text:
    EDWIN THRELKELD et al., Appellants, v. T. E. THRELKELD et al.
    Division Two,
    December 19, 1911.
    1. WILL: Construction: Intention. The testator’s intention as expressed in the will, taking into consideration and giving effect to the language of the entire instrument, must be regarded as the true intent. When thus ascertained, such intent must be followed, unless it violates some rule of law.
    2. -; To Wife: One-third or Child’s Part: Life Estate or Fee. The first clause of the will read: “I give, devise and bequeath to my wife, Tabitha E. Threlkeld, one-third of all my estate, or a child’s part, as she chooses, and at her death the remainder of her estate to be divided equally among my children.” The widow had no property in her own right. She elected to take one-third under the will. The testator left 486 acres of land, worth $27,000. Held,, that the testator intended that his wife should have one-third of his property, if she elected to take it, with the right in her to consume so much of it as she might deem necessary for her support, and that whatever remained thereof at her death should go to his children. The words of limitation are unambiguous and unequivocal. She did not take an absolute estate in fee in the one-third, but only a life estate, and at her death what remained of said third went to his children, not to hers only.
    3. -: -: -: -: What Remains of “Her” Estate. The' word “her” before the word “estate” in the phrase, “and at her death the remainder of her estate to be equally divided among my children,” in said first clause of the will, referred to the estate given to her by the will. She had no estate of her own, and the only property in the mind of the testator was that which was the subject of the will. The testator was not by the words “her estate” attempting to dispose of his wife’s estate after her death. He simply meant that she was to have a life estate in one-third of his estate to use or consume for her support, and at her death what remained of that third was to go to his children.
    4. -: -: -: -: Limitation Over. Where the will gave to testator’s wife “one-third of all my'estate, or a child’s part, as she chooses, and at her death the remainder of her estate to be divided equally among my children,” even if the first phrase, standing alone, gave her an absolute estate in fee, the subsequent phrase, “and at her death the remainder of .her estate to be divided equally among my children,” was clear and unambiguous, and did cut down the absolute estate created by the preceding phrase, standing alone, to a life estate. I-t is not necessary that express words be used to cut down into a life estate a devise which, if it stood alone, would create an estate in fee simple. But here the words which create the life estate are as affirmatively strong as, and are found in the same clause with, the words which,, if they stood alone, create an estate in fee. The rule as to limitations over and the creation of estates by implication ¿s that if a fee simple estate is devised in the first instance, it cannot be cut down to a less estate by the use of subsequent ambiguous words inferential in their intent; but here there is no room for the application of that rule, since the words limiting the estate devised are not ambiguous or inferential in intent.
    5. -: -: -: -: -: Power of Disposition. The power of disposition, given the first taker by the will, is not inconsistent with a life estate. A. limitation over is good although the first taker has the power to dispose of, and to consume the estate given, for her own use and support; and where the power of disposition is not exercised, whatever is left of the portion given the life tenant upon her death goes to the remaindermen.
    6. -: Partition: Life Estate: Power to Dispose of Whole. Where the will gave to the wife a life estate in one-third of testator’s property, with power in her to consume so much of the corpus as she might deem necessary, at a partition of the lands during her life the order directing one-third of the proceeds, upon a sale of the land, to be turned over to her, should provide that she is to hold the same for her own use during her life, with power to consume so much of the principal as she may need for her support, and whatever remains thereof to be then divided among those made remaindermen by the will.
    Appeal from Monroe Circuit Court . — Hon. David II. Eby, Judge.
    Reversed and remanded (with directions).

      J. M. Crutcher, W. W. Barnes and Whitecotton & Wight for appellants.
    In tire language of this court, in tire case of Cox v. Jones, 229 Mo.' 1. e. 62, the rules laid down for the construction of the will in that ease as far as applicable to this may be summarized as follows: (a) The best interpreter of a will is the will itself. The language of wills is rarely the same, hence each will stands largely on its own terms, and cases construing wills are rarely of universal application, (c) That interpretation is to be made that will cause the thing to stand rather than fall; for it is a maxim of the law that it is to the interest of the State that the last will of its citizens be sustained, (d) The intention of the testator is the soul of the will. R. S. 1899, sec. 4650'. That statute is but declarative of a settled and venerable rule of judicial construction; that this intent, when gathered from the four corners of the instrument (if not violative of some' established rule of law) must be given full and ungrudging effect — mere technical rules of construction to the contrary notwithstanding, (e) In seeking the soul of the will, to-wit, the intent and meaning of the testator, the court will read the will from the standpoint of the testator as near as may be, considering the relations of the testator to the beneficiaries named and the circumstances surrounding him when it was made, mindful that the sense of the testator’s words is to be taken from the occasion of speaking them, that a will is completed by death and speaks from that time; and that words used are to be understood as having the meaning and sense indicated by the whole instrument. Every clause of the will must be given effect, if thatf be possible, and to this end, if need be (and only then) words may be supplied or omittted, and sentences transposed. Applying the foregoing rules under all the facts and circumstances in construing the first clause of Nathaniel M. Threlkeld’s will, we insist that the findings and judgment of the trial court are erroneous.

      Frank W. McAllister for respondents."
    (1) Under Sec. 4646, E. S. 1899 (the statute in force when the will was made, and also when it was probated), it is well settled that the words, “heirs and assigns,” or words of similar import, are not necessary to a devise in fee simple. Roth v. Ranschenbnsch, 173 Mo. 588; Cox v. Jones, 229 Mo. 64. (2) The words “I give, devise and bequeath to my wife Tobitha E. Threlkeld one-third of all my estate” (unless qualified or restricted) are ample and sufficient to create and pass to Mrs. Threlkeld an absolute estate in fee. If the words stood alone there could be no question but that they vested in Mrs. Threlkeld an absolute estate in fee in one-third of testator’s property, including the real estate in suit. The words which follow, “and at her death the remainder of her estate to be equally divided among my children,” do' operate as a limitation upon the previous absolute devise. They do not cut it down to a mere life estate. McMillan v. Farrow, 141 Mo. 55. (3) The rule seems to be well settled in this State that an estate in fee once given can not be impaired, cut down or qualified by implication but only by words as affirmatively strong as those which created the estate. Gannon v. Pauk, 200 Mo. 94; Roth v. Rausehenbusch, 173 Mo. 592; Yocum v. Siler, 160 Mo. 289. (4) The words giving the absolute estate to Mrs. Threlkeld are clear and unequivocal. Nothing could have been added to make them stronger or more positive unless the testator had added “and to her heirs and assigns forever,” and under section 4646', R. S. 1899, the addition 'of those words was unnecessary, and therefore they 'could have added nothing to the force of the words used. In the following clause there are no words expressly limiting the estate to life. It is proposed to put a construction upon those words, which, by implication, would limit the previous absolute grant. This effort is manifestly in conflict with the rule cited and must fail. Another venerable and well-settled rule of construction is that a devise generally or indefinitely without specifically limiting the interest given followed "by the power of disposition either express or implied gives the devisee the fee. Armor y. Frey, 226 Mo. 670'; Underwood v. Cave, 176 Mo. 1; Gregory v. Cowgill, 19 Mo. 415; Wead v. Grey, 78 Mo. 59; Moran v. Moran,.5 L. E. A. (N. S.) 325, and note.
   FERRISS, J.

Nathaniel M. Threlkeld died August 19, 1907, leaving the following will:

“Know all men by these presents, that I, Nathaniel M. Threlkeld, of the county of Monroe, State of Missouri, being of sound and disposing mind and memory, do make, publish and declare the following to be my last will and testament, hereby revoking all other wills heretofore made by me.
“First: I give, devise and bequeath to my wife, Tobitha E. Threlkeld, one-third of all my estate, or a child’s part, as she chooses, and at her death the remainder of her estate to be divided equally among my children.
“Second: I give, devise and bequeath to Emma Magruder, Jennie Morgan, Cattie Hale and Mamie Sanders, my daughters, two hundred and fifty and no — 100 dollars each.
“Third: I give, devise and bequeath the remainder of my estate, personal and real, to Emma Magruder, Jennie Morgan, Cattie Hale and Mamie Sanders, my daughters, Alonzo Threlkeld, Edwin Threlkeld, Frank Threlkeld and Will Cap Threlkeld, my sons, and take from Edwin’s share twenty-five and no/100 dollars, with seven per cent interest on same from January 1st, 1901, and to be paid to Frank'‘and Will Cap Threlkeld.
“Fourth: I hereby constitute and appoint J. Norton Magruder, now of the city of Paris, Mo., executor of this, my last will and testament, without bond.
“In "Witness Whereof, I have hereunto subscribed my name this 23rd day of August, 1904.
“N. M. Threlkeld.”

Besides his widow, the testator left eight children, all of age, and with all of whom his relations, so far as appears, were harmonious.' He left an estate of 486 acres of farm land, worth about $27,000, and personalty to the value. of $3000. He was seventy-five years old, and his widow was aged sixty-five. She had no property in her own right. The widow elected to take one-third under the will. In October, 1907, two of the children, as plaintiffs, filed this suit to partition the land aforesaid, making the widow and the other children defendants.

The only controversy in the case is over the construction of the first clause in the will; plaintiffs claiming that it gives the widow a life estate only, while the widow claims a fee in one-third of the estate. Aside from this question, all parties appear to be satisfied with the partition proceedings.

The court below construed the will to give an estate in fee to the wife in one-third of the estate. The property not being susceptible of division in kind, was sold by the sheriff. The final order directed him to pay one-third of the proceeds to the widow. Plaintiffs appeal.

Appellants have not deemed it to be their duty to furnish us with a brief of the decisions which bear on the question presented here. Counsel have deemed it proper to impose on us the entire burden of examining the vast number of decisions in this State and elsewhere bearing on the vexed question of will construction, in order to find what there is in the way of rule and precedent to assist us in reaching a just conclusion. Indeed, counsel on both sides did not find it necessary in the oral argument to do more than barely submit the controversy.

New questions have produced greater wealth of learning than have those arising upon the construction of wills. The particular questions presented in this case have been before this court in numerous cases, resulting in decisions which, owing to the variety in the facts, are not easily reconciled. They afford abundant material for argument and illustration.

Our statute has crystallized the cardinal rules of construction to be applied to wills in the terse language of section 583, Revised Statutes 1909', which provides: “All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them:”

In arriving at the intention of the testator, a further rule of construction has been formulated and often .approved by this court, namely: The intent as expressed in the will, taking into consideration, and giving effect to, the language of the entire instrument, must be regarded as the true intent. When thus ascertained, such intent must be followed unless it violates some rule of law. Applying the foregoing rules to the will in question, it cannot be doubted that the testator intended that his wife should have one-thircl of his property, if she elected to take it, with the right in her to consume so much of it as she might deem necessary for her support, and that whatever remained at her death should go to his children. The language used is clear and unambiguous. The words giving to the children what should remain at her death are as clear and unequivocal as those which give the property to the wife in the first instance. The words which give the property to the wife, if nothing followed, would be sufficient under the statute to give her an absolute estate in fee. If the testator had intended that his wife should have an estate in fee, he certainly would have stopped with the gift to her, and would not in reason have attempted to provide for the children out of the same property given absolutely to her.

Respondents assert, however, the following propositions :

First. That the testator is attempting' to dispose of his wife’s estate after her death, and that this is indicated by the use of the word “her” in the phrase, “and at her death the remainder of her estate to be equally divided among my children.” We think it clear that the estate here referred to by the testator was the estate given to the wife by the will. She had no estate of her own, and it is evident that the only property in the mind of the testator was that which was the subject of the will.

Second. It is claimed that the will, in the phrase “I give, devise and bequeath to my wife, Tobitha. E. Threlkeld, oneTthird of all of my estate, or a child’s part, as she chooses,” gives to the wife an estate in fee in one-third, upon her election (which she subsequently made) to accept it, and that the subsequent words of limitation over must be disregarded, and this for two reasons: (a) because, as counsel state it in the brief, “an estate in fee once given cannot be impaired, cut down or qualified by implication, but only by words as affirmatively strong as those that created the estate.” If it is intended to be asserted that express words are necessary to cut down into a life estate a bequest which would, if it stood alone, create an estate in fee, the authorities are against the proposition. Respondents cite in support of their contention Gannon v. Pauk, 200 Mo. 94. Here is what we say in that case: “It is settled law that if a fee simple estate be devised in the first instance, it cannot be cut down to a less estate by the use of ambiguous words, inferential in their intent, following.” Respondents also refer to Yocum v. Siler, 160 Mo. l. c. 289, where we say: “When the words of the will in tlie first instance clearly indicate a disposition in the testator to give the entire interest, nse and benefit of the estate absolutely to the donee, it will not be cut down to any less estate by subsequent or ambiguous words inferential in their intent.”

In the Yocum case the devise was to the donee “absolutely.” The will was construed as if there had been no limitation over, because the contingency upon which the limitation expressed was to take effect never happened.

Respondents further cite Roth v. Rauschenbusch, 173 Mo. l. c. 592. In that case the proposition.is formulated thus: “If on the contrary, the testator devises the fee simple or generally to the first taker with an absolute power of disposal in him, and there is neither by express words nor implication a mere life estate created in the first taker, all subsequent grants in the will must fail, because repugnant to the first grant and because it conflicts with a settled rule of law. ’ ’

Prom the foregoing citations it will be perceived that the proposition as stated by respondents is not the law. A careful reading of the above cases will show that the court did not say that a life estate cannot be created by implication. On the contrary, the court conceded in the cast last cited, and has repeatedly ruled since, that a life estate may be created by implication where, in language not ambiguous, the testator has manifested an intent to create such estate, even if it results in cutting down the absolute estate which would be created if the words first used stood alone; and such rulings are in recognition of section 579, Revised Statutes 1909, which provides:

“In all devises of lands or other estate in this State, in which the words ‘heirs and assigns,’ or ‘heirs and assigns forever,’ are omitted, and no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee, to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee simple to the devisee, for all such devised premises. ’ ’

We have italicised the portion of the statute bearing directly on the point. This position is clearly enunciated in Cross v. Hoch, 149 Mo. 325, where this court holds that the intention to create a life estate may be expressed in any appropriate equivalent words. In the cast last cited we construe section 579, supra, to mean that an absolute estate may be limited to a life estate by necessary implication from the terms of the grant. The will involved in that case contained the following: “To my daughter Sarah Cross and her heirs I give the west half of the northwest quarter of section twenty-five, and also my negro girl Amanda, provided that the property here devised to Sarah Cross be subject to the trust, care and control of my son Turner Maddox for her use, and should the said Sarah Cross die without children, then said property shall be divided among my other daughters.” In the opinion, this court, after reviewing the facts and the law, concluded thus: ‘ ‘ The testator therefore must be held to have carved out a life estate for his wife in express terms, and a life estate for his daughter, Sarah Cross, by necessary implication from the terms of the'grant, and one is as effectual under the statute and the decisions referred to as the other.”

The foregoing case is cited and approved in Yocum v. Siler, supra, l. c. 308, and in Dozier v. Dozier, 183 Mo. l. c. 146, where we say: “The intention to create a life estate is, of course, best expressed by’ direct words to that effect, but that intention may be manifested by words which lead to that conclusion, but which nowhere use the term ‘life estate.’ ” So late as Armor v. Frey, 226 Mo. l. c. 679, we approve the above cited cases.

The limitation over is in the same sentence, and is in language as clear and unambiguous as that which gives the property to the wife.

(b) But it is urged that the will gives to the wife the absolute and unrestricted power of disposition; that the power of absolute disposition involves absolute ownership, and that therefore the subsequent words are but an attempt to dispose of the wife’s property by the will of her husband.' In short, it is contended that the power of disposition which the will inferentially .gives to the wife is inconsistent with a life estate in her.

This proposition has been before this court several times, and the holding is that the power of disposition is not inconsistent with a life estate,' and that a limitation over, is good although the first taker has the power of disposition.

In Harbison v. James, 90 Mo. 411, where the will gave the wife the estate generally, and in the same paragraph provided that any portion remaining undisposed of should go to three daughters, this court, after a full discussion of the law, said: “The power of sale or disposal, superadded to a life estate, if not exercised, does not enlarge the life estate into a fee, and in such case the remainder over is valid, and at the death of the life tenant takes effect in the remainderman. ’ ’

Schorr v. Carter, 120 Mo. 409, is directly in point. In that case the will provided: “I give and bequeath to my beloved wife, Regina Schorr (maiden name Regina Schlienger), all my right, title, claim and interest in three certain tracts or parcels of land (which are thereupon specifically described,- and include the premises in dispute), . . . four shares of the .Domicile Saving and Loan Association, numbers 1813, 1814, 1815 and 1816, dated January 15, 1858; and all mixed property whatever I may be possessed of at the time of my death; and after my death, all real, personal and mixed property of whatever she, the said Regina Schorr, may be possessed of at the time, shall be equally divided between my next relations or heirs; that is to say, after the payment of all just debts and funeral expenses.” "We held that the will in that case gave a life estate to the wife. The will was in substantially the same phraseology as the one under consideration.

In Walton v. Drumtra, 152 Mo. 489, the conveyance was, in effect, to the wife generally by way of trust, with power of disposition, and with no express words limiting to a life estate. A subsequent clause in the deed read thus: “Provided always that if said Barbara Ann Tore shall die leaving said property undisposed of either by deed of conveyance or by last will and testament, then the trust herein created shall cease, determine and be at an end, and the said property shall vest in and revert absolutely to Patrick Tore and his heirs and assigns forever. ’ ’ It was claimed that said instrument gave an equitable fee simple estate. On this point we said: “In arriving at the intention of the grantor, Michael Kelly, all of the provisions of the deed must be considered together, and when this is done it seems plain that Mrs. Barbara Arm Tore, Patrick Tore’s wife, was to have the use and enjoyment of the property therein described during her life, with power in the trustee, John E. Tore, by the written direction of said Barbara Ann, to use and manage said property for her use and benefit, or to sell and convey the same by fee simple deed, or mortgage the property as she might direct for her benefit, her wishes and directions to be manifested by her joining in such deed- or mortgage, or to dispose of the property by will if she was so inclined, but in the event of her failure to dispose of the property as indicated it was to revert to her husband, Patrick Tore.” It was ruled that upon the death of Mrs. Yore thé property undisposed of went to Patrick'Yore.

In Roth v. Rauschenbuseh, supra, the court construed the will as giving the wife an absolute estate, but reaffirmed the doctrine of Walton v. Drumtra in the following language, l. c. 591: “The life estate need not be created by express words, but if it is the clear intention from the whole .instrument that the first taker is to have but a life estate, the added power of disposition will not convert it into absolute ownership. ’ ’

The cases cited by respondents are in harmony with the principles laid down in the foregoing cases. We know of no rule of law that will be violated in carrying out the obvious intent and plain direction of this will. Doubtless the testator desired to provide for his wife. Doubtless also he desired that whatever she should not need for her support should go to his children. The whole matter is covered by a single sentence, and nothing short of the entire sentence fully expresses the thought of the testator as to either the wife or children. There is a substantial difference between the bequest in the will and the dower rights of the wife under the statute. Whether this be great or little, it is what he desired, and what she accepted. So far as her needs go in the matter of support, the wife has the right to provide for them even if it consume the entire one-third; beyond such needs, what is left belongs at her death to the children.

The judgment is reversed and the cause remanded, with directions to amend and re-enter the interlocutory judgment and the order of distribution in accordance with the views herein expressed. The order directing the sheriff to pay over to the wife one-third of the proceeds should provide that she is to hold the same for her own use during her life, with power to consume so much of the principal as she may need for her support, and whatever remains at her death to be divided equally among the children of Nathaniel M. Threlkeld.

Kennish, P. J., and Broivn, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    PARKER H. LITCHFIELD et al. v. ELIZABETH S. BOOGHER, Appellant.
    Division Two,
    December 19, 1911.
    1. CONVEYANCE: Easement: Private Alley. A conveyance of real estate, reserving a portion thereof as a private- alley, for the use of owners of certain property described in the deed, creates an easement in the property conveyed, appurtenant to the property for the use of which the easement is reserved.
    2. -: -: -: Subsequent Grantee. One who acquires title through a deed expressly reserving a right of way through the land, as a private alley, is estopped by the deed from denying the existence of the right of way, even though his own deed does not mention such reservation and conveys the entire lot as if it did not exist.'
    3. -: -: -: -: This Case. A realty company platted a half block of ground consisting of 29 lots each 195 feet and 3% inches deep, sold them, and in the deed to all except two was a reservation that the south ten feet “is set apart to be used as a priviate alley, laid out for the exclusive use and benefit of present owners of” all the lots in the block, “and for the use and benefit of the heirs and assigns of said lot owners,” and the other two deeds conveyed only 185 feet and 10 inches “to the north line of an alley ten feet wide.” The deed to lot 59 contained said reservation, as did each succeeding deed in the chain of title, until the one made by defendant’s grantor, which did not mention said reservation, but conveyed lot 59 with a depth of 195 feet and 3 ys inches. Held, that the reservation of the easement became an appurtenance to each of the other lots, which ran with the title, and defendant had no right to close up said alley, and is enjoined from doing so.
    4. -: -: -: Other Restrictions Unobserved. The said reservation having been clearly and unequivocally made in the deeds, the facts that certain building restrictions in them were not observed by the grantees, that no steps were taken to dedicate the alley to public use, which the deeds authorized, that the plat on file in the recorder’s oflice failed to designate the ten-foot strip as an alley, does not affect the right of the owners of the other lots to the use of the entire alley reserved.
    Appeal from. St. Louis Circuit Court. — Hon. Moses N. Sale, Judge.
    Aeeirmed.

      Frank M. White and Daiuson S Garvin for appellant.
    (1) (a) The sole question involved is plaintiffs’ present rigid to the injunction against defendant. The city or a majority of the owners of lots on the south side of McPherson avenue are not parties and questions as to their right, if any, to use of the south ten feet of these lots for any specific purpose is not to be determined in this proceeding’, (b) Plaintiffs’ claim of a private right of way over the rear ten feet of defendant’s lots is based not upon any express grant of any right of way but solely on references in several separate and distinct deeds to a setting apart of the southern ten feet of the particular lot thereby conveyed “to be used as a private alley laid out” for the exclusive use of the owners of lots described solely by the numbers given lots in a recorded plat of the subdivision which plat fails to show any such private alley thereon laid out. Neither plaintiffs nor defendant take title to their respective lots through each other or have any common grantor since about 1892 or 1893, when the Forest Park Real Estate Company filed and recorded the aforesaid subdivision plat. The deed and plat must be construed together as a whole in the light of existing circumstances. Eastland v. Fogo, 58 Wis. 274; Calloway v. Henderson, 130 Mo. 77; Wolfe v. Dyer, 95 Mo. 549; Construction Co. v. Tie Co., 185 Mo. 25; Choate v. Burnham, 7 Pick. (Mass.) 274; Cordes v. Straszer, 8 Mo. App. 60; Schreiber v. Osten, 50 Mo. 513; Reed v. Lammel, 28 Minn. 306. (c) A mere reference in one or more deeds to a proposed way without an express grant will not pass such private way. Washburn on Easement (4 Ed.), pp. 264, 265; Hopldnson v. McKnight, 31 N. J. L. 422; Baker v. Vanderburg, 99 Mo. 378; Cleveland v. Bldg. Co., 55 Atl. 117; Baltimore v. Pear, 82 Md. 246; Field v. Mark, 125 Mo. 503. (d) Not being a way of necessity there is no presumption in favor of plaintiffs’ claim. Field v. Mark, 125 Mo. 503; Schmitz v. Ritterhalz, 20 111. App. 614; Mason City St. M. Co. v. Mason, • 23 W. Va. 211; Peters v. Worth, 164 Mo. 431. (e) The presumption is against plaintiffs’ claim, because such a private alley would be a cul de sac and too narrow to turn a vehicle around in. Field v. Mark, 125 Mo. 516. (2) If the language in the deeds with reference to a private alley was intended as a provision or offer in connection with a general improvement plan for the mutual acceptance of the several owners of these lots the offer must be accepted within a reasonable time and plan adopted in its entirety by the parties claiming such an easement and any act of theirs or of their grantors which is incompatible with the nature or exercise of such an easement is a rejection of the offer and an extinguishment thereof beyond recall especially where the rights of innocent third parties have intervened. Village of Vermont v. Miller, 161 111. 210; Scharer v. Pantler, 127 Mo. App. 433; Coughlin v. Barker, 46 Mo. App. 54; Corning v. Gould, 16 Wend. (N. Y.) 531; Roanoke Invt. Co. v. Railroad, 108 Mo. 50; Skrainka v. Oertel, 14 Mo. App. 474; Taylor v. Hampton, 4 McCord, 96. (3) Plaintiffs are estopped to now- claim such a private alley because of the laches and acts of their grantors and themselves repugnant to their present claim; e. g., rejecting original plan of improvement permanently fencing in said proposed private alley and violating the provisions in their own deeds respecting the general improvement of “Forest Park Place.” Improvement Co. v. Tower’s Exrs., 158 Mo. 294; 1 Pomeroy, Eq. Jnr. (3 Ed.), sec. 398; Wash-burn on Servitudes (4 Ed.), p. 699; Scharer v. Pantler, 127 Mo. App. 433; Corning v. Could, 16 Wend. (N. Y.) 531. (4) The actual possession of all parts of all of defendant’s lots has been openly, notoriously, adversely and exclusively in plaintiff and her grantors from at least the time the permanent iron fence and side walk on Kings Highway were built, to-wit, 1893, or for more than thirteen years before this suit was brought, April, 1907. Scammell v. Soda Fountain Co., 363 Mo. 606.

      S. T. G. Smith for respondents.
   KENNISH, P. J.

This is an appeal from a decree of the circuit court of the city of St. Louis, perpetually enjoining the defendant from interfering with the plaintiffs’ right to the use of a private alley in said city.

It appears from the record that City Block 4907A, in the city of St. Louis, is a tract of land in the form of a half block, consisting of lots thirty-one to fifty-nine, inclusive, all fronting’ north on McPherson avenue. The defendant owns lots fifty-five to fifty-nine, inclusive, being the east end of the said block. Lot fifty-nine is the corner lot, and on the east abuts on King’s Highway, a street running north and south. The block is bounded on the south by an addition to said city known as Portland Place. The lots in said block have a xmif orm depth of one hundred and ninety-five feet and three and three-fourths inches. The' alleged alley in controversy is upon the south ten feet of the lots, adjoining Portland Place, and extending east and west the entire length of the block. In the year 1901 the defendant purchased lot fifty-nine and built a hotel thereon. Within a few years before and after that time the other lots in the block were bnilt np and are now occupied as residence property. The property-owners, upon the assumption that the private alley was to be opened on the south ten feet of their lots, did not build their fences and outbuildings beyond the north line of said ten-foot strip of ground. The defendant also bnilt her hotel on this line. For some time prior to the institution of this litigation the alleged alley was occupied by telephone poles and was used, to a limited extent, for teaming purposes, for the convenience of tho'se residing in the block. In the year 1906 defendant placed a chain across the alley, at its opening on King’s Highway, the east line of her property, and forbade the public or the property-owners in the block to pass through. Thereupon plaintiffs, as property-owners in the block, brought this action to restrain and enjoin the defendant from interfering with their alleged right to use said ten-foot strip of ground as a private alley, and for general relief.

It was shown by the evidence that said Block 4907A was part of an addition to the said city of St. Louis, laid out in the year 1891 by the Park Place Realty Company. This land was then unimproved as city property, except that some fences and sidewalks were built thereon by the company to make the property more attractive to prospective purchasers. In a few years thereafter the company had disposed of all of the lots in the block. All of the deeds made to this property by the realty company, except two, contained the following reservation, viz.:

“The southern ten feet of the above-described lot is set apart to be used as a private alley, laid out for the exclusive use and benefit of present owners of lots 31 to 59, both inclusive, in City Block No. 4907, and for the use and benefit of the heirs and assigns of said lot owners, but subject to the right and privilege granted to the city of St. Louis for construction and maintenance of sewers beneath said private alley and the right and privilege is granted to the parties in interest to dedicate to the public use forever said' ten feet strip with the consent and approval of the proprietors of lots owning’ the majority of front feet on the south line of McPherson in the subdivision known as Forest Park Place.”

The two deeds in which the foregoing reservation was not made contained the following corresponding provision, in connection with the description of the property conveyed, viz.:

“ Arid having a depth southwardly 185 feet, 10 inches more or less between parallel lines one hundred feet wide to the north line of an alley ten feet wide. ’ ’

• The deed made by the Park Place Realty Company 'to the first grantee of said lot fifty-nine, now owned by defendant, contained the reservation first above set forth, and each subsequent conveyance, until that made to defendant, contained a provision recognizing the reservation of the south ten feet of this lot for a private alley. The deed to defendant purported to convey the entire one hundred and ninety-five feet and three and three-fourths .inches, absolutely and without any reference to a reservation for alley purposes. A plat of this addition, including the block in question, was filed in the office of the recorder of deeds of the city of St. Louis, and no mention or dedication of the alley in controversy was made therein.

Upon a trial of the issues the court found for the plaintiffs and entered a decree that the temporary injunction be made perpetual as prayed! No question is presented as to the pleadings, and it is* stated by the appellant that “the sole question involved is' plaintiffs’ present right to the injunction against the defendant.”

(1) A conveyance of real estate, reserving a portion thereof as a private alley, for the use of the owners of certain property described in the deed, creates-an easement in the property conveyed, appurtenant to the property for the use of which the easement is reserved. [Whitelaw v. Rodney, 212 Mo. 540; Rabich v. Stone, 137 Mo. App. 318; Jones on Easements, sec. 209; Elliott on Roads and Streets (3 Ed.), sec. 29; City of Chicago v. Borden, 190 Ill. 430; 14 Cyc. 1160.]

The law applicable to the facts of this case is stated in 14 Cyc., supra, as follows: “The acceptance by a grantee of a deed conveying a right of way in express terms and defining with precision the exact piece of land over which the easement is to extend is an acceptance of all it conveys, and no act is required of him to show his acceptance of the easement as the owner of the dominant tenement. . A grantee in a deed creating an easement over the. granted-premises by its acceptance becomes bound by all its restrictions, reservations and exceptions. In other words, one who acquires title through a deed expressly reserving a right of way through the land is estopped by the deed from denying the existence of the right of way.”

And in the case of Whitelaw v. Rodney, supra, l. c. 549, this court said: “All that is necessary to create an easement o.f the kind under consideration ‘is a clear manifestation of the intention of the person who is the source of title to subject one parcel of land to a restriction in its use for the benefit of another, whether that other belongs at the time to himself or to third persons, and sufficient language to make that restriction perpetual.’ [2 Wash., Real Property (4 Ed.), sec. 8, p. 303.] ”

If a reservation of an alleyway is made in a deed, so that an easement appurtenant to other property is created, the omission of said reservation in a subsequent conveyance of the servient estate will not relieve it from the burden of such easement. [McDonald v. Quick, 139 Mo. 498; City of Chicago v. Borden, supra.]

Applying the foregoing well settled principles of law to the facts of this case, it is clear that an alley for the use of the other property-owners in the block was reserved upon-the south ten feet of defendant’s lot. This is not a case forresorting to extrinsic facts, and circumstances for the purpose of construing a latent ambiguity in a deed. All of the deeds, in apt words, plainly and unequivocally reserved the ground described and set it apart for an alley, for the use of the persons named and their assigns forever, and nothing further was necessary to be done to make such right operative. The facts that certain building restrictions in the deeds were not observed by the property-owners, that no steps were taken to dedicate the alley to the city for public use, as authorized by the deeds, and that the plat on file in the recorder’s office failed to designate this strip of ground as an alley, did not in the least affect the right of the property-owners to the use of this alley as provided in the deeds. Each deed made by the Park Place Realty Company conveying one of these lots, reserved the right to the use of the ten foot strip for an alley for all the other lot owners, their heirs and assigns, etc. The reservation of the easement thus became an appurtenance to each of the other lots and would be conveyed with them. And. by his acceptance of the deed containing the reservation of the alley, each grantee would be estopped from disputing the existence of the right of way across his lot. Under these facts it is difficult to see how the private alley could have been more effectually created by grant or reservation than was done in this ease.

(2) We have examined the record carefully and have found no substantial evidence to sustain the defense of the Statute of Limitations, or of the abandonment of the right to the use of the alley as reserved in the deeds. In the year 1896 defendant’s lot was conveyed to the Mercantile Realty and Investment Company, by a deed containing this reservation, viz.: ‘ ‘ The south ten feet of said lot to be used as a private alley.” This lot was not conveyed thereafter until 1901, and then by a deed containing the following reservation: “This conveyance is made subject to all restrictions, conditions and stipulations contained in the deeds of record in the recorder’s office for the city of St. Louis, Missouri.”

Until the time last mentioned very little of the property in this block was improved and occupied as residence property, and therefore there was no occasion to use the alley. But there is no evidence of adverse possession of the alley up to that time. The iron fence built along the west side of King’s Highway, and on the east line of lot fifty-nine, was extended across the alley, leaving» no gate or opening, and connected with the fence at the corner of Portland Place; but the block was not then improved; the alley was not needed; and the testimony shows that in so building the fence there was no intention- of obstructing the alley or of asserting an adverse claim against its use as such.

The evidence amply sustained the decree of the circuit court and accordingly the judgment is affirmed.

Ferriss and Brown, JJ., concur.


author: FERRISS, J.

text:
    JOSEPH GRISHAM and NETTIE M. GRISHAM, Appellants, v. WESTERN UNION TELEGRAPH COMPANY, CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, and JOHN M. BEER.
    Division Two,
    December 19, 1911.
    1. LIBEL: Telegraph Operator: Text-Book Commission: No Proof. It is the legal duty of a telegraph operator to send a. message deposited with him, upon payment or tender of charges, if it is expressed in decent language and is not manifestly libelous; and where there is no proof that the agent knew that the County Text-Book Commission was in session for the purpose of receiving bids and adopting a series of text-books for use in the schools of the county, on the day that the agent of a certain publishing house deposited with him a message to his house reciting “board here sold out,” or that said agent was the representative of a competing bidder, or that said agent had appeared before said commission, or that the word “board” meant said commission, or that said words meant to charge that the members of the commission had been bribed, a member of said board fails to make out a case of libel against the telegraph company.
    2. -: -: Manifestly Libelous: Ambiguity. The statutes do not compel a telegraph operator to send a message that is manifestly libelous; but unless it is manifestly libelous or indecent in its expressions, he must send it. But any doubt or ambiguity as to its libelous character is to be resolved in favor of the operator when he and his company are sued for libel; and if the message deposited with him, unexplained and disconnected from extrinsic facts, of which he is not shown to have any knowledge, has in it no language to suggest a libelous meaning, the plaintiff cannot recover.
    Appeal from. Schuyler Circuit Court. — Rem. Nat M. Shelton, Judge.
    Affirmed.

      Fogle & Fogle, W. M. Saxbury and Rolston & Rolston for appellants.
    (1) The petition states a cause of action. TJkman v. Daily Record Co., 189 Mo. 378; 13 Ency. PI. & Pr. 40 ; Atwinger v. Fellner, 46 Mo. 276; Kenworth. v. Journal Co., 117 Mo. App. 327. (2) As respects a publication by writing a libel, not only the publisher, but all wbo in anywise aid or are concerned in tbe production of tbe writing, are liable as publishers. If one composes and dictates, a second writes, and a third publishes, each and all are liable as publishers. Buckley v. Knapp, 48 Mo. 152; Arnold v. Savings Co., 76 Mo. App. 159. (3) A corporation is liable in damages for the publication of a libel, as it is for its other torts. Quigley v. Railroad, 21 How. (H. S.) 202; 25 Cyc. 428, n. 98; 10 Cyc. 1215, sec. 4. (4) Corporation may be held for libel. Bishop on Torts, sec. 728; Johnson v. Dispatch Co., 65 Mo. 539; 2 Wilgus, Corp., p. 1258. (5) A railroad corporation may be liable in damages for a libel published by its agents in the course of their employment. 10 Cyc. .1215; Railroad v. Quigley, 21 How. (U. S.) 202; Gas, etc. Co. v. Lansden, 173 U. S. 543. (6) A master is liable for the publication of defamatory matter by his agent in the line of his duty though the principal did not authorize it. Newell on S. & L., 376; Fogg v. Barton L. & B: Co., 20' N. E. 109; Garrepzen v. Dunckel, 50 Mo. 104; McCord v. Tel. Co., 39 N. W. 315. (7) A telegraph company is held liable for its agent’s sending a libelous telegram. Cooley on Torts, p. 139; Peterson v. Tel. Co., 77 N. W. 985.. (8) A railroad company falsely published through their electric telegraph that a bank had stopped payment, held liable. Whitfield v. Railroad, 37 L. J., Q1. B.; 2 Addison on Torts, sec. 1140: (9) To transmit over its lines to an addressee, a message libelous on its face, is a publication of a libel for which the company can be held responsible, since in such a case not only the addressee, but also all of the company’s agents through whose hands the dispatch must pass, are made acquainted with its contents. 25 Am. and Eng. Ency. (1 Ed.), 281. Libelous letter sent through the mail to plaintiff is libelous per se. Houston v. Wooley, 37 Mo. App. 15; R. S. 1899', secs. 2259-61. All libels are actionable per se. Kenworth v. Journal Co., 117 Mo. App. 327. (10') A telegraph company is liable for the acts of its agents within the scope of their authority. So where a libelous message is maliciously transmitted by an agent of the company, within the scope of his employment, punitive damages therefor may be recovered against the company. 1 Joyce on Dam., sec. 409. (11) A railrqad operating a line of telegraph may be liable in transmitting over its line to different stations, libelous matter concerning a person. 10 Cyc. 1215; Whitfield v. Railroad, E. B. & E. 115. (12) For acts done by the agents of a corporation, either in contractu or in delicto in the course of its business and of their employment, the corporation is responsible as an individual is responsible under similar circumstances. Cooley’s Torts, 227; Johnson v. Dispatch Co., 2 Mo. App. 565; Lathrop v. Adams, 133 Mass. 471; Fogg v. Railroad, 20 N. R. 109. (13) An agent has a right to refuse to send a telegram that is obscene, slanderous, blasphemous, profane or the like. _ Telegraph Co. v. Lillard, 110 S. W. 1035. (14) Notice to the agent of matter in his line of duty is notice to the principal. Cox v. Pearce, 20 N. E, 566; Larsen v. Railroad, 110 Mo. 234; Barker v. Railroad, 126 Mo. 143. (15) The answer of the defendant Western Union Telegraph Company, and the defendant Beer, and the first answer of the defendant railroad, amounts to no answer at all and all of the allegations in the plaintiff’s petition were virtually admitted. Dezell v. Fidelity and Casualty Co., 176 Mo. 279. (16) When a proffered message is not manifestly a libel or susceptible of a libelous meaning on its face, and is forwarded in good faith by the operator, the defendant cannot be held to have maliciously published a libel, but where the message is susceptible of a libelous meaning and is not signed by any responsible person, and there is no reason to believe it is a cipher message, and it is forwarded under such circumstances as to warrant the jury in finding that the operator in sending the message, was negligent or wanting in good faith in 'the premises, the company may be held to have maliciously published a libel. A publication under such circumstances is not privileged, Peterson v. Telegraph Co., 65 Minn. 18. (17) If Beer knew that the telegram was libelous, or if he knew of the circumstances and the parties to whom the word “board” referred, or if he had reasonable grounds, as a man of ordinary intelligence, to know the facts and cireumstances and still -sent the telegram, he and the other defendants are liable. Nye v. Tele. Co., 104 Fed. 930. (18) Evidence which shows that the defendant conld have ascertained from his hooks that the statements published are false, justifies an instruction for punitive damages on the grounds of gross carelessness or recklessness. Eanius v. Druggist Pub. Co., 20 Mo. App. 12. (19) If the publication is false and plaintiff has suffered actual damages, he is entitled to recover such damages, no matter how innocently, or with what purpose, intent or motive, defendant acted. Farley v. Pub. Co., 113 Mo. App. 27; Jones v. Murray, 167 Mo. 25; Ukman v. Daily Record Co., 189 Mo. 378. (20) Intent or knowledge of the libelous matter is not necessary to make one liable. Curtis v. Mussey, 6 Gray, 261; Farley v. Publishing Co., 113 Mo. App. 216; Jones v. Murry, 167 Mo. 25. (21) A defendant is liable for what is insinuated as well as for what is stated explicitly. Merrill v. Post Pub. Co., 83 N. E. 419’. (22) Plaintiff inay show by extrinsic evidence that the words apply to him, although not named. 25 Cyc. 493; Ken-worth v. Journal Co., 117 Mo. App. 337; Newell on Libel & Slander (2 Ed.), 250'; Caruth v. Richeson, 96 Mo. 186. (23) In an action for libel on demurrer to the petition where the language of the alleged libel is doubtful, the court will ascertain if there is anything in the language which by reasonable intendment is actionable, and in determining the meaning of the words will consider extrinsic facts and circumstances with which they are connected. Mfg. Co. v. Western Fruit Grower, 126 Mo. App. 139. (24) And where the person is ambiguously described extrinsic evidence may be admitted to establish the identity. Mix v. Woodward, 12 Conn. 262; Van Vetchten v. Hopkins, 5 Johns. 211; 25 Cyc. 503. (25) A person who reads a libelous publication may testify as to whom he understood it to refer. Enquirer Co. v. Johnston, 72 Fed. 443. (26) Though plaintiff’s name was not used in the alleged libelous article, still if readers understood it to refer to plaintiff and the sense in which the words were used, then this is admissible testimony. Ball v. Eben Am. Co., 86 N. E. 1097. (27) Plaintiff may call in friends or those acquainted with the circumstances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff. Kenworth v. Journal Co., 117 Mo. App. 336; 25 Cyc. 362. (28) When-the words have a harmless or an injurious meaning it is a question of fact for the jury to say which meaning was intended. Newell on S. & L. (2 Ed.), 769; Birch v. Benton, 26 Mo. 153; McGinnis v. Knapp & Co., 109 Mo. 131; Dollarer v. Bashey, 16 Pa. St. 204. (29) If the words are capable of. two meanings, one harmless and the other defamatory, then it is a question for the jury. Dunnell v. Fish, 11 Met. 52;-Downs v. Hawley, 112 Mass. 237; Twone v. Monroe, .136 Mass. 464; Hoare v. Silverlock, 12 Q. B. 624; Fray v. Fray, 17 C. B. N. S.,603. (30) If the language is ambiguous, the construction is in what sense hearers understood it. Caruth v. Richeson, 96 Mo. 186. (31) The jury now decide upon the facts, what the words do mean. Fallenstein v. Booth, 13 Mo. 428; Stuber v. Wennel, 19 Mo. 513; Hudson v. Garner, 22 Mo. 423; Speaker v. McKensie, 26 Mo. 255; Birch v. Benton, 26 Mo. 153; Bishop, Non-Contract Law, sec. 277. (32) In determining the meaning- of doubtful words the jury may take into consideration all the surrounding facts. Red-dell v. Thayer, 127 Mass. 487; Kenworth v. Journal Co., 117 Mo. App. 327; Julian v. Star Co., 209 Mo. 35. (33) The plaintiff may give evidence of surrounding' circumstances from which a defamatory meaning may be inferred and then it is for the jury. Newell on S. & L., 769; Carter v. Andrews, 16 Pick. 1; Ken-worthy v. Journal Co., 117 Mo. App. 327; Julian v. Star Co., 209 Mo'. 35.

      Charles E. Yeater for respondents.
    (1) If no case of actionable libel has been made on the plaintiff’s evidence, the court may give a peremptory instruction for a verdict for defendant. Heller v. Pulitzer Pub. Co., 153 Mo. 213; Ukman v. Daily Record Co., 189 Mo. 390; Branch v. Knapp & Co., 222-Mo. 596. (2) Where the facts are undisputed the question of privilege is a question of law for the judge. Callahan v. Ingram, 122 Mo. 365'; Sullivan v. Commission Co., 152 Mo. 283; Holmes v. Royal Fraternal Union, 222 Mo. 569. (3) To a communication belonging to a class privileged in law, made in good faith, the law does not imply malice, as in the ordinary case of libel, and actual malice must be proven before there can be a recovery, and in the absence of substantial evidence of such malice a nonsuit should be granted. Finley v. Steele, 1591 Mo. 306; Holmes v. Royal Fraternal Union, 222. Mo. 568. (4) The transmission and delivery of a telegraphic message thus being an imperative duty, required by the statutes of Missouri for many years, creates an absolute privilege, subject solely to the qualification that a liability can arise only in the event that the company’s agent knows that the message is false, and in addition knows that it libels some person, and is guilty of actual malice in sending.it for the purpose of defaming such person. (5) When the language of the message'is ambiguous, and a doubt arises as to the propriety of the message, the operator must resolve that doubt in favor of the sender and forward the message. Tel. Co. v. Ferguson, 57 Ind. 495; Cray v. Tel. Co., 87 Ca. 350; Commonwealth v. Tel. Co. (Ky.), 67 S. W. 59. (6) The telegram from Maddock to his employer, Silver, Burdett and Company, was confidential between them and privileged, and there could be no recovery against either of them without proof of express malice on the part of Maddock, and a fortiori no liability against the telegraph company .which exercised a governmental function in furnishing a speedier means of secret communication than the mails, with a duty to forward every dispatch unless manifestly improper on its face under penalty of a fine and jail imprisonment. 25 Cyc. 397, 12b; Sullivan v. Commission Co., 152 Mo. 268; Cases cited in Finley v. Steele, 159 Mo. 299. (7) (a) Plaintiffs’ objections to the exclusion of evidence is not well taken, even if the court erred, because such error would have been immaterial by reason of the fact that none of the questions elicited information on the point essential to make a case; (b) and with two exceptions the objections were not properly saved and made so as to advise the court of the materiality of the answer; (c) and such rulings of the trial court on the record are correct in every instance, (a) State ex rel. v. Railroad, 105 Mo. App. 214; O’Shea v. O’Shea, 91 Mo. App. 232; 3 Cyc., p. 385; 3 Am. Dig., col. 2167, sec. 4193; col. 1933, sec. 4035 ; 3 Dec. Ed. Am. Dig., sec. 1029, sec. 1056 (6) [a]; Dee v. Nachbar, 207 Mo. 698; Bishop v. Brittain Inv. Co., 229 Mo. 734; Moore v. Railroad, 176 Mo. 547; Hesselbach v. St. Louis, 179 Mo. 522; Board of Education v. Surety Co. 183 Mo. 183; Swope v. "Ward, 185 Mo. 3*29'; Cass County v. Bank, 157 Mo. 137; (b) Ruschedberg v. Southern El. Co., 161 Mo. 81.
   FERRISS, J.

Suit for libel by plaintiffs, husband and wife, because of the sending over the wires of the defendant Telegraph Company, by its agent, in Lancaster, Schuyler county, Missouri, the following telegram, which it is claimed libeled the wife, Mrs. Nettie Grisham:

7 — 5—1907.
To Silver Burdett & Company,
378 Wabash Ave.,
Chicago.
Board here sold out. Memphis Saturday morning Dockery Hotel Kirksville Saturday night. • W. H. M.

The case was tried before a. jury. At tlie close of plaintiffs ’ evidence the court sustained a demurrer, and directed a verdict for defendants. Plaintiffs appeal.

The facts disclosed by the evidence áre as follows:

The plaintiff, Nettie Grisham, was a member of the school board of Schuyler county. Under the Act of 1907 this board cob stitutes a Text-Book Commission. This commission advertised in two county papers a notice, with this caption, “Notice to Publishers of School Text-Books,” to the effect that.bids would be received, on July 5th following, for school books for use during the ensuing year in the public schools of Schuyler county. This notice specified the subjects for which text-books were desired. The notice was signed: “Mrs. Nettie H. Grisham, president; J. F. Botts, secretary.”

There appeared before the board, at the meeting held July 5, agents for several publishers, among them W. H. Maddock, for the Silver Burdett Book Company, Chicago. While the board was in session Mrs. Grisham telephoned several times to defendant'Beer, who was the local operator for the defendant Telegraph Company, to know whether there were any packages for herself or Mr. Bótts; that the board was busy at work and wanted the books from Ginn & Co., but did not advise him that the board was sitting as a text-book commission. Beer was also the express, agent in Lancaster. Mrs. Grisham had merely a casual acquaintance with Beer. Copies of the papers containing the advertisements had been sent to Beer by the publishers, under the terms of a contract covering an advertisement for the railroad in such papers, to enable Beer, who was also station agent, to cut out same and send to the company for checking purposes.

From the testimony of E. C. Hickey, one of the book agents in attendance at Lancaster on that day, it appears that the board decided to postpone any announcement on the bids for a -week. This witness testified :

“I left Lancaster that day on the ‘Q’ train going east, shortly after six o’clock. I was at the depot, I would guess, twenty minutes before the train arrived. There were six book men representing book companies at the depot at that time besides myself. Q. Was the question of the adoption of books by the Schuyler County Board of Education discussed among the book men at the depot at that time? A. There seemed to be quite an interesting discussion among the agents, myself included, at the east end of the depot, but I was not near enough to hear more than an occasional word. Q. Do you know whether or not there was any discussion in the waiting-room of the depot in reference to the adoption of the books? A. Mr. Maddock and Mr. Chapman were engaged in a low conversation regarding the matter, but the purport of their remarks I at no time caught the full meaning of. They were apparently conferring over the sending of a telegram. The station agent at that time was engaged at the key board, sending or receiving a message. Mr. W. H. Maddock prepared and delivered to the station agent a telegram. I saw him write it. After that I heard him say to Mr. Chapman: ‘Chap, will this do all right?’ to which Mr. Chapman answered, ‘That’s the proper stunt.’ He then walked into the ticket room, laid the telegram clown at the right side of the operator, who was seated at his desk. When he got the operator’s attention, he asked him the cost of sending the message, also stating that'he was anxious to get the message off at once. When Mr. Maddock wrote the telegram he was standing at the window in the waiting-room. I saw him writing the telegram, but had not noticed the blank before. The telegram was written on the regular form of blank furnished by the Telegraph Company. Mr. Maddock then paid the agent for sending the telegram. I read the telegram after it was written by Mr. Maddock. I read it twice. When I read it the first time it was lying on the operator’s desk before he sent it. When I read it the second time it was in the same position, while I suppose it was being sent. When I read it the first time I had stepped into the ticket office, ostensibly to get a ticket; in reality, to see the contents of the message. When I read it the second time, I was standing on the depot platform before an open window and in front of the operator’s desk. The operator was present. Q. State if you heard any further conversation between the agent and Mr. Maddock-other than you have stated? A. But a query, ‘Will that message get through all right tonight?’ to which the agent answered, ‘I think it will.’ I did not hear any other conversation between the agent and the representatives of the book companies. The agent was at his desk when Mr. Maddock wrote the telegram.”

Mr. Botts, a member of the board, testified that he sometimes got books by express, addressed to him as a member of the board of education.

Plaintiffs offered to prove that Maddock made “insinuating remarks” on the way to the depot and at the hotel; objection to which was sustained.

Witness Hickey was asked what construction he put upon the message; objection to which question was sustained.

Another witness was asked this question: “Was it not currently reported around here in town, after these book agents left, that the board had sold out?” Objection sustained. To all of these rulings plaintiffs excepted. The court instructed the jury to find for' each defendant.

The theory of the plaintiffs appears from this extract taken from their brief:

“Said Beer well knew that said telegram referred to and meant the county board of education, and he well knew that Nettie Grisham, one of the plaintiffs, was a member of that board. He knew that the language of said telegram, to-wit, ‘Board here sold out,’ meant that said board had been bribed. He knew that Maddock meant .to charge the board with being bribed. He knew that Silver, Burdett & Co., the great book concern of Chicago, understood that said telegram meant to charge the board here with being bribed. All of this he knew, and well knew it before he sent said telegram.”

The proof utterly fails to establish the foregoing allegations, with the possible exception that Beer did know that Nettie Grisham was a member of the school board.

There is no proof that Beer knew that the board was in session that day as a text-book commission for the purpose of receiving bids, or that any agents appeared before that commission. It cannot be presumed that he read in the newspaper a notice addressed to publishers of text-books. There is no proof that he knew that the expression “board here sold out” meant that the school board had been bribed. There is no evidence of any communication to him, or of any knowledge conveyed to him in any manner, aside from the telegram itself, which would explain the meaning of these words. If there was ambiguity in the language, it was still his duty to send the message without investigation. Under the law it is the duty of the agent to send the message, if it is expressed in decent language, on payment or tender of the charge. [W. U. Tel. Co. v. Ferguson, 57 Ind. 495; Gray v. W. U. Tel. Co., 87 Ga. 350; Commonwealth v. W. U. Tel. Co., 112 Ky. 355.]

Section 3330, Revised Statutes 1909, makes it the duty of a telegraph company to receive a dispatch from any individual, and, on payment of the usual charge, to transmit ancl deliver it to the addressee promptly, impartially and in good faith, under a penalty of $300 for every neglect or refusal so to do. Section 3334 provides a penalty of $50 for disclosing the contents of a message to any person other than the addressee. Section 4810 provides that any employee of a telegraph company who willfully refuses or neglects to transmit or deliver a message, or discloses the contents except to a court of justice >or the addressee, shall be deemed guilty of a misdemeanor, and punished (section 4630) by imprisonment in the county jail not exceeding one year, or by fine not exceeding $500, or by both such fine and imprisonment.

These statutes would not compel the sending- of a telegram that was manifestly libelous. [Nye v. W. U. Tel. Co., 104 Fed. 628; Peterson v. Tel. Co., 65 Minn. 18.] But unless it is manifestly a libel the operator must send it. Any doubt or ambiguity is to be solved in favor of the message. On this point the Supreme Court of Georgia says: £ £ On no other rule would it be practicable for the telegraph companies to perform their legitimate functions as servants of the general public. They could not wait to question and investigate the motives of those who offer ambiguous. dispatches for transmission.” [Gray v. W. U. Tel. Co., supra.]

Counsel for plaintiffs have furnished us a voluminous brief of the law of libel, presenting fairly and fully all phases of the subject, with authorities cited. Appellants, in their brief, state the law as follows (Italics are theirs):

“Now then, let us see what the rules are that are laid down by the law that makes the defendants liable. In the case of Nye v. Western Union Telegraph Company, 104 Fed. 628, the court lays down the rule as follows: ‘Where the message presented to the receiving clerk of the telegraph company for transmission is in language such that a person of ordinary intelligence, knowing nothing of the parties or the circumstances, would not necessarily conclude that its purpose was defamation, it is his duty to send it, and for the performance of such duty the company incurs no liability. ’
“In the case of Peterson v. Telegraph Company, 65 Minn. 18, the court says: ‘Where the proffered message is not manifestly a libel, or susceptible' of a libelous meaning, on its face, and is forwarded in good faith by the operator, the defendant cannot be held to have maliciously published a libel, although the message subsequently proves to be such in fact. In such a case the operator cannot wait to consult a lawyer, or forward the message to the principal office for instructions. He must decide promptly, and forward the message without delay, if it is a proper one, and for any honest error of judgment in the premises the telegraph company cannot be held responsible. But where the message, on its face, is clearly susceptible of a libelous meaning (and this one was, 209 Mo. 79), is not signed by any responsible person, and there is no reason to believe that it is a cipher message, and it is forwarded under such circumstances as to warrant the jury in finding that the operator, in sending the message, was negligent or wanting in good faith in the premises, the company may be held to have maliciously published the libel. A publication under such circumstances is not privileged. ’ ' A telegram cannot be privileged because it passes through the hands of unprivileged persons.”

Measured by the foregoing rules, it is clear that the circuit court committed no error in sustaining a demurrer to the evidence.

Here is the situation: The defendant Beer is sitting at his table, working the telegraph keys. A stranger steps up and lays down a telegram, written on the usual blank., without punctuation. The original message was offered in evidence, and is copied into the record thus:

The sender asks and pays the price of service, and asks further whether there can he prompt delivery. Beer, so far as the record discloses, heard no conversation before the message was handed to him, knew nothing about a meeting of the Text-Book Commission, and did not know that the sender was a hook agent. He had no knowledge of any kind about the meaning of the message, save such as he would gain from the telegram itself. There is nothing in the language of the message, unexplained, and disconnected from extrinsic facts, to even suggest a libelous meaning. It might have one of several meanings, depending on the punctuation. It was not the duty of the operator to study this telegram to try to determine its meaning. A large proportion of the messages that pass through his hands are more or less obscure. His first duty is prompt service. The law does not require him to look for a meaning not manifest on the face of the telegram. There is nothing in the record to challenge the good faith of Beer, and nothing to impute knowledge to him that the message referred to the board of education or any member thereof.

There was no reversible error in the rulings on the admission of evidence. The judgment is affirmed.

Kennish, P. J., and Broion, J., concur.


text:
    THE STATE v. ROBERT J. McBROOM, Appellant.
    Division Two,
    December 19, 1911.

      1. FORMER CONVICTION: Issuable Fact: Single Instruction: General Verdict. Where the statute makes it a misdemeanor to buy junk and second-hand goods from a minor, and the next section provides that if a defendant has been previously convicted under that statute the punishment shall be imprisonment in the penitentiary, an instruction telling the jury that if they find the defendant guilty of the present offense and also find that he was formerly convicted of a like offense, “then you will find the defendant guilty as he is charged in the first count of the indictment,” which charged both the present offense and the former conviction,, “and will fix his punishment for the same at imprisonment in the penitentiary,” is error. The jury should be allowed to say whether defendant is guilty of the present offense, independently of the former conviction. Under the instruction as given the jury were compelled to find defendant guilty of the present offense and that he had been formerly convicted of a like offense, or acquit him.
    2. -: -: Evidence Uncontradicted. In a criminal case every issuable fact necessary to establish the State’s case must be submitted to the jury. If a prior conviction of a like offense is necessary to sustain the verdict, it will not do to say that the evidence of the former conviction was uncontradicted and that the record of such conviction was sufficient to establish the fact. It is for the jury to say whether the charge of former conviction lias been sustained 'by the evidence, no matter how strong it may be.
    3. -: -: -: Admitted by Counsel on Appeal. A defendant is not bound by a concession by his counsel in his brief that the evidence established defendant’s former conviction of a similar offense. It is the duty of the appellate court to determine whether or not error was committed in the trial of the case.
    Appeal from Jefferson Circuit Court. — Eon. Joseph J. Williams, Judge.
    Reversed and remanded.

      B. A. Frasier and Frank Deitrich for appellant.
    (1) The court erred in submitting’ to the jury the issue of the former conviction, with the issue of the guilt or innocence of the defendant. They both should have been tried separately, and the jury should have been instructed as to each issue separately. 12 Cyc. 952. (2) The court erred in not instructing the jury specially on the question of the prior conviction, and in permitting the jury to return a verdict into court finding the defendant guilty as charged, for the reason that such a verdict will be treated as an acquittal, of the charge of prior conviction. People v. Eppinger, 109 Cal. 294; State v. Jones, 168 Mo. 403; State v. Rowe, 142 Mo, 442. (3) This being a criminal prosecution it was the duty of the court to instruct the jury on all points of law involved in the case. . State v. Rufus, 149 Mo. 416; State v. Clark, 147 Mo. 3'68.'

      Elliott W. Major, Attorney-Genera], and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The appellant was convicted under the first count of the indictment, the State having entered a nolle as to the second and third counts. The indictment charges the crime in the language of the statute and is sufficient in form and substance. Sec. 4746, R. S. 1909; Sherwood’s Crim. Law, pp. 735, 736. (2) The State was only required to introduce in evidence the judgment showing the former conviction of appellant, which it did. The offer in evidence of additional parts of the record showing the former conviction of appellant was in no sense error, and the case of State v. Brown, 115 Mo. 415, cited by appellant, does not so hold. Furthermore, instruction 2, given on behalf of the State, properly limited all of said evidence showing the former conviction to the one purpose for which it was introduced — that of fixing the punishment in the case at bar. (3) The court did not err in submitting the question of the former conviction with the issue of guilt or innocence of appellant of the crime as charged in the case at bar. Both questions are properly submitted, as the record discloses that they were in this case. State v. Baldwin, 214 Mo. 307. (4) The verdict is in proper form. It found appellant “guilty as he is charged in'the first count of the indictment.” This is all that was required to be found by the jury. State v. Lee, 228 Mo. 480; State v. Court, 225 Mo. 609; State v. Baldwin, 214 Mo. 307. The cases of State v. Jones, 168 Mo. 398, and State v. Rowe, 142 Mo. 439, cited and relied upon by appellant, are not in point. Each of these cases refer to verdicts returned in prosecutions where two separate and distinct crimes, burglary and larceny, were charged in one count. Of course, in such cases the verdict had to show the finding of the jury on each crime charged; such is not the case here. There is but one offense charged, the second offense of buying junk and second-hand goods from a minor without the written consent of his parents. Appellant complains that the court did not instruct on all the law of the case. No such complaint is found in the bill of exceptions to have been made. It appears for the first time in the motion for a new trial. This is not sufficient. State v. Nelson, 225 Mo. 551.
   FERRISS, J.

Defendant was convicted in the circuit court of Jefferson county under sections 4746 and 4747, Revised Statutes 1909, which read as'follows :

1 £ Sec. 4746. Any pawnbroker, junk dealer, dealer in second-hand goods or merchant, who shall buy, receive or take any personal property, goods, wares or merchandise, other than agricultural products, of any value from any minor or have in his possession any personal property, goods, wares or merchandise, so had and obtained without the consent of such minor’s parents or guardians, had in writing, shall, upon conviction, he punished by imprisonment in the county jail not less than three months nor more than five months, or by fine of not less than one hundred dollars or more than five hundred dollars, or by both such fine and imprisonment.
“Sec. 4747. Por a second offense and conviction under section 4746, the punishment shall be imprisonment for not less than two years or more than three years in the penitentiary.”

The indictment charged the commission of the offense defined in section 4746, and also, in the same count in the indictment, alleged a prior conviction of a similar offense. The State introduced evidence tending to prove the prior conviction, and also the present offense charged in the indictment.

The court instructed the jury, in substance, that if they found the former conviction and punishment, and also found the defendant guilty of the present offense charged in the indictment, “then you will find the defendant guilty as he is charged in the first count of the indictment, and will fix his punishment for the same at imprisonment in the penitentiary for not less than two years nor more than three years.”

The jury returned the following verdict:

“We, the jury, in the case of State of Missouri against Robert'J. McBroom, find the defendant, Robert J. McBroom, guilty as lie is charged in the first count of the indictment, and we fix his punishment for the same at imprisonment in the penitentiary for a term of two years. ’ ’

The trial was had on the first count of the indictment only, which, as stated above, charged both the present offense and former conviction. The defendant complains that the instruction given by the court compelled the jury to either convict the defendant under section 4747 or to acquit altogether. It is further claimed that the jury should have been allowed to say whether or not the defendant was guilty of the present offense, independent of the finding on the allegation of former conviction. This objection is well taken. The plea of not guilty puts in issue every allegation of the indictment, and it is for the jury to say in a case of this kind whether or not the allegation of prior conviction has been sustained by the proof. If the jury should find that such allegation is not sustained, and should also find the defendant guilty of the present offense charged, then the punishment would be under section 4746. If the jury should find the defendant guilty of the present offense charged, and also find that the allegation of the former conviction has been sustained, then the punishment should be under section 4747. The instruction in this case, however, gave the jury no alternative. It will not do to say that the evidence of the former conviction was uncontradicted, and that the record of such conviction was sufficient to establish the fact. In a criminal case every issuable fact necessary to establish the State’s case must be submitted to the jury. The crime charged in the indictment is that of buying from minors without the written consent of parents or guardians. The allegation of the former conviction is solely for the purpose _of affecting the degree of punishment. It has been held that a general verdict of guilty, under such an indictment as this, refers to the crime charged alone, and amounts to an acquittal of the charge of former conviction. It was so held in People v. Eppinger, 109 Cal. 294, also in Thomas v. Commonwealth, 22 Grat. (Va.) 912. The authorities all agree that it is for the jury to say whether the allegation of a former conviction has been sustained. In some States the statutes require that no judgment based upon a former conviction shall be entered until the jury shall specifically find that such former conviction has been proved. Such statutes, however, simply declare a rule of law which should prevail on general principles; that is, that every issuable affirmative fact is to be found by the jury.

In the case of Herndon v. Commonwealth, 105 Ky. 197, a general verdict of guilty as charged, under a similar indictment, was sustained, but in that case the jury was instructed in the alternative, to the effect that if they should find against the formen conviction, hut that the defendant was guilty of the present offense charged, they should fix the punishment accordingly. In the case at bar, however, under the instruction given, the jury could not find for the defendant on the issue of former conviction unless they also. should .acquit him of the present offense. The verdict indicates that the jury found both that the defendant was guilty of the crime charged and that he had suffered a former conviction, hut'there was no. alternative presented to the jury, and the jury were obliged, under the instructions, to either so find or acquit altogether.

It is claimed on behalf of the State that the record testimony showed the conviction at a prior date of a defendant of the same name, and that this fact together with the fact that such record testimony was not contradicted or assailed, justified the court in assuming in its instructions to the jury that the defendant in this case was the same Robert J. McBroom who had been previously convicted of a like offense. Under our practice, however, no matter how strong the proof may be of an affirmative fact presented by the State, and notwithstanding there may be no contradiction thereof, still it is for the jury to say whether or not the fact is established.

It is further claimed that the bill of exceptions shows that the defendant admitted the former conviction, and that the defendant’s counsel in his brief in this court concedes that fact, and that therefore the defendant is not in a position to complain. We do not think that the defendant is bound by the statements made by his counsel in his brief here. It is our duty to determine whether error was committed in the trial of the case, and we are not controlled in this matter by statements made by counsel. The defendant at no time admitted the former conviction, or his identity with the party mentioned in the record introduced. Something was said by his- counsel in argument upon the admission of testimony which might be construed into á recognition of such-former conviction, but for the reasons above stated we do not regard this as controlling.

Several other points are made by defendant against the judgment in this case, but we find no errors in the rulings of the trial court thereon.

In our judgment, the instructions should present to the jury, in the alternative, the issue of former conviction, so that the jury could find for or against the defendant on that issue, as distinct from.the question of guilt or innocence of the crime charged, and the verdict should be so framed as to show that the jury passed upon each proposition.

For reasons above given the judgment is reversed and the cause remanded for new trial.

Kennish, P. J., and Broum, J., concur.