house at his own expense. There was also no evidence showing that the two directors by any official act had taken any steps whatever, or were threatening to take any steps, to move the schoolhouse at the time the injunction was procured. The plaintiffs introduced both of such directors as their witnesses. The evidence showed that no record was made by the clerk of the special election to move the schoolhouse for the reason such removal was deemed illegal. The defendant Cadwell did testify that he helped to survey the acre of ground, and that the acre had been cleared off, but that they did not intend to move the schoolhouse under the illegal election. The defendant Joiner stated that it was not their purpose to locate the schoolhouse on the new site; that when they found the election was illegal they abandoned the idea, and nothing was thereafter done towards moving the schoolhouse at any time.

The trial court-as showing the theory upon which the case was tried and the judgment rendered-gave upon its own motion the following declaration of law for the plaintiffs: "The court, declares that the testimony in this case is suflicient to show an interest on the part of some of the plaintiffs in the case sufficient to maintain this action. If they are residents of the district, that fact alone would be sufficient to give them an interest in the location of the schoolhouse to maintain an injunction, and the evidence in this case shows that the plaintiff Oldham was a resident of the district, and also that he participated in the election held by the people of the district to determine the location of the schoolhouse, and this testimony is sufficient to authorize an inference by the court that he was not only a resident of the district but also a legal voter in said district."

serious damages, and not of a mere technical and inconsequential injury. Robins v. Latham, 134 Mo. 466, 36 S. W. 33; Fugate v. McManama, 50 Mo. App. 39. In the absence of proof that the plaintiffs as taxpayers would suffer irreparable injury by reason of the illegal appropriation of the school moneys of the district, the petition cannot be sustained. Davis v. Hartwig, 195 Mo. loc. cit. 399, 94 S. W. 507. An injunction will not, lie to question improper or unlawful conduct on the part of a public officer at the suit of a resident of a county merely; it must be averred and shown that he (the complainant) is also a citizen and taxpayer, and that he will be greatly and irreparably injured by the act which he seeks to enjoin. Spelling on Extra. Rems. (2d Ed.) § 614, p. 509. The authorities of a school district will not be enjoined from moving the schoolhouse to another site where plaintiff does not show he will sustain any special or pecuniary injury different from that of the public. High on Injunctions, vol. 2 (4th Ed.) § 1263, p. 1280.

[6] The allegation in plaintiffs' petition that they were resident taxpayers of the school district and that the moneys of the district were about to be illegally appropriated by the acts of the school directors would, if true, show that they had a special interest in the subject-matter of the suit and were entitled to be protected by the court. The averment was a substantial one and was a constituent fact in the cause of action as stated in their petition, and, like the other essential allegations of the petition, was put in issue by the general denial. Plaintiffs, having wholly failed to prove the substantial facts constituting their cause of action, were not entitled to the perpetual injunction.

GRAY, J., concurs. COX, J., dissents.

GOODE v. CENTRAL COAL & COKE CO. (Kansas City Court of Appeals. Missouri. Nov. 25, 1912.)

1. TRIAL (§ 139*)-PROVINCE OF JURY-REJECTING EVIDENCE.

It is therefore ordered that the judgment [4, 5] This seems to be a misapprehension be reversed, and the cause remanded. of the law, as this is not an action to protect public rights, but to prevent a threatened personal injury. In such case, it is not sufficient to sustain the action that the plaintiffs should show that they were residents of the school district; they must also show that they were taxpayers. An injunction will not lie to restrain improper or unlawful conduct on the part of public officers at the suit of a resident of the county merely. It must be averred and shown that he is also a citizen and taxpayer, and that he will be greatly and irreparably injured by the acts which he seeks to enjoin. Caruthers v. Harnett, 67 Tex. 127, 2 S. W. 523. The plaintiffs in this case failed to show any injury to themselves as charged in the petition. The petition by a taxpayer praying that the disbursement of taxes be enjoined because illegally levied must state the amount of taxes paid by him, and to entitle him to relief he must offer proof of substantial and

Evidence may be rejected by the court as unworthy of belief only when opposed to the plain, undisputed physical facts; and when they are disputable it must go to the triers of fact.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. 139.*] 2. PLEADING (8 433*)-CONFORMITY TO PLEAD

INGS AND EVIDENCE.

In an action for a miner's death, in which it was claimed that decedent assumed the risk. because the rock fall occurred over his place of work, which he was bound to make safe, allegations of the petition that defendant negli

5. DEATH (§ 14*)-MASTER'S LIABILITY-NEG-13. TRIAL (§ 296*)-INSTRUCTIONS-CURE BY

contributory negligence.

Plaintiff prevailed | pillar, and describe the fallen rock as being in the circuit court, where she recovered a in a place where it could not have been, had judgment of $5,000.

it fallen from a position in the part of the The husband of plaintiff, in company with roof that was under the control of the deother miners, was engaged in the work of ceased and his fellow laborers. To hold, as "drawing pillars." In the preceding stages counsel for defendant insist we should, that of the work in that part of the mine, the the evidence of plaintiff is opposed to the coal had been removed from entries and plain physical facts of the situation would rooms, and thick pillars or walls of coal had require us to give conclusive effect to the tesbeen left standing, for the purpose, in part, timony of defendant's witnesses descriptive of supporting the roof. Afterward these of such facts, and to reject as unworthy of pillars were removed to obtain the coal in belief the contradictory testimony of unimthem. Plaintiff and his fellow servants had peached witnesses, who give a vitally different been working eight days mining the coal in description of them. It is only where the tesone of such pillars, and just before the event timony of witnesses is opposed to the plain, in controversy had been loading coal loosen- undisputed and indisputable physical facts of ed by blasts from the pillar into tram cars. the occurrence in question that it will be reThe parties agree that it was the duty of jected by the court as unworthy of belief. miners thus employed to attend to the safety Where the physical facts are disputed and of the place in which they were working; disputable, such controversy must go to the and the great weight of the evidence is to triers of fact as one of the issues for them to the effect that defendant owed such miners decide. In the present case the question of the duty of reasonable care to keep all other whether the rock was over the place where places, such as entries and the like, in a rea- the men had been at work, or was in another sonably safe condition. The death of plain-place from 15 to 25 feet distant therefrom, tiff's husband occurred at the noon hour, was a question of fact for the jury to deterwhile he and his companions were at lunch. mine. The learned trial judge committed no According to the evidence of plaintiff, the error in sending this issue to the jury. men had withdrawn from the place of their work to a place, perhaps, 20 feet distant therefrom and in the entry, and were seated eating their lunches, which they had brought with them, when a rock, 12 or 15 feet long, four feet wide, and 2 or 3 feet thick, fell from the roof, killing the husband of plaintiff.

The main dispute in the evidence is over the fact of the position of this rock before its fall. If, as witnesses for plaintiff insist, the rock was not over the place where the men were at work before noon, there is substantial support in the evidence for the conclusion that it was in a part of the roof under the direct supervision and control of defendant; but if, on the other hand, the rock was over the place where the men were working plaintiff cannot recover, since the death of her husband should be ascribed to his own negligence in failing to perform one of the tasks of his employment.

[1] Without going into details, we content ourselves with the declaration that the contention of each disputant finds substantial support in the evidence. Counsel for defendant lay great stress on the testimony of certain witnesses, among them the state mine inspector who examined the place after the casualty, and who stated that the stain of blood and brains left on the floor showed that the place of the killing was less than five feet from the pillar, and therefore was under the part of the roof which the miners at work on the pillar were bound to keep in a safe condition. Opposed to this testimony is that of fellow workmen of the deceased, who assert that they and the deceas

[2] It is argued by counsel for defendant that the petition is so fatally defective it will not support the judgment, and our attention is called to the allegation "that the defendant and its officers and agents carelessly and negligently left and permitted the said entry in said mine at and near the point where defendant * directed the said James V. Goode to work to be unsafe and dangerous," etc. Counsel say that in this allegation plaintiff has pleaded herself out of court, since she expressly states that the unsafe place was the place where the deceased was required to work, and the proof shows that it was his own duty to keep that place safe. The well-known rule is invoked that a plaintiff will not be allowed to plead one cause and recover on another, especially on one contradictory of that pleaded.

[3, 4] A sufficient answer to this argument is found in other parts of the petition, which explain and give definite meaning to the expression "at and near." These allegations are to the effect that the deceased had left his working place and had gone "westward to or near the west wall of said main entry, for the purpose of eating his lunch," etc. This position coincides with the position the witnesses for plaintiff say the deceased occupied at the time of his death. There is no substantial variance between allegation and proof. The petition must be read as a whole, and, since it was not attacked until after judgment, should be scanned with a friendly eye, and all doubts resolved in favor of the pleader. If defendant thought the two allegations to which we have referred were inconsistent or uncertain, he

A

defects, must be invoked before answer. liberal interpretation of the petition brings it into harmony with the judgment; and therefore the objection of defendant to its sufficiency to support the judgment is overruled.

[5] Further, it is argued by defendant that the demurrer to the evidence of plaintiff should have been given, for the reason that no proof was adduced tending to show that an inspection of the rock by defendant before its fall would have disclosed the fact that it was unsafe and likely to fall. The cause of action, if any, inuring to plaintiff of necessity must be grounded on negligence of defendant in the performance of, or in the omission to perform, some duty it owed its servant.

[6, 7] Since the petition does not allege, and the proof does not show, that this mine was one "generating explosive gas," the duty of defendant towards its servant was not measured by the provisions of section 8447, Rev. Stat. 1909, which require daily inspection of mines "generating explosive gas in which men are employed." Timson v. Coal Co., 220 Mo. 580, 119 S. W. 565. The duty of defendant was defined by the general rule, requiring a master to exercise reasonable care to provide his servant a reasonably safe place in which to work.

whether or not the deceased, James V. Goode, came to his death while at work in his working place; and if the jury believe and find from the evidence that the deceased was killed by a rock falling from the roof of the entry in a part of the mine that was not his working place, while in the exercise of due care, then it will be your duty to find for the plaintiff."

[11, 12] It will be noticed that in this instruction, which assumes to cover the whole case and to direct a verdict, the jury were required to find for plaintiff on the sole hypothesis that her husband was killed by a rock falling from the roof of the entry at a place that was not his working place, without reference to the issues of whether or not the dangerous character of the rock would have been discoverable to an ordinarily careful and prudent master, in the exercise of due care towards his servant, and whether or not defendant did employ due care in the discharge of its duty of mastership. The fact that the rock fell, of itself, was not sufficient proof of negligence. Wojtylak v. Coal Co., 188 Mo. 260, 87 S. W. 506. The burden was on plaintiff to satisfy the jury that the rock not only was in a dangerous condition, but that such condition would have been discovered by defendant, had reasonable care been exercised in time to have prevent[8, 9] Just what is reasonable care in a ed the injury. The instruction under congiven case is a question generally to be solv-sideration ignored that burden and lessened ed in the light of the peculiar facts and cir- the load the law required plaintiff to carry cumstances of the case; and where they af- to the end of the case. ford room for a reasonable difference of opinion about the characterization of the act alleged to have been negligent the issue of negligence or no negligence becomes one of fact for the jury to determine. The duty of defendant towards its servant called for the exercise of reasonable care to discover dangerous defects in the entry roof in question and to rectify such defects. That is to say, defendant was duty bound to inspect the roof at reasonable intervals, and, on dis- [14] In view of the possibility of a recovering the presence of an insecure rock or trial of the case, we deem it necessary to other material, to remove such menace to say that, since the case involves no issues of the safety of its servants whose service com- malice, wantonness, or recklessness, but is pelled them to use the entry. There is evi- merely an action for negligence, the instrucdence tending to show that defendant did not tion on the measure of damages should not inspect the rock at reasonable intervals, and present any issue of "mitigating or aggravatto support a reasonable inference that, owing circumstances." These words, as used ing to its size, form, weight, position in the in the statute (section 5427, Rev. Stat. 1909), roof, and the character of its surroundings, are intended to apply only to cases in which a reasonable inspection would have disclosed the danger of allowing the rock to remain in its overhead position. We think the evidence of plaintiff sustains the charge of negligence and tends to show that such negligence was the proximate cause of her husband's death. The demurrer to the evidence | Winfrey, 79 Mo. 544. was properly overruled.

[10] We find prejudicial error in the instructions given at the request of plaintiff. One of the instructions is as follows: "The jury are instructed that the sole question in

[13] The error cannot be deemed cured by the other instructions given at the instance of plaintiff. Assuming to cover the whole case and directing a verdict, the instruction offered a hypothesis which the jury might select to the exclusion of all others; consequently such other hypotheses should not be regarded as curative, but as contradictory, of that we pronounce erroneous and harmful.

it would be proper to allow punitive damages, and have no application to other cases grounded in tort. Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561; Barth v. Railway, 142 Mo. 535, 44 S. W. 778; Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508; Nichols v.

The court say, in Barth v. Railway, supra: "It is now the settled rule of declsion in this court that where there is neither allegation of malice, wickedness, or wantonness, in the tort complained of, nor evidence

proper in the instruction to include the words 'having due regard to the mitigating or aggravating circumstances.' These words are only proper in a case in which punitive damages or smart money may be allowed. Stoher v. Railroad, 91 Mo. 509 [4 S. W. 389]; Parsons v. Railroad, 94 Mo. 286 [6 S. W. 464]."

Our decision in Ogan v. Railroad, 142 Mo. App. 248, 126 S. W. 191, relied on by plaintiff, is not in conflict with this ruling.

The judgment is reversed, and the cause remanded. All concur.

CROWLEY v. CROWLEY.
(Kansas City Court of Appeals. Missouri.
Nov. 11, 1912. Rehearing Denied
Dec. 9, 1912.)

1. HUSBAND AND WIFE (§ 144*)-SEPARATE

PROPERTY-RENTS.

Rev. St. 1909, § 8309, provides that all the income, increase, and profits from a married woman's real estate shall remain her separate property, and not be liable for her husband's debts, unless reduced to his possession with her express consent, provided that it

shall not be deemed to have been reduced to the husband's possession by his use and care thereof, unless by the terms of said assent in writing full authority be given by the wife to the husband to dispose of the same for his own use, but such property shall be subject to execution for any liability of her husband created for necessaries for the wife or family. Held, that where a husband and wife lived together peaceably for a number of years on a farm belonging to the wife, without thought of the existence of the relation of debtor and creditor, and the farm rents were collected and disposed of by the husband without the wife's written consent, he supporting and providing for the family, she cannot recover against his estate for such rent collected, on the ground that she never gave her written consent to his use thereof.

any

Appeal from Circuit Court, Ray County: Francis H. Trimble, Judge.

Action by Zerelda A. Crowley against General B. Crowley, administrator. From a judgment for plaintiff, defendant appeals. Reversed.

Frank P. Divelbiss and Albert M. Clark, both of Richmond, for appellant. Lavelock & Kirkpatrick, of Richmond, for respondent.

ELLISON, J. In the year 1899 David Crowley and plaintiff were married. Two years thereafter he, being joined by plaintiff, deeded a large farm, with some other property, to plaintiff's father. On the same day the father deeded the property to plaintiff. Each conveyance was the usual warranty deed, and each for the expressed consideration of "one dollar and other valuable con

siderations." David and plaintiff lived together harmoniously as man and wife for near 10 years, when he died. During this time the farm was rented by David, and the rents collected by him, just as it had been before he caused its conveyance to plaintiff. No objection to this was made by plaintiff,

nor

was any claim made that the rents should be paid over to her; but she never gave her express assent in writing that David should collect the rents for his own use and benefit, which she claims was necessary under section 8309, R. S. 1909, before her title would be divested. After David's death plaintiff presented the present claim to the probate court against his estate for each year's rent, aggregating $6,560. The probate judge was disqualified, and the cause was certified to the circuit court for trial, as provided by statute. The judgment in the latter court was for plaintiff.

[1] That portion of section 8309, R. S. 1909,

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 545-553; Dec. Dig. relied upon by plaintiff, reads that all “in§ 144.*]

2. STATUTES ( 188*)-CONSTRUCTION.

The plain terms of a statute cannot be frittered away by refined reasoning.

[Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 266, 267, 276; Dec. Dig. § 188.*] 3. STATUTES (§_174*) - CONSTRUCTION-UNREASONABLE CONSTRUCTION.

A construction should not be entertained which would attribute to the Legislature an intention to apply the statute to an impossible situation.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 254; Dec. Dig. § 174.*]

come, increase and profits" from a married woman's real estate shall "be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband," unless it be reduced to the possession of the husband "with the express assent of his wife: Provided, that said personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit, but such property shall be subject to execution for the payments of the debts of the wife contracted before or during marriage, and for any debt or liability of her husband created for necessaries for [Ed. Note.-For other cases, see Tenancy in the wife or family." The literal reading of Common, Cent. Dig. §§ 76-88; Dec. Dig. the statute is that the rents of a married 28.*] woman's real estate remain her separate

4. HUSBAND AND WIFE (§ 39*)-CONTRACTS. A wife may now contract with her husband as if sole.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 220, 221; Dec. Dig. $ 39.*]

5. TENANCY IN COMMON (§ 28*)-RENTS.

One cotenant, who rents the land and collects the rent, will be liable therefor to the

other cotenant.