author: GRAVES, J.

text:
    INDIANA LOAN & TRUST COMPANY, Appellant, v. LINCOLN TRUST COMPANY; ALFRED A. PAXSON, Interpleader.
    Division One,
    November 27, 1907.
    1. DEPOSIT: Used for Both Deposit and Security. A transaction by which the owner of monely deposits it with a company and at the s'ame time receives a certificate of deposit for the same amount from a trust company, bought by the same fund and delivered to him and held by him as security for his deposit, is illegal and fraudulent.
    2. CERTIFICATE OF DEPOSIT: Fraudulent Transaction: Owner: Delivery. A certificate for six thousand dollars was issued by an Indiana Trust Company, and endorsed by the payee to a Missouri Trust Company, and a Securities Company issued to him a certificate of deposit for the amount, under an agreement to pay him six per cent per month thereon, and he and the Securities Company joined in a letter, in which was inclosed the Indiana Trust Company certificate, to the Missouri Trust Company to issue a certificate of deposit to the Securities Compa.ny and send it by mail to the depositor to be held by him as security for the certificate issued to him by the Securities Company, and that was done, and this agreement being illegal and fraudulent, in a suit on the certificate issued by the Missouri Trust Company, the receiver of the Securities Company being interpleader, it is held, first, that the depositor cannot plead his own fraud and take the fund out of the purses of the Securities Company, nor can the receiver of that company compel him to put it into its coffers if that has not already been done, and, therefore, the question is, was the fund ever delivered to the Securities Company? Second, at no time was the certificate under the control of the Securities Company or in its possession, nor was the amount placed to its credit by the Missouri Trust Company and made subject to its check, and the transaction being tainted with fraud and therefore there being no valid or enforcible agreement to deliver, there was no delivery, and therefore the receiver is not entitled to it.
    3. -: -: -: in Equity. Where the whole transaction is tainted with fraud it will not be held that the thing sued on was, in equity, delivered, unless it was actually delivered.

      4. -: -: —:-: Other Like Depositors. It is immaterial whether the creditors of the company for which the receiver interpleads were of the same kind and character of depositors as the beneficial plaintiff who by fraudulent transaction secured a certificate of deposit from the company for a large sum of money and received as security therefor another certificate of deposit • issued to depositee by another company in lieu of the one he used to purchase the company’s certificate of deposit, since the whole question is whether or not the other company’® certificate, which is sued on, was ever delivered to the receiver’s company.
    Appeal from St. Louis City Circuit Court. — How. O’Neill By an, Judge.
    Reversed (with directions).

      Bond, Marshall & Bond and W. O. Schofield for appellant.
    (1) The transfer by delivery of an unindorsed negotiable instrument carries full title or ownership to the transferee. Pattison v. Cave, 61 Mo. 441; Bishop v. Chase, 156 Mo. 170; Boeka v. Nuella, 28 Mo. 180; Davis v. Carson, 69 Mo. 609. (a) There is no difference in the transfer of an unindorsed note whether it is done by delivery only, or by written endorsement and delivery, so far as the vesting of title in the transferee is concerned, (b) Under the facts in this record C. W. Burket being the holder and owner of the unindorsed certificate of deposit issued by the Lincoln Trust Company, which delivered it to him December 28, 1902, was from that time vested with full title and ownership thereto, subject to those equities, if any, which the maker of the certificate (the Lincoln Trust Company) was entitled to plead as arising out of the consideration for which its certificate was given — as no such equities existed, he was entitled to receive the payment in full of said certificate. Crawford v. Johnson, 87 Mo. App. 478; Borgess Inv. Co. v. Yette, 142 Mo. 560; Jennings v. Todd, 118 Mo. 296; Hamilton v. Marx, 63 Mo. 167; Mayes v. Robinson, 93 Mo. 114; Fitzgerald v. Barker, 96 Mo. 665, 137 Mo. 43. (2) An illegal or immoral contract when not fully performed will not be enforced or completed by any court, though its terms are expressed in the most solemn and binding agreement. Sprague v. Rooney, 104 Mo. 358, citing: Cappel v. Hull, 7 Wall. (U. S.) 558; Roselle v. Farmers’ Bk., 141 Mo. 43; Ullman v. Fair Grounds, 167 Mo. 273; Sedalia Bd. of Trade v. Brady, 78 Mo. App. 585. (3) The business of the National Securities Company was illegal and immoral. Its certificate holders are not, therefore,- legal creditors of said corporation. R. S. 1899, secs. 2221-22-23-24-25; Connor v. Black, 119 Mo. 26. (4) The statute invalidating pledges or mortgages of personal property to secure “indebtedness” on account of usurious interest, has no application whatever to the facts of this case. R. S. 1899, sec. 3710; Vette v. Geist, 155 Mo. 33.

      Johnson, Houts, Marlatt & Hawes and Ben. F. Clark for respondent.
    (1) The certificate of deposit of the Lincoln Trust Company was deposited with C. W. Burket as collateral security for a loan made by him to the National Securities Company, and this conveyed to him no right of property in either the certificate or the fund it represented, but only the right of possession and detainer. Barrett v. Goddard, 3 Mason 107; Allgear v. Walsh, 24 Mo. App. 134; Glass v. Gelvin, 80 Mo. 297; Erwin v. Arthur, 61 Mo. 386; Harding v. Maynard, 55 Mo. App. 364; Williams v. Evans Admr., 39 Mo. 201; Siegerman v. Kahman, 39 Mo. 206; Tiedeman on Bills and Notes, sec. 56 ; 1 Daniels on Negotiable Instruments, sec. 63-A; also sec. 68; Walsh & Harvey v. Dameron, 47 Mo. App. 221; Wood v. Flanery, 89 Mo. App. 641. (2) The pledge of the Lincoln Trust Company certificate with Burket as collateral security was void and conveyed to Bnrket no right of any kind whatever in the fund represented by the certificate, (a) The pledge of the Lincoln Trust Company certificate with Bnrket was void ab initio because of usury, and the receiver, being in privity to the National Securities Company, could take advantage of this fact. E. S. 1899, see. 3710; Tolman v. Union Casualty Co., 90 Mo. App. 274; Adams v. Moody, 91 Mo. App. 41; Bell v. Mulholland, 90 Mo. App. 612; Yoorhis v. Staed, 63 Mo. App. 370; Keim v. Yette, 167 Mo. 389; Fidelity Co-. v. Baker, 54 Mo. App. 79. (b) The pledge of the Lincoln Trust Company certificate with Bnrket was void because the agreement between Bnrket and the National Securities Company, out of which the pledge grew, involved and comprehended an illegal agreement or conspiracy to jointly engage in a scheme to defraud and rob' the public, and the contract having been executed, Bnrket can not now recover money loaned in furtherance of said scheme. Brackett v. Griswold, 14 N. Y. St. Eep. 449; Percival v. Harres, 142 Pa. St. 369; Woolf oik v. Duncan, 80 Mo. App'. 427; Roselle v. Farmers’ Bank, 141 Mo. 43; Scudder v. Ar-wood, 55 Mo. App. 512; Garrett v. K. C. Coal M. Co., 113 Mo. 338; Wesby v. Bowers, 58 Mo. App. 419; Trimble v. Doty, 16 Ohio St. 133; Sumner v. Summers, 54 Mo. 340; Kitchen v. Greenbaum, 61 Mo. 110; Haggerty v. St. Louis Ice Mfg. & Sto. Co., 143 Mo. 238. (3) Title to the fund in dispute passed to the receiver not later than the date of his appointment and qualification, March 9, 1903, and no subsequent transfer or endorsement of the certificate representing this fund could defeat this title. Maynard- v. Bond, 67 Mo. 315; Bank v. Dovetail Body & G. Co., 143 Ind. 534; In re Assignment of Hamilton, 26 Ore. 579; Young v. Rollins, 9 N. C. 125; Brant v. Allen, 76 la. 50; Payne v. Baxter, 2 Tenn. Ch. 517.
   GRAVES, J.

— The facts.of this case can he summarized in a small compass. Plaintiff is a hanking and trust company of the State of Indiana, located at Warsaw, Indiana. One Doctor C. W. Burket was one of the directors of said corporation and seems to have been inclined to advance his material wealth by rapid strides. In addition to being a director in plaintiff company, he was a practicing physician at Warsaw, Indiana. Prior to the dates hereinafter mentioned, M. E. Burket, wife of Dr. Burket, had received $6,000 as her interest in some land belonging to her father's estate. This money was deposited with the Indiana Loan & Trust Company, the plaintiff herein, but the certificate of deposit was in the name of O. W. Burket and M. E. Burket, and is, with the endorsements thereon, as follows:

“Certificate of Deposit.
“No. 467. $6000.00
“Indiana Loan and Trust Company, Warsaw, Ind., Dec. 19th, 1902.
“C. W. and M. E. Burket has deposited with this company six thousand dollars payable to the order of theirself with interest at the rate of three per cent per annum from date on the surrender of this certificate properly endorsed.
“If said deposit remains with said company one year or more, the same shall draw interest from date at the rate of four per cent per annum. Said company reserves the right to redeem this certificate at any time by paying interest thereon at the rate of four per cent per annum.
“Indiana Loan and Trust Compant,
“John D. Widaman, President.
“Geo. W. Bennett, Secretary."
Endorsed:
“Pay to Lincoln Trust Company,
“C. W. Burket,
“M. E. Burket.
“Pay to the order of Any Bank or Banker, Dec. 22, 1902.
“Lincoln Trust Company,
“Chas. Hamilton, Sec’y.”
Stamped on face:
“Paid; Indiana Loan and Trust Co., December 23,1902.”

The Lincoln Trust Company is a Missouri corporation, and the interpleader, Alfred A. Pass on, is the . receiver of the National Securities Company, a corporation'whose chief business seems to have beep to fleece the unsuspecting public and especially those cherishing the ambition of becoming affluent by the short or quick method. The National Securities Company was advertising the short or quick method to riches. It claimed to have a “special process” by which six per cent per month dividends could be returned for funds left in its care. Its alleged field was speculating on the Board of Trade. Dr. Burket had received advertising literature from this concern and letters therefrom. On December 1, 1902, Dr. Burket wrote as follows: . ,

“Warsaw, Indiana, December 1, 1902.
“National Securities Company,
“St. Louis, Mo.
“Dear Sir: I have your letter of the 25th; also affidavits; and will say that I will be in your city some time during this month on my way to Oklahoma City, and if everything is satisfactory, I will let you have $6,000 of money I have. Inclosed I return affidavits as per your request..
“Respectfully yours,
“C. W. Burket.”

The money referred to in this letter was his wife’s money, deposited as stated above. December 20, 1902, Dr. Burket, with his wife, reached St. Lonis, having the certificate of deposit. Upon reaching there he conferred with one Brooks of the National Securities Company and from him got some references as to the National Securities Company. One of these references stated that they knew nothing about the company, and the other, the Lincoln Trust Company, in effect, said that it would be all right to deposit with the company if he got security, although the business methods of said company were not impressed with honesty. This is about as far as the Doctor seems to have gone with his investigation of the references. The Lincoln Trust Company held large deposits of the National Securities Company. After talking with the representative of the Lincoln Trust Company, Dr. Burket describes the action of the parties thus:

“We went back to Mr. Brooks’s office in the Equitable building and Mr. Brooks suggested to me that I deposit this money, and let them take a certificate of deposit, — let the National Securities take a certificate of deposit, — for the $6,000, and then we would inclose it in a letter and instruct Mr. Hamilton to forward that certificate of deposit to me at Oklahoma City, as collateral security for the $6,000 I was depositing with them and that is what I did. I mailed that certificate of deposit on the Indiana Loan and Trust Company to Mr. Hamilton with instructions to secure the certificate of deposit and" forward it to me at Oklahoma City, which was done.
“Q. What else did you get? What did Mr. Brooks give you? A. He gave me a contract too. He gave me a certificate of deposit for $6,000.
“Q. What certificate of deposit was that — the National Securities Company? A. Tes, the National Securities Company gave me a certificate of deposit for $6,000.”

On this date, Burket received: a certificate of deposit with the National Securities Company for the $6,000. On this question, he says:

“Q. Now when you received the certificate of the National Securities Company for $6,000, what did you do with your certificate of deposit which you held in the Indiana Loan and Trust Company?
A. I mailed that to Mr. Hamilton, the secretary of the Lincoln Trust Company. I wrote him a letter at that time.”

The letter thus referred to reads:

“December 20, 1902.
“Charles Hamilton, City.
“Dear Sir: You will find inclosed certificate of deposit for six thousand dollars on Indiana Loan & Trust Company of Warsaw, Indiana. Kindly place to the credit of the National Securities and issue a cer-. tificate for that amount to said company. Upon issuance of certificate, mail the same to Dr. C. W. Burket, Oklahoma City, Oklahoma, said certificate to he held by him as collateral.
“C. H. Brooks,
“Representing National Securities Co.
“C. W. Burket.”

As a part of this deal, Dr. Burket was to recommend the National Securities Company and at the time made and furnished the following affidavit for publication with other advertising matter of the National Securities Company, to-wit:

“To Whom It May Concern:
“On my way from Warsaw, Indiana, my home, to Oklahoma City, I stopped off at St. Louis to examine the affairs of the National Securities Company, with the idea in view of investing a sum with this concern in case the investigation proved satisfactory.
“I arrived in St. Louis, this morning, called upon the president of this concern, had an hour’s talk "with him regarding the methods pursued by this concern in their operations in the stock and grain market and found them highly satisfactory. I have had some experience in trading in the stock and grain markets for the past twenty or thirty years, and I must say that the plan or system of trading of this company is superior to any I have ever heard of, and must meet with success.
■ “I wished to know more about the concern, also about the financial standing and responsibility of this firm and asked the president to give me the names of several people in St. Louis to whom he could refer me in regard to their standing. I called upon several of the people and firms he referred me to, amongst whom were bankers and business 'men of the highest standing in St. Louis, and they all spoke in the highest terms of this corporation. I immediately returned to the office of the National Securities Company and deposited $6,000' with them on their six per cent per month plan. I wish further to state that I consider this firm and their methods for investment, the strongest and best I have ever heard of, and today I would not change my certificate issued by this company, for that of any bank in St. Louis. I endorse the methods of the company and recommend it to my friends.
“O. W. Bttbket, M. D.
“Subscribed and sworn to before me this 20th day of December, 1902.
“(Seal) J. M. Nelson, Jr.
“Notary Public in and for the City of St. Louis, Mo.
“My commission expires March 17, 1906'.”

All these matters took place on December 20, 1902. On December 22, the following Monday morning and after Dr. Burket had gone to Oklahoma City, Hamilton, of the Lincoln Trnst Company, received the contract letter hereinbefore quoted. Hamilton then sent the certificate of deposit on the Indiana Loan and Trust Company to the State Bank of Warsaw, Ind., for collection. Upon the receipt of the certificate upon the Indiana Loan and Trust Company, Mr. Hamilton had this entry made upon the books of the Lincoln Trust Company, which gives some light upon his understanding of the deal:

“Date: 12-19, 1902.
Maker: Indiana Loan & Trust Company.
Address: Warsaw, Indiana.
Certificate of Deposit: 467, 3 per cent.
Eindorser: O. W. and M. E. Burket.
Credit: See Charles Hamilton.
Remit: C. W. and M. E. Burket.
Date of Note: 12-19-02.
Time: On demand. Protest noté.
Amount of Note: $6000.00.
Interest from date at 3%.”

Mr. Hamilton says that the words, “Credit: see Charles Hamilton,” meant that when the proceeds of the $6,000 certificate were received he would give instructions as to how it would be entered and credited. On December 26th, following, the returns from this $6,000 certificate were received' by the Lincoln Trust Company, and the Lincoln Trust Company following the directions given by the letter of December 20th, 1902, signed by both Burket and the National Securities Company, per C. H. Brooks, issued their certificate of deposit for $6,000, to the National Securities Company, and forwarded the same to Dr. Burket at Oklahoma City, with the following letter:

“Lincoln Trust Company.
Capital $2,000,000.
“St. Louis, Mo., U. S. A., Deo. 26, 1902.
“C. Wr Burket,
“No. 1. Masonic Temple,
“Oklahoma City, Oklahoma.
“Dear Sir: As per the instructions of the National Securities Company and carrying out arrangements made with you previously, we inclose herewith our demand certificate No. 658, dated December 26th, 1902, for $6,000 payable to the order of said company.
“Trusting this will be satisfactory, we are,
“Tours very truly,
“Charles Hamilton,
“Secretary.”

The certificate described in this letter is the certificate involved in this suit, and with the later endorsements thereon, reads thus:

“No. 658.
St. Louis, Dec. 26, 1902.
“National Securities Co. has deposited with the Lincoln Trust Company (certificate of deposit) the sum of six thousand dollars. Not subject to cheek; Payable to same........................or order upon demand and upon the return of this certificate.
“Julius C. Garkell, Treas.
“Countersigned: Chas. W. Owen, Teller.
This certificate bears two per cent, interest from date. ’ ’
Endorsed:
“Pay to the order of C. W. Burket, National Securities Company. By C. H. Brooks, Pres.
“Pay to the Indiana Loan and Trust Co., or order, Warsaw, Ind., O. W. Burket, Indiana Loan and Trust Company, Geo. W. Bennett, Secy.”

The endorsement, “Pay to the order of C. W. Burket, National Securities Company, By C. H. Brooks, Pres.” appears to have been made after the receiver had been appointed for said National Securities Company. Nor is it seriously contended that the plaintiff herein is an innocent purchaser for value. In other words it is practically conceded that the plaintiff must stand in the shoes of C. W. Burket, as such shoes may be constructed and made from the admitted facts. It appears that Dr. Burket had agreed, in consideration of his deal with Brooks, to advertise the reliability of the National Securities Company, and be it said that he faithfully carried out his part of this unlawful and unwarranted contract. He received the first monthly six per cent, dividend, but owing to Federal interference with the business methods of the company, or other reasons, he received no more. He therefore assigned his interest in the certificate in suit to the plaintiff, and this suit is the result. Defendant, Lincoln Trust Company, paid the money into court, and the real contest is between the plaintiff and the receiver of the National Securities Company, who interpleads for the fund in behalf of other creditors. Other facts may be required; and if so, they will be stated in the course of the opinion.' For the present, this sufficiently states the facts.

I. In passing upon this case we must bear in mind the dates of the transactions hereinabove mentioned. We must further bear in mind that the contract or contracts between Dr. Burket and the National Securities Company, so far as they are executory, are illegal and non-enforcible. They were conceived in fraud and born in iniquity, if in fact, there has been a birth. Burket could not not enforce them on the one hand, nor could the National Securities Company upon the other. If it be granted that Burket agreed, in consideration of the certificate of $6,000 issued to him by the National Securities Company, of date December 20,1902, to have deposited with such company the proceeds of the certificate of deposit .issued by the Indiana Loan and Trust Company, such contract could not be enforced by the National Securities Company, nor its receiver. It requires no citation of authority upon this question. The facts show that the alleged agreement would be illegal. We are then driven to the question as to. whether or not Dr. Burket ever delivered to the National Securities Company the six thousand dollars involved in this suit. If so, Burket is in no position to plead his own fraud, and thereby take the fund out of the purses of the company, nor, on the other hand, can the receiver of said company compel him to put the money in its coffers, unless it has been already so done. This is the substantial question and to it we now proceed.

II. The whole case turns largely upon the letter of December 20, 1902, signed by Brooks and Burket, and the subsequent steps taken thereafter. Up to the receipt of this letter with the certificate of the Indiana Loan and Trust company, really representing the money of Mrs. Burket, no enforcible contract had been made between Brooks and Burket. There might have been high morals existing between two persons, engaged in an unlawful and wrongful act, but not such as could be enforced in law. Six days after the receipt of this letter the Lincoln Trust Company got returns from the Indiana Loan and Trust Company. They thereupon issued a certificate payable to the National Securities Company, in the sum of $6,000, but never placed it to the credit of such company so that it was subject to its check, or otherwise under its control. At no time, whether authorized by the letter or not, did the Lincoln Trust Company place this $6,000, subject to the control of the National Securities Company. On the other hand, they placed the amount to their credit, but not subject to check, and issued-their certificate of deposit to such National Securities Company, but at no time delivered it, or placed it under the control of said company. The Lincoln Trust Company at once mailed the certificate to Dr. Burket, and .so far as this record shows, the only parties who ever had possession of this evidence of indebtedness are (1) the Lincoln Trust Company, (2) Dr. Burket, and (3) the Indiana Loan and Trust Company, the plaintiff herein. If the National Securities Company ever acquired any interest, it was not by delivery, for that element is absent. There may be cases where the law would say that there had, in equity, been a delivery, but not so in cases where the whole transaction is tainted with fraud. In this case we cannot say that there had been a delivery, without first saying that there was a valid and enforeible agreement to deliver. This we cannot do. It has- been argued that the creditors, for whom the receiver is acting, are of the same kind and character as is Dr. Burket. This may or may not be true. It is utterly immaterial to the issues of this case. We have here the sole question as to whether or not this fund ever reached the possession of the National Securities Company. If it did, the receiver, representing the creditors, is entitled to it, otherwise he is not. Viewing it from the facts before us there was never a delivery of the fund, or the evidence of the fund, to the National Securities Company, and so viewing it the receiver is not entitled to it. In all this we proceed upon the theory, and we think rightfully, that the present plaintiff must stand in the shoes of Dr. Burket. We do not even consider the equity of Mrs. Burket, who seems to be, whether willingly or unwillingly, the victim of misadventure. We conclude that the fund of $6,000, together with the evidence thereof, sever passed by delivery or otherwise to the National Securities Company, and for this reason the plaintiff herein, whether an innocent purchaser, for value, or not, is entitled to- the fund. It follows that the case should be reversed, with directions to enter a judgment in accordance with the views herein expressed and it is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    WILLIAM GIBBS et al. v. MAUD HAUGHOWOUT et al., Appellants.
    Division One,
    November 27, 1907.
    1. CONVEYANCE: Deed as Security. A deed absolute in form, intended by all the parties thereto to be a mortgage to indemnify the grantee as a surety on the maker’s appearance bond, is only a mortgage, and a performance of the bond by the maker entitles him to a reconveyance of the property.
    2. -- — : -: Attorney’s Fee. And having been made for the purpose alone of indemnifying the grantee as such surety, he cannot refuse to reconvey the land on the theory that the deed was made to secure also the payment of his legal fees as attorney in defending the grantor against the criminal charge in connection with which the appearance bond was given. And even if so made, in this case the agreed fee was paid, and having been paid, the deed cannot be considered security for a larger fee shown to be the value of the legal services rendered.
    3. -: -: Grantee Dead: Grantor Cannot Testify. The grantee being dead at the time of the trial the grantor is not a competent witness to testify as to what the contract was in pursuance to which the deed was made. And it was error to permit him ,to testify.
    4. -: -: -: Harmless Error. But notwithstanding such error, the judgment for the grantor holding the deed to be a mortgage and the obligation to have been performed, will not be reversed if the contract was plainly established by the uncontradicted testimony of other competent witnesses, for in that case the error was harmless.

      5. EQUITY: Exclusion of Evidence. In an equity case tbe appellate court on appeal will exclude evidence improperly admitted and will not reverse tbe judgment for error in admitting it if tbe evidence remaining shows tbe judgment was for tbe right party.
    Appeal from Christian Circuit Court. — How. Asbury Burkhead, Judge.
    Affirmed.

      B. A. Mooney ham and' G. Purd Bays for appellants.
    (1) The presumption of law, independent of proof, is that an instrument purporting on its face to be a sale, is what it purports to be, and to overcome this it has been said by many authorities of undoubted repute that the evidence that a mortgage was in fact intended must be clear, satisfactory and convincing, cogent, precise and indubitable, explicit and unequivocal or at least conclusive. 20' Am. and Eng. Eney. Law (2 Ed.), 954; Jones v. Rush, 156 Mo. 364; Mulock v. Mu-lock, 156 Mo. 431; Viers v. Viers, 175 Mo. 453; McKee v. Higbee, 180 Mo. 299; Forester v. Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423; Smith v. Smith, 100 Mo. 592; Atkinson v. Henry, 80 Mo. 157 • Modrell v. Riddle, 82 Mo. 36; Rogers v. Rogers, 87 Mo. 259; Jackson v. Wood, 88 Mo. 78; Philpot v. Penn, 91 Mo. 45; Berry v. Hartzell, 91 Mo. 136; Keiser v. Gamman, 95 Mo. 224; Allen v. Logan, 96 Mo. 601; Burdett v. May, 100 Mo. 16; Taylor v. Von Schraeder, 107 Mo. 225; Reed v. Painter, 129 Mo. 682; Curd v. Brown, 148 Mo. 92; Pitts v. Weakley, 155 Mo. 136. Plaintiff had been convicted of larceny, as shown by the evidence introduced by himself; he was shown to have made statements inconsistent with his claim that the deed in controversy was executed as security; and his claim that Mr. Haughowout agreed to accept $25 as full payment for all services rendered, is improbable. These facts tend strongly to discredit his testimony. Besides, the transaction is not marked by any of the indicia accompanying and following the execution of an absolute conveyance as a mortgage. 20 Am. and Eng. Eincy. Law (2 Ed.), 944. (2) Gribbs was incompetent to testify to transactions with T. B. Haughowout, Mr. Haughowout being dead.

      J. C. West for respondents.
   WOODSON, J.

— The plaintiffs instituted this suit against the defendants in the circuit court pf Christian county,- having for its purpose the cancellation of a certain warranty deed, alleged to have been intended by the parties thereto as a mortgage, dated October 24, 1901, duly executed by plaintiffs to T. B. Haughowout, now deceased, conveying to him and his heirs the north half of the southwest quarter of section thirty-four, township twenty-six, north of range twenty-one, west of the fifth principal meridian, containing eighty acres; all in Christian county, Missouri.

There was a trial had before the court, and the findings and decree were in favor of plaintiffs. After an unsuccessful motion for a new trial had been disposed of, defendants appealed the cause to this court.

The evidence on the part of the plaintiffs tended to prove substantially the following facts: That‘on or just prior to the date of the deed, William Gibbs, one of the plaintiffs, had been charged with grand larceny, in Jasper county, and had been arrested and placed in jail; that T. B. Haughowout was at that time a practicing lawyer at the Jasper County Bar; that said Gibbs employed said Haughowout to defend him against said charge, and agreed to pay him twenty-five dollars for his services, which was to be paid in thirty days, and evidenced by a promissory note and secured by a chattel mortgage on some horses and a wagon; that he was confined in jail and had no money with which to pay said fees, and at the time the contract of employment was entered into it was agreed between them that Haughowout was to furnish him bail in the sum of three hundred dollars, in order that he might get out of jail and'go to work and earn the money with which to pay the attorney fees; and that in order to indemnify Haughowout against loss for signing said bail, said Gibbs agreed to and did execute the warrantry deed mentioned, conveying to him the land described; that Haughowout accepted said deed under said agreement and had it recorded, and furnished the three hundred dollar bond for said Gibbs, and he was released from jail, and in due time he paid off the twenty-five dollar note, which was by Haughowout marked paid, and he surrendered the note and mortgage to Gibbs; that Gibbs appeared in court according to the conditions of the bond, from time to time, until finally the case against him was dismissed, and that by said dismissal he and his bondsmen were discharged from all liability upon the three hundred dollar bond, and that when Haughowout and the other securities were all released from all liability on the bond by the dismissal of the cause, it became the duty of said Haughowout under the agreement with G-ibbs to reconvey the land back to the plaintiff Gibbs. Plaintiffs also introduced evidence showing that T. B. Haughowout was dead at the time of the institution of this suit, and that the defendants are his administrator and heirs at law, and that he demanded of them a reconveyance of the land in question and that they refused to reconvey it to him.

The defendants introduced evidence tending to prove that T. B. Haughowout was a lawyer, duly licensed to practice law in this State, and that he was an able and successful practitioner; that he represented Gibbs before the justice of the peace at his preliminary hearing, and that he was bound over to the circuit court in the sum of three hundred dollars to await the action of the grand jury; that he and his brother, W. F. Haughowout, signed his bond; that Gibbs was subsequently tried and found guilty; that said Haughowout defended him in that trial, and filed a motion for a new trial, which was by him argued, and it was by the court taken under advisement; and that subsequently, when the court indicated that the motion would be sustained, the prosecuting attorney dismissed the case. The evidence also showed that the services rendered by Haughowout were worth from $250 to $400.

The evidence shows Haughowout had prepared the warranty deed in the morning of the day on which it was executed; that it was read over to Gibbs and his wife and they signed and acknowledged it, but said nothing at the time why they were making the deed.

The acknowledgment was taken by Maude Haughowout, a notary public, and wife of T. B. Haughowout.

I. All the evidence shows, and there is no pretense but what the warranty deed executed by Gibbs and wife was intended by all the parties to it to be a mortgage to indemnify 3?. B. Haughowout and his co-securities against loss for having signed Gibbs’s bond for the sum of three hundred dollars, conditioned that he would appear from time to time before the circuit court of Jasper county to answer the charge of grand larceny, then pending against him. It is equally well etablished that Gibbs did appear before said court as required by the terms of said bond, and that finally the case was dismissed as to him. It is thus seen that there was no breach of the bond by Gibbs, and, consequently, Haughowout and his co-securities were fully discharged from all liability on said bond when the case was dismissed as to Gibbs.

The law is well settled in this State that when a person conveys land by deed absolute in form though intended by all the parties thereto to be a mortgage to indemnify a security on an appearance bond and he has kept and performed all 'of the conditions of the bond, he is then entitled to a reconveyance of the property. [Bender v. Zimmerman, 122 Mo. 194.]

The defendants do not controvert the correctness of the legal conclusions above reached, but they contend that it was the intention of the parties to the warranty deed that Haughowout should hold the same as security for his fees due from defendant Gibbs. This contention is not tenable for two reasons — first, because there is no evidence in this record which tends in the remotest degree to show that either Gibbs or Haughowout'so understood the transaction, but, upon the other hand, all the evidence affirmatively shows that the deed was given solely to indemnify him and his co-securities against loss for having signed Gibbs’s appearance bond.

The second reason why this contention cannot prevail is, that there is not a scintilla of evidence in the case which tends to show that Gibbs made but one contract with Haughowout to defend him against the charge of grand larceny, and all the evidence shows that under that contract he was to pay Haughowout the sum of twenty-five dollars for Ms services to be rendered in that regard, and it was both proved and admitted that the twenty-five dollars had been paid according to contract.

We are, therefore, clearly of the opinion that the finding and decree of the court, based upon the evidence introduced, were correct, and would be affirmed without further consideration except for the error to be mentioned in the second paragraph of this opinion.

II. The pleadings and the evidence disclose the fact that at the time of the institution of this suit T. B. Haughowout, one of the parties to the deed in question, was dead; and that over the objections and exceptions of defendants, the plaintiff, William Gibbs, the other party to the deed, was permitted to testify as to what the contract was, as well as the nature of the deed, and the purpose for which it was given.

Section 4652, Revised Statutes 1899, provides that where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action shall not he admitted to testify, etc. The action of the trial court in permitting the witness Gibbs to testify in the cause under the facts above stated was a plain violation of said section of the statute. He was not a competent witness in the case, and the court committed error in permitting him to testify.

But notwithstanding this error, should the judgment be affirmed? We are of the opinion that the error was harmless and did not and could not affect the results of the case, even though the judgment should be reversed and a new trial awarded, for the reason that two other competent witnesses, and the only ones who testified upon the subject, stated that they were present when the agreement was entered into between Haughowout and Gibbs regarding the execution of the deed in question, and they are explicit in their testimony that it was the understanding and agreement between them that the deed was to be made by Gibbs to Haughowout for the purpose of indemnifying the latter for signing the former’s appearance bond, and that he expressly agreed in their presence to' cancel the deed or reconvey the land to Gibbs if he appeared before the court according to the conditions of the bond. There is not a word of evidence in this record which tends to contradict their evidence upon those questions. So, if we exclude and disregard all of Gibbs’s evidence, which we must do under the plain letter of the statute, yet all the evidence remaining in the case conclusively shows that the deed was intended by the parties to be a mortgage, and that it was given to indemnify Haughowont against loss for having signed the bond, and not as security for attorney fees, for professional services to be rendered by him for Gibbs, as is charged in the answer of the administrator.

This court has many times held that on appeal in equity cases it would consider evidence which was improperly excluded by the trial court, or reject evidence improperly admitted when preserved in the bill of exceptions without reversing the judgment for that reason. [State ex rel. v. Jarrott, 183 Mo. l. c. 218.] And it has also been uniformly held that in equity cases this court would on appeal proceed de novo to hear and determine the cause, deferring somewhat to the findings of the trial court; but if its findings and judgment were not sustained by the evidence and law, then this court would proceed to make its own finding and. enter judgment as equity and justice might require. [Blount v. Spratt, 113 Mo. 48; Courtney v. Blackwell, 150 Mo. 267; State ex rel. v. Jarrott, 183 Mo. 204.] According to the doctrine announced in these cases, it is the duty .of this court to exclude the evidence of Gibbs and to affirm the judgment, if it is for the right party.

After excluding the testimony of Gibbs, we are still of the opinion that this court would not be justified in disturbing the judgment canceling the deed in question.

This view of the case renders it unnecessary for us to pass upon the question as to whether or not the taking of the deposition of William Gibbs by one of the defepdants without the knowledge or consent of the others waived his incompetency to testify in the case in so far as the other defendants were concerned'.

Finding no reversible error in the record, and the judgment being for the right parties, it should be affirmed, and it is so ordered.

All concur.


author: LAMM, J.

text:
    MARY F. RODAN, Appellant, v. ST. LOUIS TRANSIT COMPANY.
    Division One,
    November 27, 1907.
    1. ONE NEW TRIAL: Discretion. The granting of a new trial rests within the sound discretion of the trial court; and its action in that regard will not be disturbed on appeal, unless it appears that its discretionary power was abused, that is, exercised in an arbitrary or improvident manner.
    2. EVIDENCE: Testimony Before Coroner. Testimony before the coroner as to what deceased was doing at the time and immediately before he w'as struck by the street car, is not substantive evidence on the trial of the damage suit; its force is spent in showing contradictory statements to impeach the witness.
    3. -: Impeaching One's Witness. If plaintiff put a witness on the stand to prove a certain fact, he cannot impeach him; by the act of putting him on the stand he vouches for his truthfulness.
    4. NEGLIGENCE: Instruction: Looking: Presumption: Evidence. Where there is testimony for plaintiff that deceased did not look or listen for the approaching car before attempting to cross the track in front of it at a crossing, which on cross-examination is contradicted, an instruction which tells the jury that unless they find from the evidence that he did not look or listen they are at liberty to presume he did look and listen, is error. Such an instruction is a hint to the jury to disregard the witness’s testimony, and indulge a presumption based on the assumed absence of his testimony.
    5. PRESUMPTION: Evidence. When the evidence is contrary to the presumption invoked, the presumption itself cannot be laid hold of for use in administering justice in a particular case. Where there is positive evidence on plaintiff’s part both that deceased did and that he did not look and listen before attempting to cross the railway tracks in front of •an approaching car, the jury cannot be instructed to indulge a presumption that he did look and listen.
    Appeal from St. Louis City Circuit Court. — Row. O’Neill By cm, Judge.

      Affirmed.

      Campbell é Thompson for appellant.
    Plaintiff’s instruction 7 was proper, and the court erred in granting a new trial because such instruction was given. Weller v. Railroad, 164 Mo. 205; Riska v. Railroad, 180 Mo. 168; Eckharcl v. Railroad, 190' Mo. 593; Mockowik v. Railroad, 196 Mo. 511; Railroad v. Landrigan, 191 U. S. 461.

      Boyle & Priest, Morton Jour dam and Edward T. Miller for respondent.
    Plaintiff’s instruction 7, for giving which the trial court confessed error, was clearly erroneous. Schmidt v. Railroad, 191 Mo. 215; Mockowik v. Railroad, 196 Mo. 550; Porter v. Railroad, 199 Mo. 82.
   LAMM, J.

— Plaintiff, widow of Philip Rodan, sued for statutory damages for his alleged wrongful death at the hands of defendant. Recovering a judgment for $5,000 at a jury trial, presently the trial court, on motion, ordered her judgment set aside. She appeals from that order.

Her right of action is grounded, first, on the general charge that as her husband was passing between six and seven o’clock on the morning of the 28th of November, 1903, over the crossing of Walton and Lelmar avenues, public streets in St. Louis, the defendant’s servants in charge of an electric car running west on Delmar avenue so negligently and carelessly ran, controlled and managed said car as to cause it to run against said Rodan, thereby injuring him so that he died; second, that defendant through its servants in charge of its said car negligently and carelessly ran it over the crossing of a public street at a great and dangerously high rate of speed and without giving any warning or signal by bell or otherwise of the car’s approach, thereby contributing to cause the death of plaintiff’s husband; third, that there was a speed ordinance in force in St. Louis limiting the speed of the car in question at the time and place to a maximum of fifteen miles per hour, and that in'violation of this regulation defendant was running its car in excess of fifteen miles an hour and thereby- contributed to cause the death of her husband; and, fourth, that there was an ordinance in force in St. Louis at the time, known as the Vigilant Watch Ordinance, and that defendant violated the terms of this ordinance in specified particulars and thereby contributed to cause the death of her husband.

The answer was a general denial and a plea of contributory negligence in going upon the track directly in front of a moving car.

The reply, put in issue the defense- of contributory negligence.

Plaintiff’s case on the facts is this-:

A sixty-foot street in St. Louis, known as Delmar avenue, runs practically east and west at the point of the accident. Walton avenue runs north and south and intersects Delmar at that point, practically at right angles. Standing at this intersection one can see east on Delmar, say, two blocks to Taylor, and west, say, three blocks to King’s Highway. Doing west Delmar approaches Walton on a down grade — from thence- on the grade is up. All the evidence- tends to- show that Philip Rodan had either come south on the west side of Walton, or was standing at the northwest corner, and from thence he apparently passed south, on the west side of the intersection, directly across defendant’s track laid on Delmar. Prom his starting point (the curb) it was seventeen feet to the north rail of the track on which the car ran. Two tracks were laid on Delmar — one for west-bound and one for east-bound cars — the south track, as we infer, was for the latter.' Rodan was struck by a west-bound car and, therefore, on the north track. He was unconscious when picked up, bleeding from a gaping wound in his head and presently died.

The time was between half past six and a quarter to seven on the morning of November 28, 1903. No witness saw Rodan that morning before he was struck, save one joe Edwards, on whose testimony the case somewhat turns, and whose testimony will hereafter be set forth in detail. A good many passengers were aboard, among them several officers.

The speed of the car was variously estimated, some gauging it by the expression “pretty fast;” others by the expression “terrible rate of speed;” and still others, who seem qualified to speak, putting it at twenty-five miles an hour. Evidence was put in-tending to show that the ear was equipped with brakes and a reverse lever, and that it could have' been stopped, going at twenty-five miles an hour, by the use of brakes and without the reverse in 135 feet, and with the reverse in one hundred feet. Going fifteen miles an hour, it could have been brought to a standstill by the brakes alone in from seventy-five to eighty feet, and with the reverse in from fifty to fifty-five feet. •

As to signals, there was evidence put in tending to show that no gong was rung or bell sounded as the car approached the intersection. This character of testimony varied as usual. Some of the witnesses were paying no attention to signals and heard none; others were alert and heard none.

The state of light may be got at from a variety of descriptions. For instance, there was testimony that the gas lamp was still burning at the northwest corner of the intersection at the time he stepped from that corner. One witness said “it was pretty light, it was not very dark.” Another said, “It was good dawn day; one could see a man quite a distance; . . . well, I judge you could see a man a block off. ’ ’ One witness, a passenger, testified that when the car finally stopped, nearly a block beyond the intersection, he stood up and, looking back out of the rear of the car, saw Eodan lying in the street and could tell within an “inch” at that time in the morning where he was lying — “had a plain view.” And it may be said that it was substantially shown by the preponderance of the evidence that the outline, the form, of a man could be distinguished at that distance, to-wit, from 150 to 300 feet, though one witness described the morning as “hazy,” and another as “misty.” It was in evidence, too, that milkmen were delivering milk to their morning customers at the time.

, It was shown that the collision produced a jar to the car and shivered and smashed the glass in its vestibule, the broken bits clattering down over the floor. This crash or jar was heard, or felt, by the passengers, and heard by others not passengers, who did not see the collision. The motorman was riding in the vestibule, and all the testimony tends to show it was shut off from the body of the car and the curtains were down over the windows in the partition, so that passengers could not see directly west, that is, out in front. Whether the curtains were down at the side windows so as to interrupt the view out and in front therefrom remains undisclosed from any witness save Edwards, who claims to have looked out of the side windows towards the front and to have seen Eodan. Whether the car was lit up remains in doubt — some witnesses hazarding a guess that it was, and others having no recollection one way or the other.

The distance the car ran after striking Eodan is put by some at a block; by some at something less; by others at about half a block; and some say it ran two or three car-lengths. No witness felt the reverse going on before the collision; and the evidence tends to establish the fact that the car was not checked prior to the collision andv he crash. Exclamations were pnt in from the motormVNi as a part of the res gestae, thus: “A man run right m front of my car;” and a man “stepped into my car.”

There was evidence that Rodan was knocked seventy-five feet, other evidence puts it at fifty feet, and still ■other evidence at thirty feet. One witness (a bystander) testified that when he heard the crash he lifted his eyes and saw “something rolling like a ball” for twenty-five feet. It was shown that Rodan was knocked west and south over all the tracks, and lay a few feet from the south rail of the east-bound track on Delmar.

To further make out her case, plaintiff put one Joe Edwards on the stand, who testified he got on the car somewhere east of Walton and was on his way to his work at a livery stable. He heard no gong after the car left Taylor. As this witness either assigns himself the role of the only eye-witness, or toys with that role as an understudy, and as stress is laid upon his testimony by the trial court in sustaining the motion for a new trial, it will serve a useful purpose to let portions of his testimony run by questions and answers, thus:

“Q. Where were you sitting? A. Sitting about three seats from the front end of the car.
“Q. And the curtain was raised in front of you? A. No, sir; the curtains direct in front of me were down.
“Q. Could you see out in front? A. Yes, sir, I could see from the side window.
“Q. Could you see from the side and front? A. Yes, sir.
“Q. You were on the third seat from the front? A. Yes, sir. . . .
“Q. Did you see a man approaching the track? A. Yes, sir.
“Q. How far away, was the car from the man when you first saw him step into the street? A. About 150 feet.
“Q. About 150 feet away? A. Yes, sir.
“Q. State what the man did; was he approaching the car? A. He urns going south on Walton avenue, crossing the tracks.
“Q. State how he did; did he proceed on across the track? A. He just proceeded on across the tracks.
“Q. And the car was approaching at this rate of speed? A. Yes, sir. . . .
(By Mr. Thompson) State what happened? A. The car was going, I guess, at the rate of twenty-five miles an hour, going west on Delmar; when I first saw the man, he was going south on Walton; I seen him as he left the sidewalk underneath the gas light; he was going on across; he didn’t pay no attention because there was nothing to attract attention to the car; I didn’t hear anything of the gong after leaving 4500.
“Q. Go ahead; yon say you saw the mm as he stepped in the street? A. Tes, sir.
“Q. What happened? A. Just as he gets in the track the car was right upon him; it hit him; the car couldn’t stop where it was on him, it was running so fast just at that time, the car hit him and I heard the noise of the glass breaking .in front of the car.
“Q. Just at that moment that the man was hit, I suppose you did not see him? A. No, sir; I couldn’t see him, but I saw him when he came from the sidewalk.
“Q. Tou saw him as he stepped on the track? A. Tes, sir; and I heard the noise of the glass • breaking, the car didn’t stop until it gets about twenty feet east of Bayard avenue, that is about twenty-five feet west of the feed store and the confectionery store.
“Q. How far was the body knocked? A. I guess about fifty feet beyond tbe other side of the track, south side of the track.
“Q. On which crossing of Walton avenue was he struck? A. He was struck on the west side.
1 ‘ Q. He was going from- the north side of Delmar to the south side? A. Yes, sir; on the west side of Walton.
“Q. Was he going in a direct line right direct across the street? A. Yes, sir; going right straight across the street

On cross-examination, Edwards said he could not see what the motorman was doing because the curtain was down; that, seated on the north or right hand side in the second or third seat, he was looking out towards the front. Then the following occurred':

“Q. And you saw a man coming south on Walton avenue? A. Yes, sir.
“ Q. He was walking on the west side of the street, was he? A. Yes, sir.
‘ ‘ Q. And you saw him as he was leaving the sidewalk? A. Yes, sir.
“Q. Now, how far was it from the car track to where you saw him leaving the sidewalk? A. It was about 12 feet, I guess. '
“Q. About 12 feet? A. I guess so:
“Q. And your ear was then how far away? A. About 150 feet away, I guess, something like that, when I first saw him leaving the sidewalk.
“Q. This gentleman walked twelve feet toward the car while the car was running 150 feet? A. Yes, sir.
“Q. And they met right on the west crossing,' didn’t they? A. Yes, sir.
“Q. That is, where the accident occurred? A. Yes, sir.
“You didn’t see the man when he got up to the track, did you, you couldn’t see him then for the curtain? A. No, sir, I couldn’t see him for the curtain, but I saw him when he stepped from the sidewalk.
“Q. But after that he ims lost to your view? A. Yes, sir.
‘ ‘ Q. You couldn’t see him after he left the sideivalk? A. No, sir.
‘Q. On account of the curtain? A. Yes, sir.
“Q. You don’t know what he did after he left the sidewalk, up to the time of the accident? A. No, sir.
“Q. You don’t know what happened? A. No, sir.
“Q. Did you see him looking towards the car? A. No, sir. ^
“Q. Now Joe, are you sure about that? A. Yes, sir, I am positive.
“Q. You are positive that you didn’t see him looking towards the car? A. No, sir.
“Q. Did he stop after he walked up there, as if to get on the car? A. No, sir.
“Q. You didn’t see him stop after he left the sidewalk, where passengers usually stop when they want to get on the car? A. Yes, sir.
“Q. Did you or not? A. No, sir, I didn’t see him stop.
“Q. Now, you are sure of that? A. Yes, sir.
“Q. You didn’t see him walk up there and stand until the car got almost to him, and then stop on the track, did you? A. No, sir.
“Q. You are sure about that? A. Yes, sir.
‘ ‘ Q. Did you notice the motorman begin to slacken up the speed of the car while he was east, on the east side of Walton avenue, before he got to Walton avenue? A. No, sir, I didn’t notice.
“Q. You didn’t notice that, you say now that the car was running about twenty-five miles an hour? A. Yes, sir.
“Q. And yon are snre about that? A. Yes, sir.
“Q. You say now that the bell was not ringing?
A. No, sir.
“Q. You. are also sure about that? A. Yes, sir.
“Q. Did it seena to you that this man thought he could get in front of the car and tried and was struck? A. No, sir, it did not seem to me that way.
“Q. You testified as a witness at the inquest before the coroner, didn’t you? A. Yes, sir.
“Q. You were sworn there to tell the truth, the whole truth, and nothing but the truth, were you? A. Yes, sir.
“ Q. And you testified there as a witness? A. Yes, sir.
■ “Q. A stenographer wrote down your testimony before the coroner, didn’t he? A. Yes, sir. •
“Q. And after you had gone away for a day or two you went back there and signed it? A. I never went back no more after the first time.
“Q. You didn’t go back after the first day? A. No, sir.
“Q. That was on the 30th day of November, that you went before the coroner, wasn’t it? A. I don’t know, sir, what date it was.
“Q. Well, it was two days after the accident, wasn’t it? A. Yes, sir, I guess about two days after:
“Q. And your recollection was better then than it is now, wasn’t it? A. No, sir,' my recollection is better now than it was then.
“Q. How do you account for that; Joe, wouldn’t it be better a day or two after the accident than five or six months after? A. Not being accustomed to going before him at the coroner’s inquest I got a little excited down there and my testimony was not exactly the way it should have been.
“Q. Your testimony before the coroner was not true? A. Not exactly, by being a little scared at tbe time.
“Q. Why were you scared down there, there was no lawyer there cross-examining you, the deputy coroner asked you questions there, didn’t he? A. Yes, sir.
“Q. And you answered the questions and did you answer those questions truthfully at that time? A. No-, sir, not exactly truthful.
“Q. Not exactly truthful at that time? A. No, sir.
“Q. How do you know that you did not answer the questions truthfully at that time, has your attention been called to that testimony since? A. No, sir, I have not been down there since.
“ Q. No, but has anybody talked to you about what you swore- to before the coroner? A. No, sir.
“Q. Do you remember what you testified to down there? A. No, sir, I don’t think I do, I can’t remember what I did say.
“Q. Why do you say that you did not answer the questions truthfully down there? A. By being a little scared a person would say most anything that was never before a coroner.
“Q. There were not one-quarter as many people in the coroner’s office as there are in the court room here, were there? A. No, sir.
“Q. And it was the second day or about the second day after the accident, wasn’t it? A. Yes, I think it was about the second day.
“Q. There was no lawyer cross-examining you, or examining you, the coroner asked you a few questions, what was there to- excite you? A. Nothing at all.
“Q. Who has talked to you about your testimony since you testified before the coroner? A. No one has talked to me.
“Q. Nobody has spoken to you about it? A. No, sir.
“Q. Not a word; now, when you were before the coroner, I will ask you to state if you were not asked, ‘Were you on the west-bound car on the morning of November 28th?’ and didn’t you answer, ‘Yes, sir?’ A. Yes, sir.
“ Q. And were you not asked then, ‘Did you strike a man at Delmar and Walton?’ and did you not say, ‘Yes, sir?’ A. Yes, sir.
“Q. ‘Where were you?’ and did you not answer, ‘Two> seats in the front of the car?’ A. Yes. sir. .
“Q. ‘Did you see any of it?’ and did you not answer, ‘Yes, sir?’ A. Yes, sir.
“Q. ‘What did you see?’ and in answer to that question didn’t you testify there as a witness, ‘The man was standing like he wanted to get on and then he crossed in front of the car, the car got so near him the car was slacked up and the motorman thought may be he wanted to get on, it looked like he wanted to get on,’ did you testify to that before the coroner? A. Yes, sir.
‘ ‘ Q. Then you were asked, ‘ Did he see the car coming?’ and didn’t you answer there, ‘Yes, sir; he stood there until the car got very near to him,’ didn’t you make that answer there? A. Yes, sir.
“Q. ‘Was he looking up at the car?’ and didn’t you say in answer to that, ‘Yes, sir; it looked like he wanted to get on,’ — did you make that answer? A. Yes, sir. .
“Q. Speak a little louder, Joe. A. Yes, sir.
“Q. ‘Did he step in front of the car as the car got near to him?’ and didn’t you make this answer, ‘Yes, sir; it looked like he tried to cross in front of the car?’ A. Yes, sir.
“Q. You made that answer there under oath as a witness; were you not asked this question, ‘Which side of the ear hit him?’ and did you not answer, ‘It looked like the north part of the car hit him,’ — you made that answer? A. Yes, sir.
“Q. Then you were asked this question, ‘The motorman slackened up?’ A. ‘Yes, sir,’ — did you testify to that before the coroner? A. Yes, sir.
“Q. Speak a little louder, and won’t you take your hand down so that the jury can hear you? ‘Q. How far away was he then?’ Now, did you make this answer, ‘ The motorman commenced slacking up on the east side of Walton as he was going to the west’ — you made that answer there, did you? A. Yes, sir.
' “Q. ‘Was he going fast? A. Not so extra fast,’ did you make that answer? A. Yes, sir.
“Q. Then were you asked this question, ‘Was he ringing the bell?’ A. ‘Yes, sir; the bell was ringing all right;’ did you make that answer? A. Yes, sir.
“Q. You made that answer there under oath as a witness before the coroner; were you then asked this question, ‘It seemed to you as if he thought he could get in front of the car and tried to and the car hit him? A. Yes, sir;’ did you say in answer to that question, ‘Yes, sir?’ A. Yes, sir.
“Q. Were you then asked this question, ‘Which side of the car were you sitting on? A. On the north side of the car,’ — did you make that answer? A. Yes, sir.
“Q. Were you asked this question, ‘You had a plain view of him? A. Yes, sir; from the lights on the corner;’ — did. you make that answer? A. Yes, sir.
“Q. Then you were asked, ‘There was nobody sitting in front of you?’ and did you answer, ‘Ho, sir; nobody at all?’ A. Yes, sir.
“Q. Now, you made those answers to questions asked you by the coroner on the 30th of last November, two days after the accident while testifying as a witness, did yon? A. Yes, sir.
“Q. Speak a little louder. A. Yes, sir.
“Q. And you were sworn as a witness there just as you were here? A. Yes, sir.
“ Q. You held up your hand and took the oath to tell the truth and nothing but the truth, did you? A. Yes, sir.
“Q. And that was your testimony before the coroner as I have read it to you, is that true? A. Yes, sir.”

Having put in the Vigilant Watch Ordinance and the Speed Ordinance and proved the allegations of her petition pertaining to said ordinances, plaintiff rested.

Defendant introduced no testimony and asked and was refused one instruction, a peremptory one.

Among the instructions given for plaintiff was one, numbered 7, as follows:

“The court instructs the jury, that unless you find from the evidence that Philip Rodan, the deceased, did not look and listen, before going upon defendant’s track, on the occasion of his death, then you are instructed that you are at liberty to presume that on said occasion he did look and listen for an approaching car before going on said track of defendant.”

Among the grounds presented in the motion for a new trial was error in the giving of the foregoing instruction. As said, the court sustained said motion, filing a written opinion as follows:

“The defendant’s motion for a new trial must be sustained because of the giving of instruction numbered 7 asked by the plaintiff.
“That instruction, in substance, told the jury that they might presume the deceased looked and listened for the car unless they found he did not look and listen. This instruction, in the absence of any evidence as to what he actually did in the way of looking and listening before going on the tracks would be good under the' authority of Railroad v. Landrigan, 191 U. S. 461, and Riska v. Railroad, 180 Mo. 168, cited by plaintiff’s counsel. In the case at bar, one of plaintiff’s witnesses, Joe Edwards, testified on direct examination that when he first saw deceased he was going south on Walton, saw him leave the sidewalk and go on across, paying no attention because there was nothing to attract attention to the car, the gong not being sounded. Here was an explicit statement that this witness was looking at the deceased and the latter went across paying no attention to the car. This is positive, not merely negative, testimony as in the Riska case.
“In the light of Edwards’ admissions, on cross-examination, as to what he had stated before the coroner, just the opposite of much that he said at this trial, it is possible the jury paid no attention to the testimony above quoted. It suffices for the purposes of this motion that this testimony was before the jury, and with it in the case the said instruction numbered 7 ought not to have been given. The motion for a new trial is sustained for the reason assigned.”

If the reasons given, nisi, for the ruling are good, it will not be necessary to cast about for other reasons sustaining that ruling, or consider others pressed here by defendant’s learned counsel.

Was the court right in granting a new trial on the reason given? We think so, because:

(a) In the first place, in limine, it must be assumed as a commonplace of the law, arising to the level of an axiom, that the granting of a new trial rests within the sound discretion of the trial court; and its action in that behalf will not be disturbed on appeal unless it appears that its discretionary power was abused, i. e., exercised in an arbitrary or improvident maimer. [R. S. 1899, sec. 800; and see first note under that section, Ann. St. 1906, 761, where the authorities are gathered.]

(b) Keeping in view the foregoing propositions and attending to the testimony of Edwards, it will be seen that plaintiff introduced testimony from him unquestionably directed to proof of a fact, to-wit, that decedent did not look and did not listen. The significance of this crops out when it is recalled that Edwards is the only eye-witness. He puts himself in the shoes of one who, looking out of the windows on the north side of the car with eyes to the front where Rodan was, sees him leave the curb and go straight across the tracks, and “pay no attention,” and his eye follows him to the very instant of his stepping on the track. He says he could see the man “approach the track.” When asked if he saw him “as he stepped on the track?” He answers: “Yes, sir.” The witness goes so far even as to give the reason Rodan had for not.looking, to-wit, that there was nothing to attract attention to the ear — no warning signal.

If the testimony of this witness at the inquest (developed on cross-examination) be looked at as substantive evidence, then it is apparent he was stating under oath that Rodan did look and did see the car before taldng the last fatal step into danger and death. But, of course, the testimony before the coroner was not substantive evidence, the force of this part of the cross-examination was spent in showing contradictory statements, to impeach the witness.

Edwards in further cross-examination evidently took the curtains in front of the car as stumbling-blocks and (confronted by them) there comes a palpable hitch in his testimony. A change comes over its tenor and he testifies he did not see Rodan after he left the curb, quite losing sight of the side windows through which he was looking forward an instant before. In this state of the proof it must not be lost sight of that he was plaintiff’s witness. By the act of putting him on the stand she vouched for his truthfulness, stood sponsor for his credibility, invited the jury to believe him as one without spot or guile, and could not (if she would) turn about and impeach him or strike him down. One may not drink from a spring and then roil it, or from a pitcher and then break it. If A put B on the stand and prove by him a certain state of facts, this does not preclude A from putting O, D or E on the stand and proving a different state of facts; but if A puts B on the stand as his only witness to prove a fact, and does prove it, then he is precluded from impeaching B, or from otherwise inviting the jury to disregard B’s testimony. He may not avoid his dilemma in that way.

Instruction numbered 7 does that very thing. It recognizes there was testimony that Mr. Rodan did not look and did not listen. It says to the jury, in effect: You are at liberty to presume that Mr. Rodan did look and listen for a car before going on the track, unless you find from the evidence he did not look or listen. If this was not a hint, a roundabout but persuasive suggestion, to the jury to blink or discard the testimony of plaintiff’s witness, Edwards, and indulge a presumption based on the absence of his testimony, what was it?

Indulging an hypothesis and coming into the open, suppose (defendant putting in no proof) plaintiff had asked and got an instruction to this effect: If the jury believe the testimony of Edwards, in his examination in chief, then you should find that decedent did not look and listen before he stepped on the track. But the jury are further instructed in this behalf that you are not bound to take the statements of any witness as true; you are at liberty to discard false testimony. If, therefore, you believe Edwards’ testimony in chief was false or that his testimony on cross-examination is true, then there is no evidence in the case that decedent did not look or listen; and, with that evidence absent, you are at liberty to presume decedent did look and listen. Could that or a like instruction be sustained on reason or authority? And yet the instruction given headed the same way and was a covert invitation to the jury to discard Edwards’ testimony in chief in order to presume a fact based on the absence of such testimony and advantageous to plaintiff’s case.

Observe, we are not dealing with a case where plaintiff put in no evidence tending to show decedent did not look and listen; nor are we dealing with a case in which a doubt creeps in through the door of defendant’s testimony. The law of such a case, therefore, concerns us not. "We are dealing with a case in which the plaintiff is apparently trying to get away from a part of her own testimony and recover on the theory that it may (or ought) not to be believed by the jury — a case in which the jury are invited to indulge a presumption that Rodan was exercising due care, and, in exercising it, he either did not see the car when he looked or hear it when he listened, or that, seeing and hearing, he could not tell in the uncertain light how fast it was approaching and had the right to presume it traveled at' ordinance speed, in which event, he was in no danger in going on his way and crossing. In this view the instruction was wrong and the ruling of the trial court well enough.

(e) The conclusion reached in the foregoing paragraph is sustained by other reasons. For example, the basic principle upon which presumptions are buili is philosophically related to the doctrine of faith. Now. faith, says Paul, is the substance of things hoped for. the evidence of things not seen. [Heb.ll:l.q.v.] “Presumption,” says Mathews (Mat. Presum. Ev. 1), “is a principle of law, by which, for the furtherance and support of right, facts not established by positive evidence are inferred from circumstances.” That is, where the thing itself is unseen and unknown, in a close sense, it may yet be deemed seen and known in the light of the knowledge of mankind based on frequent occurrence and found from experience to be generally accordant with truth. A presumption, therefore, of a rebuttable character, such as here, only remains in force until repelled by contrary evidence. It follows that when the evidence is contrary to the presumption invoked, the presumption itself cannot be laid hold of for use in administering justice in a particular case. Take a familiar illustration: A presumption of death arises under certain circumstances, on the lapse of a given period of time; yet that presumption could not be invoked by plaintiff in a case where plaintiff’s evidence showed the man alive. That the foregoing rule governing the use of rebuttable presumptions is steadily applied, is beyond question. For instance :

In Weller v. Railroad, 120 Mo. l. c. 650, this court said: “In the absence of evidence, did the jury have a right to draw the inference that deceased did what common prudence and ordinary care demanded of him? The rule of law that ordinary care requires a traveler at a railway crossing to look up> and down the track, when the view is unobstructed, before venturing to cross it, is drawn from the ordinary conduct of the average of mankind in the daily affairs of life. From the same source is deduced also a correlative rule that, in the absence of direct evidence or rebutting circumstances, one, in attempting to cross a railroad track, will be presumed to have been in the exercise of proper care. [Petty v. Railroad, 88 Mo. 320; Schlereth v. Railroad, 115 Mo. 87; Crumpley v. Railroad, 111 Mo. 158.] In this case, had there been no witness to the conduct of deceased, and it had been shown that defendant was negligent in failing to comply with the ordinance requiring the train to carry a light, then the jury .might have drawn the inference that deceased looked for a train, and failed to see on account of the default of those in charge of the train.”

In Hutchinson v. Railroad, 161 Mo. l. c. 255, it was held that if decedent, without knowing and without being able to discern the speed of the tram, had assumed it was running at a less rate (to-wit, the ordinance rate) and, acting on that assumption, had attempted to cross as she did, the court would have been justified in adjudging her negligent, unless there was some other fact in the case to justify her assumption. In that case there was another fact, to-wit, the city speed ordinance, and we held that, in the absence of proof that she knew or had reason to apprehend the. contrary, the law will presume that she trusted, as she had the right to trust, that defendant was obeying the law.

In Bragg v. Railroad, 192 Mo. l. c. 352, 353, it was said: “In many cases this court has asserted the general proposition that one may safely act upon the presumption that operatives of street cars and steam cars are obeying proper and reasonable speed regulations, but the doctrine is subject to a qualification and that qualification is that no such presumption can be indulged, or acted upon, where it is seen and known that such’ cars, in a given case, are proceeding in violation of the regulation. In such case the legal purpose to be conserved by the presumption does not exist.”

In Mockowik v. Railroad, 196 Mo. l. c. 571, 572, we said: “That presumptions have no place in the presence of actual facts disclosed to the jury, or where plaintiff should have known the facts had he exercised ordinary care, is held in- many cases.”

In other cases it has been held that it is not necessary to rebut the presumption by positive testimony. It may be rebutted by the proofs of circumstances, which, remaining unassailed, make the presumption inapplicable. So in Green v. Railroad, 192 Mo. 131, a presumption of due care was invoked; but on the facts disclosed it was held inapplicable. [L. c. 141, et seq.] It was there said: “There is in this case no ground on which to construct a rational presump^tion that the deceased trusted that the engineer was obeying the ordinance. There is no evidence on which we can base a finding that she saw the engine at all until in a moment of peril. It was imminently, dangerously close when she stepped on the track.”

The Green case was followed by the Mockowik case supra; and by Stotler v. Railroad, 204 Mo. 619, where a line of cases are 'cited and reviewed. The same doctrine was announced in Schmidt v. Railroad, 191 Mo. 215. See, also, Railroad v. Landrigan, 191 U. S. 461, where the rule was formulated that “in the absence of evidence to the contrary there is a presumption that one who is killed while crossing a railroad track at night stopped, looked and listened before attempting to cross the track.”

In the light of the foregoing cases instruction numbered 7 was erroneous; for, assuming, as we have the right to do, that Mr. Rodan was sui juris and that he had full possession of his sense of sight and sense of hearing, then, considering his position on the curb in relation to the oncoming car, the state of the light, the absence of confusing conditions, the plain view, the evidence of Edwards and all the other cir-' cumstances of the case, the instruction was out of place and the court’s ruling was also well enough for the reasons just stated.

The judgment must be affirmed. It is so ordered.

All concur.


text:
    ALLEN HOLMES v. OWEN MURRAY, Appellant.
    Division One,
    November 27, 1907.
    1. KILLING SHEEP: Damages: Prima Fac'ie Case. Plaintiff makes out a prima-facie case, entitling him to go to the jury, by evidence tending to show that defendant was the owner of the dogs which killed the sheep; that he was the owner of the sheep, and that they were worth the amount of money alleged to be .their value.
    2. -: -: Constitutionality of Statute: Due Process of Law. The statute (R. S. 1899, sec. 6975) which provides that “in every case where sheep or other domestic animals are killed or maimed by dogs, the owner of such animals may recover against the owner of such dog or dogs the full amount of damages,” is not in violation of the constitutional provision which says “no person shall be deprived of life, liberty or property without due process of law.” It does not deprive the owner of the dogs of his property without due process of law. He is given due process of law when he is legally summoned, is given a full and careful hearing before a competent jury, and after a complete inquiry as to both the law and the facts damages are awarded against him by the verdict and judgment.
    3. -: -: Knowledge of Vicious Character. Nor does the fact that the statute holds the owner or keeper of the dogs liable for the damage done whether or not he has knowledge of their vicious character or traits, or whether or not they possess vicious traits, render the section unconstitutional or deprive him of his property without due process of law. It simply thereby changed his common law liability so as to impose a stricter liability.
    4. -: Dogs Owned by Member of Family. Defendant is liable for damages for sheep killed by dogs owned by his 'daughter who, though she kept house for him and was paid wages therefor, was a member of his family and kept them at his house with his knowledge and consent. He was the keeper of the dogs within the meaning of the statute.
    5. -: Evidence: Killing of Dogs by Daughter: Knowledge. Where the issue is whether the dogs which killed the sheep were owned or harbored by defendant, it is error to admit evidence for plaintiff in his suit for damages, showing that defendant’s daughter kiiled his dogs after the sheep were killed, unless it is shown that defendant had knowledge of and consented to their being killed.

      Appeal from Barry Circuit Court. — No». N. C. Pepper, Judge.
    Reversed and remanded.

      T. D. Steele and W. Cloud for appellant.
    (1) Section 6975', Revised Statutes 1899, is clearly unconstitutional and is in violation of section 30, article 2, of the Constitution. It undertakes to make and hold a person responsible for habits and traits of his animals or those upon or about his place regardless of his knowledge of their habits or traits or viciousness, and the enforcement of this statute would deprive a person of his property without due process of law. This section undertakes to hold one responsible for the acts, habits, traits and vicious propensities of his dog without any knowledge upon his part of such qualities. This would be equivalent to rendering a judgment without notice to defendant, which this court holds cannot be done. Jones v. Tore, 142 Mo. 44. It would be the same as a sale without notice, which is void. Roth v. Giabbert, 123 Mo. 29'. This section of the Constitution is a guarantee of all the elements of, and all that affects the three rights, “life,” “liberty” and “property.” St. Louis v. Hill, 116 Mo. 527. (2) Prejudicial error was committed by the court in admitting testimony showing that Miss Murray caused her dogs to be killed. There was no testimony tending to show that Mr. Murray had anything to do with or knowledge that his daughter was going to' kill them. Ely v. Railroad, 77 Mo. 37; Hale v. Van Dever, 67 Mo. 735. (3) The testimony showed that Murray was not the owner of the dogs, nor was he the keeper of them, nor did he exercise any control over them, but the testimony showed that his daughter, Miss Murray, was both the owner and keeper of the two dogs, “Dewey and Teddy.” Centainly the defendant could not be held responsible in damages under the law for what some other person’s dogs may have done, and especially when it was shown the dogs belonged to some other party, even though they, may have been on his place at the time being.

      French & May hew for respondent.
    (1) A judgment for damages, as in this case, is not equivalent to a judgment being rendered without notice to defendant, and the case of Jones v. Yore, 142 Mo. 44, does not apply. Neither does the case of Roth v. Gabbert, 123 Mo. 29. A court has jurisdiction of any subject-matter if, by the law of its organization, it has authority to take cognizance of, try and determine eases of that description. Cooley’s Const. Lim. (6 Ed.), p. 491; Jones v. Yore, 142 Mo. 54. (2) The evidence very clearly showed that the dogs that killed the sheep were the dogs owned or kept by the defendant, Murray, and no error was committed in refusing instruction 2 asked by defendant. (3) The fact that the dogs were killed soon after the sheep were killed is certainly very persuasive of the belief on the part of the owner or keeper of the dogs, and they must have had some knowledge that prompted them in killing the dogs. Peeler v. McMillan, 91 Mo. App. 316; Jacobsmeyer v. Poggemueller, 47 Mo. App. 560.
   WOODSON, J.

— The plaintiff instituted this suit against the defendant before a justice of the peace, in Barry county, for the recovery of forty-two dollars,' damages sustained by him in consequence of the killing of eight of his sheep, alleged to have been done by defendant’s dogs.

The suit is based upon section 6975, Revised Statutes 1899.

There was a trial before the justice, which resulted in a judgment for the plaintiff, from which the defendant appealed to the circuit court of that county; upon a trial de %ovo in the circuit court the jury found for the plaintiff and assessed his damages at the sum of thirty-six dollars, and judgment was rendered accordingly; and in due time and in proper manner defendant appealed the cause to this court.

The plaintiff introduced evidence tending to prove that he was the owner of the sheep and that they were worth forty-two' dollars; and that they were killed by three dogs; that the dogs which did the killing belonged to the defendant. Over the objections and exceptions of defendant, the court permitted the introduction of evidence tending to show that defendant’s daughter, without his knowledge, had two of the dogs killed sometime after the sheep were killed.

Whereupon defendant asked a demurrer to the evidence, which was by the court overruled, and he duly excepted.

The evidence for defendant tended to prove that he was a widower, with no family except his daughter, who lived with and kept house for him, for which he paid her wages. Some of the evidence tended to show the daughter owned two of the dogs, while other portions of it tended to show all of them belonged to him. His entire evidence tended to prove that neither his nor his daughter’s dogs killed the sheep.

At the request of the plaintiff the court gave two instructions in his behalf, to the giving of one of which the defendant duly excepted and saved his exceptions, and which is as follows:

“2. The court instructs the jury, that even though you may believe from the evidence that the dogs in question were owned by the daughter of defendant, and that she lived with and made her home with her father, the defendant; and that such dogs were knowingly permitted to be kept on the place and premises of defendant; then in such case the defendant is, within the meaning of the statutes, the keeper of such dogs and is responsible for any damage they .may do.”

The court then gave certain instructions for defendant, and refused number 2 asked by him, which is as follows:

“2. The court instructs the jury that if they believe from the evidence that it was the dogs belonging to and owned by Miss Mary Murray or any other person than the defendant that killed plaintiff’s sheep, then your verdict must be for the defendant.”

The appellant makes the following assignments of error:

1. The court erred in overruling the demurrer to plaintiff’s testimony.

2. The court erred in refusing instruction numbered 2 asked by the defendant.

3. The court erred in admitting testimony showing that Miss Murray, after the sheep are alleged to have been killed, caused her dogs to be killed.

I. The defendant’s demurrer to the evidence presents two legal propositions for determination — first, that there was not sufficient evidence introduced to make out a prima facie case for plaintiff; and, second, that section 6975, Revised Statutes 1899, is unconstitutional and void.

As to the first proposition we desire to state, that, after a careful reading of the entire evidence in the case, we are unable to concur in the views of the learned counsel regarding the sufficiency of the evidence to make out a case for the jury. It tended to show that the defendant was the owner of dogs which killed the sheep, and that the plaintiff was the owner of the sheep and that they were worth forty-two dollars. This made out a prima facie case under the statute referred to, and it was, therefore, the duty of the court to submit the issues to the jury. [Barth v. Railroad, 142 Mo. 548, 549.]

The second proposition commanding consideration is that section 6975, Revised Statutes 1899', is unconstitutional,- in that it violates section 30 of article 2 of the Constitution of 1875, which provides: “That no person shall he deprived of life, liberty or property without due process of law.”

Section 6975 reads as follows: “In every case where sheep or other domestic animals are hilled or maimed by dogs, the owner of such animals may recover against the owner or keeper of such dog or dogs the full amount of damages, and the owner shall forthwith kill such dog or dogs,” etc.

The contention of defendant is that this section undertakes to hold him liable for the vicious habits and traits of his dogs or those harbored by him regardless of his knowledge of their vicious characters, and that the enforcement of this statute would deprive him of his property without due process of law.

This is a misconception of the meaning of the constitutional provision referred to. This court, in the discussion of that section of the Constitution, said, in the case of Mathews v. Railroad, 121 Mo. l. c. 322: “We accept Mr. Webster’s definition of the law of the land: ‘By law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.’ ”

There is nothing in the statute which denies the defendant any of those rights; but, upon the other hand, the defendant was duly summoned to appear and defend the suit; he was given a full and careful hearing; and after a complete inquiry as to both the law and the facts of the case, he was. adjudged to pay the damage. That is all the letter or the spirit of the Constitution guaranteed unto him. The Legislature in no manner attempted to deprive defendant of his property without due process of law, but simply changed the common-law rule of his liability so as to impose a stricter liability.

The St. Louis Court of Appeals said, in discussing this statute, that “at common law a person could not be made liable for injuries inflicted by vicious dogs belonging to him or under his control, unless the complaint averred and it was established on the trial that such owner or keeper was advised of the mischievous traits of his dogs. The statute merely dispenses with all proof of scienter, and did not undertake to create a new or independent cause of action. It merely changed the common-law rule so as to impose a stricter liability. [2 Shearman & Redfield on Neg. (4 Ed.), sec. 628.]” [Jacobsmeyer v. Poggemoeller, 47 Mo. App. l. c. 562, 563.]

The same enunciation of the law under similar statutes has been made in the following cases: Brent v. Kimball, 60 Ill. 211; Ballou v. Humphrey, 8 Kan. 220; Trompen v. Verhage, 54 Mich. 304; East Kingston v. Towle, 48 N. H. 57; Fish v. Skut, 21 Barb. (N. Y.) 333; Job v. Harlan, 13 Ohio St. 485; Kerr v. O’Connor, 63 Pa. St. 341; Slinger v. Henneman, 38 Wis. 504; Reg. v. Perrin, 16 Ont. 446; 2 Cyc., p. 370.

This is the same conclusion reached by this court in Mathews v. Railroad, supra. It was there held that prior to the enactment of section 2615*, Revised Statutes 1889, a railroad company was not liable for damage done to property by fire escaping from its engines without the owner of the property should allege and prove that the company allowed the fire to escape through the negligence and carelessness of its agents and servants in charge of its engines; and that after the passage of that statute it was not necessary to alleg'e or prove the negligence in order to justify a recovery thereunder.

Under the doctrine thus announced before the plaintiff would be permitted to recover damages for injury done to his sheep by vicious dogs, he would be required to prove to the satisfaction of the jury, in a court duly organized and constituted to hear and determine such matters, that he was the owner of the sheep and that the defendant’s dogs injured or killed them; and from the evidence the jury would have to determine the amount of the damages. • This is in no sense the taking of property without due process 'of law, and we must, therefore, decide this question against the defendant.

EC. The defendant contends that the action of the trial court in refusing to give instruction numbered 2 asked by him was reversible error. In effect it declared the law to be, that if the jury believed from the evidence that the dogs belonged to the daughter and that they killed plaintiff’s sheep, then they would find for the defendant.

We are unable to lend our assent to that declaration of the law. Even admitting the dogs belonged to the daughter, yet the uncontradicted evidence on both sides disclosed the fact that the daughter lived with and kept house for the defendant, and that he paid her wages for her services, and that with his knowledge and consent they were kept at his house. The law is well settled.that if a person harbors a dog,, or permits his servant to keep such an animal on his premises, that will constitute such person a keeper of the animal within the meaning of the statute. [Jacobsmeyer v. Poggemoeller, 47 Mo. App. l. c. 563; Barrett v. Railroad, 3 Allen 101; Shearman & Redfield on Neg. (4 Ed.), sec. 635.]

Plaintiff’s second instruction given is the counterpart of the one refused for defendant and .just considered. The reasons given by us for sustaining the action of the court in refusing defendant’s said instruction sustain the action of the trial court in giving plaintiff’s second instruction; and for that reason it will not be necessary to further notice it.

in. It is finally insisted by defendant that the court erred in admitting evidence which showed that the daughter had the dogs killed without first requiring plaintiff to show that she did so with defendant’s knowledge and consent.

This is a more' serious proposition than either of the other two before considered. The issue wasi sharp and well defined. The plaintiff’s evidence tended to show that the dogs which killed the sheep belonged to the defendant or were harbored by him, while the defendant’s evidence was equally direct and positive that neither his dogs nor those of his daughter did the killing. It was contended before the court and argued to the jury, that the fact the dogs were killed shortly after the sheep were killed was in the nature of an admission on the part of defendant that his dogs killed the sheep, or that he had knowledge of the fact that they did kill them.

In' discussing this question in the case of Peeler v. McMillan, 91 Mo. App. l. c. 316, the Kansas City Court of Appeals used this language: “The defendant also complains because the court refused to instruct the jury to the effect that because he killed his dog it was no evidence that it maimed plaintiff’s sheep. In view of the fact that the statute imposes a fine of one dollar upon owners for each day, after notice that their dogs kill sheep, we are of the opinion that the evidence that the defendant killed his dog shortly after the plaintiff’s sheep were killed is somewhat persuasive of the belief upon his part of the sheep-killing tendency of Ms said dog, and that he must have had some knowledge that prompted him in doing so. We think the court was justified in refusing to give the instruction. ’ ’

Conceding the ruling of the Kansas City Court of Appeals in that case to he correct, yet the rule there announced falls far short in its application to the facts in the case at bar. While there is one loose and disconnected expression of one of defendant’s witnesses, which, if taken alone, would tend to prove defendant concurred in having the dogs killed, yet when the entire evidence is taken and construed together, it is perfectly clear the daughter had the dogs killed upon her own responsibility, for the reason that she thought there was great danger of serious trouble between her father and the plaintiff, and in order to prevent that she, without his knowledge or consent, had the dogs killed. Under this state of facts it cannot be logically contended that, because she had them killed, the jury would be warranted in taking that fact into consideration in determining the liability of the defendant.

We are, therefore, clearly of the opinion that the action of the court in the admission of that evidence, in the absence of evidence tending to show he had knowledge of and consented to the Hlling, was prejudicial error; and for that reason the judgment is reversed and the cause remanded for a new trial.

All concur.