was not able to go out of the house for two months, and that he used crutches for about nine months; that he was totally disabled from work for about three months; that he was a whisky broker, a manufacturer of extracts and flavors for liquors, and also of Tamaric Medicinal Bitters; and that his . earnings amounted to $1,500 to $2,000 a year. The defendant's evidence tends to prove that in August, 1900-the exact date is not stated, but it was within 30 days after the date of the accident-the plaintiff was seen walking around; that at times he would have his crutches, and then he would forget them; that sometimes he would have one crutch, under his right arm, and at other times the crutch would be under the left arm, and again he would not have any; that he was seen walking on the Morgan-Ford Road, about a mile from his home, within a month after the date of the accident. The plaintiff himself said that about three weeks after the accident he went to the place of the accident, using his crutches in doing so, and measured the width of the sidewalk and the depth of the hole. The defendant's testimony showed that the city kept up the macadamized portion of the street, occupying 50 feet in the center thereof, but had never graded or undertaken to improve in any way the remaining portion of the street; that on the north side of the street there were no houses, and on the south side of the street there were only four houses in the distance of 1,200 feet; that there were 10 or 15 acres of the abutting property, which was used for agricultural and truck gardening purposes; that the city officers supposed the property owners had put in the granitoid sidewalk; that there was no hole or ditch or depression in the dirt pathway west of the granitoid sidewalk; that some one had put in the drain pipe aforesaid, and had not made it as wide as the granitoid sidewalk, thus leaving the dirt pathway 18 inches narrower on each side thereof than the granitoid sidewalk, and that the water had washed out a hole at each end of the pipe or drain; that the dirt pathway was rough, had hollows in it, and, whilst pedestrians used it, people generally used the macadamized portion of the street. At the request of the plaintiff the court instructed the jury, inter alia, as follows: "(1) If the jury find from the evidence in this case that Arsenal street, at the places mentioned in the evidence, was an open, public, traveled street within the city of St. Louis; and if the jury find from the evidence that there was, at said times, a sidewalk on the south side of Arsenal street, graded and paved west from Portis avenue, with granitoid, about 160 feet, and that thence west to Kings highway there was a sidewalk unpaved; and if the jury find from the evidence that said sidewalk was used by the traveling public on foot; and if the jury find from the evidence that at the west end of the said granitoid in said sidewalk there existed a hole or depression; and if the jury find from the evidence that said hole or depression rendered the use of the said sidewalk dangerous, and was an obstruction to travel thereon by the traveling public; and if the jury find from the evidence that on the 29th day of July, 1900, the plaintiff was passing along said sidewalk, and that whilst so doing he stepped into said hole and fell, and sustained injuries to his person thereby; and if the jury find from the evidence that the city of St. Louis, by its officers or agents having charge of keeping said street and sidewalk in repair, knew, or by the exercise of ordinary care could have known, of said condition of said street in time to repair the same by the exercise of ordinary care, before the plaintiff's injury, and neglected to do so; and if the jury further find from the evidence that plaintiff, at the time of his injury, was exercising ordinary care-then he is entitled to recover." The defendant excepted to the giving of said instruction, and now assigns the same as error. At the close of the plaintiff's case, and again at the close of the whole case, the defendant demurred to the evidence. The court overruled the demurrers, and the defendant excepted, and now assigns said ruling as error. Ar 1. The decisive question in this case is whether the city is liable for the accident to the plaintiff, which occurred within the limits of Arsenal street, but on the portion thereof which the city had never undertaken to improve or to invite the public to use. senal street, prior to the separation of the city and county of St. Louis, was a county road 80 feet wide. The 50 feet occupying the central part thereof was macadamized. The 15 feet on each side of the macadamized portion remained in a state of nature. After the city had acquired jurisdiction of the street, it continued to keep up the improved portion thereof, but never at any time graded the other portions of the street, or threw the same open to public travel, or invited the public to use the street. Such unimproved portions were rough, full of holes, grown up with weeds, and in no sense an improved street or sidewalk. Beginning at Portis avenue, and running westwardly for a distance of 160 feet, there had been a 6-foot granitoid sidewalk for about eight years before the accident. There is no evidence in the record showing who constructed the same. The city's engineer said he supposed the property owners had done so. At any rate, there is no evidence showing that the city had either done it, or had given its permission for it to be done. The granitoid sidewalk from Portis avenue, for a distance of 109 feet, extends along an unimproved vacant lot. For 25 feet it is in front of an improved lot, and then for 25 feet westwardly it is in front of a lot that is used solely for agricultural purposes. Between Portis avenue and Kings highway, a distance of 1,200 feet, there are only four houses. The balance of the abutting property, amounting to 10 or 15 acres, is used solely for agricultural and truck gardening purposes. Westwardly from the west end of the granitoid sidewalk there is a worn pathway, made by persons walking over the same. Such pathway is three feet wide at the west end of the granitoid sidewalk, and at other portions is only a foot wide, and concededly is a rough place, with holes and depressions in the same, and lies much lower than the macadamized portions of the street; in fact so much lower that the testimony shows that it would take several thousand yards of filling to raise that portion of the street up to the level with the macadamized portion. The plaintiff had lived in that neighborhood seven or eight years before the accident, and had been in the habit of visiting his daughter, who lived south and east of the place of the accident, at lease once a week; and he says he never used Arsenal street at this point before, and did not know of its condition. The case made, therefore, is that the street is 80 feet wide; that the city has improved and thrown open to public use the central 50 feet thereof, but has never improved or invited the use by the public of the 15 feet on each side of the improved street, but that the same has been allowed to remain in a state of nature; that some one constructed the granitoid sidewalk, and that some one put in the drain; that there is a dangerous place where the granitoid ceases and the drain was put in by reason of the drain and cover thereof not being as wide as the granitoid walk. The evidence, however, clearly shows that on the north side of Arsenal street, opposite Portis avenue, and within 160 feet of the place of the accident, there is an electric arc light, which was burning at the time of the accident, and likewise another arc light at the first or second house west of the place of the accident. The liability of a city under such circumstances has been frequently discussed by this court, but the latest and clearest exposition of the law applicable to such case is the opinion of Valliant, J., in Ely v. St. Louis, 181 Mo. 723, 81 S. W. 168. In that case, as in this, the street was 80 feet wide; the central portion had been graded; the outside portions of the street were in a state of nature; the abutting land was used chiefly for agricultural purposes; and there were weeds growing in the portion of the street that had not been graded. There was also a worn pathway along such ungraded portion of the street, which had been caused by pedestrians walking along the same. There was a gully washed across the pathway. The plaintiff was injured by falling into the gully. The trial court nonsuited the plaintiff, and the plaintiff appealed. This court disposed of the case in the following clear and exhaustive manner: "The evidence showed that whilst the city, by ordinance established this as a public street, yet it prepared for public use only a wagon road through a part of it, leav ing the space that would naturally be the location of sidewalks, if sidewalks were made, in a state of nature. The first question that arises is, was the city in duty bound to make a sidewalk, or, failing to do so, was it responsible for the condition of the path? After that comes the question, was the plaintiff using reasonable care in attempting to travel that path on a dark night? A municipal corporation on which is conferred the power to establish public streets, and, when established, to construct them for public use, in the exercise of that power acts in two capacities: First, governmental; second, ministerial. When the municipality by ordinance declares that land embraced within certain lines is a public street, then when the city obtains the title to or easement in that land for that purpose, either by gift or condemnation, it becomes a public street, but it is not necessarily then opened to the public for use. And if, after that, the city passes an ordinance providing for the improvement of the street so as to render it fit for use, even then it is not, by the mere passing of the ordinance, opened for use. In passing those ordinances the city acts in its governmental, legislative capacity, and in doing so it exercises its discretion in defining the lines and extent of the street, and in declaring in what manner, and to what extent it shall be improved and given to the public for use. If, in passing an ordinance to establish a street, for example, near the suburbs, where the population is sparse, the municipal assembly should be of the opinion that a road thirty feet wide would be sufficient for the then needs of the public, but in anticipation that in the future the population would become more dense, and a street eighty feet wide would become necessary, and should provide in the ordinance for the establishment of a street of that width, no one could say that it was an abuse of its power, or an unwarranted exercise of its legislative discretion. And if, after so establishing the street, the city should, in the exercise of its legislative discretion, be of the opinion that for the time being a roadway thirty feet wide in the eighty-foot street was all that the public good required, and should pass an ordinance providing for the improvement to that extent, and no more, no one would have the right to say that the ordinance was unlawful; no one would have a right to insist that the city grade and improve more of the street than, in the exercise of its legislative capacity, it sees fit to do. In those matters the city acts in its delegated governmental capacity, and is not answerable to an individual as for neglect of duty. Bassett v. St. Joseph, 53 Mo. 290, 14 Am. Rep. 446; Keating v. Kansas City, 84 Mo. 415; Kossman v. St. Louis, 153 Mo. 293, 54 S. W. 513; Smith, Mun. Corp. § 780. But after the ordinance for the improvement of the street has been passed, and the city undertakes the work of constructing or reconstructing the street as in the ordinance is required, then the city acts in its In ministerial capacity; and if, in that capacity, | ordinances, and they are not Hable in this it is guilty of negligence to the injury of an case." individual, it is liable. And so, after the city has constructed the street or the sidewalk, and has thereby invited the public to use it, the city is bound to keep it in condition to be reasonably safe for use, and is liable as for negligence if it fails to do so. Moore v. Cape Girardeau, 103 Mo. 470, 15 S. W. 755; Hunter v. Weston, 111 Mo. 176, 19 S. W. 1098, 17 L. R. A. 633. In the case at bar the city lawfully exercised its governmental discretion to grade and prepare for use only the wagon road in part of the street. It was not required to grade and improve the whole eighty-foot space, and build sidewalks on it, and therefore is not liable for not having done so. The path through the weeds and over the uneven surface spoke for itself, and told every one that there was no sidewalk there, and it invited no one to use it at the city's expense. The city was not responsible for the condition of that path, and therefore it will not be necessary to decide whether, by the plaintiff's own evidence, he was negligent in traveling the path under the circumstances. The circuit court took the correct view in the case." Speaking to the question here involved, this court, in Hunter v. Weston, 111 Mo., loc. cit. 184, 19 S. W. 1099, 17 L. R. A. 633, said: "A city is not necessarily required to open or put all its streets in a condition for public travel. Walker v. Kansas City, 99 Mo. 647, 12 S. W. 894. Nor is it liable for the condition of a street which exists merely on paper. Moore v. Cape Girardeau, 103 Mo. 470, 15 S. W. 755. "The responsibility of the authorities for the condition of a highway begins when they have actually opened it for public travel.' Elliott on Roads and Streets, 456. But the mere fact of establishing a highway by judicial action does not of itself so open it to the public as to render towns liable for accidents that may occur to travelers thereon. After it is thus legally established, it is to be prepared for public use. Labor is to be performed upon it. Bridges are to be built, hills cut down, and valleys filled up; obstructions are to be removed, and rough places are to be made smooth. Blaisdell v. Portland, 39 Me. 113. It may be, and doubtless is, the case that there are streets and parts of streets in many cities which are not at present necessary for the convenience of the public, and that will be brought into use by the growth of the city, * and that all that is required in such cases is that the city shall see that, as the streets are required for use, they shall be placed in a reasonably safe condition for the convenience of travel. Bassett v. St. Joseph, 53 Mo. 290, 14 Am. Rep. 446; Craig v. Sedalia, 63 Mo. 417. This alley, which was merely designated on paper, having no existence de facto, and never having been opened for public use, defendant owed plaintiff no duty in respect to it as an alley under the said The rules thus laid down in the cases cited in no manner conflict with the principles announced by this court in Brennan v. St. Louis, 92 Mo. 482, 2 S. W. 481, and in Walker v. Kansas City, 99 Mo. 647, 12 S. W. 894. the Brennan Case the city had graded the whole street, including the sidewalk, thus throwing the whole street open to public use and travel, and inviting the public to use the same; and the accident was caused by the city failing to keep the sidewalk in repair after it had once assumed jurisdiction thereof and thrown it open to public use. In Walker v. Kansas City, the city had constructed a bridge, and had originally had a railing on both sides of the bridge, but several months before the accident the railing on the west side was taken away. The planks on that side were uneven, some projecting from one to two feet further out than others. Whilst in that condition, the plaintiff, while walking along the west (unprotected) side thereof, fell off of the bridge, and was injured. That therefore was a case where the city had assumed jurisdiction over the whole street, throwing it open to public use, and failed to keep it in a safe condition. In the case at bar the city fell heir to the 80-foot street, but it had never thrown open for public use any part thereof except the 50 feet in the center, and there is no question that such portion was in good condition at the time of the accident. The city had never constructed sidewalks, or thrown open to public use the portion of the street where this accident occurred. Some one had constructed a granitoid sidewalk for 160 feet. Some one had put in a drain under the dirt pathway at the west end of the granitoid sidewalk, and had left a space of 18 inches at each end of the drain narrower than the granitoid sidewalk, and thereby created a pitfall or dangerous place. But there is nothing in this record that in any manner connects the city with the construction of the granitoid sidewalk, the drain, or the dirt pathway, and therefore the city cannot be held liable for any defects therein. The instruction given for the plaintiff, hereinbefore quoted, is radically defective, and fatal to the plaintiff's case, because it assumes that the city had opened the whole street to the public use and travel thereon, and because it assumes that, because the public had used said portion of the street as a footpath, the city was liable for defects therein. The very question in this case was whether the city had thrown that portion of the street open to public use. Mere use by the public of a portion of a street that has never been prepared for use by the public authorities, and which the traveling public have never been thereby impliedly invited to use, cannot cast upon the public the duty of keeping such portion of the street in re pair. It is always a governmental question whether the whole or only a portion of a street shall be prepared and thrown open to public use. After a street has been thrown open to public use, the duty devolves upon the public authorities to keep it in repair and safe for persons to travel over the same while exercising ordinary care; but mere use by the public as for a footpath of a portion of a street that has never been thrown open to public use, cannot cast such a duty on the city. The conditions and surroundings on the south side of Arsenal street from Portis avenue westwardly to Kings highway were such that the city authorities in their governmental capacity had not considered that the public necessities required the construction of a sidewalk at that point. To construct the same would have necessitated the filling of that portion of the street so as to raise it to the level of the macadamized part; and as the cost of constructing sidewalks, under the charter of St. Louis, must be paid for by the abutting property owners, the municipal authorities did not deem it necessary or reasonable to require sidewalks to be constructed at that point, where the great bulk of the abutting property was solely used for agricultural purposes. The presence of tall weeds growing on that portion of the street gave notice to persons passing along there that such portions of the street had not been thrown open to public travel. The electric arc light within 160 feet of the place of the accident clearly enabled the plaintiff to see where the granitoid sidewalk ended, and by the exercise of ordinary care he could have seen the drain, the hole or depression at the end thereof, the narrower space covered by the dirt pathway, and he could thereby easily have avoided the accident. The trial court therefore erred in giving the plaintiff's first instruction, above set out, and under the evidence adduced in this case it likewise clearly erred in overruling the demurrer to the evidence. This case is wholly unlike the case of Wiggin v. St. Louis, 135 Mo. 558, 37 S. W. 528, and cases of like character, where the full width of the street had been thrown open to public use, but there was a dangerous excavation outside the limits of the street, but so near thereto as to make it dangerous for persons traveling along the street. For the foregoing reasons, the judgment of the circuit court is reversed. All concur. CHARITON COUNTY v. HARTMAN. (Supreme Court of Missouri, Division No. 2. June 6, 1905.) 1. INSANE PERSONS-CARE BY COUNTY-SUPPORT-REPAYMENT-IMPLIED PROMISE. An order of a county court taking charge of an indigent insane person in pursuance of a statute imposing the burden on counties of supporting their indigent insane, and the fact of furnishing support pursuant to such order, did not raise an implied promise on the part of the insahe person or her guardian to repay for such support. 2. STATUTES-CONSTRUCTION. Rev. St. 1899, § 3697, providing that, in all cases of appropriations out of the county treasury for the support, maintenance, or confinement of any insane person, the amount thereof may be recovered by the county from any person "who by law is bound to provide for the support and maintenance" of such person, if there be any of sufficient ability to pay the same, does not render the guardian of an indigent insane person liable to the county for past support furnished by the county, under the order of the county court committing such insane person to the care of the county, on the guardian's subsequently acquiring funds belonging to his ward. Appeal from Circuit Court, Chariton County; John P. Butler, Judge. Action by Chariton county against John T. Hartman, as guardian of the person and estate of Magdalena Miller, an insane person. From a judgment for defendant, plaintiff appeals. Affirmed. This was a suit instituted on the 15th day of October, 1901, in the Chariton county circuit court by appellant, as plaintiff, against respondent, as defendant, seeking to recover money expended by Chariton county for the maintenance of Magdalena Miller, a person of unsound mind, of whom respondent was the legal guardian and curator. The first amended petition upon which the case was tried, omitting caption and signature, is in words and figures as follows: "The county of Chariton, plaintiff, sues under the provisions of section 3697, Rev. St. Mo. 1899, and for its first amended petition, for cause of action, states: That one Magdalena Miller was, on June the 13th, 1872, and for several years prior thereto had been, a resident citizen of the county of Chariton and state of Missouri, and that on the said 13th day of June, 1872, under due process of law, she was adjudged (by the county court of Chariton county) to be a person non compos mentis, or insane, and at the time of adjudication she was also an indigent person and a proper subject to be made a charge upon the county of Chariton, and that it was held and adjudged by said county court of Chariton at said time that she, said Magdalena Miller, be maintained as an indigent or poor person, at the expense of the county of Chariton, either in an asylum of this state, or at the county poor farm of Chariton county. Plaintiff further states that, in compliance with the finding and judgment of said county court, said Magdalena Miller was supported and maintained at the expense of Chariton county, Mo., at either the state insane asylum or at the county poor farm, from said 13th day of June, 1872, up to this day, and is still an inmate of the county poor farm, at the exclusive expense of the county of Chariton aforesaid, being still insane. "Plaintiff further states that subsequent to said 13th day of June, 1872, to wit, on the 2d day of February, 1889, the above-named defendant, John T. Hartman, was, upon his application, appointed by the probate court of Chariton county, Missouri, as guardian and curator of said Magdalena Miller, and that he qualified as such, and has ever since acted as the duly qualified and acting guardian and curator of the person and estate of said Magdalena Miller; and plaintiff further states that since his, said John T. Hartman's, appointment as such guardian and curator, he has recovered and become possessed of certain real estate and personal estate, to wit, one house and lot in the city of Brunswick, and the sum of five hundred dollars, belonging and being the property of said ward, Magdalena Miller, and which said money and property are still in the hands of or under the control of said John T. Hartman as the guardian of said Magdalena Miller as aforesaid. "Plaintiff further states that after said John T. Hartman became possessed of said real and personal property as assets of the estate of his said ward, said Magdalena Miller, it became his duty to apply the same for the support and maintenance of his said ward, said Magdalena Miller, but said defendant, John T. Hartman, failed and refused to apply said funds and assets of his said ward to the support or maintenance of her, and also refused to reimburse plaintiff for the moneys paid by plaintiff for the support and maintenance of said Magdalena Miller from the 13th day of June, 1872, continuously up to the present date, notwithstanding the fact that he, said John T. Hartman, well knew that said Magdalena Miller was supported and maintained entirely and exclusively at the expense of Chariton county as an indigent person. "Plaintiff further states that by virtue of the premises, and the statutes as made and provided, plaintiff is entitled to recover of defendant the amount by it expended for the care and maintenance of said Magdalena Miller during the last five years, namely, the sum of five hundred dollars, being at the rate of one hundred dollars per year, and which sum defendant has on hand or available as assets belonging to the estate of his said ward, said Magdalena Miller aforesaid. "Wherefore plaintiff prays for judgment against defendant for the sum of five hundred dollars, to be paid out of the assets of the estate of said Magdalena Miller, and the costs of suit to be adjudged against defendant, John T. Hartman, personally, and for such further orders and judgments as may be right and proper." diction of the person of the defendant, in this: that the first amended petition shows defendant to be the duly qualified and acting guardian and curator of one Magdalena Miller, exercising authority as such under and by virtue of his appointment by the probate court of Chariton county, Missouri, and that said probate court has original jurisdiction of all matters pertaining to guardianship of insane persons in its said county. "Third. Because there is a defect of parties defendant, in this: that the first amended petition shows that, if any cause of action exists, it is against the therein named Magdalena Miller, an insane person, and she is the proper party defendant. "Fourth. Because said first amended petition does not state facts sufficient to constitute a cause of action." On the 7th day of May, 1902, this demurrer was submitted to the court, and was by the court sustained, and final judgment rendered for defendant upon the demurrer, from which plaintiff in due time and form prosecuted this appeal, and the record is now before us for review. L. N. Dempsey and L. Benecke, for appellant. J. C. Wallace, for respondent. FOX, J. (after stating the facts). It is apparent from the record that there is but one legal proposition presented to our consideration; that is, the correctness of the action of the trial court in sustaining the demurrer to the petition filed in this cause. Upon the consideration of the proposition presented, the demurrer must be treated as admitting every fact pleaded in plaintiff's petition to be true; hence the only question involved is, does the petition state sufficient facts which, if true, would entitle plaintiff to recover? The petition fully pleads all the facts. It is conceded by plaintiff that defendant's ward, Magdalena Miller, was on June 13, 1872, and for several years prior thereto had been, a resident citizen of the county of Chariton and state of Missouri, and that on the said 13th day of June, 1872, under due process of law, she was adjudged (by the county court of Chariton county) to be a person non compos mentis, or insane, and at the time of adjudication she was also an indigent person and a proper subject to be made a charge upon the county of Chariton, and that it was held and adjudged by said county court of Chariton at said time that she, said Magdalena Miller, be maintained as an indigent or poor person, at the expense of the county of Chariton, either in an asylum of this state or at the county poor farm of Chariton county. It is also made to appear from the allegations in the petition that defendant, John T. Hartman, subsequent to the 13th day of June, 1872, to wit, on the 2d day of February, 1889, was by the "First. Because this court has no jurisdic- probate court of Chariton county appointed tion of the subject of the action. To this petition, the defendant interposed a demurrer, as follows: "The defendant comes now and demurs to plaintiff's first amended petition, and for grounds of his demurrer assigns the following reasons: "Second. Because this court has no juris guardian and curator of said Magdalena Miller, and qualified as such, and has since such |