Moeller v. United Railways.
ing car he is liable to be carried several feet in the direction the car is moving before he can recover control of his movement? And is that a pure question of law which the court can apply in a peremptory instruction or is it to be left to a jury in the particular case under proper instructions, taking into account his experience? A court is justified in taking a case from the jury only when from the evidence adduced there can be but one reasonable conclusion drawn. Can there be no two opinions on the question of whether this boy was possessed of sufficient experience to enable him not only to see what a person of mature years would have seen but also to appreciate the danger into which he was plunging?
The court cannot specify the age to which a child when he has attained it shall be held as liable in such case as a person of full maturity, because there are other facts to be taken into account: the peculiar circumstances of the particular case, the knowledge and experience of the child in reference to those circumstances, and his capacity to appreciate the danger.
There have been several cases before this court, which will be seen by reference to the briefs of counsel, where questions like this have been involved; in some of them it has been held that the minor was guilty of such contributory negligence as precluded a recovery, and in some that he was not. But there is no conflict in those cases, the principle of law governing them is the same in all, they differ only in the facts. We do not deem it necessary to review those cases here.
It can hardly be said that the danger into which this boy ran was obvious to one of his years and experience, like, for example, stepping immediately in front of an approaching car; what actually carried him over the brink was the projectile impetus imparted to his body by the moving car. That danger would probably be obvious to any person of mature years and per
Moeller v. United Railways.
haps so to a city boy familiar with the feat of jumping on and off moving cars, but whether so to a country boy without experience is a question.
We are of the opinion that the question of the plaintiff's contributory negligence ought to have been submitted to the jury under proper instructions.
The judgment is reversed and the cause remanded to the circuit court to be re-tried according to the views herein expressed.
PER CURIAM.-The foregoing opinion of VALLIANT, C. J., in Division, is adopted on hearing in Banc. Lamm, Ferriss, Kennish and Brown, JJ., concur; Woodson and Graves, JJ., dissent.
Not Pleaded. The doctrines applicable to an agreed and stated ac-
count are not available unless the issue is pleaded. Thompson
v. Lindsay, 53.
1. Negligence: Delay in Bringing Suit: Inattention. Neg-
ligence that bars equitable relief may be stated thus:
No man
is entitled to the aid of a court of equity when that aid is
made necessary by his own fault. But where plaintiff was
guilty of no negligence at the outset, and defendant undertook
to fasten upon him an illegal demand for money, and when
he would not yield thereto, defendant under an unwarranted
construction of a contract existing between them undertook by
means of a fictitious deed of trust to get possession of his
property, plaintiff is not to be charged with negligence because
he did not bring suit at once, but out of a slovenly inattention
to business waited a whole year before appealing to a court of
equity to redress his wrongs. Thompson v. Lindsay, 53.
2. Quantum Meruit: Assumpsit: Quasi-Contract. Under the
common law an assumpsit could be maintained upon a state
of facts from which a contract could be implied. It was not
essential that there was a contract in fact in the sense that
the parties had entered into an agreement, either express or
implied; all that was necessary was that defendant had re-
ceived benefits which imposed upon him a duty to plaintiff,
so that upon equitable grounds a promise was implied by the
law that the defendant should respond to the extent of the
benefits received. Such a relation between the parties was de-
nominated a quasi-contract, and in a suit based thereon the bene-
fits received by defendant, and not the detriment incurred by
plaintiff, was the basis of defendant's liability, and hence it
was incumbent upon plaintiff to prove actual benefits received
by defendant. Anderson v. Caldwell, 201.
Implied Contract: Material Fur-
nished for House. But a suit for the value of materials and
labor employed in the construction of a building, furnished by
plaintiffs at the instance and request of defendants, is not a suit
on a quasi-contract, but upon a contract implied in law, and as
defendants received the benefits there was an implied agreement
that they would pay the reasonable price and value thereof. As.
sumpsit will lie whenever work has been done, or work and ma-
terials have been furnished by the plaintiff for defendant at
his request, express or implied, and the standard of plain-
tiff's recovery is the reasonable value of the materials fur-
nished and the labor done. Ib.
4. Negligence: Survival of Cause of Action: Mining. In
case of the death of a person injured in mining in such manner
242 Mo.]
as to make the operator of the mine liable under section 5440,
Revised Statutes 1909, the widow of the deceased may recover.
Hawkins v. Smith, 688.
1. Judgment: Release of Part: Liability for Balance. One of
several joint obligors on an administrator's bond, is liable for
the balance due on the judgment on the bond, after deducting
the amounts paid by the other judgment debtors for their release.
The assignee of the judgment has the right to recover of one
of the judgment debtors the total amount due on the judgment
against the principal and his sureties on the bond. That is true
by force of Sec. 2769, R. S. 1909, which makes contracts that
were joint by common law both joint and several, and Sec. 2772,
which provides that a creditor may sue any one or more joint
obligors. Schneider v. Maney, 36.
2. Sale of Real Estate: Administrator's Deed: By Former Public
Administrator. In 1883 public administrators were not dis-
charged at the expiration of their official terms from the ad-
ministration of estates in their hands, and hence a deed made in
that year by one who is described therein as the "former public
administrator of the county
in charge of the estate
." and otherwise regular on its face, conveyed the title.
Howell v. Sherwood, 513.
1. Title of Officer not Affixed. The failure of an officer to affix
the title of his office to an affidavit taken before him and spread
of record in a tax suit, would tend to impeach the jurisdiction
and not to support it. Woodruff v. Lumber Co., 381.
2. Appeal: Officer's Name Omitted: Supplied Nunc Pro Tunc. An
affidavit for an appeal, complete in every respect except that the
officer's name to his jurat is omitted, his seal being attached,
may be supplied by the trial court, at a subsequent term, on the
testimony of the affiant that he swore to the affidavit before the
officer who has since died. Clark v. Railroad, 570.
ALLOCUTION. See Nunc Pro Tunc Order.
1. Former Decision: Sufficiency of Evidence. On the former
appeal in this case it was held that there was sufficient evidence
to make out a prima facie case in favor of plaintiff against the
present defendant. The judgment against the defendant was
then reversed only because there was no evidence that plaintiff
had a contract with the partnership which furnished the ties
to defendant, and that there was a departure, since the petition
declared upon a joint contract made with the partnership and
the present defendant, and the evidence showed no such joint
contract. Bagnell v. Railroad, 11.
Same Holding on Same Evidence. As the
court on the former appeal in effect held that the evidence tended
to show that defendant entered into a contract with plaintiff for
the purchase of the ties, and as plaintiff introduced at the second
trial the same evidence introduced at the first, it is again held
that plaintiff made out a prima facie case against the defendant
at the second trial. Ib.
: Contract: Joint and Several: Liability of any
Obligee. All contracts which at common law were joint only
are now, under the statutes (Secs. 2769, 1981 and 2772, R. S.
1909), joint and several; and any one of the obligees thereto
may be sued, and a recovery had against those only who the
evidence shows are liable thereunder. The decision of the court
on the former appeal in this case (180 Mo. 420), holding that the
contract pleaded was a joint contract made and entered into by
plaintiff as the one party and by the defendant and a partner-
ship as the other party, and reversing a judgment for plaintiff
because the evidence did not support the allegations of the
petition of a joint contract, in that it failed to show that the
partnership jointly with defendant entered into a joint con-
tract with plaintiff, but showed only a several contract between
plaintiff and defendant, and therefore there was a departure,
is overruled. Ib.
- In Same Case: When Overruled. In the absence of
cogent or convincing reasons shown, the Supreme Court will not
open up and reconsider questions adjudicated upon a former
appeal in the same case. But where such reasons are clearly
shown, and especially where the former ruling inadvertently
overlooked and nullified a statute, or overruled some sound and
well settled principle of law, the court will reexamine the ques-
tions and overrule the former decision. Ib.
5. Appellate Jurisdiction: Garnishment:
Against State
Superintendent of Insurance. The State Superintendent of
Insurance is a State officer within the meaning of the Consti-
tution, and that fixes the appellate jurisdiction in the Supreme
Court of an appeal from a judgment refusing to a creditor of
an insurance company a writ of garnishment against him for
moneys in his hands as such officer, irrespective of the amount
or the constitutionality of the statute involved. Milling Co. v.
Blake, 23.
6. Constitutional Question: Garnishment: Untimely Raised.
Where the Superintendent of Insurance, in his answer
to the plaintiff's interrogatories in the garnishment proceeding
brought against him, pleaded the statute as his right to retain
the fund, it was the plaintiff's duty, if he wished the constitu-
tionality of that statute determined, to have raised the point in
his denial of those answers; and having failed to do so the
constitutional question comes too late if raised for the first time
in plaintiff's motion for a new trial, and must be deemed as
waived. So grave a question as the constitutionality of a stat
ute must be lodged in the case at the first opportunity, or it will
be deemed to have been waived.
Held, by VALLIANT, J., that, where the Supreme Court has
jurisdiction of the case on other grounds, if there is a
vital constitutional question in the case, it may be raised
here for the first time. Ib.
Appellate Jurisdiction. The Su-
preme Court does not obtain jurisdiction of an appeal by the
untimely lodgment of a constitutional question in the case.
Unless the question is timely raised it is deemed out of the
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