action in the circuit court of Jasper county, Missouri, plaintiffs seek to recover the value of a certain ore crusher and mill and machinery therein. This property is alleged to be in the county of Cherokee and State of Kansas and at the city of Galena. By allegation it is charged that said property was of the value of $8000 or more and it was destroyed by fire occasioned by and through the negligence of defendant. Up to this point the petition is one in usual form for cases of this character, but thereafter there appears an allegation in the petition in this language:

“Plaintiffs allege that as before stated herein this canse of action arose in the county of Cherokee in the State of Kansas; that the statute of the State of Kansas, section 6382 of the Revision of 1905, which said statute was in force and effect at the time this fire occurred, provides that, ‘In all actions commenced under this act, if the plaintiff shall recover, there shall be allowed him by the court a reasonable attorney’s fee, which shall become a part of the judgment. ’ Plaintiffs say that in this action it has become and been necessary for them to’ employ attorneys to prosecute this suit; that a reasonable compensation for the services of such attorneys, and a reasonable attorney’s fee in this cause is $1000.' Wherefore plaintiffs ask judgment against defendant for their damages sustained as aforesaid in the sum of $8000, and for a reasonable attorney’s fee herein in the sum of $1000.”

We quote this paragraph from the petition because the matter therein alleged becomes a material issue in the case.

The answer is a simple general denial.

Upon trial before a jury a verdict was returned for the defendant, and upon that verdict a proper judgment was duly rendered. From such judgment the plaintiffs have appealed and have alleged as error a number of matters referring to the giving of instructions, the admission of evidence and things of like character. These, however, can be better pointed out in the course of the opinion. For the present this sufficiently states the case.

I. The real questions in this case arise upon the admission of evidence and the giving and refusing of instructions. If no errors prejudicial to plaintiffs occur in these respects, then there is evidence in the record which would sustain the verdict of the jury. In fact, as a rule the evidence for a railroad company charged with the negligent burning of property usually has to be unusually strong to induce an acquittance at the hands of an average jury. Those of us having nisi experience realize this fact.

One of the first objections urged is the introduction of a certain Kansas statute, section 5923 of the Kansas Statutes for the year 1901. This matter was offered by the defendant, and is the first section of the Kansas railroad act pertaining to liabilities of railroad corporations in Kansas for damages occasioned by fire. Plaintiffs objected because the defendant had not specifically pleaded this section of the Kansas fire act. There is no substance in this objection. From the paragraph of the petition which we have quoted it is clear that plaintiffs sought to recover under the Kansas act rather than the Missouri act. The petition cannot be read without such a construction. If plaintiffs were in fact relying upon the Kansas act and basing their suit thereon, then they cannot rely upon the law of the forum. That they were relying upon the Kansas act is made clear in their petition by the specific pleading of one section of such .act. They cannot reasonably urge that they can recover as to one element of their damages under the Kansas act pleaded in the petition and under the law ■of the forum as to other matters. Having pitched their line of battle on the Kansas act, they must be ■confined thereto. Not only so, but having pleaded the .act, or at least a part of the act, the general denial in the answer of the defendant was sufficient to raise .all issues in so far as they should be raised under the Kansas fire act. When plaintiffs specifically pleaded the Kansas act as they did, the case must be tried in Missouri upon the liability or non-liability of the defendant under that law, as such fact might be developed by the evidence. There was no error in permitting the defendant to introduce this particular section of the Kansas act (the law relied upon in the petition for a recovery) which would tend to defeat the action, and this could be done under the general denial. Had plaintiff not specially planted their rights under the Kansas act, the question might be serious. This point must be ruled against the plaintiffs.

II. The Kansas statute offered by defendant reads:

“In all actions against any railway company organized or doing business in this State, for damages by fire caused by the operating of said railroad, it shall be only necessary for the plaintiff in said action to establish the fact that said fire complained of was caused by the operating of said railroad, and the amount of his damages (which proof shall be primafacie evidence of negligence on the part of said railroad) ; Provided, That in estimating the damages under this act, the contributory negligence of the plaintiff shall be taken into consideration.”

A comparison of this statute with the Missouri statute shows a marked difference. The Kansas statute on the question of negligence of the railroad company does nothing more than shift the burden of proof. In other words, the plaintiff can show that a fire originated from an engine and that damage followed, and stop with his case. The statute at this point requires, the defendant to step in and show that it had not been negligent. The ruling of the Kansas court upon the statute is clearly expressed in Railroad v. Gibson, 42 Kan. 34, the syllabus of which reads:

“Damages Caused by Fire — Evidence—Burden of Proof. In actions against railroad companies for damages caused by fire, under section 101, chapter 84, Comp. Laws of 1885, it is only necessary for the plaintiff to establish the fact that the fire complained of was caused by the operation of the road, and the amount of damages: and when it appeared from the-evidence that within a few minutes after a train passed, the fire originated that caused the damages, in two or three places close to the track, this evidence was sufficient to cast upon the railroad company the burden of showing that it was not the result of defective appliances, or of negligence of the employees of the company, that the fire escaped.”

The construction to our statute makes it much broader. Under our statute, the railroad companies using dangerous agencies are made insurers against fires which may be set out from their engines. [Mathews v. Railroad, 121 Mo. 298; Campbell v. Railroad, 121 Mo. 340; Matthews v. Railroad, 142 Mo. 645.]

We have practically eliminated the idea of the defense of no negligence. Such is not the reading of the Kansas statute, and such is not the construction placed on that statute by the Kansas court. Under the Kansas statute the railroad company had the clear right to rebut the prima-facie case by showing that there was no negligence in fact. That statute proceeds more upon the theory of cases where there is a fiduciary relation shown, or where the doctrine res ipsa loquitur prevails. It does not eliminate the defense of no negligence, but does shift the burden. So in the case at bar, when we have held that the Kansas fire act applies, and the Missouri act does not apply, the case is really determined. Instructions given and refused were either given or refused on the theory that the Kansas law governed. Under that law the rulings, upon instructions were well enough. Under the Missouri law, and the construction we have given it, these rulings would be wrong. Concluding as we have that plaintiffs’ case is bottomed upon the Kansas act and that the Kansas law was properly admitted in evidence, there is nothing left to this case.

Let the judgment be affirmed.

All concur.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    WILLIAM BOTHE et al. v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    Division One,
    February 28, 1913.
    APPELLATE JURISDICTION: Nuisance: Propriety of Instruction. Where the suit is to recover $800 damages from a railroad company for constructing and maintaining a coal bin. and chute in close proximity to plaintiffs’ store, and the only question involved on appeal is whether a certain instruction is a correct declaration of law, and that question in no wise involves a construction of the Constitution, the Supreme Court does not have appellate jurisdiction.
    Appeal from Lincoln Circuit Court. — Hon. J. D. Barnett, Judge.
    Transferred to St. Louis Court of Appeals.

      B. H. Horton for appellant.

      Creech & Penn for respondents.
    STATEMENT BY TPIE COURT.
    Plaintiffs state that they own a store building in the town of Old Monroe; that in 1905 defendant built and erected across the street from plaintiffs’ storehouse, and about sixty feet distant, a large coal bin or chute, which, by its operation and the uses made of it by defendant and on account of its close proximity to plaintiffs’ property, has become, and is, a noisome and continuing nuisance, injurious to the use of plaintiff’s property, which was erected by plaintiffs at great expense to be used as a store building and long prior to the building of said bin or chute by defendant. The petition then alleges the particulars of the nuisance complained of and prays judgment for $800 as the damage thereby caused to plaintiffs’ property.
    Defendant answered, denying all the allegations of plaintiffs’ petition except its corporate existence and that it owned and operated a railroad in the county of Lincoln, State of Missouri, which passed through the town of Old Monroe; and for further defense alleged that it was engaged in the use of its property for the purposes of interstate commerce, which required the use of the coal bin or chute in question; and that it was entitled to that appliance under the Constitution of the United States; and pleaded the same as giving it a right, privilege and immunity “against any attempt to assert the claim set forth in plaintiffs’ petition.”
    Upon the issues thus joined evidence was adduced upon which the jury returned a verdict for defendant. Plaintiffs filed a motion for new trial on the ground, among others, of error in the instructions given by the court. This motion was sustained by the court for assumed error in giving, at defendant’s request, instruction numbered 1, to-wit:
    “If the jury believe from the evidence that whatever annoyance or injury of which plaintiffs make complaint in this case is not different in kind from that to which other persons (residing on or using real property in the vicinity of plaintiffs) are likewise subject from the same cause complained of herein, then your verdict should be rendered for the defendant; and such a verdict for defendant shall be rendered, even if you also find from the evidence that plaintiffs may be thereby injured or annoyed in a greater degree than said other persons in the vicinity of plaintiffs.”
    Prom the order granting a new trial, defendant appealed to this court.
   OPINION.

BOND, J.

(After stating the facts as above). — The only question involved in this appeal is whether or not the instruction quoted in the statement is a correct declaration of law. That question may be decided without any reference to the Constitu^on the United States. Its determination depends solely upon the application of certain legal principles pertinent to the right of persons to recover for the construe-, tion or maintenance of nuisances. It is in nowise dependent' upon the application of any provision contained in the Federal Constitution. In the argument submitted in this court no reference is made to the Federal Constitution as the source which must determine the correctness of the instruction in question. None of its provisions can be of the slightest aid in determining that question. [Brookline Canning & Packing Co. v. Evans, 238 Mo. l. c. 604, 605.] It is the duty of this court to guard and enforce the delimitation of its own jurisdiction and that of the courts of appeal fixed by the Constitution. Hence, as aptly said by Woodson, J., it “will not permit parties litigant to confer jurisdiction upon it either by stipulation or by acquiescence.” [Vandeventer v. Bank, 232 Mo. l. c. 622.]

The appeal in this case presents nothing proper for review in this court, since the amount in controversy is clearly within the jurisdiction of the St. Louis Court of Appeals: and the instruction presents no question which would divest that court of the right to rule upon its propriety. This case is, therefore, transferred to the St. Louis Court of Appeals.

Wood-son, P. J., Lamm and Graves, JJ., concur.


author: LAMM, J.

text:
    ANNA H. ZEHNDER v. WILLIAM P. STARK, Appellant.
    Division One,
    February 28, 1913.
    1. FRAUDULENT CONVEYANCE: Unrecorded Deed: Misdescription in Lien Contract: Notice. The vendor of fruit trees who sells under a written contract which gives him a lien on the land for the trees sold and which does not correctly describe the land and whose description is given to the scrivener by the land owner, is not chargeable with notice of the true land description, nor with culpable negligence in trusting the owner to give it correctly, where the deed conveying the land to such owner was not recorded.
    2. -: Matters Settled in Suit for Debt. Where the indebtedness of a vendee of fruit trees was merged- in a judgment against him, the defenses that the trees were not as represented and that some were defective and did not grow, are not available in a suit, by the purchaser at a sheriff’s sale under such judgment, to have set aside as fraudulent a deed to the land made by said vendee to his. wife.
    3. FRAUD: Intent: Inferred from Facts. Fraud does not rest on mere conjecture, surmise or suspicion; but when facts and circumstances exist from which a legitimate inference of fraudulent intent should be drawn, fraud may thereby be sufficiently established for the purpose of dispensing justice.
    4. -: -: -: Husband and Wife. The relation of husband and wife affords a convenient and much-used cover for transactions designed to screen property from creditors. Courts eye such transactions with jealousy to see that they do not hide and consummate fraud — the 'latter being easy to accomplish, and hard to prove.
    5. -: Use of Two Names: Husband and Wife. The use by the husband of two names, when one of them happens to be the name of his wife, and where cunning is adopted as a line of family policy, is not without significance as intended to artfully screen the situation.
    6. -: -: Adopting Fraudulent Act of Husband "with Knowledge. If the husband, in assuming to do an act which will be for the benefit of his wife, commits a fraud which inures to her benefit, and she, after knowledge of that fraud, seeks to avail herself of it and to retain the benefit of it, she must be held to adopt the whole act, fraud and all.

      7. -: -: -: Resulting Trust: Use of Wife’s Money: Estoppel. Where the wife participated in the fraud of the husband, by which he purchased a large amount of fruit trees and by written contract gave the vendor a lien on the land to secure the purchase price of the trees, and therein wrongfully described the land, keeping his deed off of record for thirteen years, and when he was sued for the debt conveyed the land to her with the very purpose of preventing the vendor from collecting a debt created for its improvement, and she accepts said deed knowing its fraudulent purpose, .and clearly knowing of the improvement and that the debt had never been paid, she is estopped to assert that her husband wrongfully misappropriated her money as her trustee and used it in purchasing the land without her knowledge and consent, and that she is entitled to a resulting trust in the land because her money was so used. In ®uch case the married women’s enabling acts, whereby a hushand may not appropriate his wife’s separate estate to his own use except by her written consent, afford no protection against a creditor of her husband.
    Appeal from Butler Circuit Court. — Hon. Jesse G. Sheppard, Judge.
    Reversed and remanded (with directions).

      David W. Hill for appellant.
    (1) A married woman, as to persons other than her husband, may be estopped in relation to such property rights like any other property owner. Leete v. Bank, 115 Mo. 184; Tennant v. Insurance Co., 133 Mo. App. 361; Riley v. Vaughan, 116 Mo. 169; Balz v. Nelson, 171 Mo. 689; Taliaferro v. Evans, 160 Mo. 380; Mfg. Co. v. Stephens, 169 Mo. 1; Stone v. Bank, 81 Mo. App. 9; Orchard v. Collier, 17Í Mo. 390. (2) Coverture is no defense in equity for fraud. Truesdail v. McCormick, 126 Mo. 39. (3) A resulting trust must be established by testimony so clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. Zehnder. testified in the former suit that he purchased the land in controversy as his own. Mrs. Zehnder, in this case, testified that she was not present when the land was purchased and never saw the cash payment made and therefore cannot swear that such a payment was made. She does testify that .she paid some of her husband’s notes which were given for a portion of the purchase- price, but she does not swear how many of such notes she paid. The testimony falls far short of showing a resulting trust in this case. Eeed v. Sperry, 193 Mo. 173; Garrick v. Garrick, 171 Mo. 155; Brinkman v. Sunken, 174 Mo. 709; Heil v. Heil, 184 Mo. 665; Crawford v. Jones, 163 Mo. 577; Ourcl v. Brown, 148 Mo. 82; Walker v. Walker, 147 Mo. 246. (4) To render a voluntary conveyance by a husband to his wife valid, as against prior creditors, the burden of proof is on the grantee to show that the debtor retained sufficient property to pay his debts. Hoffman v. Nolte, 127 Mo. 120; Bank v. Nichols, 202 Mo. 309. (5) If this deed had the effect to transfer the property to his wife, he was thereby .rendered insolvent, for he had no other property, as his wife testified, and the attempted transfer is presumptively fraudulent as to Zehnder’s creditors. Snyder v. Free, 114 Mo. 360; Scharff v. McGaugh, 205 Mo. 344; Swinford v. Teegarden, 159 Mo. 635; Stivers v. Home, 62 Mo. 473; Benne v. Schnecko, 100 Mo. 250. (6) The expressed consideration of five hundred dollars in the deed from Zehnder to his wife was shown, by the evidence, to be entirely fictitious, and the deed was therefore void as to Zehnder’s creditors. Seger v. Thomas, 107 Mo. 644; Taliaferro v. Evans, 160 Mo. 38. (7) Mrs. Zehnder knew that her husband purchased the fruit trees and that they were planted on the farm in controversy which was improved thereby; she is therefore estopped from denying Stark Brothers’ title. Shea v. Shea, 154 Mo. 599. (8) According to Mrs. Zehnder, she ratified the contract made with her husband and Nickey even to taking the title in his name, and cannot now, in the face of his creditors, deny her husband’s title. Matthews v. French, 194 Mo. 553. (91) Mrs. Zehnder’s long acquiescence' (fourteen years) in and enjoyment of the fruits of a transaction had on her behalf by her husband-agent is-a ratification of the transaction. Barrett v. Davis,. 104 Mo. 549. (10) Mrs. Zehnder swore that she ratified the contract made by her husband-agent in purchasing the land, and she accepted the fruit trees purchased by him, which were planted on this farm and she is therefore estopped to deny the obligations made by him in this regard. Bohlman v. Rossi, 73 Mo. App. 314; Hoppe v. Saylor, 53 Mo. App. 4. (11) Zehnder could not donate all of his labor to his wife and defeat, his creditors. Johnson & Co. v. Christy, 79 Mo. App. 46. (12) The deeds of trust signed by Zehnder and his wife contained recitals that Zehnder was the owner in fee simple of the land in controversy and the wife is now estopped from asserting to the contrary. Whythe v. St. Louis, 153 Mo. 90; Bush v. Beirsol, 18'3-Mo. 500. (13) The last sheriff’s deed made to the defendant, conveying the land in suit, was made by virtue of a sale under the judgment which the Supreme Court directed the circuit court to enter. Stark v. Zehnder, 204 Mo. 442.

      E. R.- Lents for respondent. ’
    (1) The undisputed testimony in this case, is, that Zehnder purchased the land in controversy, paying therefor the sum of eleven hundred dollars. That, at the time he bought the land he paid two hundred dollars in cash, using his wife’s money in making that payment. He also gave nine promissory notes for one hundred dollars each, representing the balance of the purchase money. The last of these notes matured in fifty-four months from the date thereof. That all of •said notes were paid out of the sole and separate property of the plaintiff. That all the money which the plaintiff had, she received during the existence of the marital relation between her and her husband, by inheritance from her father and mother and by gifts from her brothers and sisters. That without her knowledge or consent the title to the said land was taken in 'the name of her husband, and thereafter the husband made a deed conveying the said land to his wife, in execution of the trust upon which he held the land. The money which plaintiff received and paid on this land, together with all income, increase and profits, was her separate property, free from the claims of her husband or his creditors. She did not transfer it to her husband by his use, occupancy or ■ control thereof, but the same remained her separate property, unless by the terms of her assent in writing, full authority was given him. The property into which it was invested became trust property for her sole use and benefit, if she so elected. And this too whether she directed the purchase or not. R. S. 1909, sec. 8309; R. S. 1899, sec. 4340; R. S. 1889, sec. 6869; Grocer Co. v. Baffinger, 137 Mo. 373; Seay v. Hess, 123 Mo. 456; Winn v. Riley, 151 Mo. 66; Hurt v. Cook, 151 Mo. 426; Broughton v. Brand, 94 Mo. 174; McCoy v.. Hyatt, 80 Mo. 136; Rogers v. Bank, 69 Mo. 562; Blake v. Meadows, 225 Mo. 1. . (2) Both Mrs. and Mr. Zehnder testified that the money used in the purchase of this land in controversy, was the separate means and money of Mrs. Zehnder, that the money came to her by her inheritance from the estates of her father and mother, and by gift from her brothers and sisters, during the existence of the marital relations between them. In either event it was her separate estate. This evidence is not contradicted by direct testimony, nor by any legitimate inferences from the evidence, it is not opposed to the probabilities, nor in its nature surprising or suspicious. It is therefore conclusive, and the court when sitting as a trier of a fact is not at liberty to disregard it. Bank v. Westo.n, 172 N. Y. 250; Hull v. Littauer, 162 N. Y. 569; Littlefield v. Lawrence, 83 N. T. App. Div. 327; Daniels v. Foster, 26 Wis. 686. (3) To constitute estoppel by conduct, five things must concur in order to work such estoppel': there must have been a false representation or a concealment of material facts; the representation must have been made with knowledge of the facts;' the party to whom they were made must have been ignorant of the truth of the matter; it must have been made with the intention that the other party should act upon it; the other party must have been induced to act upon it. Bigelow on Estoppel (3 Ed.), 484; Blodgett v. Perry, 97 Mo. 273; Acton v. Dooley, 74 Mo. 74; Brammell v. Adams, 146 Mo. 82. There is no testimony that even Zehnder ever made any representations to Stark Bros, concerning the ownership of this land. The only representation which it is claimed or shown that Zehnder made was thát contained in the several contracts, which he is alleged to have signed and that only with reference to the land described in those contracts, not the land in controversy. But even this is shown to be without the knowledge of the plaintiff. There is no pretense here that Mrs. Zehnder ever made any representations of any kind to Stark Bros, or that she ever concealed anything, or that she ever remained silent when it was her duty to speak or when she had an opportunity to speak.
   LAMM, J.

Plaintiff sued under former section 650 (now 2535, R. S. 1909) to try, determine and adjudge title to the south one-half of the southeast quarter of section 27, township 25, range 6, in Butler county, and clear away the cloud of two sheriff’s deeds purporting to convey it to defendant. From her decree, defendant appeals.

The form of the bill is not challenged.

The answer denies plaintiff’s title and avers that defendant’s sheriff’s deeds mentioned were operative to convey the land and vest title in him. It then, in twelve specifications, sets np estoppel and fraud to defeat plaintiff’s title and prays for affirmative relief, viz.: to clear away the cloud of a certain deed under which plaintiff claims. As the sufficiency of the answer is unchallenged, the specifications of fraud and estoppel may be passed by with the remark that they were definite and substantial enough to admit proofs educed in support of- them.

The replication was conventional.

A brief preliminary outline of the case is this:

Plaintiff is the wife of John G. A. H. Zehnder and has been during all times in hand. It will be observed that her name is Anna PI., and that, by dropping the “John Gr.” from his surname, his and ber name have the same initials. Now, ., . .. .. n ' the testimony shows her husband dropped the “John Gr.” part of his name in use and signed as “A. H. Zehnder,” that he was known by that name; that he did business under that name except apparently in the matter of taking title to the land in question and in conveying it, when he used his full cognomen. Of the significance of this similarity of names, when so clipped, and the convenience of the use of the same name by both, we will speak again. John Gr. A. PL Zehnder was a butcher and plied his trade in St. Louis and then, from 1889 or 1890 onward, in Poplar Bluff. On the 19th of August, 1891, he took title to the land in suit by warranty deed from one Nickey. The consideration expressed is $1100 in hand. In fact, however, but $200 was paid down and $900 of the purchase price was evidenced by his individual notes for $100 each, payable one every six months, secured by a deed of trust on the land, notes and deed of trust executed only by himself signing as “John G-. A. H. Zehnder.” These notes were severally paid as they matured and the lien of the deed of trust lifted. The Nickey-Zehnder deed was kept off record for about. one year and then spread thereon. Nearly thirteen years later (the land being in the meantime always assessed to him) he conveyed to her by a warranty deed for an expressed consideration of $500, which deed was recorded four months after it bore date. This is the deed challenged by defendant in this suit and relied on by plaintiff to confer title on her. The consideration nominated in the deed was wholly simulated, i. e., nothing, not even the traditional ‘‘peppercorn” of the old books, was paid. According to her own testimony, as we read it (of which more presently), plaintiff knew for, say, nine years that title stood in her husband’s name and with that knowledge she did not request a deed to be made to her at any time, nor was it made as the result of any negotiation between her and him disclosed by this record. In other words, she rested content. Nor if her testimony is to be given credit, did she know of it, when it was made, for some time afterwards. She merely adopted his act, when she found it out. Whether it was delivered, other than by the constructive delivery springing from its record, is also dark.

Between the time Zehnder took title from Nickey and the date of his conveyance to his wife things happened we will now relate. Zehnder, it seems, had two ends in view in buying the land, viz.: a site for a slaughter house appurtenant to his trade as a butcher, and to grow a great orchard. Shortly after getting title, but before the record of his deed, he entered into three several written contracts with Stark Brothers, nurserymen of Louisiana, Pike county, for fruit trees. The contracts were drawn by a field agent of Stark Brothers and forwarded to them for acceptance and signing. The deed not being recorded, Stark Brothers are not charged with notice of the true land description, nor with culpable negligence in trusting Zehnder to give it correctly. These contracts were made at different dates within'a limit of a few months, and (mutatis mutandis) were in the same terms. Zehnder owned no other land in the county and in order to get said trees from the nurserymen he offered to give them a lien on the land in suit and this offer was accepted. It is clear he assumed the office of giving the land numbers to the scrivener, who (without information of his own) relied on him for them, but in doing so Zehnder put the land in section “25” instead of 27, as the fact was. As tall oaks from little acorns grow, so the great trouble in this case arose from changing a “7” to a “5,” whereby the wisdom of Solomon’s hint in his “Song” is confirmed about the little foxes that spoil the vines. The contracts were executed with this misdescription, and gave a lien on the misdescribed land to secure the purchase price of the fruit trees in annual payments covering ten years, aggregating the rise of two thousand dollars. They were signed “A. H. Zehnder,” and duly acknowledged and promptly recorded. Why he took title in one name and assumed to give a lien on the land in another is left unexplained. The contracts further described the land as “his home farm,” with “a perfect title,” etc., and confessedly on the strength of those contracts he got from Stark Brothers on credit some eight or ten thousand fruit trees to be planted on the land thus acquired fro,m Nickey. They were received by him and delivered and planted (not on the land described in the contracts, but) on “his home farm,” the right land.

(Note-. There was some contention that these fruit trees were not as represented, that some were defective and did not grow, the details of which are immaterial because the indebtedness of Zehnder to Stark Brothers has been merged in a judgment and fhe amount is no longer open to reagitation. It has passed into a thing adjudged. Stark v. Zehnder, 204. Mo. 442.)

Zehnder, in default in paying, in 1903 was being-pressed therefor and then, for the first time, Stark Brothers discovered said land misdescription — a thing known to Zehnder, if not from the start, at least for six or seven years, and kept to himself, he says. Refusing to pay, they brought a suit in equity against him to correct the misdescription, reform the contracts in that particular, foreclose the contract lien as reformed, and for a money judgment for the price of the trees with interest accrued, properly filing at the same time á statutory notice of lis pendens.

Some three months thereafter, Anna H. Zehnder made application to be made a party defendant and was allowed to come in in that suit. Thereupon on the 18th of February, 1904,- she filed an answer.

(Note: It will be observed that after suit brought and notice of lis pendens filed, her husband, as said, conveyed to her).

In that case her position was that her husband purchased the land acting “as her agent” (Stark v. Zehnder, 204 Mo. l. c. 447), that her money having paid for it, it belonged to her as against his creditors, that, he took title in himself without her knowledge or consent. Furthermore, she, as did her husband, defended against the reformation of the fruit-tree contracts on the theory plaintiffs’ cause of action on that head accrued to them at once upon their execution, hence, as ifcen years had gone by, the ten-year Statute of Limitations ran as a defense. Steps were taken in that, case resulting in a decree below in favor of Stark Brothers on all the issues. From that decree the Zehnders 'appealed without giving bond. The case-was brought up in such form that we were confined to an examination of only the record proper. The result was the money judgment.against Zehnder was held' valid, but the defense of the plea of the Statute of Limitations was held good on the issue of reformation on the face of the record proper — this, since Stark Brothers did not plead any recognized exceptions taking the case out of such statute. As there ¿was no contention made in that case by Stark Brothers that Mrs. Zehnder was personally bound for the money price of the fruit trees, this holding dismissed her out of the case. Accordingly the judgment was reversed and the cause remanded with directions to enter a money judgment against Zehnder and deny reformation. But nothing- was decided in that case precluding defendant in this case on the question of fraud or estoppel.

Pending that appeal an execution was issued on the judgment below and the land sold under the sheriff’s hammer, the defendant in the present suit bidding it in on behalf of the firm of Stark Brothers, taking a credit on the execution for his bid and receiving a sheriff’s deed in his own name. That deed is one of those struck at by plaintiff in the present suit. Defendant’s counsel, as we read his brief, does not now contend that the reversal of that judgment did not operate to avoid that particular deed — this, since the testimony does not tend to show that defendant was a purchaser of the character that could hold title on an execution sale made on a judgment subsequently-reversed, hence that deed will be no further noticed. Presently, however, when by virtue of our mandate the new judgment was entered against Zehnder, another execution issued and the land, levied on and sold as his property, was again bid in by defendant on account of Stark Brothers and he, as a member of that firm, received a sheriff’s deed in due-form. This last deed is- the second one attacked by plaintiff in the present suit, and is the one on which defendant relies.

I. There are certain guiding general propositions in the light of which the case must be viewed — among them, these:

(a) However abhorrent fraud is and however astute courts are to detect it in its shade and concealment and snatch away its fruits, yet it does not res^ 011 mere conjecture, surmise or suspicion; this because a presumption runs in favor of honesty and fair dealing. However, when facts and' circumstances exist from which a legitimate inference of fraudulent intent should be drawn, it may be deemed thereby sufficiently established for the purpose of dispensing justice. Such is the doctrine of this court, and the general rule as well. [Black v. Epstein, 221 Mo. 286; St. Francis Mill Company v. Sugg, 206 Mo. 148; Bank v. Hutton, 224 Mo. l. c. 71, et seq.; Troll v. Spencer, 238 Mo. l. c. 101-2.]

(b) A virile and scholarly law writer, with a knack of independent thinking, has rescued from the superimposed dust of years some wise observations of Mr. Justice Grier anent fraud (made to a jury) which we deem it not space misapplied to reproduce as live verities in philosophy and law (that writer terms those observations “prophylactic,” and we think they are. 1 Moore on Facts, sec. 53.), viz.:

“ ‘Every honest mind hates it, and even those who practice it themselves will join in the denunciation of it. It makes them feel virtuous for the time, and they are the most ready, from the arguments of conscience, from judging of others by themselves, to believe it true, and inveigh most loudly against it. When the clamor of fraud is raised in a community, or when it is confidently charged by counsel in a court, we are prone to see all facts through a false medium, which magnifies the importance of every fact upon which suspicion of fraud may be raised, and ignores the plainest inference against it. In the midst of our virtuous indignation against fraud, we first assume it has-been committed, and then seek for arguments to confirm, not our judgments, but our prejudice. “Trifles, light as air,” then become “strong as proofs of holy writ.” 'Circumstances which to an unprejudiced mind are just as compatible with innocence as guilt, which at best could only raise a suspicion*, are set down as conclusive evidence of crime. Those who sit in judgment over men’s rights, whether as courts or jurors, should beware of this natural weakness to which we are almost all of us subject. We all fancy ourselves wiser than perhaps others, are willing to give us credit for. This feeling is gratified by what we believe to be superior sagacity. Rogues may be cunning, but they can’t deceive us. Under this satisfactory belief, we become over-astute, and often see that which is not to be seen. We suffer our imaginations to take the rein from our judgments, and rush headlong in this chase after the fox called fraud. Circumstances which should avail for the proof of fraud are such only as are inconsistent with a contrary view of the transaction, and lead irresistibly to that conclusion.’ ”

(c) But when the warning in the foregoing excerpt is heeded, there is another to be- reckoned with, to-wit: He would be a dull observer of the affairs of mankind whose powers of comprehension and appreciation were so in vacuo that he did not recognize the relation of husband and wife as affording a' convenient and much-used cover for transactions designed to screen property from creditors. Accordingly when in pursuit of fraud courts eye such transactions with jealousy to see they do not hide and consummate fraud, the latter being easy to accomplish and hard to prove. [Cole v. Cole, 231 Mo. l. c. 255.]

There are cases riding off on one, and those riding off on another 'of those propositions. Sometimes there seems to be a note of discord in the case law. The right doctrine would seem to lie along a line chalked out by approximation (“by pinpricks,” to borrow a phrase of Mr. Justice Holmes, used in another connection) giving full play to the general principles announced above, and letting each case break on its own peculiar facts.

II. The ultimate and main question in the case at bar is. this: Are there present such elements of fraud as vitiate the title Mrs. Zehnder acquired from her husband, or such elements of estoppel as preclude her asserting title as against Stark Brothers’ claim? If there are, then defendant as execution purchaser, standing in the shoes of Stark Brothers, has a better title under his deed than she has under hers.

In disposing of that question the facts heretofore stated will be assumed as true, the guiding propositions announced in the foregoing paragraph will be applied, and other material facts will appear further on in the course of the opinion.

There is testimony tending to show that Mrs. Zehnder inherited some money from her father and mother'and received presents of money from her brothers and sisters — all since the passage of our married woman’s enabling acts. There is testimony that some of this money was invested in real estate in her own name. There is testimony that some of- this money was by her turned over to her husband from time to time and by him used to support the family and to aid him in the butcher business. How much of it was turned over to him is not disclosed. If her testimony is to control, he had nothing and she had everything for all time thereafter. Her testimony on this head, however, is vague and unsatisfactory. It is by way of an amusing argument running this way: "We had to live; we met with losses (fires, etc.); our living expenses and losses account for his having nothing and my having all the tangible property. It will be observed that by such line of reasoning all the losses and living expenses are apparently disposed of by assuming they came out of Ms property, while the truth is that the record does not disclose that to be a fact, or make any disclosures at all on that line, as we read it.

She claims this butcher business was run in her name, but we think her claim is not sustained. In the first suit her contention was that her husband was her agent, in the present suit her contention is that he was her trustee. But there are facts and testimony, we thmk, leading to the reasonable conclusion that he was doing business in his own name with her knowledge and consent, and we lay some stress upon the unhappy use of the name “A. H. Zehnder” in this business. The use by the same person of two names when one happens also to be the name of that person’s wife, as in this instance, is not without some little significance as intended to artfully screen the situation, where cunning is adopted as a line of family policy, as seems to be the' case here. During part of this time Zehnder was in a partnersMp, under the name of “A. Ii. Zehnder” with one Scott. His partner, singularly enough, knew nothing of Mrs. Zehnder being a member of the partnership. So the community knew nothing of Mrs. Zehnder being in business under the name of “A. II. Zehnder.” There is no testimony he drew a salary or was accounting to her as her agent or trustee — none of the usual indicia of such relation. No books or bank account was produced showing she owned or handled tMs business or had any interest in it. If she appeared now and then at his place of business (as she did) it is not shown it was in the capacity of owner or principal or otherwise than as a wife might visit her husband’s shop. He transacted all the affairs of the business without guidance from her — -buying, selling, paying, collecting, running in debt so far as the world knew as a trader on his own hook. It was from this butcher business that the advance payment was made on the Nickey farm and that the most of the other payments were made. It is of significance that the testimony shows that Zehnder claims to have tor rowed that money from his wife and that the deed, absolute in form, was made to secure her for that indebtedness, $2000, but unfortunately for that theory no notes, book accounts or memoranda of any sort, kept by either, are in this record tending to show that fact. It smacks of an afterthought. Not on]y so, but she repudiates the idea of a “loan.” Her claim, as we see it, is that her husband wrongfully misappropriated her money as her trustee and used it in the purchase of the Nickey land without her knowledge or consent. She wants to follow a trust fund into the property. He (as she claims) was seized to her use and merely executed the use when he conveyed to her. But unfortunately for that claim and theory there are facts tending to show, we think, that she knew from the outset he had bought the property in his own name and knew from the outset he used it as a basis of credit and had gone in debt in a large amount for fruit trees to improve it. This despite her testimony to the contrary.

“Evidence of whatever description must yield to the extent that it conflicts with admitted or clearly established facts.” .[1 Moore on Facts, p. 11.] Applying that rule, we find she was on the Nickey farm from the start almost daily, knew when the fruit trees arrived, took a live interest in the rather ambitious project (evidently one of family conversation) and puts herself in the attitude of knowing (as she says) that he had no money to pay cash for them.

That about $400 of her undoubted money went into the purchase of the farm seems clear. That money came from a sal© of a piece of real estate owned by her in her own name. But the testimony showing that also shows that she voluntarily and knowingly used it to pay off some of the instalments of the purchase money for the Nickey farm when they came due, knowing at the time the title was in him. Her denial in this behalf must go for naught in the face of her admissions and the physical facts shown to exist.

That Zehnder, himself, planned a fraud on Stark Brothers is put beyond question. This is so although it be admitted that his original mistake in the description of the real estate was an innocent one. His keeping his deed off of record for -a year may also have been innocent, but his concealment of the mistake in description for several years after he found it out can scarcely bear that interpretation, nor his execution of the contracts in the name of “A. H. Zehnder thereby permitting him to claim one way or another on his or her liability. His making of this deed without consultation with his wife, without any request or demand from her, after he was sued, presents unmistakable evidence of fraud on his part. If he owed her $2000 (as the evidence shows his claim to be), the honest thing, even on his own theory, would have been to have secured ft by a mortgage on the farm. But we will not pursue the question of his fraud; for her case at bottom proceeds on the theory he was a scamp in wrongfully misappropriating trust funds to his own use. The vital question is: Did she participate in his fraud? Or is she estopped? We are constrained to hold that when, without protestation on her part, and on knowledge of the fact,-she allowed the title to remain in him for thirteen years and finally accepted a deed made for the very purpose of preventing Stark Brothers from collecting a debt created for the improvement of the land conveyed — a deed made because of the exigencies of a pending law suit — such facts must be held to make out a case of her participating in his fraud, wherefrom she holds a tainted title.

For what says the law? “The rule is general, that, if one who assumes to do an act which will be for the benefit of another, commits a fraud in so doing, and the person to whose benefit the fraud will enure seeks, after knowledge of the fraud, to avail himself of that act, and to retain the benefit of it, he must be held to adopt the whole act, fraud and all . . . ” [Per Allen, J., in Atlantic Mills v. Indian Orchard Mills, 147 Mass. l. c. 275.]

Such facts also work estoppel. In cases of fraud and estoppel of the character dealt with here, the married women’s enabling acts whereby a husband may ■not appropriate his wife’s separate estate to his own use, except by her written consent, afford no protection against a creditor of her husband. [Hudson v. Wright, 204 Mo. l. c. 432; Blake v. Meadows, 225 Mo. l. c. 28, post and ante; Leete v. Bank, 115 Mo. l. c. 184.]

Assuming Stark Brothers are not entitled to reform their contracts, as held in the first case, yet if they can have relief on equitable principles in the present case, it is one that on all the facts loudly cries out for it. We hold they can have such relief. In not giving it the chancellor erred.

Let the judgment be reversed and the cause remanded with directions to enter a decree in favor of defendant divesting the title acquired by plaintiff through her husband’s deed out of her, and vesting title in him to the described eighty acres under his last sheriff’s deed. It is so ordered.

All concur.


author: .BOND, J.

text:
    J. A. BOTTS et al. v. WABASH RAILROAD COMPANY et al.; ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant.
    Division One,
    February 28, 1913.
    APPELLATE JURISDICTION: Constitutional Question: Raised in Court Below and Abandoned on Appeal. An objection to the constitutionality of a statute made in the trial court, which is abandoned after an a.ppeal is taken to the Supreme Court, or which is not attempted to be maintained either by argument or specification of the provision of the Constitution it violates, is merely colorable, and does not invest the court with jurisdiction of the appeal. A litigant cannot foist jurisdiction upon the Supreme Court by asking an instruction declaring a certain statute in reference to venue to be unconstitutional and then after an appeal is allowed to the Supreme Court permitting that question to quietly pass out of the case.
    Appeal from Audrain Circuit Court. — Eon. James D. Barnett, Judge.
    Transferred to St. Louis Court of Appeals.

      Fry & Rodgers and J. D. Eostetter for appellant.

      W. W. Botts and P. E. Cullen for respondents.
    STATEMENT BY THE COURT.
    Plaintiffs were the joint owners of eighty-three hogs which they delivered to the St. Louis & Hannibal Railway at its station in Perry, Ralls county, Missouri, on the 21st day of March, 1907, and received from that corporation a shipping contract, whereby it was agreed that the hogs “together with the party or parties in charge thereof should be transported to Gilmore, Missouri,” that being the terminus of the line of said railway; that the shipment was subject to minimum weights applying on cars of various lengths, as per tariffs and rules in effect on the date of the shipment, and through rate of freight from Perry, Missouri, the same being a' special rate less than the regular tariff rate; that the live stock should be transported within a reasonable time and there delivered to the Wabash Railroad Company for further transportation to the consignees at the National Stock Yards in East St. Louis, Illinois. The contract further provided that the initial carrier should not be liable for any loss or damage beyond its own line and while said hogs were in its actual custody. It contained many other stipulations. There was evidence that the day in question was excessively warm for that time of the year, the thermometer ranging from 87 to 93 degrees. The transportation began about two or three o’clock in the afternoon and about four o’clock in the afternoon the shipment had reached Oakwood, a point on the main line of defendant road between Plannibal and Gilmore, where the stock was watered and the car containing .them was picked up by the regular train, arriving at that point about five o ’clock, for further transportation to Gilmore. The conductor of the regular train took two persons with him to examine the condition of the stock and discovered about twelve or thirteen of them had died. The car in which they were contained showed that it was wet and that they had been properly watered. They reached their point of destination through a connecting carrier at East St. Louis about eleven o ’clock on March 22, 1907.
    The consignees testified that they disposed of the dead hogs to a rendering company and the living hogs at the market price, and accounted to plaintiff for the proceeds.
    The plaintiffs brought this action in two counts originally against defendant and the Wabash Railroad Company as connecting carrier. At the conclusion of the trial) the court required the plaintiffs to elect upon which count they would stand. Plaintiffs accordingly dismissed the first count and submitted their cause to the jury on the second count, which alleged that in violation of their agreement and in neglect of their duties as common carriers, the defendants failed to make delivery of said live stock within reasonable time and in as good condition as when received, thereby causing thirteen of said hogs to die, to the damage of plaintiffs in the sum of $300, for which judgment was prayed.
    The answer of the Wabash Railroad Company was a general denial.
    The answer of the St. Louis & Hannibal Railway Company contains a plea to the jurisdiction on the ground that no part of its line of railroad extended or ran through Audrain county, Missouri, where this suit was begun, and that it képt no office in said county. It admitted the reception of the live stock mentioned in the petition, and set out in full the shipping contract under which the same was received, and insisted upon all the terms of said contract, and, among others, the rate of valuation therein fixed; and averred that the injury to the live stock was caused by the abnormal, unusual and sudden high temperature for that season of the year and not on account of any neglect on the part of defendant; that the plaintiffs had wholly failed to give a written notice of their claim verified by affidavit within seven days, as required in said shipping contract, or to have some one accompany the. shipment of their live stock to feed, water and attend to them. Denied all other allegations of the petition. Issue was taken by reply. At the conclusion of the evidence, the court gave an instruction that there should be no recovery against the defendant "Wabash Railroad Company; gave three instructions at the request of defendant St. Louis & Hannibal Railway Company submitting the question of its negligence; gave an instruction of its own motion to the jury as to the form of the verdict and as to the number who should concur therein. No instructions were requested by the plaintiffs.
    The jury returned a verdict for plaintiffs against the St. Louis & Hannibal Railway for the sum of $151.80, from which it appealed to this court.
   OPINION.

.BOND, J.

(After stating the facts as above). — An examination of the entire record discloses that the theory of appellant on the trial below was, that no' jurisdiction was acquired over it by the service °f process in this case, for the reason that ft had no railroad or business office in Au- . ..... . dram county, where this action was bet gun, and that the statute (R. S. 1909, sec. 5446) which provides that suits against one or more connecting carriers may be prosecuted in any county in this State in which a suit against either of them might be maintained, is unconstitutional. We gather this from two of its instructions requested in the court below. If this statute is valid, then jurisdiction was rightfully acquired in the court below, because the record shows that the common carrier joined as a connecting carrier — Wabash Railroad — did have a line of railroad extending through Audrain county and kept a business office there; and, hence, the right to sue both of the defendants was within the provision of the above statute. Appellant has filed a brief in this court in which the only errors assigned are (1st) that no jurisdiction was acquired over it; (2nd) that the demurrer to the evidence should have been sustained In the court below; and (3rd) that the court erred in failing to direct the jury that plaintiffs were required to give the written notice specified in the shipping contract. The two latter assignments of error do not suggest any constitutional question, and in its brief in this, court appellant does' not suggest in the remotest way that any constitutional question arises upon its second and third assignments of error. All that is said in appellant’s brief is, that the constitutionality of the statute under which this suit was brought was challenged below. The. whole subject is then abandoned, and there is not another word nor an intimation in the brief and argument which suggests any reason why the aforesaid statute should be held unconstitutional. Counsel for appellant have thus left us in Cimmerian darkness as to why they think the statute obnoxious to the Constitution. If they considered the point to be debatable, it was their duty to make; it on the submission of the case to this court. Instead, they have omitted to point to any provision of the Constitution of this State which is violated by the terms, intendment or effect of the statute in question. The conclusion is irresistible that if they entertained that idea in the court below, they have not thought it worthy of presentation to this court. An objection to the constitutionality of a statute made in the trial court, which is abandoned after appeal taken to this court, or which is not attempted to be maintained either by argument or specification of the constitutional invalidity of such statute, is merely colorable and meritless; and if held sufficient ground to vest jurisdiction in this court, would necessarily divest courts of appeal of their lawful jurisdiction in any case where the counsel saw fit to make such claim during the trial. The appellate jurisdiction of the courts of appeal cannot be destroyed by the injection of sham questions of unconstitutionality in the trial courts, which are not deemed worthy of presentation or argument after the case has been gotten here by that process. That is what the record shows was done in this case. This performance does not present any real constitutional question for review in this court. This case is transferred to. the St. Louis Court of Appeals.

Woodson, P. J., Lamm' and Graves, JJ., concur.


author: BLAIR, C.

text:
    JOHN M. STILLWELL, Appellant, v. OWEN BELL.
    Division One,
    February 28, 1913.
    1. SUIT TO CANCEL DEED AND REGAIN POSSESSION: Deed Upheld: Equity: Instructions. In an action to cancel a deed and regain possession of th.e land, a finding which upholds the deed ends the case, and, since that part of the action sounds in equity, instructions have no place in the proceeding.
    2. SUIT TO CANCEL DEED: Defrauding Wife: Her Offenses Condoned: Equity: Unclean Hands. Equity will not aid one who sues to set aside a deed which he admits was made to defraud his wife; and her offenses against him in respect to the marital relation cannot, after he has condoned them, be asserted in a suit of this kind.

      Appeal from Ozark Circuit Court. — Ron. J.ohn T. Moore, Judge.
    Aeeirmed.

      A. R. Buchanan for appellant.
    In trials before tbe court without a jury the court’s theory of the law applicable to the issues is indicated by the declarations of law given and refused. In this case the court overruled defendant’s demurrer to plaintiff’s evidence and then refused .a declaration of law based on plaintiff’s evidence. That the weight of evidence was for the .court to determine is not questioned. One or the other was wrong and the case was tried on the wrong theory and therefore should be remanded. Cunningham v. Snow, 82 Mo. 587; Suddarth v. Robertson, 118 Mo. 286; Dallorhide v. Mabory, 125 Mo. 197; Mauch v. Hornback, 109 Mo. App. 624; Butler County v. Bank, 143 Mo. 13.

      O. W. Boone and Thornberry & Luna for respondent.
    (1) The petition of the appellant and the proof introduced in support of it is not a ground for setting aside the deed for the reason that the appellant seeks to set aside the deed through his own fraudulent conduct. Henderson v. Henderson, 13 Mo. 151. The conveyance is binding and valid between the appellant and respondent. Jacob v. Smith, 89 Mo. 673; Stevenson v. Edwards, 98 Mo. 622; Denney v. Kile, 16 Mo. 450. (2) Even if it is true that the wife of the appellant had been guilty of adultery before the marriage, the offense was condoned by his cohabitation with her. (3) Appellant should not be permitted to take advantage of his own fraudulent transaction by coming into a court of equity and asking relief which if granted would certainly destroy the great principles underlying the whole system of equity. Heady v. Crouse, 203 Mo. 100. (4) This being a case in equity, declarations of law had no place in the proceedings. Schibel v. Merrill, 185 Mo. 534; Hefernan v. Weir, 99 Mo. App. 301.
   BLAIR, C.

This is an appeal from a judgment for defendant in the circuit court of Ozark county in a suit to cancel a deed and for possession of one hundred and twenty acres of land. In 1900 plaintiff and his wife executed a general warranty deed by which they conveyed to defendant the land in question for a recited consideration of one hundred and fifty dollars. Plaintiff’s testimony was to the effect that he acquired the land in 1894 and some time thereafter was arrested on the charge of seducing Dorcas Royal and while under arrest married her to avoid prosecution, and, though his wife disclosed to him her father was responsible for her condition, he lived with her for some five months. Plaintiff testified that the deed to defendant was made pursuant to a suggestion by the latter that the only way for plaintiff to keep the land was to convey it to some friend, get a divorce, and then have the land reconveyed. With this in view plaintiff says he made the deed to defendant, the latter agreeing to reconvey when plaintiff “was free” and requested a reconveyance. Plaintiff had resumed his marital relation and was living with his wife when the deed to defendant was executed and she joined in the deed. Thereafter the pair moved to Arkansas and lived together as man and wife. Finally the wife secured a divorce. According to plaintiff the deed to defendant was made for the express purpose of excluding the wife from' any interest in the land, was without consideration and made with the agreement mentioned as to reconveyance after divorce. He admitted receiving fifty dollars of the purchase price but declared this a sham payment made to give color to the transaction and that he returned the money to defendant. There was some evidence defendant had said he had as much right to “beat John out of the land as John had to beat his wife out of it.” Other evidence as to the neighborhood talk and rumors and ex parte declarations of plaintiff was admitted. Defendant testified he bought this land on plaintiff’s insistence and paid for it the sum mentioned in the deed. He denied any agreement to reconvey. He had cleared some of the land and improved the place in other ways, had paid all the taxes since the date of the deed, had rented part of the tract for a time to plaintiff and collected the rent from him. The payment of rent is denied by plaintiff, who admits, however, defendant took one third of certain crops raised by him but says defendant said he did so to “keep down a fuss at home. ’ ’

There was evidence that for veracity the reputation of neither party to the suit was good, though plaintiff seems to have been worsted in the interchange.

I. The evidence was all given orally, is brought here in narrative form, and there is nothing in the record to indicate the trial court found against the weight of it. Counsel concedes he is not in a position to question the court’s findings as against the weight of the • evidence but urges there was error in the refusal of an offered instruction. The finding on the equity count ended the case and it was on the evidence adduced under this count the instruction mentioned was offered. Instructions have no place in proceedings in equity and the refusal of the instruction asked is to be interpreted here as a mere recognition of this rule by the trial court. The cases cited announce the rule in actions at law tried to the court without a jury, but that rule is not applicable in this case. The judgment might well he affirmed without further comment.

II. Plaintiff has no standing to set aside the deed. His admitted purpose was to defraud his wife of her rights in the land. He had condoned her offenses, if any, and cannot now assert , . . ., „ ,, , . , her wrongdoing m a suit of this kind. Pie could not have so asserted it in the divorce case after condonation. Having made the deed, according to his own testimony, to defraud her, his hands are unclean and equity will not aid him. The case of Davis v. Luster, 64 Mo. 43, is not in point. The deed there considered was executed under duress. ■

The judgment is affirmed.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Blair, 0., is adopted as the opinion of the court.

All the judges concur.


author: BROWN, 0.

text:
    ALICE FOGLE et al. v. JENNIE PINDELL et al., Appellants.
    Division One,
    February 28, 1913.
    1. PARTITION: Interlocutory Judgment: In Control of Court until Final Judgment. An interlocutory judgment in partition, declaring the rights of the parties and ordering partition, is under the control of the trial court and may be set aside or modified at any time before the final judgment.
    2. -: -: Reopening Case: New Evidence: Appeal. Where, after an interlocutory judgment in partition, the court, upon a motion for' a-new trial, reopened the inquiry and invited further evidence, it was its duty to act regarding such new evidence so as not to leave, the matter in controversy in. such condition that its final administration would be inconsistent with equity and good conscience. If it failed in this, the delinquency is subject to correction on appeal, and it is the duty of the Supreme Court, in determining the propriety of the interlocutory judgment, to take into consideration the entire evidence.
    3. -: -: -: Foreign Statute ais Evidence: Pleading. One who brings an action under a foreign statute must plead the statute; but where, as here, to a petition for partition the defendant answers that the land was bought by her husband with her money, that is the substantive fact, and therefore a statute of Kentucky which goes merely to show how the money was acquired should be received in evidence and need not be pleaded.

      4. -: Wife’s Separate Property: Received by Husband: Presumption. The receipt of a wife’s money by her husband is presumed to be for her use, and the burden is upon him to remove the presumption by evidence. It makes no difference in this respect whether he invests the money in real estate or keeps it inuhis pocket.
    5. -: -: -: Written Assent: Evidence: Burden of Proof. Land purchased by a husband with his wife’s money acquired during the marriage by inheritance from a son, was charged with a trust in favor of the wife, and she does not, in order to sustain her title to the property, bear the burden of showing that she did not expressly assent in writing to the disposition of her money for the husband’s use and benefit.
    Appeal from Schuyler Circuit Court. — No». Nat M. Shelton, Judge.
    Reversed and remanded (with directions).

      Higbee & Mills for appellants.
    The court erred in excluding tlie Kentucky statutes on descent for tlie reason that they were not pleaded. There was no question made that the statute produced and read in evidence was the Kentucky statute. That statute was simply a link in the chain of evidence to establish that the money paid for this land was Mrs. Pindell’s money and she was not required to plead the statute. Excluding the statute because it was not pleaded was equivalent to overruling all other objections, and they were all made after the statute had been offered and read in evidence. Green v. Association, 105 Iowa, 628; Gibson,v. Railroad, 225 Mo. 473.

      Joseph E. Eall and Fogle & Fogle for respondents.
   BROWN, 0.

This is a proceeding instituted by daughters of Michael M. Pindell, deceased, against the other heirs and the appellant Jennie Pindell, his widow, to partition a tract of land of 105 acres in Schuyler county upon which the deceased was residing at the time of his death, which occurred in May, 1905. On May 4, 1908, Mrs. Pindell filed her second amended answer admitting her marriage to the deceased and his death and raising the question involved in this appeal as follows:

“Further answering this defendant says that her husband bought the land described in the petition and paid the entire purchase price thereof with the defendant’s money during their said marriage; that said money was her separate property and her said husband so used her said money and paid therewith in full for said land, and took title thereto in his own name on the . . . day of . . . 1888, without the defendant’s written assent while she was his wife, and that he took title thereto and held the same in trust for this defendant until his death, as their homestead. That she and. her said husband resided on said land, until his death, and she has, ever since his death, resided upon and occupied the same as her homestead, and that she is in equity entitled to said lands in fee.
“Wherefore, she prays that she be decreed the owner of said premises in fee and for all proper relief. ’ ’

Mrs. Pindell at the time of the trial was seventy-four years old and not able to be personally in court. The court having ruled that the burden was upon her to support the issues raised in her answer, she introduced the deed of William H. Cowell and wife, dated November 7, 1890, under which her husband acquired the land in question. It recites a consideration of $1900 and the assumption of a mortgage of $250.

William H. Ross, from whom Cowell acquired the land, was introduced as a witness, and testified that Pindell, about sixteen years before, had told him that he and his wife had got over $5000 from the estate of his son Tom in Kentucky, one-half of which was Jennie’s (his wife’s); that he had bought this particular land with Jennie’s money, and was going to buy the Wilkerson farm with his own half. Tie purchased the Wilkerson farm. The fall before he died Mr. Ross spoke to him about trading for the home farm, which is the land in controversy. With reference to this interview he testified as follows:

“And another time I wanted to trade with him and he said he could not trade it. He was talking about going to town and he said, ‘I can’t trade this farm. This farm belongs to Jennie.’ He says, ‘I ain’t got a dollar in it.’ He said, ‘I will see her. I will talk with her. If she wants to come to town and trade I will see you again and will talk trade. ’ I said ‘all right.’ About a week afterwards I seen him. He said, ‘Jennie won’t trade. She won’t trade for mine,’ and he would not get to come to town. That that was hers and she was going to keep it as long as she lived. He said, ‘I ain’t going to insist on her selling it or trading it to go where she is not satisfied.’ ”

Gr. W. Patman testified that he had had several talks with Mr. Pindell about how he got the farm. He said he drew about $5000 from the estate. of his son who had died in Kentucky, one-half of which was left to him and half to his wife, and that he was going to buy the farm in controversy with half of it. He bought it and afterwards bought the Wilkerson farm. He said he paid for the home farm with his wife’s half of the money, and in speaking of the proposed deal with Ross, lie said it was Jennie’s farm, paid for with her half of the $5000 drawn from his son Tom’s estate in Kentucky, which was divided between himself and Jennie. This witness stated that he was an intimate friend of Pindell, who was his wife’s uncle, and that he was acquainted with Tom, who died in Kentucky.

Mrs. Rosenberger, a daughter of Mr. and Mrs. Pindell, testified that her father drew $5000 at one time from the estate of his son Tom and had $2000 from the same source before that. She also said that her father had no money before he got this. Tom got $5000 in the Louisiana Lottery and had $2000 before.

The respondents introduced no evidence. Upon a suggestion made by the court that finder the laws of descent and distribution in Missouri the money would not have been divided that way, the appellant asked that the cause be passed until proof could be obtained of the law of Kentucky, upon which the court said: “I will give them time to hunt up the Kentucky law.” This was on November 10, 1908, and “after-wards on November 20, 1908, during said November term of said court and before counsel for defendants were able to procure and produce in court a copy of the statutes of Kentucky, on the law of descents in the State of Kentucky, said court rendered judgment.” It found that the plaintiffs and defendants were each entitled to take as heirs of the deceased, subject to the dower and homestead rights of the widow, and appointed commissioners to set off the homestead and dower, and to report at the next term of the court, to which the cause was continued. The appellants thereupon on the same date filed their motion to set aside the said finding and have a new trial, assigning as reasons therefor, among others, that under the law and the evidence, the appellant Jennie Pindell was entitled to the relief asked in her answer, and that under the statutes of Kentucky the entire estate, both real and personal, of an intestate who died without descendants and unmarried, would pass to his father and mother if living, one-half to each. It also states that, for reasons set out in detail and claimed to be sufficient, defendants had been unable to produce these statutes at the trial. The motion was continued to the May term, “to allow defendants time to produce in court said Kentucky statutes ... to be used on the hearing of said motion.” At the May term the hearing was had in which the appellant offered and read a statute of Kentucky to the effect stated in the motion. The respondents then objected to its introduction for the following reasons: “For the reason it is not shown that there is a statute of Kentucky now in force. Second. For the reason that that paragraph might be modified by another paragraph, and for the reason he is offering it now upon a motion for a new trial, and it is therefore incompetent, and irrelevant, and does not tend to prove any issue in the case. Fourth. It is not offered on the trial of the case proper. Fifth. It is not pleaded in the case.” The court sustained the objection, and excluded the statute “for the reason that it was not pleaded;” and overruled the motion for a new trial. This appeal is from the interlocutory judgment determining the rights of the parties.

I. This appeal is taken from an interlocutory judgment in partition determining the rights of the parties to the suit, as provided in the Act of 1895. [E. S. 1909, sec. 2038.] Our statutory partition is broad in its scope, requiring the inclusion of the interest of every person who upon any contingency may be or become entitled to any beneficial interest in the premises, and the final judgment is binding and conclusive upon all parties to the proceedings, and all persons claiming under them. [Id., sec. 2587.1

The statute, however, although it provides that the interlocutory judgment shall declare the right, title and interest of the parties, petitioners as well as, defendants, gives it no such conclusive force. [Id., sec. 2572.] Although, as a matter of convenience, it gives the right to appeal from the interlocutory judgment, in so far as it determines the rights of the parties at least, it takes care to provide that no failure to appeal from such action shall prejudice the right 0f a party to have the action reviewed on an appeal from the final judgment. It has, accordingly, been consistently held by this court that this judgment, declaring the rights -of the parties, and ordering partition, is under the •control of the court and may be set aside or modified at any time before the final judgment. [Aull v. Day, 133 Mo. 337; Akers v. Hobbs, 105 Mo. 127.] In Parkinson v. Caplinger, 65 Mo. 293, the court permitted a new party to be made and to file an answer setting up an interest in the property. Although this application was at the same term at which the judgment was rendered, the court said: ‘ ‘ There is no prescribed stage of the proceedings in which this application is to be made. If presented during the pendency of the litigation, we think it is timely and within the power of the court to pass upon it.” In the Aull case the court quotes approvingly from Elliott, App. Proc., sec. 83, as follows: “Until there is an ultimate judgment, the case is not finally disposed of, inasmuch as the trial court may change its rulings, award a venire de ■novo, grant a new trial, or make some such order, notwithstanding the fact that in other rulings it may have clearly manifested a purpose to carry its rulings into the ultimate judgment or decree.” That case is replete with authorities which it is unnecessary to again incorporate into our records. The conclusion is that the interlocutory judgment stands merely as a part of a pending proceeding, and is under the absolute control of the court.

In the exercise of this control the trial court, upon a motion for a new trial, reopened the inquiry and invited the presentation of further evidence. Having done this it was its duty to act with reference to such new evidence as it obtained, so as not to leave the matter in controversy in such a condition that its final administration would be wholly inconsistent with equity and good conscience. It was vested with jurisdiction to hear further evidence for the sole purpose of doing justice in its final judgment, and if it failed in this, the delinquency is subject to correction upon appeal to the same extent and for the same reasons that apply to any other judicial action. It follows that it is our duty, in determining the propriety of the interlocutory judgment, to take into consideration, as the trial court should have done, the entire evidence before it.

II. This leads us to consider its action in excluding the statute of Kentucky requiring the estate of the son to be distributed to his father and mother in equal parts. As we have already said, the court, in the exercise of its undoubted jurisdiction invited the offer of this testimony and was enlightened by its presentation, and should, therefore, have received and taken it into consideration unless there was some reason to the contrary other than the fact that it was presented out of time. The court recognized this duty, and in the interest of facilitating a full and fair review of its action, incorporated in the record the statement that its exclusion was because it was not pleaded, referring evidently to the answer of the appellant; so that the question is presented whether it was incumbent upon her to plead the statute as a part of the statement of her defense.

There is nothing more firmly settled than that one who brings an action founded upon the provisions of a foreign statute must set forth those provisions in his pleading. This is equally true, whatever may be the form of his action, or the nature of the liability. This is just as necessary as that in actions founded upon contract he should set forth the provisions of the contract upon which he relies. This is as true of the common law system of pleading as of our own code, which expressly provides that only the substantive' facts necessary to constitute the cause of action or defense shall be stated. [R. S. 1909, sec. 1813.] Although in an action upon a contract it might be necessary to state the consideration upon which the undertaking of the defendant is founded, as, that it was paid in money, the substantive fact is the payment of the money, and it would be unnecessary to plead the manner in which the money had been acquired, although that might, under some circumstances, become important as a matter of evidence. In the present case the substantive fact is that the land was paid for by her husband with her own separate money. The manner in which this was acquired has nothing to do '•with the question, except as it may become important as a matter of evidence in determining whether the substantive allegation is true. The statute of Kentucky was important evidence to prove this, and having, in the exercise of its jurisdiction entered upon the investigation and invited the offer of this evidence, it should have been received, and we must now consider it.

III. The facts in this case cannot be said to be in dispute. The Pindell family was a large one, as is shown by the pleadings, and the assertion of one of them that the father had no money until after the death of their brother Tom, although easily susceptible of disproof were it not true, has not been denied or questioned;. that he afterward purchased and paid for the farm in question as well as the Wilkerson farm is a matter the truth or falsity of which can be easily demonstrated. There is no attempt to question the neighbors who testified as to the statements of Mr. Pindell that the land in question belonged to his wife and was - purchased with her money. All the sons and .daughters of Mr. and Mrs. Pindell, who, presumably, were raised in the family and acquainted from observation with its history, and are now the adversary claimants to their mother, are silent, save one, who gives important testimony in her favor. The others have chosen to remain in the attitude of sitting silent and saying to their mother, “prove your right if you can.” She has proved it up to the point which calls on them to speak.

It is said that the burden is on her to show that she did not expressly assent in writing to the disposition of her money for his own use and benefit. We do-not so understand the law. The statute requiring such assent is founded upon the fact that in the family economy the wife has her own separate and important duties to perform, which in this case included the bearing and rearing of at least twelve children, and the husband in the occupancy, use, care and protection of her.property is doing nothing more than his own duty for which he can claim no special advantage over her. The receipt of her money by her husband is presumed to be for her use, and the burden is upon him to remove the presumption by evidence; and it makes no difference in this respect whether he invests it in'real estate or keeps it in his pocket. [Rice v. Shipley, 159 Mo. 399.] If during his lifetime he claims the property as his own, her written assent that it should he so is a muniment of his title. His children seem to he now claiming under him, and from that standpoint it is a muniment of theirs and it is their duty to produce it. This land, having been purchased hy the deceased husband with money of the wife acquired hy inheritance from her son during the marriage, was charged with a trust in her favor. [James v. Groff, 157 Mo. 402; Johnston v. Johnston, 173 Mo. 91; Miller v. Slupsky, 158 Mo. 643; Rice v. Shipley, supra.] It results that the interlocutory judgment of the Schuyler County Circuit' Court from which this appeal is taken is reversed and the cause remanded to that court with directions to proceed in accordance with this opinion.

PER CURIAM. — The foregoing opinion of Brown, 0., is adopted as the opinion of the court.

All the judges concur.


text:
    R. S. CROHN, Administrator, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    February 28, 1913.
    1. MOTION FOR NEW TRIAL: Filed in Time: Sunday. Sunday is not to be counted as one of tbe four days witbin wbicb a motion for a new trial must be filed.
    2. NEGLIGENCE: Contributory: Instructions: Must Require Finding of Facts. In a personal injury case an instruction is erroneous wbicb tells- tbe jury that, if tbey believe tbe deceased could, by tbe exercise of reasonable care, bave reached a position of safety, but negligently and carelessly placed himself in a dangerous position, they must find for the defendant. It did not require tbe jury to find any facts from which contributory negligence was inferable, and it authorized a finding for defendant however remote deceased’s negligence might have been and whether or not “it was shown he knew, or ought to have known, of the material condition which rendered” what he did imprudent, if it was so. Further, the instruction warranted a finding for defendant if deceased could, without injury to himself, have taken any position other than he did take.

      Appeal from Jackson Circuit Court. — Eon. E. E. ■ Porterfield, Judge.
    Affirmed and remanded.

      Martin L. Glardy and E. J. White for appellant.

      Raymond J. DeLano and M. Defoe Pypes for respondent.
    Instruction 1 given at the request of defendant implies that there was some evidence that deceased was negligent in selecting the position he did when injured, but a close scrutiny of the record fails to show any negligence on the part of deceased, and for that reason this instruction is erroneous. Coffey v. Carthage, 186 Mo. 583; Conner v. Nevada, 188 Mo. 148; Dunphy v. Stock Yards Co., 118 Mo. App. 520; Sehroeder v. Transit Co., Ill Mo. App. 74; Klockenbrink v. Railroad, 172 Mo. 678; Moore v. Transit Co., 126 Mo. 278; Spencer v. Transit Co., Ill Mo. App. 653; Heberling v. Warrensburg, 204 Mo. 613; Doyle v. Trust Co., 140 Mo. 1; McGruire v. Railroad, 128 Mo. App. 677; Perret'te v. Kansas City, 162 Mo. 238.
   BLAIR, C.

This is an appeal from an order granting a new trial after verdict for defendant in an action for damages for the death of Emil D’Haese, who was struck and killed by a steam-shovel which fell as a consequence of the engine upon which he was working being backed against it.

Coal was being loaded upon the tender by means of the steam-shovel, and the duties of deceased, who was aiding in' this work, seem to have required his presence on the engine. Two or three other employees were on the tender with him. The steam-shovel was upon trucks standing upon the same track with the engine, but behind it, and fastened to the track by hooks. The rear end of the coal bin in the tender having been filled and it being necessary to bring the engine and shovel nearer together in order that the shovel or bucket might unload coal into the front end of it, the foreman ordered the engineer to back the engine two or three feet toward the steam-shovel. D’Haese stepped from the tender or tank to the top of the cab. .The engineer backed the engine some ten feet, striking the steam-shovel with sufficient violence to break the boom or arm, and it and the bucket, loaded with about one-half ton of coal, fell upon and killed D’Haese.

On the trial defendant asked and the court gave the following instruction:

“The court further instructs the jury that if you believe from the evidence in this case that deceased could, by the exercise of reasonable care on his part, have gotten in a position of safety so that he would not have been injured, but negligently and carelessly placed himself in a dangerous position, then plaintiff is not entitled to recover and it is your duty as jurors to return a verdict for defendant.”

On the hearing on the motion for new trial the circuit could reached the conclusion this instruction was erroneous and on that ground granted a new. trial.

I. The verdict was returned on the 20th and the motion for new trial filed on the 25th of May, 1908. The untimeliness of the motion is assumed from these dates, and it is then argued that though the court might have set aside the ver- , ., diet on its own motion it had no power to sustain a motion filed out of time, and since the record shows the court did not act sua sponte, but on plaintiff’s motion, the order granting the new trial must be reversed. It is not necessary to discuss this contention further than to say that the 24th. of May was Sunday and consequently the motion was filed in time. [State v. Harris, 121 Mo. l. c. 447.] The argument is based upon an incorrect assumption of fact and falls with its premise.

II. The trial court was right in setting aside the verdict. The instruction constituted error. It did not require the jury to find any facts from which contributory negligence was infer-able, and authorized a finding for defendant, however remote deceased’s negligence might have been' (Moore v. Rapid Transit Co., 126 Mo. l. c. 277, 278), and whether or not “it was shown he knew, or ought to have known, of the material condition which rendered” what he did imprudent, if it was so. -[1 Labatt on Master & Servant, seo. 319.] Further, the instruction warranted a finding for defendant if deceased could, without injury to himself, have taken any position other than he did take. It is abstract, confusing and misleading. The judgment is affirmed and the cause remanded.

Brown, G., concurs.

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

All the judges concur.