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In the case before us, there is substantial evidence in the record tending to show that plaintiff paid out of her own earnings the greater portion of the purchase money for the real estate in controversy, yet we are

the record owners, as tenants by the entire- | cases where the wife's contractual or propty, of the real estate in controversy, the de-erty interests are involved. fendant herein obtained a decree of divorce from plaintiff in this state. The legal effect of this decree was to destroy the estate by the entirety aforesaid, and to vest in the parties hereto the legal title to said property as tenants in common. Russell v. Rus-blandly asked to indulge the presumption—in sell, 122 Mo. loc. cit. 238, 26 S. W. 677, 43 the face of such evidence that the defendAm. St. Rep. 581, and cases cited; Joerger ant furnished all the consideration paid therev. Joerger, 193 Mo. loc. cit. 139, 91 S. W. for. To sustain this contention would be a 918, 5 Ann. Cas. 534; Stelz v. Shreck, 128 step backwards, and in utter disregard of N. Y. 263, 28 N. E. 510, 13 L. R. A. 325, 26 the plain language of above sections. The Am. St. Rep. 475, and cases cited; Freeman conclusion which we have reached, in respect on Cotenancy and Partition (2d Ed.) §§ 76 to this matter, is in line with the following and 92; 2 Bishop on Marriage and Divorce, recent utterances of this court, to wit: § 1651, and cases cited. The plaintiff took Crump v. Walkup, 246 Mo. loc. cit. 282, 151 no appeal from said decree; but the de- S. W. 709; Teckenbrock v. McLaughlin, 246 fendant complains of same, and asserts that Mo. loc. cit. 720, 152 S. W. 38; Boutell v. the trial court should have divested the plain-Shellaberger, 264 Mo. loc. cit. 78, 174 S. W. tiff of any interest she may have had in said 384, L. R. A. 1915D, 847; Regal Realty & Inproperty, and vested the same in him, upon vestment Co. v. Gallagher et al., 188 S. W. the theory that the consideration paid for 151. said property was furnished by him, although the legal title thereto was taken in the names of himself and wife.

[2] II. It is strenuously contended in behalf of appellant that the law presumes the latter furnished the whole of the purchase money which paid for the real estate in controversy, although the legal title thereto stands in the names of husband and wife as tenants in common, or by the entirety. We are cited, in support of this contention, to Crook v. Tull, 111 Mo. 283, 20 S. W. 8, Sloan v. Torry, 78 Mo. 623, and Black v. Slaton, 92 Mo. App. 662. The principle relied upon in the above and kindred cases is stated in Sloan v. Torrey, 78 Mo. loc. cit. 625, as fol

lows:

"In the absence of evidence that the property in Louisiana was paid for by the separate means of Mrs. Torry, the presumption of law is, it having been acquired during coverture, that it was paid for with the means of her husband." (Italics are ours.)

The rule thus announced was sound in its day, in a case where the husband and wife were charged with fraudulently covering up his property, through mesne conveyances, in the name of his wife, to defeat the husband's creditors in the collection of their debts; but, in a proceeding of this character between husband and wife, the above rule should not be applied, in construing the property rights of the wife, under the married woman's law of this state. The broad and liberal provisions of sections 8304 and 8309, R. S. 1909, were intended to place the wife, under the circumstances of this case, upon the same plane with a feme sole in respect to her property rights. We are not disposed by judicial construction to curtail the plain meaning of above sections, but, on the contrary, have endeavored to carry out the pollcy of the lawmaking power, by construing the beneficent provisions of same liberally, in

We therefore hold that defendant is not entitled to the presumption claimed, that he paid all the consideration for said real estate.

He

III. It is contended by appellant that, although he personally made no payment on the purchase money of the real estate in controversy, yet he furnished his wife the money which paid for same, and gave her directions to have it deposited in his name. thereupon insists that a resulting trust has arisen in his behalf, which we should enforce, by divesting his wife of her interest in said property as disclosed by the record, and vesting the same in him.

[3] In order to establish a resulting trust herein, by parol evidence, the latter, to warrant a decree, must be so clear, definite, and positive as to leave no reasonable doubt in the mind of the chancellor as to defendant's right to have the trust established; and it must be clearly shown that the funds of the party in whose favor the trust is sought to be established went into the property sought Quarles, 46 Mo. 423; Forrester v. Scoville, to be impressed with such trust. Johnson v. 51 Mo. 268; Jackson v. Wood, 88 Mo. 76; Philpot v. Penn, 91 Mo. 38, 3 S. W. 386; Viers v. Viers, 175 Mo. 444, 75 S. W. 395; Williams v. Keef, 241 Mo. 366, 145 S. W. 425; Easter v. Easter, 246 Mo. 409, 151 S. W. 413; Northrip v. Burge, 255 Mo. loc. cit. 655, 164 S. W. 584; Ferguson v. Robinson, 258 Mo. 113, 167 S. W. 447; Robbins v. Robbins, 258 Mo. 175, 167 S. W. 502; Hunnell v. Zinn, 184 S. W. loc. cit. 1156. Keeping in mind the above requirements necessary to establish a resulting trust, we will briefly refer to some of the prominent features disclosed by the record.

[4] For the purposes of the case, it may be conceded that from 1898 to June, 1907, when the property in controversy was purchased, the defendant worked regularly and earned from $12 to $18 per week; that his expenses were paid while working away from home;

and that he received by way of extra compensation $50 to $150 on each of the jobs which he completed, when absent from home. He testified that he gave all of said earnings, and said extra compensation, to his wife, during the nine years from 1898 to 1907, and that he always directed her to deposit the same in his name.

His wife testified that between 1898 and 1903 he earned $12 per week, which was delivered to her, and $2 of same for each week was returned to him for his personal expenses; that he paid to her for five years following 1903-after deducting said $2 per week-the sum of $11.50 per week, on account of his wages, and no more; that she never received any portion of his extra compensation or premiums for work done by him. Plaintiff testified that her expenses for running the house amounted to $75 per month, and that the wages which she received from her husband were insufficient to pay the expenses for keeping up the home.

She testified, in regard to above item, as follows:

"Q. During the time that he was out, you would draw money from the Pauley people? A. Only on one occasion, I got $150; that was the only time. Q. You drew $150 on one occasion? A. Yes. Q. You put that in a certificate in your own name? A. Yes."

She also testified that the household expenses were far in excess of her husband's wages, which were turned over to her.

In other words, the defendant, in attempting to meet the requirements of the law in respect to the establishment of a resulting trust in his favor, would have us believe that from 1898 to 1907 he was turning over to his wife all his weekly wages, and in each instance directing her to deposit the same in his name, and yet, aside from the above instance, does not disclose that he ever made any inquiry of either his wife or the banks as to what had become of his earnings, or as to whether she had made any deposits in

Defendant testified on this subject as fol- his name. We are at a loss to understand

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Adding together the respective estimates for running the house, and dividing the same by two, it would make the average expense $57.50 per month. Appellant further testified:

"Q. When you received the money coming as wages, what did you do with that? A. Turned it over to my wife, my former wife. Q. Did you give any directions to her as to what to do with that money? A. Yes, sir. Q. What did you tell her to do with that money? A. I always told her to put the money in the bank in my name; I insisted on that, that money should be deposited on my name.'

He further testified:

"Q. You have no letters or anything that shows your direction to your wife to deposit money in your name, have you? A. No."

Defendant says he commenced turning over his wages to his wife in 1898, and kept that up continuously thereafter until 1908; that he always instructed her to deposit his wages in his own name. The undisputed evidence shows that from 1898 to 1905 she deposited no money in his name, but used all of his earnings turned over to her as her own funds. He testified, in reference to this subject, as follows:

"Q. You say your wife put the money in the bank? A. Yes, sir. Q. How do you know that? A. I find it out when I come back from one trip she told me that she had put the money I gave to her in the bank. When I found out she had it put on her own name, I objected. I told her she didn't have the right to do that because I always directed her to put the money on my name. I always did. Q. When was that you told her that? A. That was 1905, I think. I come back from a job. I was on a job three months. I sent her from Washington,

D. C. She put the note in her name, one note for $156. She put it in her own name without saying anything to me."

how he expected his wife to meet the necessary expenses of keeping up the house, during his extended trips from home, if all of his wages were to be deposited in his name. It appears to us that the acts and conduct of defendant, in respect to these matters, can only be rationally accounted for on the theory that the wages which he turned over to his wife were to be used by her for paying the current expenses of the house and family. His acts and conduct in proceeding, all these years, without inquiry as to his earnings, is consistent with the above suggestion, and is corroborated by the testimony of the wife that they were necessarily used in paying the household expenses. Turning, however, to the testimony of the wife, we find that she swore positively to having $1,200, prior to 1903, which she had earned in giving sewing lessons, making dresses, etc. She likewise testified that none of defendant's earnings were used in buying the real estate in controversy. The testimony of plaintiff is strongly corroborated by a number of witnesses as to her earnings, etc.

Without undertaking to reconcile the con

flicting testimony of plaintiff and defendant in regard to the main issues, we are satisfied, from a careful consideration of all the facts in the case, that plaintiff's separate earnings, without any reference to those of her husband, paid for at least one-half the purchase money given for the real estate in controversy. The defendant has failed to meet the requirements of the law, in satisfying us, by competent evidence, that he paid the whole of the purchase money for said property.

The evidence discloses that the wife was industrious, looked after the children and household affairs, and, in addition thereto, earned wages by sewing and other

wise. It would neither be equitable, nor just, on the facts disclosed by this record, to

turn over the entire property in controversy | 5. INNKEEPERS to defendant.

The court below, in dismissing plaintiff's bill and defendant's cross-bill, left them the owners as tenants in common of said property. The conclusion reached by the trial court meets with our approval, and its judgment is, accordingly, affirmed.

BROWN, C., concurs.

PER CURIAM. The foregoing opinion of RAILEY, C., is hereby adopted as the opin

ion of the court. All concur.

TREICHLINGER v. FRENCH LICK SPRINGS HOTEL CO. (No. 14481.) (St. Louis Court of Appeals. Missouri. Feb. 6, 1917.)

1. INNKEEPERS 11(1) - LIABILITY STATUTES-CONSTRUCTION.. Acts Ind. 1907, c. 88, entitled "An act defining and limiting the liability of hotels in respect to the effects of guests and providing for the disposal of unclaimed goods left in hotels," fixes in section 1 (Burns' Ann. St. Ind. 1908, § 7844) the liability of hotel proprietors for the loss of money, jewels, and other valuables of a guest by theft. A subsequent section (Burns' Ann. St. Ind. 1908, § 7845) declares that no hotel keeper shall be liable for loss of wearing apparel, goods, or merchandise for any sum exceeding the sum of $200, where it shall appear that such loss occurred without the fault or negligence of such hotel keeper, nor shall he be liable in any sum for the loss of any article belonging to such guest and not within the room assigned to him, unless it shall be specially intrusted to the care and custody of such hotel keeper. Under the common law of Indiana innkeepers were not liable for losses resulting from accidental fires occurring without negligence. Held, that in view of the whole act the latter section cannot be deemed as rendering Indiana innkeepers liable to the extent of $200 for the destruction of guest's wearing apparel, etc., by an accidental fire occurring without negligence on their part.

[Ed. Note. For other cases, see Innkeepers, Cent. Dig. 88 17, 18, 21, 23.]

2. INNKEEPERS 11(1) - LIABILITY — WHAT LAW GOVERNS.

The liability of an Indiana innkeeper is governed by the laws of that state.

[Ed. Note. For other cases, see Innkeepers, Cent. Dig. 88 17, 18, 21, 23.] 3. INNKEEPERS 11(12)-PRIMA FACIE LIA

BILITY.

CIDENTAL FIRES.

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Where an Indiana innkeeper showed that he was not guilty of negligence, he is not bound to show the origin of an accidental fire to exculpate himself from liability.

[Ed. Note. For other cases, see Innkeepers, Cent. Dig. §8 35-40.j

Error to St. Louis Circuit Court; Thos. C. Hennings, Judge.

Action by David Treichlinger against the French Lick Springs Hotel Company. There was a judgment for defendant, and plaintiff brings error.

Affirmed.

Stern & Haberman, of St. Louis, for plaintiff in error. John C. Vaughan, of St. Louis, and Perry McCart, of Paoli, Ind., for defendant in error.

ALLEN, J. This action is prosecuted by plaintiff in his own behalf and as assignee of the claims of 13 other persons to recover for the loss of baggage and other personal property of plaintiff and his assignors occasioned by the destruction of defendant's hotel, or a portion thereof, by fire, on March 28, 1910, while plaintiff and his assignors were defendant's guests therein. The trial before the court and a jury resulted in a verdict and judgment for defendant, and plaintiff has brought the case here by writ of error.

The petition is in 14 counts, based upon the 14 respective claims, and pleads a statute of Indiana pertaining to the liability of innkeepers in that state, viz. section 7845 of Burns' Annotated Statutes of Indiana (1908) as follows:

"No hotel keeper shall be liable for the loss of wearing apparel, goods or merchandise for any sum exceeding the sum of $200.00, where it shall appear that such loss occurred without the fault or negligence of such hotel keeper; nor shall he be liable in any sum for the loss of any article belonging to such guest and not within the room assigned to him, unless the same shall of such hotel keeper or his servants.' be specially intrusted to the care and custody

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The answer admits that plaintiff and his assignors were guests in defendant's hotel, and that a portion of the hotel was destroyed by fire, as alleged; but denies the other allegations of the petition, and avers that the loss, if any, was not due to the fault or negligence of defendant or his agents or Under the common law of Indiana, an inn- servants, alleging that defendant maintainkeeper is not an insurer of a guest's goods, but ed a watchman and proper fire apparatus is prima facie liable for loss or damages thereto not occasioned by act of God, the public enemy, and exercised "the strictest care and dilior by the fault of the guest, and proof of the gence to guard against and to extinguish destruction of a guest's property by accidental fire." The answer further sets up that unfire makes out only a prima facie case of lia-der the common law of Indiana an innkeepbility on the part of the innkeeper which may be rebutted by proof of want of negligence. er is not liable for the loss of a guest's prop

[Ed. Note. For other cases, see Innkeepers, erty occurring without fault or neglect of Cent. Dig. 88 35-40.] the innkeeper or his servants; and it is al

4. INNKEEPERS 11(1) — LIABILITY-ACCI-leged that the section of the Indiana statute DENTAL FIRES. pleaded by plaintiff is a part of an act of the Legislature of Indiana enacted in 1907,

An innkeeper is not liable for the destruction of his guest's property by accidental fire occur ring without negligence on his part.

entitled:

[Ed. Note.-For other cases, see Innkeepers, "An act defining and limiting the liability of
Cent. Dig. 88 17, 18, 21, 23.]
hotels in respect to the effects of guests and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

:

providing for the disposal of unclaimed goods each of these it was sought to have the jury left in hotels."

And the answer pleads section 1 of said act, being section 7844 of Burns' Ann. Stat. of Indiana (1908), which pertains to the liability of hotel proprietors for loss of "money, jewels or other valuables" of a guest by theft; and alleges that the remainder of said act applies to the sale of unclaimed goods.

The parties through their counsel stipulated that while plaintiff and his assignors were defendant's guests, as alleged, their property mentioned in the petition, while situated in their respective rooms in defendant's hotel, was destroyed by fire, which destroyed a portion of defendant's hotel; the parties stipulating as to the reasonable value of the property mentioned in the respective counts of the petition. Of these 14 items contained in the stipulation only three are in excess of $200.

At the trial plaintiff introduced this stipulation and rested. The record before us recites that:

"Thereupon the defendant, to support the issues in its behalf, offered and introduced the evidence of various witnesses which tended to prove that on the 28th day of March, 1910, the hotel, described in the stipulation read in evidence by plaintiff, was completely destroyed by fire, but that on the date of the fire and prior thereto the defendant had exercised a very high degree of care in guarding the hotel premises against the danger of fire, and had further exercised a high degree of care in providing facilities for extinguishing fire, and had further exercised a high degree of care in using said appliances in endeavoring to extinguish said fire, and further offered evidence tending to show that the origin and cause of said fire was unknown."

Defendant further made due proof of the decisions of the Supreme Court of Indiana and of the Appellate Court of that state, respectively, in the cases of Laird v. Eichold, 10 Ind. 212, 71 Am. Dec. 323, and Bowell v. De Wald et al., 2 Ind. App. 303, 28 N. E. 430. 50 Am. St. Rep. 240. And thereupon plaintiff offered in evidence the entire act of the Legislature of Indiana of 1907, mentioned in defendant's answer, including what are sections 7844 and 7845 of Burns' Ann. Stat., supra. Upon defendant's objection the act was excluded.

instructed to return a verdict for plaintiff on the count to which the instruction referred, for $200, provided the jury found that the loss occurred without fault or negligence on defendant's part; but if the jury found that the loss was occasioned by defendant's fault or negligence, or that defendant's fault or negligence contributed thereto, then to return a verdict for plaintiff for the full amount stipulated to be the reasonable value of the property mentioned in such count.

All of these instructions offered by plain. tiff were refused.

Two instructions were given at defendant's request. One merely instructed the jury that defendant's liability was to be determined by the law of Indiana. The other told the jury that section 7845 of Burns' Ann. Stat. of Indiana, supra, “was not intended to and did not add to the liability of hotel keepers for loss of personal property by accidental fire in Indiana," and instructed the jury to disregard the provisions thereof.

Under the evidence and these instructions the jury resolved the issues in favor of defendant.

[1] It is argued that section 7845, supra, was controlling on the question of defendant's liability, and that the court erred in excluding it from evidence, in refusing plaintiff's instructions predicated thereupon, and in withdrawing it from the consideration of the jury by defendant's second instruction. Plaintiff's theory is that this statute applies to the loss of a guest's property by accidental fire, as well as by theft or otherwise, and operates to make the innkeeper absolutely

liable for property of a guest in his room to the value of $200, while permitting him to avoid liability for any sum beyond this amount by an affirmative showing that the loss occurred without fault or negligence on his part or on the part of his servants.

The statute invoked does not appear to have been construed by the appellate tribunals of Indiana; but a consideration of the entire act in question, and the state of the common law in Indiana prior to its passage, has convinced us that the statute does not, at any rate, apply to loss by "accidental fire," Plaintiff offered 14 instructions, one cover- whatever change, if any, may have been ing each count of the petition. Eleven of wrought thereby. The statute does not seem these which 11 were identical except as to to purport to create any new or additional amounts-covered the 11 counts in each of liability not theretofore existing under the which the amount involved (according to the common law of Indiana; but be this as it stipulation) did not exceed $200; and by each may, it seems clear that it was not thereby of these instructions it was sought to have intended to make an innkeeper absolutely the jury instructed to return a verdict for liable, to the extent of $200, for a loss ocplaintiff on the count to which the instruc- casioned by accidental fire. Section 7844, tion referred, for the amount stipulated to supra, in terms applies to loss by theft. be the reasonable value of the property men- And while the word "theft" is not mentioned tioned in that count. Plaintiff's remaining in the succeeding section (7845), we think 3 instructions-also identical except as to it apparent that in enacting this section as a amounts-covered the 3 counts of the petition part of the same act the lawmakers were each of which involved an amount (according dealing with losses of the last-mentioned to the stipulation) in excess of $200; and by character. Furthermore, section 7845 relieves

an innkeeper from liability for loss of prop- Swift, 33 N. Y. 571, 88 Am. Dec. 405, which erty of a guest not within the room assigned was unnecessary to a decision therein, is opto him, unless the same has been specially posed to this view; but that case, decided by intrusted to the care and custody of the hotel a divided court, has been much criticised. keeper or his servants. From this we think See Cutler et al. v. Bonney, 30 Mich. 259, 18 it appears that loss by theft was intended to Am. Rep. 127; Johnson v. Chadbourn Fibe covered, and not loss by fire as here.nance Co., 89 Minn. 310, 94 N. W. 874, 99 Am. Plaintiff's learned counsel argue that there is St. Rep. 571; Schouler on Bailments (1897) a reason for this exemption where the loss is § 293. by fire as well as where it occurs through

[5] It is argued that even under defendtheft, in that in the event of fire the innkeep-ant's theory of the law applicable to the case, er and his servants may expect to find a defendant failed to carry the burden resting guest's goods in his room when making an upon it, and that a verdict should have been effort to save them from destruction. But in directed for plaintiff. This argument proview of the difficulty ordinarily attendant ceeds upon the theory that in order to exupon rescuing goods from the various rooms culpate itself it devolved upon defendant to of a hotel building, in case of fire, it does show the origin of the fire which caused the not seem reasonable to suppose that the Leg- loss. We cannot accede to this view. The islature would make the innkeeper's liability evidence is that the cause of the fire was unfor loss by fire extend specially to goods in a discovered and unknown. But defendant guest's room. Other arguments advanced adduced proof tending to show want of negin this connection need not be discussed. ligence on its part; tending in fact to show a very high degree of care to prevent fires and to extinguish them. This certainly sufficed to make it a question for the jury to say whether or not defendant had successfully carried the burden which the law cast upon it under the circumstances.

[2, 3] The case is one to be determined by the law of Indiana, and not by that of this jurisdiction. And while there is a lack of harmony in the decisions of the courts of the various states as to the common-law liability of an innkeeper, under the law as declared by the decisions of the appellate courts of Indiana an innkeeper is not an insurer of a guest's goods but is prima facie liable for loss or damages thereto-not occasioned by an act of God, the public enemy, or caused by the fault of the guest; and he may exculpate himself by proof that the loss was not occasioned by his fault or neglect, or that of his servants. See Laird v. Eichold, 10 Ind. 212, 71 Am. Dec. 323; Baker v. Dessauer, 49 Ind. 29; Bowell v. De Wald et al., 2 Ind. App. 303, 28 N. E. 430, 50 Am. St. Rep. 240.

We are referred to no Indiana case involving a loss by accidental fire, and have found none. But taking the common law of Indiana as we find it, we regard it as entirely clear that defendant was here no more than prima facie liable, and that plaintiff's refused instructions were erroneous in that they proceeded upon the theory that defendant was absolutely liable to the extent of $200 under each count.

servants.

[4] In this connection it may be further noted that according to the weight of authority in this country an innkeeper is not liable for the destruction of his guest's property by "accidental fire," occurring without negligence on the part of the innkeeper or his See Merritt v. Claghorn, 23 Vt. 177; Vance, etc., v. Throckmorton et al., 5 Bush (Ky.) 41, 96 Am. Dec. 327; Cutler et al. v. Bonney, 300 Mich. 259, 18 Am. Rep. 127; Johnson v. Chadbourn Finance Co., 89 Minn. 310, 94 N. W. 874, 99 Am. St. Rep. 571; Weeks V. McNulty, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693. It is true that what is said as to this in Hulett v.

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1. TROVER AND CONVERSION 67 — TRIAL INSTRUCTIONS.

In action to recover value of bonds alleged to have been converted by defendant, an instruction to find for defendant if defendant took the made no demand for their return was properly bonds with plaintiff's consent and the plaintiff refused; the evidence showing that such demand would have been useless.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 295-303.] 2. TROVER AND CONVERSION

TIONS PRECEDENT-DEMAND.

9(6)-CONDI

In an action for the value of bonds, where

defendant admits possession of bonds and alleges right to hold same until accounting of partnership affairs is made with plaintiff, a demand by plaintiff is not prerequisite to recovery, since such demand would clearly have been useless and of no effect.

[Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. §§ 63, 64.] 3. TROVER AND CONVERSION

ACTION.

4-Nature of

or dispose of personal property constitutes a A wrongful assumption of a right to control conversion.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 25-37.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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