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and his son's testimony is to the same effect.

(199 Mo. App. 439) 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

(No. 12098.) either foot on there. So that, on the case as (Kansas City Court of Appeals. Missouri. made by plaintiff's proof, there is no show

April 29, 1918.) ing that the mere premature start of the car 1. PLEADING Om 343 – JUDGMENT ON PLEADin a gradual way without a jerk was the INGS. proximate cause of the injury. Nor can we

A motion for judgment on the pleadings is say that a slow and gradual, though prema- its qualities.

not a demurrer although partaking of some of ture, movement of the car, was presumptive- 2. DIVORCE E 63 – SEPARATE DOMICILE OF ly the cause of his fall, in view of plaintiff's WIFE. explicit and positive testimony that it was

While the law regards the domicile of the the violent jerk which threw him off.

husband as the domicile of the wife during co

habitation, the wife may, for the purpose of [2] We are of the opinion that the pre-establishing venue for a divorce suit, establish cise case as made by plaintiff's petition and a residence separate from that of her husband; proof was not submitted to the jury, and the law for such purpose recognizing that the that negligence in the mere premature, but wife has a separate existence, interest, and

rights. gradual and jerkless, starting of the car 3. HUSBAND AND WIFE 1-UNITY OF PERafter plaintiff got upon the step, was not SON. shown to have been the cause of his injury. In proceedings which from their very naThis difference between the case as made and ties, the legal fiction of unity of person by as submitted is not a bare technicality, but marriage will not be followed to destroy the is a matter of vital importance upon the rights of either contrary to natural justice. question of the defendants' negligence in the 4. DIVORCE 59 - SEPARATE DOMICILE OF

Om case as presented by the evidence. The

WIFE. plaintiff says that after he got on the step, in which a wife's suit for divorce is brought, it

In order to confer jurisdiction on the court holding onto the rod with his hand, a vio- is not necessary that her right to a divorce be lent jerk threw him off. Defendants' evi-established beforehand. dence is that after other passengers, includ- 5. DIVORCE 124-SEPARATE DOMICILE OF

WIFE. ing plaintiff's son, had gotten on the car,

Evidence held. to show a sufficient right in and it had started, plaintiff came out of the a wife to sue for divorce to establish her right darkness, or the station shelter, and caught to domicile for such purpose separate from that hold of the car and tried to get on, but did of her husband. not succeed in getting either foot on the 6. DIVORCE O 62(6) “DOMICILE" "RESI

DENCE.” step. A person standing on the step and

To create "domicile" or "residence" for the holding with his hand is in no absolute dan- purpose of a divorce by a wife within meaning ger of being thrown off by an ordinary and of Rev. St. 1909, § 2371, actual bodily presence gradual starting of the car; and hence, in a and the freely exercised intention to remain case where the plaintiff says it was a vio- the only elements necessary, but such elements

there permanently or for an indefinite time are lent jerk that did it, the mere starting of must concur. the car smoothly and gradually, even though [Ed. Note.For other definitions, see Words done before plaintiff could get fully aboard, and Phrases First and Second Series, Domicile;

Residence.] did not proximately cause the injury. Again, the instruction submits the question whether 7., AFFIDAVITS Om5 – PERSON ENTITLED TO

TAKE LAW PARTNER OF PLAINTIFF'S ATthe operatives, by the exercise of the highest TORNEY. degree of care, could have avoided the in- That a petition for divorce by the wife is jury, and negligently failed to do so, and in- verified before her attorney's law partner, as a struction No. 2 told the jury such failure notary public, does not invalidate it. was negligence. Under the evidence in the Original proceeding in prohibition by the case the negligence in prematurely starting State, on the relation of Birdie Taubman, in the ordinary way was a different negli- against Samuel Davis and others, to prevent gence from that of starting it with a jerk. further action in a divorce suit. Provisional We think the plaintiff, having alleged that writ made permanent. defendants negligently jerked the car, and Aull & Aull, of Lexington, and Campbell having testified that it was a violent jerk, & Ellison, of Kirksville, for relatrix. W. H. and not the premature starting, that threw Chiles and Lyons & Ristine, all of Lexington, him off, should have submitted that precise and John M. Cleary, of Kansas City, for reissue to the jury, especially in view of the spondents. evidence as presented by both sides of the case.

TRIMBLE, J. This is an original proceedOther errors are complained of; but, if er-ing in prohibition, brought by relatrix against rors, they are matters which may be guard her husband, Edwin M. Taubman, and Hon. ed against and avoided next time.

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 With one exception, possibly two, the facts divorce suit for the reason that at the time involved in this litigation are undisputed the same was filed relatrix had already and are set forth in Judge Johnson's opinion brought suit for divorce in the circuit court herein above cited. It is therefore unnecesof Adair county, and the same was, and is sary to repeat them here. And at this point now, therein pending and undisposed of. it may be well to say that many of the con

After the provisional writ was issued and tentions now urged by respondents were conthe respondents had made return and rela- sidered at that hearing and determined in trix had filed a reply thereto, the respond- that opinion, and consequently we will not ents filed a motion for judgment on the enter into a consideration of them again. pleadings quashing the preliminary writ and The one question of fact, or possibly two, dismissing the petition. This motion was now in dispute between the parties, and to heard and disposed of by the court in an settle which a commissioner was desired to opinion by Johnson, J., November 27, 1916, take testimony, has reference to the resiwherein the motion was overruled. Seedence of relatrix at the time she brought her State ex rel. Taubman v. Davis, 190 S. W. suit in Adair county. Had she obtained a 964. No order making the provisional writ residence there, within the meaning of secpermanent was entered, however, and there- tion 2371, R. S. Mo. 1909, at the time she after, upon respondents' application for the brought her suit, or did her residence, fixed appointment of a commission to take testi- by that of her husband, remain in Lafayette mony, Hon. Nathaniel M. Shelton was ap- county? Did she have cause for separation pointed, with directions to take testimony from her husband so as to entitle her to cra. and report. This has been done, and the case ate for herself a residence separate from his" has again been argued and submitted upon This last question, it would seem, is, if any the question of whether relatrix is entitled thing, but a subdivision or branch of the to have the provisional writ made perma- other question. As bearing upon the ques nent. There may be some question whether tion of relatrix's residence at the time she the presentation of the aforesaid motion for brought her suit, the evidence taken before judgment on the pleadings did not operate the commissioner shows: That prior to her as a withdrawal of the return, a confession marriage, relatrix had for 31 years resided of the facts stated in relatrix's petition, and with her parents at Kirksville in Adair a supersession of the application for the ap- county, but for a while just before her marpointment of a commissioner, so as to make riage she had been employed in Fulton, Mo., the award of the permanent writ a neces- as matron of the State School for the Deaf. sary incident to the judgment overruling the During this time, however, she, at all times motion. State ex rel. v. Barnett, 245 Mo. 99, and up to her marriage with Mr. Taubman, 114, 149 S. W. 311; State ex inf. v. Vallins, regarded Kirksville as her home and place 140 Mo. 524, 41 S. W. 887.

of residence. [1] It would seem from the authorities Mr. Taubman she went with him to Lexing

That upon her marriage to just cited that, had the motion been a de Mr. Taubman she went with him to Lexing

, murrer, such would certainly have been the ton, Lafayette county, Mo., and resided there

until December 17, 1915, a little over 3 years. proper course. But a motion for judgment

That she left Mr. Taubman's house between on the pleadings is not a demurrer, although 9 and 10 o'clock at night December 15, 1915, partaking of some of its qualities. Hodson and went to the home of a neighbor lady and v. McAnerney (Sup.) 192 S. W. 423. And as stayed there till the morning of December tion and have it considered and disposed of 17, 1915, when she left Lafayette county and

returned to Kirksville in Adair county. without any intimation that a disposal of same would result in the final disposition of That on the occasion of her leaving her hus

band's house at the above-named hour of the case, and since relatrix already had a motion for the appointment of a commis- night she was in her room with the door

locked and her husband was over the transioner, this court, having overruled said motion for judgment on the pleadings, there som endeavoring to get in. That about two after, upon respondents' application, appoint- weeks before she left Mr. Taubman's house ed a commissioner and allowed the case to she had made up her mind to go to and proceed to a hearing on the merits. And make Kirksville her home and residence, and since all parties seem to have sought for, ap- during this two weeks, although under the peared, and participated in said hearing, same roof with Mr. Taubman, they were not and as we are able, after conceding to re- living together as man and wife. That when spondents a hearing on the merits, to reach she left Lexington she did so with the fixed a conclusion which, in result, is the same as intention never to return, but to make Kirksif the provisional writ had been made per- ville her home and her place of residence. manent following the overruling of the mo- That ever since her return to Kirksville she tion for judgment on the pleadings, we need has continued to reside there and make it her not now decide whether or not a judgment home, having sought and obtained employawarding the permanent writ should have ment 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 husband and instituting suit for divorce in the clothes she had on and a small hand order to settle the question whether she bag;' that she took no other articles because could acquire a separate domicile in Adair she was afraid to return to her husband's county so as to confer jurisdiction upon the house for them, but that, through her at-circuit court there to hear and determine her torneys, she later succeeded in having her suit. The cause of action for divorce is clothing sent to her at Kirksville. That aft- founded upon the “allegation of a delictum er reaching Kirksville with the intention of which legally justified a living apart, and · remaining there permanently and making it took away the husband's right to fix the her home, she consulted her attorneys and domicile of the wife.” “2 Bishop, 112. brought her suit for divorce.

[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 [6] In determining whether a person has right to sue for divorce, includes all needful created a domicile or "residence” in a place, collateral rights, among which is the right we are apt to confuse the fact itself with the to have a separate domicile. 2 Bishop, $ 116. things that are usually considered as evi.

[3] In proceedings which from their very dences of the fact in question. For instance, nature makes a husband and wife opposite when we say a person has his "residence” in parties, the legal fiction of the unity of per- the county, the word connotes many things son created by the marriage will not be fol- in ordinary meaning, a house, an accustomed lowed to destroy the rights of either contrary place to stay, a business, etc. But "resito the principles of natural justice. Colvin dence" in the legal meaning, and as here v. Reed, 55 Pa. 375.

used, does not necessarily require these [4] Nor is it necessary, in order to confer things, though very frequently they are lookjurisdiction on the court in which the wife's ed at to determine the ultimate fact to be suit is brought, that her right to a divorce proved. To create a "domicile" or "resimust be established beforehand. The pur- dence” as here used, only two elements are pose of the divorce suit is to establish that; fundamentally and absolutely necessary or and, to require her to establish the fact that essential. These are actual bodily presence she is in the right before she can bring her in the county or place, combined with the suit or, which is the same thing, before she freely exercised intention of remaining there can create a domicile and secure a venue in permanently, or for an indefinite time at which to bring it is to demand that she shall least. Whenever these two. elements combine, establish the justice of her case before she a domicile of choice is created, and all forwill be allowed to sue' for that purpose. mer domiciles are ipso facto abandoned. Hence, in deciding the proceeding now be- Minor on Conflict of Laws, 114; Dicey on fore us, we do not have to prejudge or de-Conflict of Laws, 104. "Every person of full

*

if he removes to another place with domicile of choice in Adair county so as to an intention to make it his permanent resi- confer jurisdiction on the circuit court of that dence (animo manendi), it becomes instan-county to hear and determine her cause of taneously his place of domicile." Story on action for divorce, but also that no cloud has Conflict of Laws, 50. "Neither presence been cast upon her motives in so doing. The alone nor intention alone will suffice to cre- hearing before the commissioner, therefore, ate a domicile of choice. Both must concur, even though the appointment of one may not and at the very moment they do concur the have been according to the usual procedure in domicile is created." "The term 'residence' this class of cases, but was made because as here used means simply the actual bodily both sides seemed to desire it, has not develpresence of the party, if that presence is oped anything beyond what was considered in coupled with the intention to remain per- the former opinion to prevent the provisional manently.” Minor on Conflict of Laws, 115. writ being made permanent. It is not necessary that the intention should [7] Point is now made that the Adair court be to remain one's whole life; what is meant acquired no jurisdiction because the notary by "permanently" here is that there must be public before whom relatrix swore to her pea fixed and definite purpose to remain "for tition for divorce was the law partner of an unlimited or indefinite time, without any the attorney who prepared it for her. There definite intention of ultimate removal.” Mi- is nothing either in the common law or in nor, p. 117. The same author at page 116 the statute forbidding such an act to be persays:

formed by an attorney of record, and hence "Since physical presence, coupled with the the affidavit is not a nullity. Smith v. animus manendi, is all that is required, it is Ponath, 17 Mo. App. 262; State v. Noland, immaterial to inquire whether the party is liv- 111 Mo. 473, 505, 19 S. W. 715. In Kuhland v. ing in a house of his own, in a rented house, in a hotel, in lodgings, or has no place to lay Sedgwick, 17 Cal. 123, it was held that plainhis head. These may be, and often are, of tiff's attorney, being a notary public, could the greatest importance as evidence whereby to take plaintiff's affidavit verifying the comdetermine whether he has the proper animus; but if that is established otherwise they become un- plaint. See, also, Reavis v. Cowell, 56 Cal. important.

At the moment when a 588, 591; Young v. Young, 18 Minn. 90 (Gil. party, being present in a place forms the defi- 72); 1 R. C. L. 763, 764. There being nothing nite intention to remain there permanently, in the common law forbidding this, it is from that moment a domicile of choice is created, which will in general continue until a therefore "generally held that, in the absence new domicile is acquired."

of any statute or rule of court to the contra

ry, an affidavit is not defective because taken That the above and foregoing principles, by an attorney in the cause.” 2 Cyc. 12. See, stated by the text-books cited, are abundantly also, Hueston v. Preferred Accident Ins. Co., sustained by the decisions, is shown by an ex- 161 Iowa, 521, 143 N. W. 566; Hankins v. amination of the following authorities: Helms, 12 Ariz. 178, 100 Pac. 460; McDonald Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. v. Willis, 143 Mass. 452, 9 N. E. 835; Swear107; Mitchell v. United States, 21 Wall. 350, ingen v. Howser, 37 Kan. 126, 14 Pac. 436; 22 L. Ed. 584; Allgood v. Williams, 92 Ala. Horkey v. Kendall, 53 Neb. 522, 73 N. W. 953, 551, 8 South. 722; Price v. Price, 156 Pa. 68 Am. St. Rep. 623. 617, 27 Atl. 291; White v. Tenant, 31 W. Va.

This disposes of all questions raised which 790, 8 S. E. 596, 13 Am. St. Rep. 896; Brad- were not decided by the former opinion. It ley v. Lowry, Speer's Eq. (S. C.) 1, 39 Am. follows, therefore, that, if said opinion is to Dec. 142; Dupuy v. Wurtz, 53 N. Y. 556 ; stand, the provisional writ should be made City of Hartford v. Champion, 58 Conn. 268, permanent; and it is so ordered. The other 20 Atl. 471; Guier v. O'Daniel, 1 Bin. (Pa.) Judges concur. 349, note; Sumrall's Committee v. Commonwealth, 162 Ky. 658, 172 S. W. 1057; Hart v.

(199 Mo. App. 480) Lindsey, 17 N. H. 236, 43 Am. Dec. 597. In LONGWELL v. KANSAS CITY. Hill v. Hill, 166 Ill. 54, 46 N. E. 751, it was

(No. 12873.) held that where a wife had resided in the

(Kansas City Court of Appeals. Missouri. state for the required length of time, but

May 20, 1918.) moved to another county just prior to bring

1. MUNICIPAL CORPORATIONS On 721(1) ing suit, her legal residence there for jurisdic

POWERS–PARKS-NEGLIGENCE. tional purposes depended upon her good faith A city's use of a park for the purpose of in going and her intention to reside there per- providing Shetland ponies of reasonable gentlemanently, and not upon the length of time ness, upon which children may ride properly at

tended, either for a consideration or gratis, is she has resided in her new home.

not foreign to the object for which public parks It is manifest from the above authorities are maintained. and from a consideration of all the evidence 2. MUNICIPAL CORPORATIONS

CORPORATIONS O721(1) taken before the commissioner, so earnestly PARKS—"SHOW"_"EXHIBITION." asked for by respondent Taubman upon the

Kansas City Charter 1909, art. 13, $ 39, announcement of the former opinion, that not be given in parks, does not prohibit the city

providing that shows and exhibitions shall not only does it appear that relatrix created a l from furnishing Shetland ponies for children in

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 com- It is the contention of the defendant that monly understood to be something that one the act of the city in maintaining said ponies views, or at which one looks, and at the same and in allowing plaintiff to ride thereon, untime hears.

[Ed. Note.-For other definitions, see Words der the facts and circumstances alleged, was and Phrases, First and Second Series, Exhibi- ultra vires. To this plaintiff makes two antion; Show.)

swers: 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.

hire for said ponies, is estopped from setting Action by Jack H. Longwell, by C. A. Long- up the claim of ultra vires. The second conwell, his next friend, against Kansas City. tention of plaintiff we need not pass upon. From a judgment for defendant, plaintiff ap- There is no contention in this case, at this peals. Reversed and remanded.

time, but that the city, if it was acting withMartin O'Donnell, of Kansas City, for ap- maintain a public park, is liable to plaintiff

in the powers granted to it in its charter to pellant. F. M. Hayward, of Kansas City, for the injuries sustained by him. The quesfor respondent.

tion presented to us is whether or not the BLAND, J. This is an appeal from the maintenance of said ponies for the purposes action of the court in sustaining a demurrer described in the petition was within the powto the petition in an action for personal in- er of the city. It is said in State ex rel. juries. The following negligence was alleg- Wood, Attorney General, v. Schweickardt, ed: That on or about the 29th day of March, 109 Mo. loc. cit. 510, 19 S. W. 51, that: 1896, defendant became the owner of a pleas: ground in or near a city

set apart for the recre

"A park is variously defined to be 'a pleasure ure ground and park, called “Swope Park,” ation of the public': a piece of ground inby virtue of a deed of conveyance delivered closed for purposes of pleasure, exercise, amuseto it by one Thomas H. Swope, which was ment, or ornament'

'a place open for accepted by defendant; that one of the con

every one.' ditions of said deed was that the land "shall There is no doubt but that, in order to probe used as a public pleasure ground or park vide means for recreation, air, exercise, and forever"; that on the 29th day of August, amusement, etc., in a park, a city may ei1916, defendant was maintaining said ground ther secure the services of some one to proas a public park, and was maintaining res- vide these means or may provide them ittaurants, boating, pleasure grounds, zoologi- self. And if the city in this case, in providcal gardens, and Shetland ponies thereon; ing the Shetland ponies for recreation of chilthat defendant had established a rule or dren, was within the legitimate sphere of its custom by virtue of which, and for a profit authority, then the discretion vested in it in to it, all children visiting said park were making such provision is free from outside invited to ride upon said ponies in said park interference, and not subject to judicial refor their enjoyment, recreation, or amuse- vision or reversal. State ex rel. v. Schweickment, paying to it as a fee or charge there-ardt, supra, 109 Mo. loc. cit. 511, 19 S. W. 51. for the sum of five cents; that on said We have made a diligent search in the day plaintiff was in said park for the pur- books, but have found but two cases decidpose of obtaining the recreation and air ed by the courts in this country involving provided by said defendant therein; that de the question as to what is within the legitifendant's agent and servant, in accordance mate exercise of the discretion vested in a with said rule or custom, invited plaintiff to city in affording pleasure, exercise, and ride upon one of said ponies, and that plain- amusement, etc., in public parks. One of tiff paid therefor the required fee of five these cases was decided by the Supreme cents; that thereupon said agent and serv- Court of our own state, cited supra, wherein ant seized the plaintiff and negligently plac- it was held that the city was within its ed him on the back of one of said ponies, rights in leasing or renting space in a park whereupon said agent and servant negligent- for the purpose of furnishing refreshments ly turned said pony loose, unattended, in the to those visiting it; the other was decided inclosure where it was kept, and it became by the Supreme Court of West Virginia, unmanageable and ran, jumped, and cavort- where it was held that a lease by a city of a ed, so that plaintiff was thrown upon his part of a public park, to improve it and use back to the ground, resulting in plaintiff's in- it at times for training and running race jury; that plaintiff at the time was too im- horses, for a rental to the city, reserving acmature and inexperienced to ride upon or cess at times to the public for riding and guide said pony unattended with reasonable driving on the track, was a legitimate use safety to himself; that plaintiff's legs were of the park, and not an ultrà vires act. Brytoo short, and the back of said pony too ant v. Logan, 56 W. Va. 141, 145, 49 S. E. broad and round, to enable plaintiff to main- 21, 23 (3 Ann. Cas. 1011). The court in the tain his seat thereon; that said pony had a latter case states that, regardless of the vicious and unmanageable disposition; and broad powers in this connection granted the that all of said facts, which caused the in- city by the Legislature, nevertheless the act jury, were known to defendant's agent, or of the city complained of was not an unlaw

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