author: LAMM, J.

text:
    ED. J. SHUCK v. MISSOURI LUMBER & MINING COMPANY, Appellant.
    Division One,
    June 29, 1912.
    1. TAX SALE: Combination to Suppress Bidding. An agreement between outside bidders at an execution sale not to bid against each, other is good ground, when the agreement is operative, for setting aside the sale. But such an agreement to be available must be pleaded, and if not pleaded the admission of proof of it is reversible error in an appeal from a judgment setting aside the sale and deed.
    2. -: Pleading: Alleging Tax Deed: General Denial. A general denial to. a' petition charging that an illegal sale of plaintiff’s land under a judgment for taxes was made, at which defendant was the purchaser and received a sheriff’s deed, is slovenly pleading, to say the least, for thereby defendant denied the existence of the deed; and when defendant filed such an answer and failed to introduce the deed in evidence, he can not complain of a decree setting the sale aside were it not for the fact that both sides tried the ease on the theory that the sheriff’s deed was in existence.
    Appeal from Shannon Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed and remanded.

      L. B. Shuck and Louis F. Diming for appellant.

      John W. McClellan and Ed J. Shuck for respondent.
   LAMM, J.

This is a suit in equity brought in the Shannon Circuit Court. Prom a decree for plaintiff, defendant comes up.

Plaintiff claims to own the southeast quarter of section 6, township 30, range 5', in Shannon county. He charges that an illegal sale was made under a judgment for taxes in the year 1899, at which sale defendant corporation was the -purchaser and received a sheriff’s deed. That the land was worth $800', that the taxes amounted to $3.53 with some interest and costs, and that the sheriff sold it in mass without subdivision as provided by the statutes, and for a'grossly inadequate consideration. The bill shows that the judgment for taxes was against plaintiff’s grantor. Alleging a willingness to pay defendant “the amount of its bill together with the cost of making the sheriff’s deed” and charging that defendant claims some right, title or interest in the land adverse to the estate of plaintiff, he prays a decree setting aside the tax sale and that the court ascertain and determine the title and estate of plaintiff and defendant respectively.

The decree set aside the tax sale, adjudged plaintiff to be the owner of the land, that defendant had no right, title or interest in it and that it be forever barred from setting up any claim to the land or any part thereof.

Singularly enough, although defendant apparently claimed below to own the land and apparently claims here to own it through a tax sale, and the very one referred to in the bill, yet in its answer it denied “each and every allegation in said petition contained” except that relating to its incorporation — that' is, inter alia, it denied there was a tax sale, it denied it received a tax deed and it denied that it made any claim of any right, title or interest adverse to the estate of plaintiff in the land. Wherefore, the law being rated as common sense, why should a litigant muddy its own drinking water, by aspersing or denying its own title, when its title is held in judgment? Such an answer, in a case-where defendant claims to own the land under a tax sale and sheriff’s deed, is not only slovenly but dangerous and illogical pleading.

At the trial plaintiff was allowed to prove that the - representative and agent of defendant corporation, who attended the sale as a bidder on defendant’s behalf (and who bid off the land), and another bidder in the tax title line, put their heads together covinously and agreed not to bid against each other at that sale. This evidence was unsuccessfully objected to and defendant excepted. There was testimony that these two bidders betimes selected the land they would bid on. Their arrangement is summed up by the following excerpt from the testimony: “The only agreement he and I had,” said one of plaintiff’s witnesses, “was with reference to buying; he (defendant’s agent) was to stay off the lands I wanted and I was to stay off the lands he wanted; we made the agreement for the purpose of saving money in regard to buying land.” Other testimony indicated that these two- bidders, the only ones shown to he there, in fact looked over the tax sale lists, and assumed to parcel out the spoils, agreeing not to invade each other’s territory and not to bid against each other. It is also shown that they lived up- to that agreement. We pause long enough to hazard the remark that, for that turn, the old Latin satirist (throwing his eye on these two agents) would have exclaimed, as he did on another occasion: Pew nobile fratrum/ It is shown that the land was worth two dollars per acre at the time, and that it was knocked down to defendant in bulk at sixty-one dollars under the sheriff’s hammer.

There was testimony, also, that the 160 acres in suit, as was all other land sold then at tax sales in Shannon county, were sold in bulk without division and without an offer to divide or any request by the sheriff for bids on any subdivision of the land. There was testimony to the contrary. The chancellor well could have found one way or another on that issue. The finding and decree are general in terms and we cannot tell on what line of testimony the decree rests. We cannot say it rests on a sale in mass without an effort to get bids by the small or legal subdivision, and inability to do so — all this to the damage of the land owner; for the testimony, as said, is in conflict on that head. Presumably, since the court permitted evidence of a covinous contrivance between bidders to depress and chill the bidding by preventing competition (which sprung suddenly at the hearing without notice, was uncontradicted) that evidence was deemed material. If deemed material, as appears, then it produced, or vitally helped produce, the decree. Now, the testimony was not admissible and its admission was error. This, for reasons presently appearing.

We do not put our ruling on the ground that an agreement between outside bidders at an execution sale not to bid against each other, is not ground, and good ground, when the agreement is operative, for setting aside the sale. The law in that regard is that the employment, on one hand, of by-bidders or puffers is reprehensible. Such devices and combinations to unduly and artificially stimulate bidding at public auctions are frowned upon by courts when found out. [2 Free, on Ex. (3 Ed.), section 298.] So, too, the law is that a combination to depress or chill the bidding, on the other hand, is reprehensible. Both schemes are birds of a feather and both have a fraudulent end of unjust enrichment in view. Devices to prevent competition and produce a sacrifice of the interests of the debtor or of both debtor and creditor, as may be, are held to be against public policy and highly immoral. They are disapproved of in both law and equity and the fruits of such covin are snatched away from the wrongdoers by the courts when it can be done. [Ibid., section 297.] Says the same learned author in his treatise, Void Judicial Sales, sec. 40: “To avoid the sacrifice likely to ensue, notices of sale are required to be given, the property is struck off to the highest bidder, and competition among the persons intending to bid is sought to be produced. But the bidders, on their part, may enter into combinations and devices, either with one another or the officer conducting the sale, by means of which competition is lessened or altogether avoided. Every scheme looking to this result is highly immoral, and will, if possible, be thwarted by the courts. The sale may be vacated, either by motion or by a bill in equity. ’ ’

The question was up in Stewart v. Severance, 43 Mo. l. c. 334 et seq. "While the facts of that case are not the facts of this case, yet the trend of the doctrine of the Stewart case is in line with the quoted text.

There are exceptions to the rule. They arise, for example, where bidders are interested with one another in protecting liens, or where one cotenant bids for the rest, and so on. But such exceptions do not concern us in the instant case. The general doctrine is one courts are fond of applying.

The trouble with plaintiff’s case is that, under his bill as it now stands, he is not entitled to the benefit of the doctrine or to the admitted evidence-; for he did not put his right to set the sale aside on any such ground in his bill. Neither by direct allegation or by inference is there a charge made in the bill that the sale was voidable or complained of because of a' conspiracy or combination between bidders to depress or chill the bidding. It is axiomatic that things alleged and proved (allegata et probata) should correspond— the current of proof should be kept flowing within the marked out channel of the pleadings; for plaintiff may not sue on one and recover on another cause of action. When the case goes down, if he elect to amend his bill in that particular he may be entitled to the testimony, but not on his present bill.

There are other troubles. For instance, we find that though defendant relies on a shériff’s deed, it did not take the pains to introduce it in evidence. Wherefore? It may be that its counsel took the allegations of the bill relating to such deed as an admission on plaintiff’s part that the deed was executed. But they have their own answer to reckon with in that regard. They denied the existence of the deed and with such an answer we have no call to assume one exists on the cold record here. In this view of the matter, if the case had not been apparently tried below (as it was) on the theory that a sheriff’s deed was in existence which on its face duly conveyed the execution debtor’s title to defendant, we would say defendant could with exceeding sorry grace complain of a decree destroying its claim to title — a claim denied by its solemn pleading.

The case was somewhat loosely tried and loosely pleaded, nisi, and somewhat loosely briefed here in several other respects, and we reverse the judgment and remand the cause in order that the parties litigant may, if they choose, reform their pleadings and try their case anew and with care.

Other questions discussed by counsel, some of them grave, may or may not be raised again and we prefer to determine them, if so raised, or any others, when the case comes here if ever, on a proper and full record briefed as contemplated by our rules, so that we may do equity with all the facts before us and in the light of full briefs. We refer to such contentions as that the bill states no cause of action (raised here for the first time); to the question that plaintiff, being :a purchaser after the tax sale, did not thereby acquire a standing and right to set the sale aside in equity, in other words, that such right was not a vendible thing, a question indifferently briefed by respondent and to be taken with the correlated fact that at the time of the tax sale one of the deeds in plaintiff’s chain of title made before the sale, was kept off the record until after the sale.

Since this case was tried below, there have been decisions here throwing light on some of the questions involved in tax sales where the land is sold in a block. Counsel and court will have the advantage of those decisions at another trial. We think it better to express no opinion on them with the pleadings as they are now and the facts .darkly developed.

Reversed and remanded.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    CHRISTOPHER MOONEY v. GEORGE MOONEY et al., Appellants.
    Division One,
    June 29, 1912.
    1. ILLEGITIMATE CHILD: Recognized as Member of Family: Statute. Where the issue is whether the plaintiff was the child of the testator, the fact that he was treated, and recognized as a child does not bring him within the provisions of Sec. 341, R. S. 1909, which provides that “if a man, having by a woman a child or children, shall afterwards intermarry with her and shall recognize such child or children to he his, they shall thereby be legitimated”; for, though the testator intermarried with the child’s mother, yet if the child was not in fact his, the statute does not apply, since it applies only when the man has a child by the woman he married.
    2. PARENT AND CHILD: Burden of Proof: Pretermitted Heir. The burden of proof is upon a plaintiff, who claims as a pretermitted heir in spite of the testator’s will which omits all reference to him, to establish the relationship between him and the testator, and to show that he was in fact testator’s son, although his mother and testator intermarried and he was ever afterwards by them recognized as a member of their family and treated as were their other children.
    3. -: Relationship: How Established: Circumstances. The relationship of father and child can often be established only by a combination of words and facts indicating the relationship, such as the marriage of the admitted mother to the man at the time the child was begotten or born, that the child has. always borne the name of such man, was treated, maintained and educated as his child, and uniformly recognized and received in society as his child, and so acknowledged by other members of the family. But the fact of paternity cannot be established by circumstances which are perfectly consistent with direct, uncontradicted and unimpeached testimony that the fact does not exist.
    4. -: -: Prima Facie Case: Due to Kindness. Where there is no evidence tending to prove that it was claimed by any one that the man was the father of the child at the time the child was begotten or born, an.d there is no direct evidence tending to show that the man ever recognized or acknowledged the child as being his child; and there is positive evidence that the mother was in Ireland when the child was begotten, that she came to this country and in a week after the child was born and christened with the surname of its reputed father in Ireland, the woman married the man and thereafter children were born to them and the child was kept in their family, educated and maintained as a member of it, and the man was never heard to say it was his child, and in his will mentioned the younger children but did not mention said child, a prima facie case is not made o.ut in favor of such child, but the man’s conduct towards the child is to be attributed to his kindness and charity, and to his desire to hide the dishonor of the woman whose conduct he had condoned.
    Appeal from Saline Circuit Court. — Hon. Samuel . Davis, Judge.

      Reversed and remanded (with directions).

      A. F. Rector and A. B. Hoy for appellants.
    (1) The issue in this case is as to whether or not the plaintiff is a child of Nicholas Mooney, deceased, capable of participating in Nicholas Mooney’s estate under the law of descent and distribution; and not having been mentioned or provided for in the will of said Nicholas Mooney, the burden of. proof is upon plaintiff to show that he is such child of Nicholas Mooney. 5 Cyc. 628; Pickens’s Estate, 163 P'a. St. 14. This he has attempted to do by an effort to establish recognition on the part of Nicholas Mooney of plaintiff as his child, and in doing this he has offered no evidence but what is entirely consistent with the theory that plaintiff is not the child of Nicholas Mooney. Plaintiff failed to make a prima facie case of recognition, for the loose acts pointing towards recognition shown by the evidence, and which occurred during the first years of plaintiff’s life, are wholly insufficient to establish a case of recognition. Watson v. Richardson, 110 Iowa 673; Markey v. Markey, 108’ Iowa 373. The evidence adduced on behalf of plaintiff to establish recognition is utterly destitute of reasonable precision. 17 Cyc. 818. Under the rule there is no conflict in the evidence adduced by the respective parties to this cause. “One enters the field of conjecture only in the absence of proof; when proof enters conjecture disappears.” Conner v. Railroad, 181 Mo. 397; Higgins v. Railroad, 197 Mo. 300. The jury had no right to conjecture whether the circumstances shown in evidence were sufficient to constitute recognition by Nicholas Mooney of the plaintiff as his child or not, when proof that he was not entered the field. This is a well established principle of the law of evidence. 29 Cyc. 830; Roman v. Trading Co., 87 Mo. App. 186; Wear v. Lee, 26 Mo. App. 99. There was nothing done by Nicholas Mooney inconsistent with the fact that plaintiff was not the son of Nicholas Mooney. Markey v. Markey, 108 Iowa, 373; Sandford’s Estate, 4 Cal. 12; Lind v. Burke, 56 Neb. 785; Pina v. Peck, 31 Cal. 359. Evidence of reputation, as to who constitute the members of a family is admissible, where no superior evidence is available to show directly the legitimacy or illegitimacy. So, when plaintiff relies on recognition and reputation to establish his sonship, direct evidence which proves that he is not the son overcomes any presumption raised by recognition or reputation. Pickens’s Estate, 163 Pa. St. 14; 16 Cyc. 1051. (2) The vérdict of the jury is so manifestly, decidedly and palpably against the evidence as to show clearly that it was the result of passion, prejudice or other sentiment, rather than of the law and the facts, or that the jury misapprehended the facts, or principles of law governing the case. 29 Cyc. 822-824; Walton v. Railroad, 49 Mo. App. 620. The total disregard by the jury of the evidence on one branch of the case will warrant the granting of a new trial. Doty v. Steinberg, 25 Mo. App. 328. A new trial should be granted by the trial court where the verdict is manifestly against the weight and the entire current of the testimony. Taylor v. Pox, 16 Mo. App. 527; Borgraefe v. Knights,"22 Mo. App. 127. (3) Instruction 1 given by the court at the request of plaintiff, is erroneous in that it tells the jury, “that no presumption is to attach against the legitimacy of the plaintiff as a child of Nicholas Mooney, but on the contrary every presumption is to be made in favor of . . . the legitimacy of the said Chris Mooney,” thus leading the jury to believe that even though plaintiff was born before the marriage of Nicholas Mooney with Mary Cooney, from the fact that Nicholas Mooney afterwards married plaintiff’s mother they should presume that said Nicholas Mooney was the father of plaintiff. That is not the law. “There is no presumption that one who marries the mother of a bastard is its father.” James’s Estate, 147 Pa. St. 527; 5 Cyc. 626. (4) The court committed error in giving instructions numbered 2, 3, 5 and 6 at the instance of plaintiff, for the reason that these instructions, in effect, declare the law to be that no matter who was actually and in fact the father of plaintiff, if Nicholas Mooney afterwards married plaintiff’s mother and recognized plaintiff as his child, that is, held him out to the world as his child, plaintiff thereby became Nicholas Mooney’s child. These instructions ignore the opening words of Sec. 341, R. S. 1909, to-wit: “If a man, having by a woman a child,” etc. By these words the Legislature evidently intended that the first requisite to the operation of this statute should be that the child was begotten by the man referred to therein.

      D. D. Huggins and 'Robert M. Reynolds for respondent.
    (1) Parentage may at law be established, and can only in general be established, as regards the father, by a combination of facts, indicating the connection of parent and child, between an individual and the family to which he claims to belong. Principal among these facts are: that his mother was married to the person whom he claims as his father at the time he was born or begotten; that he has always borne his name and been treated and maintained and educated as his child; that he has been uniformly received as such in society and that he has been acknowledged as such by the family. 13 Am. & Eng.-Ency. tíaw (1 Ed.), 224; Weatherford v. Weatherford, 20 Ala. 548; Loan Co. v. Bonner, 75 111. 315; Taylor on Evidence (Text Book Series) art. 649. (2) These facts were all shown by the evidence in this case. The plaintiff’s motlier was Mary Mooney, the wife of Nicholas Mooney. They were married on January 27, 1851, and the plaintiff was born on, June 21, 1851, and was reared as a child of the said Nicholas Mooney, and nnder and by the name of Mooney, and was fed, clothed, schooled and worked by the said Nicholas Mooney as his child and under his name, and recognized as the child of the said Mooney by society and the family. In addition to all this he bore a strong and marked personal resemblance to the said Nicholas. (3) The plaintiff is a competent witness to prove his own age and the date of his birth, and especially so when, a question of pedigree is involved. State v. Cougot, 121 Mo. 463; State v. Marshall, 137 Mo. 469. (4) Resemblance in personal appearance to the claimed father is competent evidence by the child upon the question of paternity. 5 Oyc. 630; Wright v. Hicks, 15 G-a. 160; Shorten v. •Judd, 56 Kan. 43; In re Jessup, 81 Cal. 458. (5) Even where the child is admittedly born prior to the marriage, our statute makes marriage and recognition by the father of the child as his, proof of the fact that he is the father of the child, and heirship is established in such manner. R. S. 1900', sec. 341; Bridenstein v. Bertram, 198 Mo. 347. (6) Not only is such evidence sufficient, but the appellant is precluded from raising such question here, inasmuch as it is a reversal of his position upon the trial in the court below. A party litigant cannot set up a theory in the appellate court different from the one presented by him for the decision of the trial court. Hill v. Drug Co., 140 Mo. 433; Hall v. Goodknight, 138 Mo. 576; Stewart v. Outhwaite, 141 Mo. 562; State v. O’Neill, 151 Mo. 67. (7) In the trial of the cause in the court below the appellant made no objection to the insufficiency of the evidence, asked no peremptory instruction either at the close of the plaintiff’s case or at the close of the whole case — but framed his instructions upon the theory that such evidence if believed by the jury was sufficient to support a verdict for the plaintiff, and submitted the cause to the jury upon his part upon such theory. Defendants threw their evidence upon* the scales with plaintiffs and invited the verdict of the jury upon the preponderance 'of the evidence. Having done so they cannot now reverse positions. (8) The weight of the evidence is for the jury and the trial court, and the appellant cannot he heard upon that question here. Levels v. Railroad, 196 Mo. 606; Smoot v. Kansas City, 194 Mo. 513; Shoe Co. v. Sally, 114 Mo. App. 222; Bridénstein v. Bertram, 198 Mo. 350.
   WOODSON, J.

This is a suit in ejectment and to determine the interests of the parties and to quiet title, etc., brought by the plaintiff against the defendants to recover the possession of a one-fourth interest in forty acres of land situate in Saline county, particularly described in the petition.

The common source of title was Nicholas Mooney, deceased, and the plaintiff contends that he is a pretermitted heir of said Mooney, claiming to be his son; and the defendants are the children of and devisees under the will of said Mooney arid contend that the plaintiff was not a son of said Mooney. The plaintiff was not mentioned in the will, hence the claim that he is a pretermitted heir.

A trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff, from which the defendants duly appealed to this court.

The following facts are undisputed:

Nicholas Mooney, a young man and a native of Ireland, came to Missouri about the year 1848 or 1849, and located in St. Louis, and subsequently moved to Saline county. At the time of his departure from Ireland, and for several years prior thereto, he had known a young woman by the name of Mary Cooney, whom he left behind.

The plaintiff introduced evidence tending to prove that Mary Cooney left Ireland, came to Saline county, Missouri, and on January 27, 1851, at Marshall, married said Nicholas Mooney. That plaintiff was born June 10th, same year — four months and seventeen days after the marriage was solemnized. That shortly thereafter they moved to a farm near Marshall, the premises in controversy being a part of it, where they continued to reside until their respective deaths, which was but a short time prior to the institution of this suit.

A number of other children were born unto that marriage, some of whom are the defendants in this case, and others are dead. The plaintiff was réared by Nicholas and Mary Mooney, upon the farm mentioned, along with the younger children.

To all appearances he was treated in the same manner by Nicholas Mooney as he treated the other children, and was called and known as Christopher Mooney, by those who were friends and neighbors of the Mooney family, and was regarded by them as a son of Nicholas Mooney. He was reared with the other children as his brothers and sisters, and all of them regarded and treated each other as such. He was also accorded the same treatment by Nicholas Mooney that he granted to the other children, and was schooled, clothed and supported in the same manner they were. He ate at the same table and had a room and slept with the other boys, and worked upon the farm just as they did, until he was about twenty-three years of age. He then began working for himself, and shortly thereafter married and continued to live in the same neighborhood, and they frequently visited each other just as families generally do. He also attended church with them and attended dances with the other children and neighbor boys and girls, and was known by them as one of the Nicholas Mooney children. That he called said Mooney “pa,” and his son John always called him “grandpa.” That he was never known by any other name than Mooney. That he had never heard of any contention that he was not the son of Nicholas Mooney until after his death, and when he began this suit.

The witness Swisher testified that upon one occasion, when he spoke to Nicholas Mooney of the plaintiff, he said, “Ah! Chris is a good boy, he is my boy.”

Several witnesses testified that the plaintiff bore a marked and strong resemblance to Nicholas Mooney, especially his nose, eyes and face generally.

Jeff Dawson, colored, testified that Mary Mooney told him that she and Nicholas Mooney were born in Ireland and were engaged to be married in that country; that Nicholas preceded her to this country less than one year. That shortly after reaching here, he sent for her to come over, and that she came in response to that request, and that shortly after she reached Marshall they were married, and after the marriage the plaintiff was born.

The defendant’s evidence tended to show that about two years after Nicholas Mooney left Ireland, and while he was in Saline county, Mary Cooney came over from Ireland and first stopped in St. Louis, at the home of Mrs. Anna K. Adams, who was also from Ireland and had known Mary there. That when Mary Cooney arrived at the home of Mrs. Adams, she was in an advanced stage of pregnancy. That after remaining in St. Louis for a short time Mary went to Saline county, and shortly thereafter, within a month, she gave birth to a male child, the plaintiff in this case. That the child was born at the house of Mrs. Duffy, near Marshall. That shortly after the child was born, Mary was married to Mooney, with the child in her arms. That the marriage was performed by Father Donnelly, a Catholic priest, and that just before the marriage ceremony was performed Father Donnelly christened the child, and Mary Cooney, its mother, gave the name of the father of the child as Pat Daley, and named the child Chris Daley.

The witnesses Mrs. Bridget Holmes and Pat Duffy, testified that they were present at the marriage and witnessed the christening of the child as Chris Daley, Pat Duffy acting as sponsor for the child so christened. That Nicholas Mooney never returned to Ireland after he came to this country.

Mrs. Anna Adams testified as follows:

“Q. What is your name, age, place of residence, and where were you born? A. My name is Anna K. Adams, my age is eighty-two years, I was born in Ireland and came to this country when a small girl.
“Q. Where did you live after coming to this country? A. We first came to Saline county, Missouri; we then went to St. Louis, Missouri, and lived there a long time.
“Q. What was your mother’s name? A. Margaret Duffy.
“Q. Did you know Nicholas Mooney, late of Saline county, Missouri, in his lifetime? A. Yes, I have known him ever since he first came to America. He'came to our house in St. Louis when he first came from Ireland, he came direct to our house. He was a young man then.
“Q. . Did you know Mary Cooney, the woman Nicholas Mooney married? A. Yes, I knew her in Ireland where she was a girl, and after she came to America.
“Q. Which one came to America first, Nicholas Mooney or Mary Cooney? A. Nicholas Mooney came first, about two years before Mary Cooney came.
“Q. Did you first see Mary Cooney when she • first came to this country from Ireland, if so, when and where? A. Yes, she came direct to my house in St. Louis from Ireland and stayed a short while and went up to Saline county with my mother and lived with her until she married Nicholas Mooney.
“Q. .What was Mary Cooney’s condition when she first came to your house in St. Louis direct from Ireland? A. She was in delicate condition and shortly after going to Saline county she gave birth to a male child and that child is Chris Daley, called Chris Mooney.
££Q. Did Mary Cooney afterwards marry Nicholas Mooney? A. Yes, they afterwards married in Saline county.
££Q. Was the boy Chris born before or after the marriage? A. He was born before the marriage at my mother’s house.
“Q. By what name was he called? A. He was called Chris Daley and went by that name for some time after the marriage of his mother.
‘£ Q. Did you know who was the father of the boy Chris Daley? A. Mary Cooney, his mother, said at the time the boy was born that his father was named Pat Daley and that he lived in. Ireland.
££Q. Did you know Pat Daley in Ireland before you came to this country? A. Yes.
£Q. Was it well known at the time of the marriage of Nicholas Mooney and Mary Mooney that the boy Chris was not Nicholas Mooney’s child? A. Yes; there was no contention that he was the child of Nicholas Mooney and he was known as the child of Pat Daley. His mother so stated and we believed her.
££Q. Do you know whether or not Nicholas Mooney went back to Ireland between the time he first came to this country and the time Mary Cooney arrived in this country from Ireland? A. He did not return to Ireland after coming to this country. He remained 'in St. Louis and Saline county, Missouri, from the time of his first arrival until after the birth of .the boy Chris and his marriage to Mary Cooney.
£ 1Q. Mrs. Adams, I will ask you if the boy born to Mary Cooney before her marriage to Nicholas Mooney is the same person as Chris Mooney now claiming to be the child of Nicholas Mooney? A. Yes, he was raised by Nicholas Mooney.”

Mrs. Bridget Holmes, of lawful ag’e, being first duly sworn on her oath, testifies as follows on behalf of the defendant:

“Q. "What'is yonr name? A. Bridget Holmes.
“Q. Where do yon live? A. I live two miles north of Shackelford in Saline connty.
“Q. How long have yon lived there ? A. Fifty-two years.
“Q. I will ask yon if yon knew Nick Mooney in his lifetime? A. Yes, sir, I did.
“Q. Did yon know the woman whom he married,. Mary Cooney? A. Yes, sir.
“Q. Were yon present at the marriage? A. I was.
“Q. Where did that marriage take place A. In Marshall, in my annt’s honse.
“Q. Who was yonr annt? A. She went by the name of Mrs. Dnffy. She was Mrs. King. I heard her called Dnffy here.
“Q. By whom was Nick Mooney and Mary Cooney married? A. By Father Barnard Donnelly., the minister who nsed to come here then.
“Q. I will ask yon if at the time of her marriage she had a child? A. Yes, sir; she had a baby, I conld not say how old, it might be a month or two weeks.
“Q. Is that baby she had at the time she was married to Nick Mooney the plaintiff in this case who calls himself Chris Mooney? A. Yes, sir.
“Q. That the same baby? A. Yes, sir.
“Q. I will ask yon if there was any other ceremony there at that time by the priest, other than the marriage ceremony with reference to the child? A. The child was baptized.
“Q. Yon may state by what name was that child,, now known as Chris Mooney, christened by the priest! A. His father’s name was called Patrick Daley.
“Q. WTaat was the baby called? A. Chris Daley.'
“Q. Who gave to the priest the name of the child! A. Mary Cooney.
“Q. You heard that? A. Yes, sir.
“Q. You state to the jury that that plaintiff is the identical baby? A. Yes, sir; I think he is the same one.
“Q. Who else was present at that time? A. My brother and the priest and another man, Mr. King, a cousin.
“Q. Who, is your brother?- A. Patrick Duffy.
“Q. Did he have any part in that ceremony? A. He was one of the sponsors for the child.
‘ ‘ Q. Were you well acquainted with Nick Mooney, and his wife Mary, from that time up until the time of his death? A. Yes, sir; I never met them very often, I knew them all the time.
“Q. Were you related in any way to either one of them? A. No, sir; not at all.”

Mrs. Margaret Trigg testified:

“Q. Where do you live? A. About two miles from Shackelford.
“Q. How long have you lived there? A. I have lived there for over forty years.
“Q. How long have you lived in Saline county? A. Since ’forty-seven.
“Q. I will ask you if you knew Mary Cooney, who became the wife of Nick Mooney, deceased? A. Yes, sir; I have seen her when she come out; I never knew her until that.
“Q. Did you see her when she first come here? A. Yes, sir; I saw her the next morning.
“Q. What was her condition then? A. She was in a very delicate condition.
“Q. Was she pregnant with child at that time? A. Yes, sir.
“Q. How long after she had been here until she gave birth to the child? A. I could not say exactly how many days or weeks, but a very short while or a few days.
“Q. She was afterwards married to Nicholas Mooney? A. Yes, sir.
“Q. Were you at the marriage? A. No, sir; my brother and sister were there.
“Q. Was the baby horn before or after the marriage? A. Before.
“Q. Was that hahy Chris Mooney, the man that calls himself Chris Mooney in this suit? A. Yes, .sir.”

Mr. Pat Duffy testified:

“Q. What is your name? A. Pat Duffy.
“Q. Where do you live? A. I live about fifteen miles south of here, between here and Sweet Springs..
“Q. How long have you lived in Saline county? A. Since ’forty-seven.
“Q. I will ask you if you were acquainted with Mary Mooney or Mary Cooney who married Nick Mooney? A. I was.
“Q. Do you remember when she first came to this country from Ireland? A. I do.
“Q. How soon after she arrived at Marshall did you see her? A. Well, I could not tell you, just in a few days, not more than a week.
“Q. What was her condition then? A. Well, I could not tell, I súpose she was from her looks, she was in the family.
“Q. Did she shortly afterwards give birth to a child? A. Yes, sir; she did.
“Q. Was that child the man, Chris Mooney, the plaintiff in this case? A. Well, I don’t know, I thiuk so.
“Q. Now, were you present at this marriage? A. I was.
“Q. Was the child there at that time? A. It was.
“Q. Was there any ceremony by the priest with reference to this child? A. Yes, sir; I was the sponsor of the child.
“Q. What did the priest do? A. The priest asked the mother what the father of this child was. She just said his name was Pattie Daley. Those were the very words.
“Q. By what name was the child christened? A. By that name.
“Q. Chris Daly? A. Yes, sir; I was his sponsor, I was as close to him as to that table.
“Q. Was he known after that as Chris Daley? A. I don’t know, I moved to Sweet Springs and Host all trace of him. I was here and saw him once in a while, but to say I was familiar with them and acquainted, I was not. That was the last I knew much of them and I bought a farm and moved up there.
“Q. How long after Mary Cooney came to Saline county was she and Nick Mooney married? A. Over a year, I could not tell exactly, it has been a long time ago; it was a year or more, because I was acquainted, I seen Nick Mooney in Marshall several times.
“Q. Nick Mooney had been here a year or more before Mary came? A. Yes, sir; I know that, I am satisfied of that, but the exact date I could not tell.
“Q. This child, how old was this child when it was christened? A. Not more than a week or so old.
“Q. A small child? A. Yes, sir; a small baby. The lady with me just held it in her hands.
“Q. You say you saw Mary Cooney soon after she came? A. Yes, sir.
“Q. And she was in this delicate condition? A. Yes, sir; to the best of my opinion, I could not tell.
“Q. She shortly afterwards gave birth to the child? A. Yes, sir.
“Q. And in a short time after that she married Nick Mooney? A. Yes, sir; I was there- when they married.
“Q. How long had yon known Nick Mooney before he married Mary Cooney? A. I know that it was at least a year and over, more than a year.
i£Q. How long had you known Mary Cooney before she married Nick Mooney? A. I knew her in Ireland.
££Q. After she came here, just a short time? A. Yes, sir.
£ Q. About how long from the time she came and the birth of the baby until the marriage ? Á. A month or so, about a month.
££Q. You said a while ago that, she was here a year or so?
££A. F. Rector, Esq., counsel for the defendant: I submit to the court the witness did not understand the testimony.
££Q. You said a little while ago she was here nearly a year before the marriage? A. That I knew her a year; I cannot hear good.
££Q. You said a while ago that Mary Cooney was here nearly a year before she married Nick Mooney? A. No, sir.
££Q. Did you not say that awhile ago? A. I never said that.
“Q. You say that Mr. Mooney had been here a year and over? A. Yes, sir.”

¥m. Zahns testified as follows:

“Q. Where do you live? A. Live here in Marshall, I come to Saline county in the year ’fifty-eight.
££Q. ■ Did you know Nick Mooney and his family at that time? A. I did, I got acquainted with them pretty soon afterward I came here.
' ££Q. Did you get acquainted with the boy Chris, that is now called Chris Mooney? A. Well, yes, sir; I got acquainted with him in the year ’sixty; I was living then within about a mile of where they live. I was making brick on Salt Fork, and they lived where the Marshall burying ground is now.
££Q. Do you know by what name that boy went at that time, and what he was called? A. Well, I never heard any other name than that, I remember nothing except Chris.
“Q. Did you know him as Nick Mooney’s child, or the child of some one else? A. Well, from hearsay, I did not know him as Nick Mooney’s child.
££Q. That was about ’sixty? A. Yes, sir; and before when I lived close to them.
££Q. It was known that he was not Nick Mooney’s child? A. Well, from hearsay, you see my wife and her relations and also Mooney’s wife, Mooney and his relations, they were neighbors and friends in the old country. What I understood from my first wife, and of course I was told by them.
<£Q. R. M. Reynolds, Esq., counsel for the plaintiff: Told by whom, by your wife?
££Q. I will ask you this question Mr. Zakns: Was it generally known in the neighborhood that he was not Nick Mooney’s child at that time? A. Yes, sir. It was 'generally known among the Irish and Catholic people.”

Owen Swinney testified that he had lived in Marshall fifty years, and knew the Mooneys. ' That he did not know much of the boy Chris until after the war. That he never heard much about him, but he had heard it said by some of the old people that he was not Mr. Mooney’s son.

Mrs. Emily Swinney testified that she had lived in Marshall all of her life, was bom there. That she knew Nicholas Mooney and Mary, his wife; also Chris Mooney. That she knew nothing of his parentage except from hearsay. That she had heard that, he was not the son of Nicholas Mooney, but not very frequently, as she was but a girl, and they did not talk to her much about tbe matter. That she understood from tbe talk of the neighborhood that Chris was born before the marriage of Nicholas 'Mooney and Mary Cooney, but had no personal knowledge of the matter.

H. C. Hall testified that he knew Nicholas Mooney, but not Chris the boy. • That he built and painted a house for Mr. Mooney, and one day while at dinner a man and a woman drove up with a child, hitched the horse and came in. Mooney never introduced them to him, and he never spoke to them. That, after dinner he began to paint the house and Mr. Mooney came around, and he, Hall, said: “Uncle Nick, who was that ate dinner with you to-day?” That in reply he said, “Chris Daley,” cross-like.

John E-iley testified that he had lived in Saline county about forty years and had known Chris Mooney from about 1871 or 1872. That back there he went by the name of Chris Daley. That his father and other old men called him Chris Daley, or rather that he went by that name.

The will of Nicholas Mooney was introduced in evidence, by which he gave all of his estate to his son George Mooney and to his daughter Julia Malony, except one dollar was given to his daughter Bridget Allinburg.

I. There is but a single issue of fact involved in this case and that is, was Christopher Mooney, the respondent, the son of Nicholas Mooney, deceased? If so, then he is a pretermitted heir of Nicholas Mooney, and is entitled to participate under the laws of descent and distribution, in the estate of Ms deceased father.

Under this issue, section 341, Eevised Statutes 1909 (which was first enacted prior to 1845) which provides that “if a man, having by a woman, a child or children, shall afterward intermarry with her, and shall recognize such child or children to be his, they shall thereby be legitimated,” has but little if anything to do with this case for the reason that it is contended that the plaintiff was not in fact the “child of Nicholas Mooney,” and therefore the simple recognition and treatment of him as a child does not bring him within the provisions of that statute.

In a casé of this character, it seems but right and just that the burden of. proof rests upon the plaintiff to establish the relationship of father and son. [5 Cyc. 628; Pickens’s Estate, 163 Pa. St. 14]

Recognizing that to be the law, counsel for respondent undertook that burden, and introduced a number of witnesses whose testimony tended to prove that during the entire life of Nicholas Mooney, after they respectively formed their acquaintance, he treated the plaintiff as his son, in that, the plaintiff bore his father’s name, and was maintained and educated by him as he did his other children; also that he was uniformly recognized and received as such in society, and that he was acknowledged as such by the members of the family.

Jeff Dawson testified that Mary Mooney told him that she and Nicholas Mooney were sweethearts in the old country, and that they were engaged to be married before he left there; that within a few months after he reached this country he sent her thirty dollars and told her to come over; that she came, and at first stopped in St. Louis, where she was detained for a while on account of the ice in the river; that Mr. Mooney visited her in St. Louis, and that shortly thereafter she went to Marshall and was there married to Mr. Mooney. That the child was hers, and that it was born before the marriage.

Counsel for appellant earnestly insist that the evidence for the respondent failed to make out a prima facie case, and that an instruction in the nature of a demurrer to the evidence should have been given, and in support thereof we are cited to Watson v. Richardson, 110 Iowa, 673; Markey v. Markey, 108 Iowa, 373; 17 Cyc. 817 and 818 D. 1 and 2 a.

The rule announced in those authorities is to the effect, that in the absence of direct and positive testimony tending to prove paternity, casual remarks and loose acts of the parties, pointing toward recognition of such relation, are wholly insufficient to make out a case by recognition.

The soundness and wisdom of that rule cannot be questioned, but . what are casual remarks, and loose acts of the parties, when applied to a particular case, is not always easy to determine. ■ The record in this case is absolutely barren of all direct evidence tending to prove that Nicholas Mooney, by word of mouth or otherwise, ever acknowledged that the respondent was his son, yet it contains many facts and circumstances from which,.if standing alone or unexplained by other evidence in the case, a jury might infer such relationship existed between them; for instance, the birth of the child, the subsequent marriage of Mooney to the child’s, mother, and his care for, support of, and education of the child, coupled with the fact, that with his knowledge, if not with his consent, the respondent bore his name, was recognized and received into society as his son, and by his children as a brother.

All of those matters are facts and circumstances indicating the relationship of parent and child; and the law seems to be well settled that paternity may be established and in many cases can only be established as regards the father, by a combination of words and facts indicating the relation of parent and child. And the authorities seem to be uniform in holding that the principal facts so indicating that relationship are the marriage of the mother to the person who it is claimed was the father of the child, at the time he was begotten or born; that the child has always borne the name of such person, and had been treated, maintained and educated as his child; and that the child had uniformly been recognized and received in society as the son or daughter of such person, and so acknowledged by the other members of the family. [13 Am. & Eng. Ency. Law (1 Ed.), p. 224; Weatherford v. Weatherford, 20 Ala. 548; Illinois Loan Co. v. Bonner, 75 Ill. 315; Taylor on Evidence (Text Books Series), art. 649.]

The weakness of respondent’s case consists of the fact that there is no evidence in this case tending to prove that it was claimed by anyone that Nicholas Mooney was the father of the respondent at the time he was begotten or born, and that there is no direct evidence tending to show that he ever recognized or acknowledged respondent as being his son, and he did not always bear his name.

We are clearly of the opinion that when the entire evidence was in, there was no case to submit to the jury. The reason for that rule is this: the respondent’s evidence was wholly circumstantial, and tended to prove two states of fact: first, facts which, if considered alone, may have indicated the relationship of parent and child between Nicholas Mooney and the respondent; but when considered in connection with' the evidence of appellants, which was positive and direct to the point, that such was not their relationship, which consisted of the testimony of unimpeached witnesses, who were old residents of Saline county, and apparently were intelligent and fair-minded and honest in testifying who knew Nicholas Mooney and Mary Cooney ever since their respective arrivals in this country, most of whom were eye witnesses to the matters about which they testified, and consequently they spoke from personal knowledge as to when both of them came from Ireland to this country; the pregnancy of Mary before and at the time she arrived in St. Louis, the date of and the birth of the child, the christening of the child, and the subsequent marriage of Nicholas Mooney and Mary Cooney, and the date thereof, then the case assumes quite a different aspect, for the reason that the respondent’s circumstantial evidence was not in conflict with the direct and positive evidence introduced by appellants, and it points as clearly and strongly to prove the defense interposed to the case, as it does to establish the relationship of father and son between Nicholas Mooney and Christopher Mooney; that is, the respondent’s evidence tends as strongly to prove that Nicholas Mooney’s conduct towards and treatment of the innocent and helpless child, was as much due to kindness on his part to it, and his love for his wife, its mother, and a desire to cast a mantle of charity over her shame, and thereby, at the same time shield “the skeleton in the closet,” and hide her dishonor, which he had condoned, and to which he became particeps criminis by marrying her, from public view, as it did to establish his. paternity by such relationship.

In discussing this question, 17 Cyc. p. 817 D. says: “A conclusion is not supported by circumstantial evidence unless the facts relied on are of such a nature and so related to each other that no other conclusion can fairly or reasonably be drawn from them, and this requirement is strictly enforced where decisive direct evidence is probably obtainable, but is not produced, A fortiori the circumstances must agree with and support the hypothesis which they are adduced to prove. A fact cannot be established by circumstances which are perfectly consistent with direct, uncontradicted, and unimpeached testimony that the fact does not exist.”

Under the rule just quoted, when applied to this particular class of cases, and especially to the case at bar, there is no real conflict between the evidence introduced by the respective parties to this action. Certainly not sufficient difference to support the verdict and judgment in this case.

In discussing this general rule in the case of Conner v. Missouri Pacific Railway Company, 181 Mo. 397, l. c. 411, this court well said: “If there is substantial evidence tending to show that an accident occurred in any one of two or more ways, or any other number of ways, while the burden rests upon the plaintiff to establish such cause of the accident as would render the defendant liable, it by no means presents a case of mere conjecture; but is a question of fact, which should be submitted and determined by the triers of the facts. We only enter the field of conjecture in the absence of proof; when proof enters, conjecture disappears.”

The doctrine just announced was approved by this court in the case of Higgins v. St. Louis & Suburban Railway Company, 197 Mo. 300.

As previously stated, this rule is peculiarly applicable to cases of this character, and this one in particular, for the reason that so much of the evidence introduced tends as strongly to prove a state of facts consistent with the fact that Nicholas Mooney was not the father of Christopher Mooney, as it does to establish the fact that he was his father.

Hnder that rule, the burden of proof resting upon the respondent to make out his case by a preponderance of the evidence, he has clearly failed to do so, for there was nothing done or said by Nicholas Mooney inconsistent with the fact that the respondent was not his son. This rule is recognized and upheld in the following cases: Markey v. Markey, 108 Iowa, 373; Sanford’s Estate, 4 Cal. 12; Lind v. Burke, 56 Neb. 785; Pind v. Peek, 31 Cal. 359.

There are several other questions presented and discussed in briefs by counsel for appellants, but the conclusions before reached render it unnecessary for us to pass upon„them.

We are, therefore, of the opinion, that upon the whole record the respondent was not entitled to a re covery, that the judgment should be reversed and the cause remanded to the circuit court with directions to ascertain the interest of the parties, .as herein indicated, and to quiet the title as prayed for by defendants in their answer.

All concur.


author: GRAVES, P. J.- WOODSON, J.

text:
    ANNIE O’HARA v. LACLEDE GAS LIGHT COMPANY, Appellant.
    Division One,
    June 29, 1912.
    1. NEGLIGENCE: Theory at Trial: Turntable Doctrine. Plaintiff is bound on appeal by the theory she adopted below. If by her instructions, asked and given, she interpreted her petition to be one invoking, the turntable doctrine, and that petition contains allegations that appertain to that doctrine, the appellate court will adopt that interpretation, and then determine whether or not the doctrine is applicable to the case.
    2. -: -: Pipe in Street: Not Applicable. The turntable doctrine is applicable to a property owner who erects upon his. own premises inherently dangerous machinery or structures which are alluring and attractive to children and are left up-guarded. It has no application where a gas company employed under contract a hauling company to place a large gas pipe near the curb line of a street, which declined from that line towards the center at a grade of one and a half feet to twenty, around which children were playing, and, being left unblocked, it rolled towards the center and there struck and killed plaintiff’s nine-year-old son. Pipes placed in the streets are not of and within themselves so attractive and inherently dangerous to children as, to authorize the application of the turntable doctrine to them.
    3. -: Independent Contractor: Pipes in Street. Large cast iron pipes properly unloaded upon a street are not inherently dangerous to others; and where the danger to others arises, if at all, from the manner in which the unloading is done or the condition in which they are left after being unloaded, the work may be assigned to an independent contractor, and if such independent contractor so negligently performs the task as to inflict x injury upon a child who plays about them after they are unloaded, the contractor is liable, and not the principal.

      4. -: -: -: Anticipated. Cause. Where the pipe was placed in the street at fiye o’clock and remained in position until eight-thirty, and if blocked children removed the blocks and set it rolling and it rolled down the incline until it struck plaintiff’s nine-year-old child, or if not blocked it was set in motion by the exertion of the children, the movement of the pipe was from a cause not to be anticipated by a defendant responsible for the manner in which the pipe was placed upon the street, and it is not liable.
    Appeal from St. Louis City Circuit Court . — Hon. J. E. Withrow, Judge.
    Reversed.

      Seclclon dk Holland for appellant.
    (1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence. Ege v. Brick Co., 118 Mo. 630 ; Fink v. Furnace Co., 82 Mo. 276; Morgan v. Bowman," 22 Mo. 538; Crenshaw v. Ullman, 113 Mo. 633'; Independence v. Slack, 134 Mo. 66; Blumb v. City, 84 Mo. 112; Dillon v. Hunt, 82 Mo. 1501; Uerdes v. Christopher, 124 Mo. 347; Salmon v. Kansas City, 241 Mo. 14. (2) The court erred in giving instruction 1 at the instance of respondent. See authorities, supra.

      A. B. Taylor for respondent.
    (1) The demurrer to the evidence was untenable. The appellant in this case cannot invoke the doctrine of independent contractor. O’Hara v. Cas Co., 131 Mo. App. 447; Independence v. Slack, 134 Mo. 77; Loth v. Heater Co., 197 Mo. 355; Wiggin v. St. • Louis, 135 Mo. 568. (2) There was no reversible error in instructions given or refused. O ’Hara v. Cas Co., 131 Mo. App. 446. (3) The deceased boy was not a- trespasser on the street but lawfully where he was when killed. Thereupon the doctrine applicable to trespassers cannot be invoked in this case.
   GRAVES, P. J.-

This cause reached this court upon a- divided opinion of the St. Louis Court of Appeals. There are three opinions ini the case, one affirming the judgment nisi, another concurring in such affirmance, but upon a slightly different course of reasoning, and one dissenting opinion, with the formal request for certification to this court as required by the Constitution.

The vital portions of the petition are:

“The plaintiffs, who are the father and mother of Francis Desmond O’Hara, who, at the time herein mentioned, was a minor and unmarried, state the defendants, and each of them are and at the time herein mentioned were, corporations by virtue of the law of Missouri; that on the 12th day of July, 1903. Howard street at the place herein mentioned was an open public street within the city of St. Louis; that on said day there was placed on said street, near house number 2031, by the defendant Hffman Coal & Teaming Company, for the defendant Laclede Gas Light Company, a large iron gas pipe, to be put under ground in said street, for the purpose of conveying gas; that said gas pipe was placed on said street by defendant Hffman Coal & Teaming Company under a contract of employment with defendant Laclede Gas Light Company; and defendant Abbott-Gamble Constructing Company received said iron pipe on said street so placed for the purpose of laying same in said street under the contract of employment with defendant Laclede Gas Light Company. That said iron pipe, as so placed upon said street by the defendant Hffman Coal & Teaming Company, was upon an incline and uneven surface of said street, and was in such position as to roll from the place, where so placed, and injure persons on said street, especially children, as defendants and each of them in the exercise of ordinary care would have known.
“That defendant Abbott-G-amble Construction Company received said iron pipe so placed on said street in said insecure condition; that it was the duty of the defendants and each of them to have caused said pipe so placed upon said street to be secured or propped to prevent its rolling and injuring persons on said street, especially children; yet they negligently failed to do so, and left said iron pipe upon said street in such insecure condition, without props or fastenings to prevent it from rolling; that said pipe as so placed upon said street was an attraction to children to be about same and play thereon, as defendant and each of them, in the exercise of ordinary care, would have known; yet they and each of them negligently left said pipe on said street in said insecure condition without props or fastenings to secure same. That on said day plaintiffs’ said child with other children were attracted by said iron pipe to be on and about said pipe at play, and when plaintiffs’ said child was on or about said pipe at play, owing to said insecure, unpropped and unfastened condition of said pipe, it rolled upon and so injured plaintiffs’ child that it died from said injuries on said day. And plantiffs aver that said negligent acts of the defendants directly caused and contributed to the injury and death of their child. And plaintiffs aver that on the 17th day of September, 1903, they instituted an action in the circuit court of the city of St. Louis, having jurisdiction for the same cause of action as herein claimed.
“That said cause was removed by change of venue to the circuit court of St. Louis county, and that on the 19th day of June, 1906-, in said court having jurisdiction of said cause, plaintiffs suffered a nonsuit in said cause.
“That by the death of their son as aforesaid the plaintiffs have lost his services and care, to their damage in the stun of five thousand dollars, for which sum they pray judgment.”

The petition is thus fully set out because a question as to the'nature of the cause of action therein stated is made in the briefs, as well as in the dissent-' ing opinion.

Whilst originally the suit was against three defendants, yet by voluntarily dismissing as to two of them, the plaintiffs can proceed as below as against the Laclede Gaslight Company alone, and it of course is the sole appellant.

The Laclede Gaslight Company, being desirous of putting in gas mains in certain named streets in the city of St. Louis, entered into two contracts, one with the Abbott-Gamble Construction'Company, which company was to put the mains into the ground, and one with the Uffman Coal & Teaming Company, which company was to haul the mains to the ground. The latter contract becomes material and reads:

“Agreement entered into this 22nd day of April, 1903, between the Uffman Coal & Teaming Company, party of the first part, and the Laclede Gas Light Company, party of the second part, both of St. Louis, Mo. Witnesseth:
“1st. The party of the first part hereby agrees to haul such quantities of cast iron from cars to streets or lots designated by the party of the second part, or from storage lots to streets, and to distribute such pipe along the streets as required by the second party.
“2nd: The quantities of pipe to be delivered under this contract shall not be less than eighty tons per day if the second party requires that amount.
“3rd. The first party to unload cars promptly and to protect the second party from all demurrage charges growing out of detention of cars in the railroad yards from any cause whatever, provided that not more than five cars are placed on track for unloading in one day.
“4th. The party of the first part to be responsible for any damage to pipe in unloading or delivering to lot or the street.
“5th. In consideration of the above the party of the second part hereby agrees to pay the party of the first part one dollar and forty-five cents ($1.45) per ton of 2000 pounds for all pipe delivered herein provided. Payments to be made on the 10th of each month for all pipe delivered the previous month.
“In witness whereof the parties hereto have subscribed their names the day and year atiove written.”

Other facts are well stated by the St. Louis Court of Appeals, thus:

“The action is to recover damage for the death of plaintiffs’ minor son, Francis Desmond O’Hara, alleged to have been caused by the negligence of defendant. Pending the suit in the circuit court, the father of the deceased, Dennis O’Hara, died and the cause was revived in the name of Annie O’Hara, his mother. The action was dismissed as to all the defendants except the Laclede Gas Light Company and was prosecuted to a final judgment against said company, from which judgment it appealed.
“The testimony shows defendant is a corporation engaged in the business of furnishing and distributing gas for illuminating and fuel purposes, in the city of St. Louis, and had a contract with a construction company to lay underground gas pipes on Howard street in said city. It appears the Gas Company undertook to deliver the pipes to be laid under the street and to that end contracted with the Uffman Coal & Teaming Company to haul the pipes from cars and deliver them to it on such streets as it should direct. Plaintiff resided with her family at No. 3201 Howard street, near a brewery stable. The house and stable are on the north side of the street' where the pipes were being laid. ' The street is unimproved; from the north line to its center there is a down grade of about two and one-half feet; from the center south to the south line of the street the ground is level. On July 17, 1903, the teamsters of the Uffman Coal & Teaming Company delivered three or four gas pipes on the north side of Howard street, unloading them in front and near the brewery stable. The pipes were about two feet in diameter, from twenty-four to twenty-five feet long and weighed from twenty-four to twenty-five hundred pounds. Francis Desmond 0 ’Hara was nine years and a few months old, had attended school for two years and was a strong, healthy, intelligent boy. Plaintiffs’ evidence tends to show the pipes were unloaded about 5:30 p. m., and were not blocked or otherwise secured. There were a good many children in the neighborhood who played in the street and on the sidewalk every evening. On the evening the accident happened, plaintiff sent her son to a bakery on an errand, and either on his way there or on his return, and while standing in the middle of the street, a gas pipe lying in front of the brewery stable was started rolling by some boys playing on or about it. It rolled into the middle of the street, struck the O’Hara boy, knocked him down, rolled on him and crushed his skull, causing his death. Plaintiff, Mrs. O’Hara, testified she knew the pipes were in the street and children would play about them, and that both she and her husband cautioned their son to keep away from them.
“On defendant’s behalf the evidence tends-, to-show the pipes were all blocked by the teamsters who unloaded them; that they would not remain in place unless blocked; that the deceased and other children were playing about the pipes, jumping on and running around over them, and that deceased was standing or sitting on the pipe when it started to roll and fell in front of it.
“As a special defense, the answer pleads contributory negligence on the part of the deceased and also on the part of his parents.”

• Other matters in evidence and the instructions of the court may become necessary, but these had-best be stated in. connection with the point made. For the present this sufficiently states the cause. '

I.' The dissenting opinion of Goode, J., classifies the petition in this case as one invoking the “turntable doctrine.” '

The petition contains language which would authorize that construction to be placed upon it. The petition says “that said pipé as so placed upon said street was an attraction to children to be about same and play thereon,” and further “that on said day plaintiffs ’ said child with other children were attracted by said iron pipe to be on and about said pipé at play, and when plaintiffs’ said child was on or about said pipe at play, owing to said insecure, unpropped, and unfastened condition of said pipe it rolled upon and so injured plaintiffs’ child that it died,” etc. But we need not go to the petition for a construction of it. It was so construed by the court nisi, and the plaintiffs in the instructions given'. The plaintiffs prayed and the court- gave a very lengthy instruction, containing among other things this language:

“And if the jury find from the evidence that defendant and its agents and contractors so placing said pipe upon said street knew or in the exercise of ordinary care, would have known that children would be attracted to play at and about said pipe so placed on said street, and would be liable to be injured by said pipe rolling from said place when so placed;
“And if the jury find from the evidence that defendant and its contractor so causing said pipe to be so placed upon said street and left in said insecure condition, did not exercise ordinary care in doing so;
“And if the jury find from the evidence that on the 17th day of July, 1903, while said pipe was so upon said street, in said insecure condition, plaintiff’s said son was on said street, attracted to be near said pipe by said pipe, and whilst so. upon said street, said pipe by reason of the said insecure condition in which it was placed and left upon said street by defendant’s, said contractor was caused to roll upon and over plaintiffs ’ son and so injure him as to cause his death,” etc.

From this instruction it is clear that the plaintiff has construed the petition as conveying the “turntable doctrine” of negligence. With plaintiff construing' • her own petition and submitting to the jury her construction of it, we need not rack our brains in finding the proper construction to be given to the petition. By the theory adopted below she is bound here. That this instruction presented the “turntable doctrine” to the jury there can be no question. Is such doctrine applicable to’ the facts of this case? We think not. Under the evidence the land on the north side of the street sloped to the center for a distance of about twenty feet, from which point it was level. The pipe which killed deceased had been in place from four or five o ’clock in the afternoon until 8:30 at night. The evidence is in hopeless conflict as to whether or not the pipe was blocked. The fall of the land was about one and one-half feet in twenty feet. The evidence is conflicting as to whether deceased was playing around the pipe at the time it began to move down the hill, or whether he was near the center of the street and was there struck by the moving pipe. A number of children were playing around the pipe when it began to move down the decline of twenty feet. But we need not go into further detail. The “turntable doctrine” has no place in this case. Plaintiffs’ instruction number one was therefore erroneous, and that theory of the petition likewise erroneous. For these things the ease must at least be reversed and remanded.

The “turntable doctrine” of negligence had its birth in a property owner erecting upon his own premises inherently dangerous machinery or structures, which were alluring and attractive to children, and leaving such unguarded. The doctrine has been combated by many courts, but with more or less limitations has been finally received by a majority of the State courts.

The recent case of Brown v. Salt Lake City, 33 Utah l. c. 236, 14 Am. & Eng. Ann. Cas. l. c. 1007, thus states the position of the courts upon the rule:

“The third ground upon which the city based its ■ request for a directed verdict in its favor is one that is not entirely free from' difficulty with respect to the law, nor is it free from doubt with regard to the sufficiency of the facts to sustain the verdict. The trial court submitted the case to the jury upon the doctrine announced in what are termed the “turntable” cases. Sioux City, etc. R. Co. v. Stout, 17 Wall. 657, 21 U. S. (L. Ed.) 745; Keffe v. Milwaukee, etc. R. Co., 21 Minn. 207, 18 Am. Rep. 393; and Barrett v. Southern Pac. R. Co., 91 Cal. 296, 25 Am. St. Rep. 186, may be classed as some of the leading cases upon that subject, and as presenting a fair illustration of the principles upon which the doctrine of the turntable cases rests. Since the first of the foregoing cases was decided a large number of States have followed the doctrine therein announced, and it has become so generally known and recognized by both bench and bar that it is not deemed necessary to cite or refer to the numerous cases wherein the doctrine is illustrated and discussed. In some States, however, -namely Massachusetts, New Hampshire, New York, and perhaps a few others, the doctrine has not been adopted by' the courts. In some States where the doctrine prevails the courts have sought to limit its application to open and dangerous machinery and appliances. Of this class Sullivan v. Huidekoper, 27 App. Cas. (D. C.) 154, 5 L. R. A. (N. S.) 263; Overholt v. Veiths, 93 Mo. 422; Richards v. Connell, 45 Neb. 467, and Stendal v. Boyd, 73 Minn. 53, are fair examples. The more recent adjudications, however, seem to apply the doctrine of the turntable cases to artificial structures and things other than machinery, when such structures and things are in themselves dangerous and are alluring or attractive to children of immature judgment and discretion. This class is well illustrated by the following, among other cases: Pekin v. MacMohah, 154 Ill. 141; Brinkley Car Co. v. Cooper, 60 Ark. 545. A large number of cases of each class might be cited in which the various grounds upon which the courts rest their decisions are stated, but the foregoing eases are deemed sufficient as illustrative of each class.”

As above indicated our court has followed the middle ground, and has been exceedingly slow to enlarge the field of the “turntable doctrine.” Por a full review of all our eases beginning with the Overholt-Yieths case, cited supra, see the recent case of Kelley v. Benas, 217 Mo. 1. In that ease the defendant had negligently piled up lumber in his lumber yard so as to make it dangerous for children playing therein. Children were in the habit of playing in and about the lumber yard as shown by the proof. Lamm, J., concludes his review of the case law of this State and elsewhere thus:

“If the old channel of the law is to be quite changed by the application of the new doctrine automatically and without discrimination, if sentimental considerations (however elevated and tender) are to usurp the place of cold and calm reason as to the foundation for rules of law, then the floodgate now damming back liability will be raised, letting in strange and deep waters for the landowner to struggle with. Not only will he be liable for boys drowned while swimming in his stock pond (the idea of swimming being alluring to a boy), for those who fall into uncovered wells, cisterns and cellars (the notion of playing on the brink of sneh being a boyish one), for children who are suffocated while playing in piles of sand accumulated for building purposes or in sliding down stacks of straw unscientifically piled and exposed, but he may be mulcted in damages for injuries to his neighbors’ children, who, romping by his hay mow, without his invitation, break their bones by sliding down his hay chute, or those who, playing in his rock quarry, are hurt. Shall he fence against adventurous, trespassing boys? Almost as well suggest Ghat he build a wall against birds.’ If he is held to liability for injury to the children of Jones because of the way he piles his lumber, by the same token, as to Brown, liability would be fastened on him for the way he piles his stones, his brick, his corn in pens, his hay ricks and his cord wood on his private grounds — in fact, as has been pointedly said, every landowner will be liable for injuries to his neighbors’ children under the new doctrine except the neighbor himself. We cannot well write the law that way. ”

In the case at bar even if it can be said that the defendant had such possession of the street as would make the application of the “turntable doctrine” proper, yet the mere placing of a large gas or water pipe in the street, so possessed, does not call for the application of the rule.

We think Goode, J., was right when he said in the Court of Appeals: “The facts are the pipe was laid in the street at about five o ’clock in the afternoon and remained securely there until about eight-thirty, when it started to roll and caught the deceased. The length of time the pipe remained in position demonstrated it was securely laid, and no carelessness can be predicated in regard to the manner in which it was laid unless the defendant was bound to anticipate children would play about it and guard against an injury to them. In my opinion this is invoking the doctrine of the turntable eases and applying it to an instance to which it had no application.' There was nothing about these pipes in the street so attractive to children or so dangerous to them if attracted, as to impose on defendant the duty of taking precautions with especial reference to accidents t'o children. Children will romp occasionally' about any appliance, tool or device they have access to; but only those which are apt to entice them into danger impose on the owner the duty of guarding against their intrusion. In fact the. turntable cases are anomalous and it is the practice of the courts to carry their doctrine no further than the previous decisions compel. This matter was considered in Witte v. Stifel, 126 Mo. 295, and Barney v. Railroad, 126 Mo. 372. The present case is not a case for the application of that rule, and the duty of defendant extended only to laying the pipes in such a manner as not to unnecessarily impede travel or endanger persons- using the street for ordinary purposes. They are not bound to take measures to make' the pipes so .secure that boys could not start ,them in motion by getting on them. In the instructions’ for plaintiff the court made this an element of liability and in so doing erred, in my judgment.”

So we say that the mere laying of the pipe on the slight incline proven in the case does not create a condition of things to invoke the “turntable doctrine.” Pipes placed in the streets are not of and within themselves either so attractive to children and so eminently dangerous to children as to authorize the application of the rule applied - to turntables and eases involving other inherently dangerous -and inherently . attractive objects. The application of the rule imposed the duty upon defendant to use special care as to children. This was-a burden not imposed by the law under the facts of the. case. .

So we conclude that this theory of the case should not he invoked either by pleading or proof, and as such was one of the theories below, the cause must at least be reversed and remanded.

II. But the cause proceeded in the lower court upon the idea that the petition was broad enough to submit the case upon negligence other than the negligence embraced in the doctrine above discussed. Instructions were given along other lines. It may be that we could strike from the petition those portions relating to “turn-table” negligence, and yet have a paper case. At any rate as the case must at least be reversed and remanded, the petition could be amended, and we had as well now dispose of another theory of the case presented by the defendant. Defendant says that' there is no liability as to it, be-, cause the work was being done by an independent contractor, and the negligence if any was the negligence of such contractor. One of the opinions from the Court of Appeals lays special stress upon the word “required” used in the contract between defendant and the . Uffman Coal & Teaming Company. That contract among other things says: “The part}7 of the first part hereby agrees to haul such quantities of cast iron gas pipe from cars to streets or lots designated by the party of the second part or from storage lots to streets, and to distribute such pipe along the streets as required by the second party.”

This language must be construed in the light of ' the facts. Defendant was laying mains in certain streets of the city. The actual work of digging the trenches and putting in the pipe on the grounds was let to another contractor. The work of putting the pipe on the ground for use in laying the mains was let to the Uffman Company under the contract. To our mind the word “required” as therein used simply means that the pipe should be placed on the ground as defendant needed it for the work being done by the other company. In other words, that the word “required” has reference to the needs and demands of the company laying the pipes in the ground. It therefore has no special significance which would thwart the doctrine of independent contractor, if such doctrine is otherwise in the case.

We can see no reason why the doctrine of independent contractor should not apply to this case. The defendant had to designate the streets upon which pipes were “required” by the contract. Whether such pipes were to be placed on the north side of the street or the south side of the particular street the contract is silent. That was a matter left solely to the Uffman Company. Whether they should be blocked to prevent them from rolling,- was a matter relating to the unloading of the pipes in the street and was under the control of the Uffman Company. The placing of pipes in streets is not of itself hazardous, or one threatening injury to others. This was the task assigned to the Uffman Company. As said by Goode, J., the danger arose from the manner of performing the task and was not a danger inherent in the task itself. Work of that character can be assigned to an independent contractor, and if such independent contractor so negligently perform the task as to inflict injury upon another, the contractor is liable, and not the principal.

The rule announced by 2 Thompson on Negligence page 899, and approved by this court in Loth v. Columbia Theatre Co., 197 Mo. l. c. 354, is: “The general rule is, that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, not in itself unlawful or attended with danger to others, according to the contractor’s' own methods, and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, Ms subcontractors, or Ms servants, committed in the prosecution of such work.”

TMs same rule was approved by tMs court in Independence v. Slack, 134 Mo. l. c. 75. Pipes properly unloaded upon a street are not inherently dangerous to others. They could be located so as to make them, dangerous, but this arises from the manner of performing the task and not from the task itself. We are of opiMon that the dissenting opinion of Gooue, J., in this case properly declares the law, and that on the theory of an independent contractor the defendant is not liable.

HI. There is, however, 'another view to be taken of this case. Grant it that the defendant is responsible for the manner in which this pipe was placed in the street, is it liable under the evidence adduced? Under the evidence this pipe was placed there at five o’clock in the afternoon and did not move from its place until eight-thirty in the evening. So that whether blocked or unblocked it remained in position for three and one-half hours, and did not then move until boys began to play over it. If, as we have held in paragraph one, the “turntable” doctrine of negligence has no place in this case, then is the defendant liable for the movement of this pipe occasioned as it clearly was under the evidence, by children playing thereon? We think not. If the pipe was blocked as defendant’s evidence tends to show, the blocks were evidently removed by the children, and in such case there could be no liability upon the defendant. And if on the other hand it was unblocked, as plaintiff’s evidence tends to show, and it required the exertion of these children to remove it from its moorings, as it evidently did,' under the facts, there should be no liability, because'the movement of the pipe would be from á cause not to be ¿nticipated by defendant, under the governing laws of the case. We conclude that the evidence does not disclose liability and the judgment nisi should be reversed.

All concur except, Valliant, J., absent; Woodson, J., in separate opinion.

CONCURRING OPINION.

WOODSON, J.

I fully concur in all that is said in the opinion in this case, and wish to add that, to my mind, it is perfectly clear that it was neither the negligence of the appellant nor of the independent contractor that caused the injury complained of, but it was the result of ah entirely independent cause, namely, the action of the boys in starting the pipe to rolling.

The principle underlying the “squib case” is inapplicable here. So if anyone is liable in this case it is those who were responsible for the independent cause that started the pipe to roll.