BLADES et al. v. HAWKINS et al. (Supreme Court of Missouri, Division No. 2. Feb. 27, 1912.) Appeal from Circuit Court, Greene County; J. T. Neville, Judge. Action by H. A. Blades and others against George E. Hawkins and others. Judgment of the St. Louis Court of Appeals (133 Mo. App. 328, 112 S. W. 979) affirming a judgment for defendants, and case certified to the Supreme Court on the ground of conflicting opinions. Judgment affirmed. G. W. Thornbury, O. F. White, and E. J. White, for appellants. Sebree & Farrington, for respondents. PER CURIAM. The above case was certified to this court by the St. Louis Court of Appeals, one of the judges dissenting from the opinion on the ground that, in his judgment, it is in conflict with the decision of this court in the case of Wolcott v. Lawrence County, 26 Mo. 277. We think there is no such conflict. The foregoing majority opinion of the Court of Appeals, written by Goode, J. (see 133 Mo. App. 328, 112 S. W. 979), is approved and adopted as the opinion of this court, and the judgment is affirmed. STATE v. ST. LOUIS & S. F. R. CO. (Supreme Court of Missouri, Division No. 2. Feb. 6, 1912.) Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge. The St. Louis & San Francisco Railroad Company quiring railroads to run at least one regular passenger train a day between regular passenger stations on its line, and it appeals. Affirmed. The appellant was prosecuted for failing to run at least one regular passenger train each way every day "between certain regular passenger stations on its line of route in Pemiscot county, Mo.," as required by sections 3100 and 3101, R. S. 1909. The information was filed on July 8, 1909, and contains five counts. Each charged appellant during the respective months of February, March, April, May, and June with failing to run its passenger trains as prescribed by statute between certain stations and the north boundary line of Pemiscot county. A demurrer was filed under this information on the ground that the sections of the statute upon which it was based were unconstitutional. This was was convicted of a violation of a statute re overruled, arraignment was waived, the plea of not guilty entered, and the cause heard by the court sitting as a jury. The evidence adduced on the trial tended to prove the allegations contained in the several counts of the information. The court found the defendant guilty under each count, and imposed a fine of $100 for each offense. Defendant appealed, and assigns for error the unconstitutionality of the statute of 1907 creating the offense for which this prosecution was had, and that it is also a violation of the Constitution of the United States. W. F. Evans, Moses Whybark, and A. P. Stewart, for appellant. Elliott W. Major, Atty Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State. any provision of the state Constitution or any provision of the Constitution of the United States. In accordance with that decision, it is ruled in this case that the points made on the present appeal are not well taken, and that the verdict and judgment of the trial court must be and is in all things affirmed. ROY, C., concurs. the Commissioners is hereby adopted as the PER CURIAM. The foregoing report of opinion of the court. AMERICAN HARDWOOD LUMBER CO. Judge. V. DENT. (St. Louis Court of Appeals. Missouri. March 5, 1912.) Appeal from St. Robert M. Foster, Louis Circuit Court; Action by the American Hardwood From Lumber Company against R. K. Dent. a judgment for defendant, plaintiff appealed to the Springfield Court of Appeals, and, after an opinion by that court (151 Mo. App. 614, 132 S. W. 320), the case was transferred to Reversed the St. Louis Court of Appeals. and remanded. Julius T. Muench, for appellant. Pearce, Davis & Curlee, for respondent. PER CURIAM. The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of the act of the Legislature approved June 12, 1909. See tion 3939, R. S. 1909. In due time the cause Laws of Missouri 1909, p. 396. See, also, secwas disposed of by the Springfield Court of Appeals, through an opinion prepared by Judge Cox of that court, as will appear by reference to American Hardwood Lumber Co. v. Dent, 151 Mo. App. 614, 132 S. W. 320. Subsequently the Supreme Court declared the said legislative act, which purported to authorize the transfer of cases from this court to the Springfield Court, to be unconstitutional. The cause was thereafter transferred by the Springfield Court of Appeals to this court, on the theory that the jurisdiction of the appeal continued to reside here, and the proceedings had in the Springfield Court with reference thereto were coram non judice. The case has been argued and submitted here, and duly considered. Upon reading the record and considering the arguments, we are persuaded that the opinion of the Springfield Court, above referred to, properly disposes of the controversy, and it is adopted as the opinion For the reasons given in that of this court. opinion, the judgment should be reversed, and It is so ordered. the cause remanded. ANDERSON v. ST. LOUIS & S. F. R. CO. (St. Louis Court of Appeals. Missouri. March 5, 1912.) Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge. Action by Herman B. Anderson against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appealed. Transferred to the Springfield Court of Appeals and reversed (149 Mo. App. 266, 130 S. W. 82), and retransferred, reversed, and remanded. James Orchard, W. F. Evans, L. F. Parker, W. J. Orr, and J. H. Orr, for appellant. Wilson Cramer and K. C. Spence, for respondent. BOND, C. (after stating the facts as above). In the case of State of Missouri v. C., B. & Q. R. R. Company, 143 S. W. 785, recently decided by this court in banc, as set forth in the opinion of Judge Botsford, selected to de- PER CURIAM. This case was originally termine the same because of the equal divi- appealed to the Supreme Court from a judgsion in opinion of the regular judges who ment of the circuit court of Stoddard county sat in the case, each objection made by the in favor of plaintiff. Afterwards, by reason defendant in the present case to the validity of the increase of the jurisdiction of the Courts of the statute under which it was indicted of Appeals, the Supreme Court transferred it was considered, and under the majority rulings to this court, from which it was transferred to of the court in that case (opinion of WOOD- the Springfield Court of Appeals, where the SON, J., concurred in by VALLIANT and judgment of the circuit court was reversed, BROWN, JJ., and opinion of BOTSFORD, and the cause remanded. The opinion of the Special Judge) it was authoritatively determined Springfield Court of Appeals will be found that the statute in question was impregnable to under the title Anderson v. St. Louis & S. F. any attack based on the theory that it violated R. Co., 149 Mo. App. 266, 130 S. W. 82. The Supreme Court having subsequently held that from St. Louis Circuit Court; James E. Withall proceedings in the Springfield Court of Ap-row, Judge. Action by Winifred Smith against peals on cases so transferred were null, the Karl M. Smith. From an order denying plaincause was sent back to this court, and has tiff's application for alimony, plaintiff appealbeen duly submitted to and argued before us. ed. Appeal transferred to Springfield Court On consideration of the evidence in the case, of Appeals, which reversed the judgment (151 we have concluded that the statement of facts Mo. App. 649, 132 S. W. 312), case transmade and conclusions of law reached by the ferred, and judgment reversed. Pearce, Davis Springfield Court of Appeals when the case & Curlee, for appellant. T. J. Rowe, Thos. J. was supposed to be within its jurisdiction are Rowe, Jr., and Henry Rowe, for respondent. correct. We adopt them, as announced by Judge Cox and reported as above, as the statement of facts and opinion of our court. The judgment of the circuit court of Stoddard county is accordingly reversed, and the cause remanded to that court. OTRICH v. ST. LOUIS, I. M. & S. RY. CO. et al. (St. Louis Court of Appeals. Missouri. March 5, 1912.) Appeal from Circuit Court, Scott County; Henry C. Riley, Judge. Action by R. M. Otrich against the St. Louis, Iron Mountain & Southern Railway Company and the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendants appeal. Reversed, on opinion of Springfield Court of Appeals (154 Mo. App. 420, 134 S. W. 665). J. F. Green, Robert A. Anthony, S. H. West, and Wammack & Welborn, for appellants. J. R. Young, for respondent. PER CURIAM. The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of the act of the Legislature approved June 12, 1909. See Laws of Missouri 1909, p. 396. See, also, section 3939, R. S. 1909. In due time the cause was disposed of by the Springfield Court of Appeals through an opinion prepared by Judge Nixon of that court, as will appear by reference to Otrich v. Railroad, 154 Mo. App. 420, 134 S. W. 665. Subsequently the Supreme Court declared the said legislative act, which purported to authorize the transfer of cases from this court to the Springfield Court, to be unconstitutional. The cause was thereafter transferred by the Springfield Court of Appeals to this court, on the theory that the jurisdiction of the appeal continued to reside here, and the proceedings had in the Springfield Court with reference thereto were coram non judice. The case has been argued and submitted here, and duly considered. Upon reading the record and considering the arguments, we are persuaded that the opinion of the Springfield Court, above referred to, properly disposes of the controversy, and it is adopted as the opinion of this court. For the reasons given in that opinion, the judgment will be reversed, and the cause remanded. SMITH ▼. SMITH. (St. Louis Court of Appeals. Missouri. March 5, 1912.) Appeal PER CURIAM. The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of the act of the Legislature approved June 12, 1909. See Laws of Missouri 1909, p. 396. See, also, section 3939, R. S. 1909. In due time the of Appeals through an opinion prepared by cause was disposed of by the Springfield Court Judge Cox of that court, as will appear by reference to Smith v. Smith, 151 Mo. App. 649, 132 S. W. 312. Subsequently the Supreme Court declared the said legislative act, which purported to authorize the transfer of cases from this court to the Springfield Court, to be unconstitutional. The cause transferred by the Springfield Court of Apwas thereafter peals to this court, on the theory that the here, and the proceedings had in the Springjurisdiction of the appeal continued to reside field Court with reference thereto were coram non judice. The case has been argued and submitted here, and duly considered. Upon reading the record and considering the arguments, we are persuaded that the opinion of the Springfield Court, above referred to, properly disposes of the controversy, and it is adopted as the opinion of this court. For the reasons given in that opinion, the judgment will be reversed, and the cause remanded. LOUISVILLE & N. R. CO. v. GRASSMAN. On petition for rehearing. Overruled. HOBSON, C. J. If appellee was injured by reason of appellant's negligence, he may recover, though his fellow servant was also negligent. It may be true that the baggageman shoved the trunk, and that it would not have fallen off, but for his shoving it; but the jury had before them facts authorizing them to infer that appellant was negligent in starting the train prematurely, and that this was the proximate cause of appellee's injury. We cannot say the verdict is palpably against the evidence. Petition overruled. END OF CASES IN VOL. 144. INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and ABANDONMENT. See Appeal and Error, § 1078; Divorce, §§ ABATEMENT AND REVIVAL. See Jury, § 29; Justices of the Peace, § 174. ABORTION. 11 (Mo.) Evidence held to suppor. a con- ABSTRACTS. edgment of a deed by a married woman was III. OPERATION AND EFFECT. $ 52 (Mo.) Under Rev. St. 1909, § 2818, a ACTION. See Dismissal and Nonsuit. See Appeal and Error, §§ 496-713, 797, 928- III. JOINDER, SPLITTING, CONSOLI- See Criminal Law, §§ 59, 508, 511, 780. ACCORD AND SATISFACTION. 87 (Mo.App.) Where a concrete walk was not DATION, AND SEVERANCE. § 53 (Ky.) In actions for diversion of nat- by the construction of a railroad is permanent, Railroad company, in action for damages for ADJOINING LANDOWNERS. See Boundaries; Fences; Party Walls. § 5 (Mo.App.) Trees on the dividing line held ADMINISTRATION. § 26 (Mo.App.) The plea of accord and satis- 144 S. W. 1105. ACCOUNT. See Assignments, § 137; Quieting Title, § 51. ACCRETION. See Waters and Water Courses, § 93. ACKNOWLEDGMENT. ADMIRALTY. See Shipping. ADMISSIONS. See Criminal Law, § 407; Evidence, §§ 215- ADULTERY. See Divorce, § 49. II. TAKING AND CERTIFICATE. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER (1201) $7 (Ky.) In view of Rev. St. 1852, c. 63, $7 (Mo.) A possession of land begun after 822. 13 (Ky.) Acts held not sufficient to give ti- To constitute adverse possession, there must (B) Actual Possession. $14 (Ky.) A junior patentee can acquire ti- § 24 (Ky.) Evidence of cutting timber and $25 (Ky.) A widow remaining in possession (C) Visible and Notorious Possession. (E) Duration and Continuity of Posses- sion. assertion that he claimed as a life tenant held § 66 (Ky.) Party to action to quiet title held embraced in a patent held a constructive pos- $85 (Ky.) Inadequate purchase price held $85 (Tex.Civ.App.) In trespass to try title. II. OPERATION AND EFFECT. (A) Extent of Possession. 98 (Ky.) A person is in possession of only $ 100 (Ky.) Possession of land which par- A boundary described in a deed held to be a § 100 (Tex.Civ.App.) Where one who held § 103 (Ky.) As between titles depending on § 103 (Ky.) Question of whether party was III. PLEADING, EVIDENCE, TRIAL, $112 (Mo.) A defendant, relying on the de- ADVICE OF COUNSEL. § 44 (Tex.Civ.App.) Where adverse posses- $50 (Ky.) The issuance of a patent of pub- (F) Hostile Character of Possession. $60 (Tex.Civ.App.) The joint use of a party AFFIDAVITS. See Appeal and Error, §§ 227, 361; Criminal § 5 (Tex.Cr.App.) Affidavits taken by the at- $5 (Tex.Cr.App.) An affidavit attached to |