and his son's testimony is to the same effect. (No. 12098.) (199 Mo. App. 439) (Kansas City Court of Appeals. Missouri. April 29, 1918.) 1. PLEADING INGS. 343-JUDGMENT ON PLEAD They both say, also, that he got upon the STATE ex rel. TAUBMAN v. DAVIS et al. step; while the conductor says he never got either foot on there. So that, on the case as made by plaintiff's proof, there is no showing that the mere premature start of the car in a gradual way without a jerk was the proximate cause of the injury. Nor can we say that a slow and gradual, though premature, movement of the car, was presumptively the cause of his fall, in view of plaintiff's explicit and positive testimony that it was the violent jerk which threw him off. A motion for judgment on the pleadings is its qualities. not a demurrer although partaking of some of 2. DIVORCE 63 63 SEPARATE DOMICILE OF WIFE. husband as the domicile of the wife during co- SON. In proceedings which from their very nature make a husband and wife opposite parties, the legal fiction of unity of person by marriage will not be followed to destroy the rights of either contrary to natural justice. 4. DIVORCE 59 - SEPARATE DOMICILE OF WIFE. The [2] We are of the opinion that the precise case as made by plaintiff's petition and proof was not submitted to the jury, and that negligence in the mere premature, but gradual and jerkless, starting of the car after plaintiff got upon the step, was not shown to have been the cause of his injury. This difference between the case as made and as submitted is not a bare technicality, but is a matter of vital importance upon the question of the defendants' negligence in the case as presented by the evidence. plaintiff says that after he got on the step, holding onto the rod with his hand, a violent jerk threw him off. Defendants' evidence is that after other passengers, including plaintiff's son, had gotten on the car, and it had started, plaintiff came out of the darkness, or the station shelter, and caught hold of the car and tried to get on, but did not succeed in getting either foot on the step. A person standing on the step and holding with his hand is in no absolute danger of being thrown off by an ordinary and gradual starting of the car; and hence, in a case where the plaintiff says it was a violent jerk that did it, the mere starting of the car smoothly and gradually, even though done before plaintiff could get fully aboard, did not proximately cause the injury. Again, the instruction submits the question whether the operatives, by the exercise of the highest degree of care, could have avoided the injury, and negligently failed to do so, and instruction No. 2 told the jury such failure was negligence. Under the evidence in the case the negligence in prematurely starting in the ordinary way was a different negligence from that of starting it with a jerk. We think the plaintiff, having alleged that defendants negligently jerked the car, and having testified that it was a violent jerk, and not the premature starting, that threw him off, should have submitted that precise issue to the jury, especially in view of the evidence as presented by both sides of the case. Other errors are complained of; but, if errors, they are matters which may be guarded against and avoided next time. in which a wife's suit for divorce is brought, it In order to confer jurisdiction on the court is not necessary that her right to a divorce be established beforehand. 5. DIVORCE 124-SEPARATE DOMICILE OF WIFE. Evidence held. to show a sufficient right in a wife to sue for divorce to establish her right to domicile for such purpose separate from that of her husband. 6. DIVORCE 62(6) "DOMICILE" "RESI DENCE." To create "domicile" or "residence" for the purpose of a divorce by a wife within meaning of Rev. St. 1909, § 2371, actual bodily presence and the freely exercised intention to remain the only elements necessary, but such elements there permanently or for an indefinite time are must concur. [Ed. Note.-For other definitions, see Words and Phrases First and Second Series, Domicile; Residence.] PERSON ENTITLED TO TAKE LAW PARTNER OF PLAINTIFF'S ATTORNEY. 7. AFFIDAVITS ~5 That a petition for divorce by the wife is verified before her attorney's law partner, as a notary public, does not invalidate it. Original proceeding in prohibition by the State, on the relation of Birdie Taubman, against Samuel Davis and others, to prevent further action in a divorce suit. Provisional writ made permanent. Aull & Aull, of Lexington, and Campbell & Ellison, of Kirksville, for relatrix. W. H. Chiles and Lyons & Ristine, all of Lexington, and John M. Cleary, of Kansas City, for respondents. TRIMBLE, J. This is an original proceeding in prohibition, brought by relatrix against her husband, Edwin M. Taubman, and Hon. Samuel Davis, as judge of the circuit court The judgment is reversed, and the cause of Lafayette county, to prevent further action remanded. All concur. in a suit for divorce filed by said Taubman in said Lafayette court, the ground of rela-, followed the overruling of said motion, and trix's petition being that said Lafayette court therefore pass that question. is without jurisdiction to try the husband's divorce suit for the reason that at the time the same was filed relatrix had already brought suit for divorce in the circuit court of Adair county, and the same was, and is now, therein pending and undisposed of. After the provisional writ was issued and the respondents had made return and relatrix had filed a reply thereto, the respondents filed a motion for judgment on the pleadings quashing the preliminary writ and dismissing the petition. This motion was heard and disposed of by the court in an opinion by Johnson, J., November 27, 1916, wherein the motion motion was overruled. See State ex rel. Taubman v. Davis, 190 S. W. 964. No order making the provisional writ permanent was entered, however, and thereafter, upon respondents' application for the appointment of a commission to take testimony, Hon. Nathaniel M. Shelton was appointed, with directions to take testimony and report. This has been done, and the case has again been argued and submitted upon the question of whether relatrix is entitled to have the provisional writ made permanent. There may be some question whether the presentation of the aforesaid motion for judgment on the pleadings did not operate as a withdrawal of the return, a confession of the facts stated in relatrix's petition, and a supersession of the application for the appointment of a commissioner, so as to make the award of the permanent writ a necessary incident to the judgment overruling the motion. State ex rel. v. Barnett, 245 Mo. 99, 114, 149 S. W. 311; State ex inf. v. Vallins, 140 Mo. 524, 41 S. W. 887. [1] It would seem from the authorities just cited that, had the motion been a demurrer, such would certainly have been the But a motion for judgment on the pleadings is not a demurrer, although partaking of some of its qualities. Hodson proper course. v. McAnerney (Sup.) 192 S. W. 423. And as respondents were allowed to file their morespondents were allowed to file their motion and have it considered and disposed of without any intimation that a disposal of same would result in the final disposition of the case, and since relatrix already had a motion for the appointment of a commissioner, this court, having overruled said motion for judgment on the pleadings, thereafter, upon respondents' application, appointed a commissioner and allowed the case to proceed to a hearing on the merits. And since all parties seem to have sought for, appeared, and participated in said hearing, and as we are able, after conceding to respondents a hearing on the merits, to reach a conclusion which, in result, is the same as if the provisional writ had been made permanent following the overruling of the motion for judgment on the pleadings, we need not now decide whether or not a judgment awarding the permanent writ should have With one exception, possibly two, the facts involved in this litigation are undisputed and are set forth in Judge Johnson's opinion herein above cited. It is therefore unnecessary to repeat them here. And at this point it may be well to say that many of the contentions now urged by respondents were considered at that hearing and determined in that opinion, and consequently we will not enter into a consideration of them again. The one question of fact, or possibly two, now in dispute between the parties, and to settle which a commissioner was desired to take testimony, has reference to the residence of relatrix at the time she brought her suit in Adair county. Had she obtained a residence there, within the meaning of section 2371, R. S. Mo. 1909, at the time she brought her suit, or did her residence, fixed by that of her husband, remain in Lafayette county? Did she have cause for separation from her husband so as to entitle her to cre ate for herself a residence separate from his" This last question, it would seem, is, if any thing, but a subdivision or branch of the other question. As bearing upon the ques tion of relatrix's residence at the time she brought her suit, the evidence taken before the commissioner shows: That prior to her marriage, relatrix had for 31 years resided with her parents at Kirksville in Adair county, but for a while just before her marriage she had been employed in Fulton, Mo., as matron of the State School for the Deaf. During this time, however, she, at all times and up to her marriage with Mr. Taubman, regarded Kirksville as her home and place of residence. That upon her marriage to Mr. Taubman she went with him to Lexinguntil December 17, 1915, a little over 3 years. ton, Lafayette county, Mo., and resided there That she left Mr. Taubman's house between 9 and 10 o'clock at night December 15, 1915, and went to the home of a neighbor lady and stayed there till the morning of December stayed there till the morning of December 17, 1915, when she left Lafayette county and returned to Kirksville in Adair county. That on the occasion of her leaving her husband's house at the above-named hour of night she was in her room with the door locked and her husband was over the transom endeavoring to get in. That about two weeks before she left Mr. Taubman's house she had made up her mind to go to and make Kirksville her home and residence, and during this two weeks, although under the same roof with Mr. Taubman, they were not living together as man and wife. That when she left Lexington she did so with the fixed intention never to return, but to make Kirksville her home and her place of residence. That ever since her return to Kirksville she has continued to reside there and make it her home, having sought and obtained employment there as deputy recorder of deeds. That when she left Lexington for Kirksville that relatrix was justified in leaving her she took none of her personal effects except the clothes she had on and a small hand bag; that she took no other articles because she was afraid to return to her husband's house for them, but that, through her attorneys, she later succeeded in having her clothing sent to her at Kirksville. That after reaching Kirksville with the intention of remaining there permanently and making it her home, she consulted her attorneys and brought her suit for divorce. husband and instituting suit for divorce in order to settle the question whether she could acquire a separate domicile in Adair county so as to confer jurisdiction upon the circuit court there to hear and determine her suit. The cause of action for divorce is founded upon the "allegation of a delictum which legally justified a living apart, and took away the husband's right to fix the domicile of the wife." 2 Bishop, § 112. [5] But if it be necessary that at least [2] It is true that, flowing from the legal some showing be made herein, we may obtheory of an identity of person in husband serve that the petition, verified by the affidaand wife, the law regards the domicile of the vit of the plaintiff (relatrix here), setting out husband as the domicile of the wife during the causes and grounds for divorce and the the period of cohabitation. But under the residence of plaintiff, was introduced withlater and more liberal view, a wife may, for out objection before the commissioner, and the purpose of establishing venue wherein to contains all the allegations necessary to conbring an action for divorce, make for herself fer jurisdiction. In addition to this, she a residence or domicile separate and dis- may be granted the benefit of whatever prima tinct from that of her husband. 14 Cyc. facie showing may arise by way of inference 847; Wyrick v. Wyrick, 162 Mo. App. 723, from the facts, shown before the commis735, 145 S. W. 144. And in those cases sioner, that she left her husband's home in where the express object of the proceedings the nighttime without securing her clothing, is to establish the fact that the marital rela- and was afraid to go back after it. A furtion ought to be dissolved, the law recog- ther showing of the circumstances under nizes the wife as having a separate exist- which she left was prevented by an objection ence, separate interests, and separate rights. on the part of the husband that this was 2 Bishop on Mar. Div. and Sep. § 120. And going into the merits of the case. We are therefore the maxim that the domicile of the therefore of the opinion that nothing has wife follows that of the husband will not be been made to appear herein which, in law, applied so as to prevent a wife obtaining a forbade or prevented Mrs. Taubman from domicile elsewhere for the purpose of bring- creating a separate domicile in Adair county ing a divorce action, or to oust the court of which would confer upon the circuit court of jurisdiction when she has done so. Harteau that county the jurisdiction or power to env. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec.tertain and hear her petition for divorce. 372. For the purposes of divorce actions, the The only question remaining is, had she, at law permits separate domiciles, and the max- the time her divorce suit was filed, acquired im has no force and cannot prevail in a di- a residence in that county within the meanvorce case. 2 Bishop, § 112. 2 Bishop, § 112. By necessary ing of section 2371? interpretation the statute, giving the wife right to sue for divorce, includes all needful collateral rights, among which is the right to have a separate domicile. 2 Bishop, § 116. [3] In proceedings which from their very nature makes a husband and wife opposite parties, the legal fiction of the unity of person created by the marriage will not be followed to destroy the rights of either contrary to the principles of natural justice. Colvin v. Reed, 55 Pa. 375. [4] Nor is it necessary, in order to confer jurisdiction on the court in which the wife's suit is brought, that her right to a divorce must be established beforehand. The purpose of the divorce suit is to establish that; and, to require her to establish the fact that she is in the right before she can bring her suit or, which is the same thing, before she can create a domicile and secure a venue in which to bring it is to demand that she shall establish the justice of her case before she will be allowed to sue for that purpose. Hence, in deciding the proceeding now before us, we do not have to prejudge or de [6] In determining whether a person has created a domicile or "residence" in a place, we are apt to confuse the fact itself with the things that are usually considered as evidences of the fact in question. For instance, when we say a person has his "residence" in the county, the word connotes many things in ordinary meaning, a house, an accustomed place to stay, a business, etc. But "residence" in the legal meaning, and as here used, does not necessarily require these things, though very frequently they are looked at to determine the ultimate fact to be proved. To create a "domicile" or "residence" as here used, only two elements are fundamentally and absolutely necessary or essential. These are actual bodily presence in the county or place, combined with the freely exercised intention of remaining there permanently, or for an indefinite time at least. Whenever these two. elements combine, a domicile of choice is created, and all former domiciles are ipso facto abandoned. Minor on Conflict of Laws, 114; Dicey on Conflict of Laws, 104. "Every person of full if he removes to another place with an intention to make it his permanent residence (animo manendi), it becomes instantaneously his place of domicile." Story on Conflict of Laws, 50. "Neither presence alone nor intention alone will suffice to create a domicile of choice. Both must concur, and at the very moment they do concur the domicile is created." "The term 'residence' as here used means simply the actual bodily presence of the party, if that presence is coupled with the intention to remain permanently." Minor on Conflict of Laws, 115. It is not necessary that the intention should be to remain one's whole life; what is meant by "permanently" here is that there must be a fixed and definite purpose to remain "for an unlimited or indefinite time, without any definite intention of ultimate removal." MiThe same author at page 116 says: "Since physical presence, coupled with the animus manendi, is all that is required, it is immaterial to inquire whether the party is living in a house of his own, in a rented house, in a hotel, in lodgings, or has no place to lay his head. These may be, and often are, of the greatest importance as evidence whereby to determine whether he has the proper animus; but if that is established otherwise they become unimportant. * * * At the moment when a party, being present in a place forms the definite intention to remain there permanently, from that moment a domicile of choice is created, which will in general continue until a new domicile is acquired." That the above and foregoing principles, stated by the text-books cited, are abundantly sustained by the decisions, is shown by an examination of the following authorities: Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107; Mitchell v. United States, 21 Wall. 350, 22 L. Ed. 584; Allgood v. Williams, 92 Ala. 551, 8 South. 722; Price v. Price, 156 Pa. 617, 27 Atl. 291; White v. Tenant, 31 W. Va. 790, 8 S. E. 596, 13 Am. St. Rep. 896; Bradley v. Lowry, Speer's Eq. (S. C.) 1, 39 Am. Dec. 142; Dupuy v. Wurtz, 53 N. Y. 556; City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471; Guier v. O'Daniel, 1 Bin. (Pa.) 349, note; Sumrall's Committee v. Commonwealth, 162 Ky. 658, 172 S. W. 1057; Hart v. Lindsey, 17 N. H. 236, 43 Am. Dec. 597. In Hill v. Hill, 166 Ill. 54, 46 N. E. 751, it was held that where a wife had resided in the state for the required length of time, but moved to another county just prior to bringing suit, her legal residence there for jurisdictional purposes depended upon her good faith in going and her intention to reside there permanently, and not upon the length of time she has resided in her new home. It is manifest from the above authorities and from a consideration of all the evidence taken before the commissioner, so earnestly asked for by respondent Taubman upon the announcement of the former opinion, that not only does it appear that relatrix created a domicile of choice in Adair county so as to confer jurisdiction on the circuit court of that county to hear and determine her cause of action for divorce, but also that no cloud has been cast upon her motives in so doing. The hearing before the commissioner, therefore, even though the appointment of one may not have been according to the usual procedure in this class of cases, but was made because both sides seemed to desire it, has not developed anything beyond what was considered in the former opinion to prevent the provisional writ being made permanent. [7] Point is now made that the Adair court acquired no jurisdiction because the notary public before whom relatrix swore to her petition for divorce was the law partner of the attorney who prepared it for her. There is nothing either in the common law or in the statute forbidding such an act to be performed by an attorney of record, and hence the affidavit is not a nullity. Smith v. Ponath, 17 Mo. App. 262; State v. Noland, 111 Mo. 473, 505, 19 S. W. 715. In Kuhland v. Sedgwick, 17 Cal. 123, it was held that plaintiff's attorney, being a notary public, could take plaintiff's affidavit verifying the complaint. See, also, Reavis v. Cowell, 56 Cal. 588, 591; Young v. Young, 18 Minn. 90 (Gil. 72); 1 R. C. L. 763, 764. There being nothing in the common law forbidding this, it is therefore "generally held that, in the absence of any statute or rule of court to the contrary, an affidavit is not defective because taken by an attorney in the cause." 2 Cyc. 12. See, also, Hueston v. Preferred Accident Ins. Co., 161 Iowa, 521, 143 N. W. 566; Hankins v. Helms, 12 Ariz. 178, 100 Pac. 460; McDonald v. Willis, 143 Mass. 452, 9 N. E. 835; Swearingen v. Howser, 37 Kan. 126, 14 Pac. 436; Horkey v. Kendall, 53 Neb. 522, 73 N. W. 953, 68 Am. St. Rep. 623. This disposes of all questions raised which were not decided by the former opinion. It follows, therefore, that, if said opinion is to stand, the provisional writ should be made permanent; and it is so ordered. The other Judges concur. 721(1) 2. MUNICIPAL CORPORATIONS For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-42 its parks; a "show" or "exhibition" being commonly understood to be something that one views, or at which one looks, and at the same time hears. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Exhibition; Show.j It is the contention of the defendant that the act of the city in maintaining said ponies and in allowing plaintiff to ride thereon, under the facts and circumstances alleged, was ultra vires. To this plaintiff makes two answers: First, that the act was not ultra Appeal from Circuit Court, Jackson Coun- vires; and, second, that the city, in taking ty; Clarence A. Burney, Judge. Action by Jack H. Longwell, by C. A. Longwell, his next friend, against Kansas City. From a judgment for defendant, plaintiff appeals. Reversed and remanded. Martin O'Donnell, of Kansas City, for appellant. F. M. Hayward, of Kansas City, for respondent. BLAND, J. This is an appeal from the action of the court in sustaining a demurrer to the petition in an action for personal injuries. The following negligence was alleged: That on or about the 29th day of March, 1896, defendant became the owner of a pleasure ground and park, called "Swope Park," by virtue of a deed of conveyance delivered to it by one Thomas H. Swope, which was accepted by defendant; that one of the conditions of said deed was that the land "shall be used as a public pleasure ground or park forever"; that on the 29th day of August, 1916, defendant was maintaining said ground as a public park, and was maintaining restaurants, boating, pleasure grounds, zoological gardens, and Shetland ponies thereon; that defendant had established a rule or custom by virtue of which, and for a profit to it, all children visiting said park were invited to ride upon said ponies in said park for their enjoyment, recreation, or amusement, paying to it as a fee or charge therefor the sum of five cents; that on said day plaintiff was in said park for the purpose of obtaining the recreation and air provided by said defendant therein; that defendant's agent and servant, in accordance with said rule or custom, invited plaintiff to ride upon one of said ponies, and that plaintiff paid therefor the required fee of five cents; that thereupon said agent and servant seized the plaintiff and negligently placed him on the back of one of said ponies, whereupon said agent and servant negligently turned said pony loose, unattended, in the inclosure where it was kept, and it became unmanageable and ran, jumped, and cavorted, so that plaintiff was thrown upon his back to the ground, resulting in plaintiff's injury; that plaintiff at the time was too immature and inexperienced to ride upon or guide said pony unattended with reasonable safety to himself; that plaintiff's legs were too short, and the back of said pony too broad and round, to enable plaintiff to maintain his seat thereon; that said pony had a vicious and unmanageable disposition; and that all of said facts, which caused the injury, were known to defendant's agent, or hire for said ponies, is estopped from setting up the claim of ultra vires. The second contention of plaintiff we need not pass upon. There is no contention in this case, at this time, but that the city, if it was acting withmaintain a public park, is liable to plaintiff in the powers granted to it in its charter to for the injuries sustained by him. The question presented to us is whether or not the maintenance of said ponies for the purposes described in the petition was within the power of the city. It is said in State ex rel. Wood, Attorney General, v. Schweickardt, 109 Mo. loc. cit. 510, 19 S. W. 51, that: ground in or near a city set apart for the recre"A park is variously defined to be 'a pleasure ation of the public'; 'a piece of ground inclosed for purposes of pleasure, exercise, amusement, or ornament' *; 'a place open for every one."" * There is no doubt but that, in order to provide means for recreation, air, exercise, and amusement, etc., in a park, a city may either secure the services of some one to provide these means or may provide them itself. And if the city in this case, in providing the Shetland ponies for recreation of children, was within the legitimate sphere of its authority, then the discretion vested in it in making such provision is free from outside interference, and not subject to judicial revision or reversal. State ex rel. v. Schweickardt, supra, 109 Mo. loc. cit. 511, 19 S. W. 51. We have made a diligent search in the books, but have found but two cases decided by the courts in this country involving the question as to what is within the legitimate exercise of the discretion vested in a city in affording pleasure, exercise, and amusement, etc., in public parks. One of these cases was decided by the Supreme Court of our own state, cited supra, wherein it was held that the city was within its rights in leasing or renting space in a park for the purpose of furnishing refreshments to those visiting it; the other was decided by the Supreme Court of West Virginia, where it was held that a lease by a city of a part of a public park, to improve it and use it at times for training and running race horses, for a rental to the city, reserving access at times to the public for riding and driving on the track, was a legitimate use of the park, and not an ultrà vires act. Bryant v. Logan, 56 W. Va. 141, 145, 49 S. E. 21, 23 (3 Ann. Cas. 1011). The court in the latter case states that, regardless of the broad powers in this connection granted the city by the Legislature, nevertheless the act of the city complained of was not an unlaw |