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see Mr. Edmonston hand it to any one else; , set that the deed was not in possession of the if the deed had been handed to R. M. Edmon- defendants at the death of the grantor, but ston while he was in the room, he would have in possession of the grantor and placed seen it.

among his other papers. The instruction he Mr. R. L. Garner on behalf of the defend- gave Mr. Davis was: “Take it to the bank ants testified that he lived in Hornersville, and tell Mr. Rice to keep it for me until it and knew the administrator. He identified is called for.” Davis stated that he carried the deed, and said that he saw R. M. Edmon- out that instruction. No direction was given ston with it the next day after Bryan Ed- as to who might call for it. Mr. Rice, under monston returned from San Antonio, which those circumstances, would have no authorwitness. thought was the 24th day of Jan-ity to deliver the deed to any one except the uary, 1920. That was before the death of grantor for whom he was instructed to keep William Bryan Edmonston. The plaintiff in it. rebuttal offered evidence to show that the [2] In order to make the delivery of a deed witness Garner had made statements con- effectual the grantor must part with all tradictory of his testimony in this case about control over it. He must place it beyond the having seen the deed in possession of R. M. possibility of recovery. Peters v. BerkeEdmonston.

meier, 184 Mo. 393, 88 S. W. 747; Terry v. The deposition of Miss Annie Lloyd, taken Glover, 235 Mo. loc. cit. 550, 139 S. W. 337; in Bexar county, Tex., was read by plaintiff. Bunn v. Stuart, 183 Mo. loc. cit. 384, 81 S. W. She was a nurse, superintendent of Kenney's 1091. The evidence offered by the plaintiff Sanitarium in San Antonio. She remember-showed that the grantor intended to retain ed the 20th day of January, when a sick man control of the deed as long as he lived, and stopped at the institution. She was present placed it where he might recall it at any when Mr. Shannon came up and when the time. deed was signed; she saw it handed to the II. The appellant, however, offered evisick man, and she left the room; the sick dence tending to show that at the time the man then had the deed in his hand. She deed was executed it was handed by the came back presently while they were all grantor to R. M. Edmonston, one of the granstill in the room, and he still had the deed. tees. This evidence rests upon the simple After the others left, the sick man had the statement of Mr. Clifton who drew the deed. deed, and asked her what he should do with If his statement is taken to be true it is not it. She told him to pin it over his heart in by any means conclusive that it was intendhis night shirt with a safety pin. This was ed to be a delivery; the grantor said nothing objected to, objection overruled, and excep- to indicate such intention. R. M. Edmonston tion saved.

and the other cousin were accompanying the The correspondence between McKay, attor- sick man on his trip to the sanitarium, they ney for the plaintiff, and Clifton, attorney of were taking care of him, and nothing is more San Antonio, was then offered in evidence, natural than that in his weakened state he containing in substance what has been men should have them take charge of any effects tioned above. This was substantially all the he had. If the sick man did hand it to R. evidence offered. The trial court rendered M. Edmonston, it was in his possession a judgment for the plaintiff, and found that few minutes later when the nurse returned to the deed was executed by William Bryan | the room. It was in his possession after he Edmonston, who died without delivering said returned to Missouri, when he sent it to the deed to the grantees therein.

bank for safe-keeping. The inference is rea[1] I. The appellant refers to section 2207, sonable that if he handed it to R. M. EdR. S. 1919, section 2818, R. S. 1909, which monston in Texas it was merely for temprovides that every instrument of writing porary convenience at the time, and his conaffecting real estate which is acknowledged | tinued possession of the instrument afteror proved, and certified as prescribed in the wards indicated an intention to retain constatute, may be read in evidence without fur-trol of it. ther proof. Several cases are cited which But there is evidence from which the chanhold that the effect of the statute is to make cellor might very reasonably infer the deed a deed duly acknowledged or proved and was not handed by the grantor to R. M. Edcertified as provided in the statute prima monston at all; that Clifton was mistaken. facie evidence that it was duly executed and Clifton's first explanatory letter to McKay, delivered. Barbee v. Bank, 240 Mo. loc. cit. when he was asked to tell what was done, 306, 144 S. W. 839: Harvey v. Long, 260 Mo. did not mention the fact. The evidence of loc. cit. 385, 168 S. W. 708; Burk v. Pence, the notary and the nurse indicated the con206 Mo, loc. cit. 339, 104 S. W. 23. If there trary. The defendant introduced Garner in were nothing shown but the deed, duly ac- an attempt to show that R. M. Edmonston knowledged, and the fact that it was record- had had possession of the instrument in Hored and in possession of the defendant, the nersville before the grantor's death, but Garrule would settle the case in defendant's ner is contradicted by his own statement

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(248 S.W.) fered as to why R. M. Edmonston had it, 5. Appeal and error 933(4)-Characterizawhen it turned up in the absolute control tion by trial court of recovery as indicating of the graptor later.

passion and prejudice presumed correct. [3] Delivery is a matter of intention. If Where trial court heard, saw, and observed a grantor intended to divest himself of title the witnesses, as well as the jury, and charand control at the time, 'then the delivery is acterized a verdict as so grossly inadequate as complete; otherwise it is not. Ray v. Walk- to indicate passion and bias, it will be presumed er (Mo. Sup.) 240 S. W. loc. cit. 196; Mere on appeal, in the absence of evidence to the

contrary, that the characterization was not undith v. Meredith, 287 Mo. 250, 229 S. W. loc.

cit. 181; Poplin v. Brown, 200 Mo. App. 255,
205 S. W. loc. cit. 413; Coulson v. Coulson,

Appeal from St. Louis Circuit Court;
180 Mo. loc. cit. 715, 79 S. W. 473; Fenton Charles B. Davis, Judge.
V. Fenton, 261 Mo. loc. cit. 209, 168 S. W.

Action by John F. Kelly against the Colum[4] The chancellor having all the witness- bia Box Company. Verdict for plaintiff was es before him, and being fully cognizant of set aside as grossly inadequate, and defendall the circumstances surrounding the case,

ant appeals. Affirmed. found there was no intention to deliver the A. & J. F. Lee and James A. Waechter, instrument. Giving the usual deference to all of St. Louis, for appellant. his conclusion, we are constrained to say that Foristel & Eagleton, of St. Louis, for rethe deed was not delivered. In fact, the spondent. weight of evidence shows that the grantor did not intend the deed to take effect while

SMALL, C. I. Appeal from the circuit he lived.

court of the city of St. Louis. Plaintiff, on The judgment is affirmed.

March 16, 1920, was an employee of defendAll concur.

ant in its box factory in St. Louis, and was injured while working at a saw table, by his left hand coming in contact with an un

guarded saw on said table. In his petition KELLY V. COLUMBIA BOX CO. he claimed damages for loss of time and (No. 23109.)

medical bills, as well as for his injury, and (Supreme Court of Missouri, Division No. 1. prayed judgment for $25,000. The answer Dec. 18, 1922. Rehearing Denied

admitted there was no guard on the machine March 5, 1923.)

which rendered it unsafe and dangerous, but

alleged that the plaintiff himself had re1. Appeal and error 979(5)-Discretion in moved the guard, and thereby and also othersetting aside verdicts because excessive or inadequate will not be disturbed, in absence The reply was a general denial.

wise been guilty of contributory negligence. of abuse. Since the trial court has a large discretion,

The plaintiff's testimony, corroborated by not ouly in setting aside excessive verdicts, but two fellow workmen, tended to show that he also verdicts which it deems inadequate, the did not remove the guard, but it was off Supreme Court will not interfere unless an when he went to work, without his fault. abuse of the discretion is manifest.

The only witness for defendant, the foreman, 2. Damages ww 132(15)-$1,000 for loss of testified that the guard had been on the two fingers held inadequate in view of ex. morning that plaintiff was hurt, and that he penses incurred.

did not take it off, and that after plaintiff In an action for damages for the loss of was hurt plaintiff said he had removed the two fingers of the left hand, verdict for $1,000 guard because it was awkward to work with. held inadequate, where it appeared that plain- Plaintiff denied this conversation with the tiff lost from $22.50 to $25 per week on ac- foreman, and his two fellow workmen tescount of his inability to work from March 16th tified that the foreman himself, shortly prior to October 25th, and incurred a physician's bill to the accident, removed the guard and work

ed on the machine without any guard. That 3. Appeal and error w221Failure to request plaintiff was not there at that time. As to instructions as to measure of damages not a his injuries plaintiff testified: waiver of right to complain for inadequacy. Where, in an action for personal injuries, into the saw blade. Dr. Caulfield amputated

"I lost two fingers. My left hand was thrown neither defendant nor plaintiff requested instructions as to the measure of damages, plain the index and middle fingers of my left hand. tiff did not thereby waive his right to complain On. other parts of the band and fingers there for inadequacy of verdict, or that the jury The cut went all down to the leaders.”

were cuts and bruises, middle finger was cut. failed to apply the correct measure of damages. 4. Appeal and error 930(2)—That Jury fol

After Dr. Caulfield amputated his fingers lowed instructions presumed.

he was treated by Dr. Shaw, from March 17 It will be presumed that the jury followed to June 8, 1920. The first couple of weeks he

went twice a day to Dr. Shaw's office, after

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of $225.

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

that once a day up to the 8th of June. I tion of the risk and contributory negligence, “There was an open sore on my hand." | one to the effect that before the jury could Doctor had to burn the proud flesh off. tind for plaintiff they must believe from the Hand and fingers were all right before acci- evidence that defendant did not exercise ordent. Cannot use hand for anything now. dinary care to furnish plaintiff with a reaFirst resumed work after accident on Oc- sonably safe place to work or reasonably safe tober 25, 1921, at Omaha, in a bakery, and appliances, "and that the condition of the worked there ever since. When worked at machine mentioned in the evidence directly defendant's box factory average weekly contributed to the injuries of plaintiff.” wage was $22.50 to $25; $25 included over. The court, of its own motion, gave two intime. Was working over time when injured. structions in the ordinary form, placing the The little and ring fingers are each partly burden of proof on the plaintiff to make out stiff. "Still suffer pain in my hand. It aches his case and upon the defendant to make out in bad weather; feel pain where the fingers contributory negligence. There was no inused to be."

struction on the measure of damages given or Cross-examination: “Was out of work asked. The jury rendered a verdict for the from the 16th of March to October 25th. plaintiff for $1,000. Plaintiff filed motion for Wages now $27 a week.”

new trial, which was sustained on the Redirect: Before he left St. Louis he tried grounds that the verdict was grossly inadeto get work in a box factory, but they quate, and also so grossly inadequate as to would not pay him but 30 cents an hour as indicate passion and bias on the part of the a laborer. They told him he could not work jury. From this ruling defendant has apon a table where the wages were 40 cents an pealed to this court. hour, because he could not handle lumber; [1, 2] II. The lower court has not only a he being crippled. He then moved to Council large discretion in setting aside verdicts it Bluffs, Iowa.

deems excessive, but also which it deems inDr. Shaw testified for plaintiff:

adequate, and this court refuses to interfere That when he first treated plaintiff the index unless an abuse of discretion on the part of and middle fingers of the left hand had been the lower court is manifest. We do not think amputated at the joint nearest the end. The this is true in this case. The undisputed eviend was very much swollen, and the thumb dence shows that plaintiff lost $22.50 to $25 was cut pretty badly. All fingers were cut per week on account of his inability to work except the little finger. There was very

from the time of his injury, March 16 to much infection, in other words, blood poison- October 25, 1920, or about 30 weeks, which ing, and blood poisoning is exceptionally pain- would be from $675 to $750. His physician's ful and very dangerous. Continued to treat bill was $225, making $900 to $975 for loss his hand until early in June, 1920. For of wages and physician's bill, leaving him but three or four weeks he called twice a day. $25 to $100 for his physical injury. This “When this infection is very bad, we have was obviously wholly inadequate. Fischer v. to open up that and put drains through there St. Louis, 189 Mo. 567-579, 88 S. W. 82–107, and dress that twice a day and thereafter 107 Am. St. Rep. 380; McCarty v. St. Louis every day. I believe it was in May, early part| Transit Co., 192 No. 396, 401, 402, 91 S. W. of May, and then every second day. When I | 133; Craton v. Iluntzinger (Mo. Sup.) 187 discharged him in June, I had done every-S. W. 48, loc. cit. 53. thing I could for that hand. Every part of [3] III. But appellant contends that, as the body is influenced by blood poisoning. plaintiff asked no instruction on the measure In my opinion he has permanently lost 75 l of damages, he waived the right to complain per cent. to 80 per cent. of the functional use that the verdict was inadequate or that the of his hand. $225 would be a reasonable jury failed to apply the correct measure of charge for my medical services to the plain

damages. But neither did defendant ask tiff. My bill has not been paid." Cross-examination:

any such instruction. It very frequently hap.

pens that both plaintiff and defendant fail "He had not been my patient before, but I to ask instructions on the measure of damhad attended his wife. My opinion as to his ages, and yet the court may, in its discretion, having lost 75 per cent. to 80 per cent. of the functional use of his hand is due to the fact set aside a verdict for being excessive. The that the index finger is the one that is lost, same rule should apply where a verdict is set which is most beneficial of any of the fingers aside as being inadequate. While we think that there are."

it the much better practice for parties to

ask instructions on all the issues involved, No other witnesses testified as to plaintiff's there is no law requiring that they should injuries.

or that the court should give instructions in The case was submitted to the jury with civil cases. We cannot hold it reversible out any instructions for the plaintiff, either error simply because they fail to do so. But on the measure of damages or otherwise. On in this case the error for which the verdict behalf of defendant, the court gave four in- was set aside was not for error in instruc

(248 S.W.) cretion of the trial court. We rule this point, abandonment of the application and a waiver against appellant.

of objection as to the court's action thereon. [4, 5] IV. But it is said that there was evi- 5. Appeal and error w257–Exception must be dence as to plaintiff's contributory negli

preserved to improper granting or refusal gence, and therefore the jury may have made of change of venue. some deduction in the verdict because they

The improper granting or refusal of a believed plaintiff guilty of contributory neg- change of venue is a matter which must be ligence. This cannot be assumed because they preserved by proper exception. were instructed to find for defendant if they 6. Prohibition 17-Writ will not lie where so believed. Furthermore, the court not only

sufficiency of petition in suit sought to be found the verdict grossly inadequate, but so

prohibited not challenged in trial court, much so as to indicate passion and bias on the

Where a prosecuting attorney filed an inpart of the jury. The court heard, saw, and junction to abate a liquor nuisance, but deobserved the witnesses, as well as saw and ob- fendant did not challenge the sufliciency of the served the jury, and will be presumed to petition for the injunction in the trial court, have not unjustly characterized the verdict in prohibition will not lie. the absence of evidence to the contrary. 7. Jury Cw14(12)—Constitutional provision Finding no error, we affirm the judgment

as to right to trial by jury construed. below.

Const. art. 2, § 22, does not confer the

right to trial by jury in suits to abate liquor RAGLAND, C., concurs.

nuisances, such section having reference soleBROWN, C., not sitting.

ly to criminal cases.

8. Jury Omw 14(12)-Constitutional right to PER CURIAM. The foregoing opinion by

jury trial inapplicable in suits to abate liquor SMALL, C., is adopted as the opinion of the

nuisance, court,

Const. art. 2, § 28, guaranteeing the right to All the Judges concur.

trial by jury, has no application in a suit for an injunction to abate the liquor nyisance where no damages were asked.

9. Jury Om 14(12)--Liability for costs held not STATE ex rel. BURNS V, SHAIN, Circuit

to confer right to trial by jury in suit to Judge. (No. 23361.)

abate liquor nuisance.

Defendant in a suit to abate liquor nuisance (Supreme Court of Missouri, in Banc. Feb. 2, is not entitled to a trial by jury merely because 1923. Motion for Rebearing Overruled he may be made liable for costs. March 3, 1923.)

10. Nuisance Om77-Equity courts have pow.

er to abate public nuisances although they 1. Prohibition Cum 10(1)-Authorized only by

may entail violation of criminal law. absence or excessive exercise of jurisdiction. Only an absence or excessive exercise of inherent in courts of equity and cannot be di

A proceeding to abate a public nuisance is jurisdiction will authorize prohibition.

vested, although such acts may entail a vio. 2. Prohibition Cum I-Writ cannot be made to lation of the criminal law. perform functions of appeal or writ of error. 11. Jury ma 14(12)—Statute authorizing abate

A writ of prohibition cannot be made to ment of liquor nuisanoe held not unconstituperform the functions of an appeal or a writ tional as denying right of trial by jury.

Rev. St. 1919, § 6594b, as added by Laws 3. Dismissal and nonsuit eu 42-Effect of dis. 1921, p. 415, conferring upon circuit courts jumissal, in prosecution of similar suit, stated. risdiction as to the use and possession of intoxi

cating liquors, is not unconstitutional as denying Where the prosecuting attorney brought proceedings to abate a liquor nuisance and de- the right to a trial by jury; no such right er fendant sued to restrain the prosecuting at- isting in proceedings of that character. torney and moved for a change of venue, but 12. Intoxicating liquors Em 279--Statute au. the suit was dismissed on motion of the prose

thorizing abatement of liquor nuisances con- . cuting attorney and another similar suit com strued. menced, which, in addition, prayed a temporary Rev. St. 1919, § 6594b, as added by Laws injunction to restrain the nuisance, controversy 1921, p. 415, conferring upon circuit courts as to the regularity of the first proceedings jurisdiction of the use and possession of inwas foreclosed and the parties were left to toxicating liquors, does not confer criminal julitigate the last-named proceedings as though risdiction; but, if the terms of a temporary inno action had previously been commenced. junction are violated, defendant may be cited 4. Venue Ew77–Withdrawal of motion for to answer therefor. change of venue held abandonment thereof. 13. Intoxicating liquors mm 259_Law for abateWhere, in proceedings to abate a liquor

ment of liquor nuisance held within police nuisance, defendant filed application for change

power. of venue but immediately withdrew it and filed Rev. St. 1919, § 6594b, as added by Lawa & motion to dismiss, such action constituted an 1921, p. 415, conferring upon circuit courts the

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

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of error.

power to abate liquor nuisances, is within the , porary injunction, however, was not sought to police power.

close the building but to restrain the defendD. E. Blair, J., dissenting in part; J. T. Blair ant and his agents and servants from mainand Graves, JJ., dissenting.

taining a nuisance; the closing of the build.

ing being left to the conclusion of the trial as Original action in prohibition by the State, to whether a permanent injunction should be on the relation of O. J. Burns, against Hop- issued. kins B. Shain, Circuit Judge, Thirteenth Ju Upon the filing of the second petition, the dicial Circuit. Preliminary writ discharged. plaintiff asked the immediate issuance of a

W. D. O'Bannon, Montgomery & Rucker, temporary injunction; whereupon defendand Paul Barnett, all of Sedalia, for relator. ant's attorney asked for time to file an appli

D. S. Lamm, Henry Lamm, J. D. Bohling, cation for a change of venue, which was de and R. S. Robertson, all of Sedalia, for de- nied and a temporary injunction granted as fendant

prayed by plaintiff. After the entry of the

order granting this writ, which restrained WALKER, J. Relator, by an original ac- the defendant from conducting or maintaintion in this court, seeks to prohibit responding the nuisance in the building, the defendent, as judge of the Thirteenth judicial cir- ant filed bis application for a change of vencuit, from continuing in force a temporary in- ue, but almost immediately withdrew the junction and to restrain him from proceeding same and filed a motion to dismiss the temagainst the relator for contempt for the lat- porary restraining order. Thereafter, the ter's violation of the temporary writ. On troubled waters seem for a time to have beNovember 14, 1921, the prosecuting attorney come stilled; the record disclosing no further of Pettis county filed in the circuit court of entries indicative of action until January 4, that county a suit entitled State of Missouri | 1922, when the plaintiff (as prosecuting at. ex rel. Prosecuting Attorney, Plaintiff, v. torney) filed an application that the defend0. J. Burns, Defendant, in which it was al- ant be cited for contempt in violating the leged that the defendant was the occupant temporary restraining order or injunction. and in charge of a building in the city of This citation was issued and the defendant Sedalia known as the Falstaff Hotel, wherein brought into court. He thereupon filed an adhe unlawfully sold and kept for barter and ditional motion to dissolve the temporary resale intoxicating liquors, and that the said straining order, which motion was overruled. building was then being used as a nuisance He then asked time within which to comand should be enjoined and abated. On the mence the action at bar, which was granted; filing of said petition, notice was served on and on the 12th day of January, 1922, he filthe defendant that on the 19th day of No-ed the petition in prohibition in this court. vember, 1921, plaintiff would apply to the The alternative writ was granted, respond. court for an injunction against defendant to ent made return thereto, a commissioner to have said building declared a public and com- take testimony was appointed, and the same mon nuisance and abated as such. The only was taken. Included therein is a transcript relief sought was the closing of the building. of the record of the proceedings in the first On the same day the defendant made appli-case, which had been dismissed. cation for a change of venue. Immediately The propriety of the trial court's action thereafter there was much discussion in open in regard to the last-mentioned matter may, court between the contending parties not nec- in the determination of the pertinent issues, essary or relevant in the determination of become a subject for consideration. the matter at issue, and the prosecuting [1] I. Only an absence or an excessive exattorney dismissed the case. On the same ercise of jurisdiction will authorize prohibiday be filed another petition having the tion. This rule as applied to the facts at bar same title and parties as in the first. It will enable it to be determined whether the contained the same averments as to the un- / writ herein should be made permanent. The lawful sale and keeping for sale of intox- general jurisdiction of the circuit court over 'icating liquors in the Falstaff Hotel, and cases involving a violation of the law conprayed that the building and premises be de- cerning the use and possession of intoxicating clared a public and common nuisance and liquors is conferred by statute (section 6594b, that it be abated by a permanent injunction Laws 1921, p. 415), and a discussion of that and closed for a reasonable length of time. power is therefore rendered unnecessary. In addition, it was prayed (which prayer was There remains, however, the question as to not in the first petition) that the defendant, whether the court, although having a general his agents and servants, be forthwith re- jurisdiction over this class of cases, has ex. strained from maintaining said nuisance un- ceeded it in the original action upon which til the conclusion of the trial and pending this proceeding based. State ex rel. Berthe final determination of the case. The dis- nero v. McQuillin, 246 Mo. 517, and cases p. tinguishing difference between the two cases 532, 152 S. W. 347. is that in the first no temporary injunction [2] The writ prayed for cannot be made to was asked as it was in the second. The tem- perform the functions of an appeal or a writ

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