Whether or not the power of attorney created a trust estate, made defendant a trustee to administer the same, and made plaintiff a beneficiary to the extent of $1,000 is a matter we need not pass upon, for the rea'son that, admitting that defendant was made such a trustee, we do not believe that plaintiff is entitled to recover. [2, 3] A power of attorney may be revoked by those executing the same. (There is no contention that this power of attorney was coupled with an interest.) The fact that the heirs of Jane Mock executed an instrument one of the main incidents of which was the power of revocation shows that, even if they had intended to create a trust estate, they reserved the right of revocation. That a power to revoke a trust may be reserved in the instrument creating the same is well settled (Kelly v. Johnson, 34 Mo. 400; Mize v. Bates County National Bank, 60 Mo. App. 358; 39 Cyc. 94), and, of course, there is no question that when the right to revoke is retained in an instrument the same may be exercised at any time before the trust is executed (Mize v. Bates County National Bank, supra; Schreyer v. Schreyer, 101 App. Div. 456, 91 N. Y. Supp. 1065). [4] The power of attorney did not amount to a gift inter vivos to plaintiff by the heirs of Jane Mock. The direction contained in the power of attorney to defendant was that defendant give to plaintiff the $1,000 as provided for by the defective will of Jane Mock, deceased. This direction was to the agent of said heirs, and not to the agent of plaintiff. Under such circumstances there could have been no executed gift until there had been a delivery of the money by defendant to plaintiff. Tomlinson v. Ellison, 104 Mo. 105, 16 S. W. 201; Burchett v. Fink, 139 Mo. App. loc. cit. 385, 123 S. W. 74; Chandler v. Hedrick, 187 Mo. App. 664, 173 S. W. 93; In re Estate of Soulard, 141 Mo. 642, 43 S. W. 617. [5] It is said in Reynolds v. Hanson, 191 S. W. 1030, and Brannock v. Magoon, 141 Mo. App. 316, 125 S. W. 535, the test is, "Has the delivery of possession been such as to put it out of the power of the donor to repossess the property?" As the heirs of Jane Mock reserved the right to revoke the authority of defendant to make the gift to plaintiff, it was manifestly their intention not to put it out of their power to repossess before delivery the property or money. There is nothing in the cases of Walter v. Ford, 74 Mo. 195, 41 Am. Rep. 312, and McCord v. McCord, 77 Mo. 166, 46 Am. Rep. 9, cited by plaintiff, contrary to the position herein tak en. If we are to understand that plaintiff claims that the power of attorney was a symbolic delivery, of course the contention will be denied. The judgment is affirmed. All concur. COONEY V. PRYOR et al. (No. 12601.) (Kansas City Court of Appeals. Missouri. April 29, 1918.) VENUE 22(1)-RESIDENCE OF PARTIES-CO DEFENDANTS-RECEIVERS. Plaintiff, in an action against a railroad on a cause of action accrued while it was in the hands of defendant receivers, who had sold road to defendant railway company, which assumed obligation to pay claims accrued while the road was in receivership, had "a cause of action against several," in which he was entitled to but one satisfaction, and, under Rev. St. 1909, § 1734, might bring the action against the purchaser residing in C. county, and join the receivers, who resided in St. Louis, and they could be legally served there. Appeal from Circuit Court, Carroll County; Frank P. Divelbiss, Judge. "Not to be officially published." Action by John Cooney against Edward Pryor and others. Judgment for plaintiff, and defendants appeal. Reversed and cause remanded. S. J. & G. C. Jones, of Carrollton, for appellants. Fraken & Timmons, of Carrollton, for respondent. ELLISON, P. J. This case is like that between the same parties, the opinion in which is promulgated with this one. 203 S. W. 630. They were argued and submitted together. The instruction condemned in the other case must likewise be ruled as erroneous in this. There is an additional point made here which relates to the jurisdiction of the trial court over the person of the receivers. It appears that when this action accrued the railroad was in the hands of the receiver defendants, who were appointed by the proper federal court; that there was a sale under the receivership to the defendant railway company, upon which was cast by the purchase an obligation to pay such claims as the present which had accrued while the road was being operated by the receivers. Plaintiff, therefore, had "a cause of action against several" in which he "was entitled to but one satisfaction," and under section 1734, R. S. 1909, he may bring his action against the defendant railway company who resided in Carroll county, and join the receiver defendants who resided in St. Louis, and they could be legally served there. Pen Co. v. Buckner, 188 Mo. App. 259, 175 S. W. 81; Roark v. Acetylene Co., 188 Mo. App. 252, 175 S. W. 84; Maddox v. Duncan, 143 Mo. 613, 619, 45 S. W. 688, 41 L. R. A. 581, 65 Am. St. Rep. 678. It is suggested that Maddox v. Duncan was overruled by State ex rel. v. Shelton, 249 Mo. 660, 156 S. W. 955. We think not. In the latter case the action was brought against Harrington in Adair county, and there was joined with him as a codefendant Mrs. Dutcher, who lived in St. Louis, and service was had upon her in that city. The Supreme Court decided that there was no cause of action stated against Harring For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes See, also, 203 S. W. 629. S. J. & G. C. Jones, of Carrollton, for anpellants. Fraken & Timmons, of Carrollton, for respondent. ton, either jointly or alone. That being true, | Pryor and others. Judgment for plaintiff, making him a party defendant would not, of and defendants appeal. Reversed, and cause course, authorize bringing in a codefendant remanded. who resided in St. Louis. The statute (section 1734, R. S. 1909) does not require that the cause of action against several shall be joint in order that the plaintiff may sue them jointly, for if the cause of action is joint, they may be sued jointly, without the aid of a statute. The statute means, as it reads, that if one has a cause of action (not joint cause of action) against several, he may sue them jointly. As, for instance, if he has a cause of action against the maker and indorser, or guarantor of a promissory note, it is not a joint cause of action (Central Savings Bank v. Shine, 48 Mo. 456, 463, 8 Am. Rep. 112), yet he may join all in one suit (Maddox v. Duncan, 143 Mo. 613, 619, 45 S. W. 688, 41 L. R. A. 581, 65 Am. St. Rep. 678). It is doubtless true that the expression "joint liability" is frequently used in the sense only of liability to a joint action; not meaning that the cause of action shall be joint. The judgment will be reversed and the cause remanded. All concur. COONEY V. PRYOR et al. (No. 12602.) ELLISON, P. J. Defendant is a corporation operating a railroad through Carroll county, and plaintiff is an owner of land which adjoins a portion of such railway. This action is based on a failure of defendant to construct drainage ditches along the side of the roadbed, as required by section 3150, R. S. 1909, whereby plaintiff's land was overflowed and his crops destroyed. There was a judgment for plaintiff in the circuit court. that the rains and the overflow were of such unprecedented and overwhelming character as to be the act of God, and that the damage to plaintiff's crops would have occurred regardless of drainage ditches. Upon this state [1, 2] It was a part of defendant's defense of the record defendant attacks the first in- 1. TRIAL 296(2) - INSTRUCTIONS-OMISSION-CURE BY DEFENDANT'S INSTRUCTIONS. Where an instruction for plaintiff purports to cover the whole case and direct a verdict, without including a hypothesis of the defenses, which is no part of plaintiff's case, the omission may be cured by the instructions for defendant. 2. TRIAL 296(2)-INSTRUCTIONS-OMIS- 106 S. W. 660. We discussed the question in SIONS-CURE BY OTHER INSTRUCTIONS. Where an essential element of plaintiff's case is omitted from an instruction purporting to cover the whole case, and a verdict is directed for plaintiff, the error will not be cured by defendant's instruction on the same matter. 3. RAILROADS 108-DRAINAGE DITCHESUNPRECEDENTED FLOOD. Under Rev. St. 1909, § 3150, requiring a railroad to construct drainage ditches along the side of its roadbed, it is not required to construct ditches against an extraordinary and unprecedented downfall of water. On Motion for Rehearing. 4. RAILROADS 114(4)-DRAINAGE DITCHES -LIABILITY-INSTRUCTION. In an action based on the failure of defendant railroad to construct drainage ditches along a side of the roadbed, as required by Rev. St. 1909, § 3150, whereby plaintiff's land was overflowed and his crops destroyed, an instruction that the railroad must have constructed a ditch that would carry off all the water, the drainage of which was obstructed by an embankment, was erroneous, as the statute does not require the railroad to ditch against an extraordinary and unprecedented downfall. Appeal from Circuit Court, Carroll County; Frank P. Divelbiss, Judge. Riegel v. Biscuit Co., 169 Mo. App. 513, 155. S. W. 59, and again in Barnard v. Brick & Coal Co., 189 Mo. App. 417, 423, 176 S. W. 1108. But the matters omitted were a part of plaintiff's case, and it is in those instances in which there is omitted from an instruction for plaintiff some essential element in his own case, and yet, a verdict is directed for him that the error will not be cured by defendant's instructions relative to the same matter. Hall v. Coal & Coke Co., 260 Mo. 351, 368, 369, 168 S. W. 927, Ann. Cas. 1916C, 375; Dameron v. Hamilton, 264 Mo. 103, 116, 174 S. W. 425. [3] It appears from the evidence of both plaintiff and defendant that "large amounts of water fell and accumulated on plaintiff's land." The law is that defendant's duty does not require it to ditch against extraordinary and unprecedented downfall of water. Ellet v. Railroad, 76 Mo. 518, 534; James v. Railroad, 69 Mo. App. 437; Sherwood v. Railroad, 187 S. W. 260. We quote from the Supreme Court in the Ellet Case, the following as being fully applicable to plaintiff's instruction. "Not to be officially published." "The * * instruction given for the plaintiff follows the language of the statute without any explanation whatever of its meaning, and would naturally be construed by the jury to require the defendant to construct ditches sufficient to carry off all the surface water which might at any time and under any circumstances be collected on the sides of the roadbed; and the jury were, therefore, in effect told, that if the defendant failed to construct a ditch sufficient to carry off all the water which accumulated in the pond on the night in question, and the track was thereby injured, and the death of Ellet resulted therefrom, the defendant is liable." In this condition of case the error was not cured by other instructions. Authorities su pra. An examination of the record has convinced us that it would not have been proper to have declared, as a matter of law, that defendant was not liable, and hence we hold there was no error in refusing defendant's demurrer to the evidence. The judgment is reversed, and the cause remanded. . All concur. On Motion for Rehearing. PER CURIAM. [4] Plaintiff's instruction No. 1 is an affirmative direction that defend ant must have constructed a ditch that would carry off all the water the drainage of which was obstructed by the embankment. And that it was its duty to construct a ditch that would carry off all of the water that fell in the month of May or June, 1915. That is not the meaning of the statute (Ellet v. Railroad, 76 Mo. 518, 534), and therefore it is not the proper measurement of plaintiff's right. The instruction, to every intent and purpose, was a peremptory direction that the jury should find for the plaintiff. The instruction was thus worded, notwithstanding there was abundant evidence in the case tending to show that the flood was unprecedented. It is in direct conflict with the decision of the Supreme Court in Ellet v. Railroad, 76 Mo. 518, 531, 534, and the Springfield Court of Appeals in Sherwood v. Railroad, 187 S. W. 260. HAINES v. KANSAS CITY RYS. CO. (No. 12754.) (Kansas City Court of Appeals. Missouri. May 20, 1918.) 1. STREET RAILROADS 103(3)- PERSONAL INJURY-MATERIAL ISSUE. In an action for personal injury from a collision of a street car with plaintiff's wagon as he was crossing a track at a street intersection, based on a violation of the humanitarian rule arising from plaintiff's obliviousness to his danger while approaching or upon the track, the question whether the obliviousness was apparent, that is, was known or ought to have been known to the motorman, was material. 2. TRIAL 253(4) - PERSONAL INJURY-INSTRUCTION OMITTING ISSUE. In such action, where the issue as to whether the motorman should have seen that plaintiff was going toward the track, unconscious of the track, was raised by the evidence, and was danger and manifesting an intention to cross a part of plaintiff's case, his instruction, not submitting that issue to the jury, was erroneous. 3. TRIAL 296(3) — INSTRUCTION-CURE BY OTHER INSTRUCTIONS. Such omission would not be cured by defendant's instruction. Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge. "Not to be officially published." Action by C. G. Haines against the Kansas City Railways Company. Verdict for plaintiff was set aside on a motion for a new trial, and he appeals. Judgment awarding a new trial affirmed. Ed E. Yates and Claud T. Goble, both of Kansas City, for appellant. Clyde Taylor, Mont T. Prewitt, and Charles A. Stratton, all of Kansas City, for respondent. TRIMBLE, J. Plaintiff seeks damages on account of personal injuries arising from a collision of the defendant's street car with plaintiff's wagon as he was crossing the track at a street intersection. The cause of action was based upon a violation of the humanitarian rule, the petition alleging that plaintiff, oblivious of his peril, was either upon or approaching near to the track, and the operatives of the car ran against and injured him when they knew, or by the exercise of ordinary care should have known, that he was upon or approaching said track, in a position of peril, and oblivious of danger, in time, by ordinary care, to have avoided the collision, but failed to do so. A trial resulted in a verdict for plaintiff in the sum of $2,500, which the court set aside on a motion for new trial, the ground of the court's action being error in plaintiff's instructions, where upon the plaintiff appealed. Plaintiff cites us to Tranbarger v. Railroad, 250 Mo. 46, 156 S. W. 694, and while he does not state it, in terms, yet the effect of his insistence is that that case overrules the Ellet Case. We think it apparent that the court did not interfere with that case, and that it remains in full force, and applies directly to the case before us. Plaintiff also cites us to King v. Lusk, 196 S. W. 67, rendered by the same court that decided Sherwood v. Railroad, but we do not see that it is contrary to the foregoing opinion. Nor do we see that plaintiff has, in any way, answered the force of the cases of Hall v. Coal & Coke Co., and Dameron v. Hamilton, cited in the opinion. The motion for rehearing should be over- motorman should have seen that plaintiff was ruled. [1, 2] The case presented is that the motorman observed, or should have observed, plaintiff's danger and obliviousness not only when upon the tracks, but also when plaintiff was approaching the tracks. And the evidence before the jury raised the issue of whether the going toward the tracks unconscious of dan For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ger (and therefore manifesting every inten- I stopped was 20 feet. The argument to be imtion of going immediately across), or whether plied from this, is that as the motorman says the motorman, although he saw plaintiff ap- the plaintiff struck his team and started to proaching the track, was not negligent be- run across ahead of the car, the motorman cause, apparently, plaintiff would stop, and at that time knew the plaintiff was in danger, the danger did not arise until the plaintiff and after that could have stopped in time suddenly struck his team with the lines and but did not; and since he was not looking attempted to cross in front of the car, when when plaintiff was approaching the track, it the motorman did his best to stop, but could can make no difference even if plaintiff's not do so until the car had gone a foot or so obliviousness was not apparent up to the beyond the point where the wagon was time he struck his team. But we do not instruck. The issue thus presented being very terpret the motorman's testimony as admitsharp, to say nothing of the question of neg- ting all this or as admitting that he was not ligence being very close, it became a matter looking and did not see the plaintiff as he apof the most vital importance to determine proached the tracks. The correct interpretawhether the motorman ought to have known tion to be placed upon his testimony is that that plaintiff, in approaching the track, was although he saw plaintiff approaching the going to cross immediately and regardless of tracks he did not know he was going to the on-coming car. In other words, it was cross ahead of the car until he struck the horsvitally necessary to have the jury determine es and started to run across and then he, the whether the plaintiff's obliviousness was ap- motorman, did all he could to stop but could parent to the motorman, or was so manifest not prevent the car from striking the wagon as that he knew or ought to have known of it, and going a foot or so beyond the point of coland should have commenced operations at lision. Besides, the motorman says he was once to avoid a collision. But, although the going faster than the rate specified in plainpetition alleged that the motorman knew or tiff's evidence wherein it was said a car could ought to have known that plaintiff was obliv- have been stopped in the distance claimed by ious, and although the evidence made the plaintiff, namely, 20 feet. But however this question of whether the motorman knew or may be, as stated, the issue of whether the should have known plaintiff was oblivious a motorman knew or should have known that vital issue in the case, yet plaintiff's instruc- plaintiff was oblivious was in the case under tions do not submit that question to the jury. the pleadings and evidence, and it should not It is left out of the first, which covers the have been omitted from plaintiff's instruccase and directs a verdict if defendant was tions. negligent; and obliviousness is left entirely out of the second instruction which sought to tell the jury what they must find in order to determine whether defendant was negligent. Hence they were erroneous. They omit one of the "principal features" of the case. Knapp v. Dunham, 195 S. W. 1062; Kamoss v. Kansas City & Westport Belt Ry., 202 S. W. 434, No. 12700, decided February 18, 1918, and not yet officially published. It cannot be said that the question of whether the motorman knew or ought to have known of plaintiff's obliviousness was not a material issue in the case. Whenever the plaintiff's obliviousness is an element in the case, necessarily the question of whether the obliviousness was apparent (that is, was known or ought to have been known), to the operator of the car, is material and vital. The pleadings and the evidence made obliviousness a necessary element, and one of plaintiff's instructions submitted to the jury the fact of obliviousness, but none of them submitted the question whether such obliviousness was apparent so that the motorman should have known it. We have not overlooked the argument implied from plaintiff's assertion that the motorman admitted he could have seen the plaintiff approaching had he been looking, and the further assertion that the only evidence as to the distance in which the car could have been [3] Nor can such omission therefrom be cured by defendant's instructions. The omission was an essential element going to make up plaintiff's case, and therefore could not be Hall v. Manufacturers' Coal & thus cured. Coke Co., 260 Mo. 351, 368, 369, 168 S. W. 927, Ann. Cas. 1916C, 375; Dameron v. Hamilton, 264 Mo. 103, 116, 174 S. W. 425; Cooney v. Pryor, 203 S. W. 630, No. 12602, decided April 29, 1918, and not yet officially published. The judgment awarding a new trial is affirmed. All concur. Appeal from Circuit Court, Chariton County; Fred Lamb, Judge. "Not to be officially published." Suit by B. H. Kemper and others against George Long and others. Decree for plaintiffs, and defendants appeal. Reversed. On motion for rehearing, motion overruled. J. D. Taylor, of Keytesville, for appellants. Roy D. McKittrick, of Keytesville, for respondents. ELLISON, P. J. On the 27th of February, 1914, the voters of certain territory in Chariton county, described in plaintiff's petition, voted to organize consolidated school district No. 4 of Chariton county, Mo., under the provisions of the Acts of 1913, p. 721. Several times thereafter there was submitted to the voters of the district a proposition to vote bonds to build a high school building for such district under the provisions of that law, and each time the proposition was rejected by the voters. So the district has not now, nor has it had, a high school building. The board of directors of the district, notwithstanding the voters have refused to vote a building, have rented a hall over a bank building in Bynumville in the district and are about, and are threatening, to take money criticism of the foregoing opinion that we PER CURIAM. [2] It is perhaps a just ed therein, the people of certain territory have taken too much for granted. As statorganized a consolidated school district, but have refused bonds with which to buy a site and erect a high school building. In consequence, the district thus organized as providwhich to carry on the school which the law ed by law is without a building or place in from the incidental fund to pay rent for contemplates. In this situation the directors such hall. In this situation plaintiffs, as authorized school may not fail for want of taxpayers in the district, instituted this pe-action, or delay in action, in erecting the tition for injunction forbidding and restrain-building contemplated by the law, have renting the directors from so diverting or paying ed a place where the school may be, and out that money. The trial court granted the injunction, and defendants have appealed. [1] It has been several times held that a board of school directors have not power by themselves, unauthorized by the voters, to rent schoolhouses. Black v. Cornell, 30 Mo. App: 641; Fugate v. McManama, 50 Mo. App. 39. The present controversy and the present attempt to exercise the power of renting a high school building arises under the recent consolidated school district law (Session Acts 1913, p. 721). The Supreme Court in State ex rel. v. Jones, 155 Mo. 570, 576, 56 S. W. 307, 309, referring to the establishment of high schools, said: "The statute vests in the qualified voters of the the district of country districts, and in the directors of the city districts, full and complete discretion as to the location of the schoolhouses. Sections 7979, 8001, 8085, R. S. 1889. * The Springfield Court of Appeals thought that case applicable to one of this kind, and held that where a high school site was not acquired by the school district the school board did not abuse or exceed its powers in acquiring a site. Young v. Consolidated School District, 196 Mo. 419, 193 S. W. 627; Martin v. Bennett, 139 Mo. App. 237, 245, 122 S. W. 779. The cases State ex rel. v. Jones and Martin v. Bennett were decided prior to the amendment of section 10888, R. S. 1909, found in Session Laws 1913, p. 727, which reads that: of the consolidated district, in order that an is, now carried on. It seems that under the authorities cited in our opinion, rendered the 29th of April, 1918, such directors have authority to select a permanent site for such schools when such site is required to receive And we think that they have the authority the building duly authorized to be erected. to select and rent a place in which the school may be conducted until the regular building contemplated by the statute has been provided, or the district organization becomes, in some way, dissolved, and that the rent may be paid out of incidental funds. It is unreasonable to suppose that the Legislature intended that the temporary want of a school building, either from not erecting one, or its destruction after being erected, should destroy the school. The motion for rehearing should be overruled. MAIZE v. BIG CREEK COAL CO. (No. 12536.) (Kansas City Court of Appeals. Missouri. April 1, 1918.) 1. MASTER AND SERVANT SERVANT "TRIP." 241-INJURY TO CONTRIBUTORY NEGLIGENCE Plaintiff, a mule driver in defendant's mine, whose duty it was to step off the car upon which he was riding, get the loaded cars in each of the rooms in the mine and put them into the "trip," was guilty of contributory regligence For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |