author: RAILEY, C.

text:
    WILLIAM H. CASE et al. v. HARRY SIPES et al., Appellants.
    Division Two,
    December 4, 1919.
    1. ACTION AT LAW: No Instruction: Appellate Practice. In an action afr law, tried by the court sitting as a jury, without instructions asked or given, the judgment, if sustained by substantial evidence and no reversible error was committed in the admission or rejection of evidence, will be affirmed by the appellate court.
    2. TRUST DEED: Before Patent Issued. An after-acquired title acquired by a patentee from the Government passed by his deed made before said patent was issued. So that where land was conveyed to a trustee in 1843 for the use and benefit of the grantor’s, married sister-in-law and the heirs of her body, the title acquired by said " grantor by patent issued by the United States in 1846 passed to said trustee by said prior conveyance.
    3. -: Power of Sale: Trustees ex maleficio: Limitations: Adverse Possession. A dee.cl made by the owner of land to a trustee for a married woman and the heirs of her body in 1846 gave to said trustee no power of sale, but conveyed to her an estate in trust during her life and cast the estate at her death,in 1907 upon the heirs of her body as remaindermen; and if the trustee, nevertheless, conveyed -the land for a valuable consideration, the grantee and all persons who subesquently acquired title through said trustee, though they entered into possession, were trustees ex maleficio for the life tenant during her life and for the remainder-men after her death, and the remaindermen were at no time barred by limitations prior to the life tenant’s death, however long those who claimed title on the strength of the trustee’s deed and mesne conveyances were in possession. • In order for them to establish' title by adverse possession, it was necessary that they claim under some chain of title or color of title other than that which emanated from the trustee.
    4. -: Remaindermen: Limitations. Where the land was conveyed to a trustee in 1846 for the use and benefit of a married woman and the heirs of her body, and her husband died in 1887 and she died in 1907, and .defendants claim under said trustee and mesne conveyances by deeds all duly recorded, the remaindermen’s action in ejectment brought in 1914 is not barred by limitations, but they are entitled to recover. The remaindermen did not take title from their mother, and nothing the trustee did could affect their rights, and they had no right of action until after their mother’s death.
    5. EJECTMENT: Evidence: Abstract of Record on Former Appeal. Where the actions are in ejectment, and the parties are the same, the abstract of record in the former trial on appeal is admissible in evidence, both for the purpose of disclosing the issues and facts in the former trial and as res acLjiiOAcata in respect to matters then adjudicated.
    6. -:Res Adjudicata: Estoppel. Where appellants on> former appeal set up claim to the land as mesne grantees under the invalid deed of the trustee, they are precluded in a second trial of the same action in ejectment, between the same parties, for the same land, to set up a claim as grantees under another chain oí title and adverse possession thereunder.
    Appeal from Buchanan Circuit Court. — Hon. Thomas B. Allen, Judge.
    Affirmed.

      Booher & Williams and P. G..Breit for appellant.
    (1) The general rule is that whenever the right of action in a trustee who is vested with the legal title and is competent to sue is barred by limitations, the right of the cestui que trust is also barred, and this rule applies whether the cestui que trust be sui juris, or under disability during the period of limitations, or whether entitled to possession, or in remainder, it being held to be immaterial whether the remainder be vested or contingent. 25 Cyc. 1010; Walton v. Ketchem, 147 Mo. 2.09; Chase v, Cartright, 53 Ark. 368; Meeks v. Olpherts, 100, TJ. S. 564, 25 L, E!d. 735; Schiffman v. Schmidt, 164 Mo. 204, 213; Edwards v. Woolf oik, 17 B. Mon. (Ky.) 3176; Ewing v. Shannahan, 113 Mo. 188. Statutes of limitation are looked upon with favor. .Investment Co. v. Curry, 264 Mlo. 497. (2) The dee*d from MdGlothan to Terrell, in trust, for the use and benefit of Prances Case and the heirs of her body, conveyed the legal title to the land in dispute to John Terrell as trustee, and she being a married woman and the heirs of her body unknown and not ascertained, the Statute of Uses did not execute the trust but the legal title remained in the trustee. Case v. Goodman, 250 Mo. 112; Walton v. Ketchem, .147 Mo. 209; Simpson v. Jennings, 163 Mo. 332; Simpson v. Erisner, 155 Mo. 164; Tiedeman, Real Property, secs. 461, 466', 469, 470; Ewing v. Shannahan, 113 Mo. 188. (3) When the Statute of Limitations has run against the trustee who has the legal title and the sole right to sue for possession the cestui que trust is also barred. Walton v. Ketchem, 147 M'o. 209 ,- Ewing v. Shannahan, 113 Mo. 188; Schiffman v. Schmidt,. 154 Mo. 204; Simpson v. Erisner, 155' Mo. 157; Edwards v. Woolfolk, 17 B. Mon. (Ky.) 376\; Meeks v. Olpherts, 100 IT. S. 564. (4) When the Statute of Limitations once begins to run there can be no tolling or exceptions, except as provided by statute. DeHatre v. Edwards, 200 M'o. 267, 2i79; Investment Co. v. Curry j 264 Mo. 497; Turnmire v. Clavbrook, 204 S. W. 178, 180; Smeiser v. Meier, 271 M'o. .187; Shaffer v. Detie, 191 Mo. 304; Schiffman v. Schmidt, 154 Mo. 204; Pim v. City of St. Louis, 122 Mo. 665; Rogers v. Brown, 61 Mo. 195; Landers v. Perkins, 12 Mo. 238; Dice v. Hamilton, 178 M'o. 88. (5) The statute began to run against the trustee Februaiy 17, 1880', and as he is barred so are the beneficiaries under the deed. Walton v. Ketchem, 147 Mo. 200'; Ewing v. Shannahan, 113 Mo. 201; Schiffman v. Schmidt, 154 Mo. 204; Investment Co. v. Curry, 264 Mo. 497. (¡6) The court committed error in admitting the abstract of record of Case v, Goodman, for purpose of showing that defendant claimed under the trustee. Porter v. Gaines, 151 Mo. 560; St. Louis Public School v. Risley, 28 Mo. 415. (7) Defendants have the right to rely upon as many defenses as they may have and if one title fails they may stand on another. Porter v. Gaines, 151 Mo. 560; St. Louis Public School v. Risley, 28 Mo. 415; Lewis v. N. Y. Life Ins. Co., 209 S. W. 632.

      Duvall & Boyd and E. L. Moore for respondents.
    (1) The McGlothing deed created a life estate in Frances Case, with remainder to the heirs of her body. Under our Statute of Uses the use would have become executed at once, if she had not been a married woman; that kept it from becoming executed. Case v. Goodman, 250 Mo. 114. But “Upon the death of the husband the trust terminates, and the legal title is then executed in the wife by the Statute of Uses.” 2 Washburn (5 Ed.), 500; Roberts v. Moseley, 51 Mo. 286; Pitts v. Sheriff. 108 Mo. 116; O’Brien v. Ash, 169 M'o. 283; Stark v. Kirchgarber, 186 Mo. 642. (2) The remaindermen do not take from the life tenant, but from the . original grantor. And therefore nothing the life tenant or her trustee could do would affect them. Frances Case died in 1907, less than ten years before this suit was brought, and therefore these remaindermen, her bodily heirs, could not be barred. They had no cause of action till her death. Hall v. French, 165 Mo. 442; Charles v. Pickens, 214 Mo. 215; Armor v. Frey, 253 Mo. 474; De Lashmutt v. Teetor, 261 Mo. 447; Lewis v. Barnes, 272 Mo. 406. Terrell was not trustee for the remaindermen; he was trustee for the life tenant only, because she was a married woman. Roberts v. Moseley, 51 Mo. 286; Glasgow v. Foundry Co., 229 Mo. 593; Speed v. Railroad, 163 Mo. 129. (3) Having claimed-under the trustee’s deed once, and thereby acknowledged that they had full knowledge of his breach of trust in making it, appellants are now precluded from denying that knowledge and escaping the penalty of that reliance. Coney v, Laird, 153 Mo. 408; Elliott v. Machine Co., 236 Mo. 561; Ogden v. Aner, 184 S. W. 72; Duckett v. Dry Goods Co., 99 Mo. App. 444: Canada v. Daniel, 175 Mo. App. 68-69; Donnell v. Wright, 147 M'o. 647; Emmert v. Aldridge, 231 Mo. 129; Armor v. Frey, 253 Mo. 475. “Where a person has taken possession of or exercised acts .of ownership over property under claim of title or right he is estopped to set up a claim inconsistent wth that under which he has acted. Thus a person is estopped from setting up an invalidity in the title under which he has had possession and exercised acts of ownership.” 16 Cyc. 803; Railroad v. Lindell’s Heirs, 39 Mo. 345; Boett’ger v. Roehling, 74 Mo. App. 265; Bank v. Totten, 114 Mo. App. 104.
   RAILEY, C.

This is an action of ejectment,, brought by plaintiffs in the Circuit Court of Andrew County, Missouri, on September 26, 1914, to recover possession of the northeast quarter of the southwest quarter of Section 24, Township 60', Range 35, located in said county. Defendant Harry A. Sipes was the tenant in possession under the other defendants, and disclaimed any interest in the land. Mrs. Candice Leach, prior to her marriage with Thomas Leach, was the widow of Frederick Yenni, and aside from Snipes, the other defendants are her children.

The answer of defendants, with part of the same stricken out by the trial court, left practically a general denial, and an assertion of title in defendants, by adverse possession under the Statute of Limitations.

The case was transferred to Buchanan Circuit Court, on the application of plaintiffs, and tried before the court without a jury and without instructions. The trial court found that plaintiffs Wm, H. Case, Samuel J. Case and Mary I. Case are the legal owners of and entitled to the possession of an undivided three-fourths interest, in and to said land, and that the plaintiff Wake-field Elliott is the owner of and entitled to the possession of an undivided 7/32 interest in and to said lands, etc. Judgment, in due form, was rendered for respondents.

The evidence, and such other matters as may arise upon an inspection of the record, will be considered in the opinion.

Appellants, in due time, filed their motion for a new trial, which was overruled and the cause appealed by them to this court.

T. As this is an action at law, and tried without instructions, the judgment of the trial court, if sustained by substantial evidence, is conclusive against appellants here, unless reversible error has been committed in the admission or rejection of testimony. [Bingham v. Edmonds, 210 S. W. 885-6, and cases cited; Boas v. Branch, 208 S. W. l. c. 86; Walker v. Roberts, 204 S. W. l. c. 18; Roloson v. Riggs, 274 Mo. l. c. 528, 203 S. W. l. c. 975; January v. Harrison, 199 S. W. l. c. 937; In re Lankford Estate, 272 Mo. l. c. 8, 197 S. W. 147.] It, therefore, becomes necessary to consider the evidence, in connection with the law questions presented, in passing upon the foregoing question.

It was admitted at the trial that the title to the forty acres in controversy emanated from the United States Government, by patent, dated the first day of March, 1846, to Harrison McGlothling, of Andrew County, Missouri. On July 15, 1843, the above paténtee conveyed said land to John Terrell, of Savannah, Missouri, in trust, for the use and benefit of Frances Case, his sister-in-law,"and the heirs of her body. The after-acquired title of the patentee passed to the trastee. [Wood v. Smith, 193 Mo. 484; Organ v. Bunnell, 184 S. W. l. c. 102, and cases cited.] At the date of delivery of said trust deed, Frances Case was married, and her husband died in 1887. She died in November, 1907.

On June 25, 1855. the above named John Terrell, as trustee, conveyed said real estate to William Brown, for the expressed consideration of $400. There was no power of sale given to the trustee in the foregoing deed, nor does it contain any words creating an active trust. The deed from McGlothling to Terrell, as trustee, conveyed an estate in trust for Prances Case during her life, and cast the estate at her death, to the heirs of her body, as remaindermen. [Section 2872, R. S. 1909; Reed v. Lane, 122 Mo, 311; Utter v. Sidman, 170 Mo. 284-5; Miller v. Ensminger, 182 Mo. 195; Charles v. White, 214 Mo. l. c. 201; Cox v. Jones, 229 Mo. 53; Elsea v. Smith, 273 Mo. l. c. 412-13, 202 S. W. 1071.]

On February 7, 190-8, respondents filed a suit in ejectment in the Circuit Court of Andrew County, Missouri, against these same appellants and Wm. J. Goodman, the tenant of defendants, to recover possession of the land in controversy here. Defendants answered in said cause with a general denial. On November 17, 1908, the trial court found the issues for defendants in the above cause, and plaintiffs therein appealed the case to tin's court. It is reported in 250 Mo. 112 et seq.

The abstract of record filed in the above case, containing all the evidence, pleadings and , proceedings therein, was offered and considered in evidence in this cause. The oral testimony in both cases, is practically the same. In the former case, the record shows that these defendants claimed title to said land through the deed from Terrell, as trustee, to Brown, as well as by adverse possession.

The Court in Banc, speaking through Commissioner Roy, in 250 Mo. l. c. 113, said:

“On June 25, 1855, John Terrell, as trustee for Frances Case, for the expressed consideration of $400 conveyed the land to William Brown.
“The defendants put in evidence a chain of title from William Brown to them, and the defendants and their predecessors in the title have been in the open, notorious, exclusive and adverse possession since the date of the deed from Terrell, to Brown, and defendants uoav claim title by adverse possession.”

Appellants, in the present case, after offering substantially the same oral evidence that was in the other case, supra, then offered a deed from John R. Caldwell and wife to Frederick Yenni, dated February 17, 1880, conveying this land, for the purpose of showing color of title, as a basis for said adverse possession. In the former case, the deeds to Caldwell, and from him to Yenni, were offered iii evidence as a part of the record title, coming from the trustee, through William Brown to these defendants, as stated by Judge Rot, supra.

We have before us the abstract of record in the former case, which was offered in evidence in the present suit, and it contains the testimony of John R. Caldwell, in -which he testified, that he was the owner of this land about nine or ten months. He further testified:

“Q. Well, you claimed to be the owner in fee¶ A. Why, certainly.
££Q. You sold it to Mr. Yenni, did youl A. Yes, sir.-
££Q. And delivered the land and possession to him'? A. Oh, yes; yes, sir.” (Italics ours.)

This was a part of defendants’ evidence, following their chain of record title from Brown to them.

These appellants likewise filed, in support of, their motion for a new trial in this cause, the affidavit of John R. Caldwell, in which he states, that he purchased this land from Thomas Jenkins and Mary F. Jenkins, about January, 1879, and claimed to own it. The abstract in the former case shows that the deed to Thomas Jenkins, and the one from him to John R. Caldwell, were offered in evidence by these defendants, as a part of their record chain of title from the trustee, Terrell, through William Brown to appellants.

There was abundant evidence, therefore, before the trial court, tending to show that these defendants and their predecessors in title purchased and took possession of this land under and through their record chain of title from Brown to themselves. All of the deeds in defendants’ record chain of title, from the trustee down, were placed of record, and imparted notice, as to the origin of their title from the trustee.

Court in Banc, in the former case (250 Mo. l. c. 114-5), with all the facts in both cases before it, between' the same parties, concerning the same land, in the same kind of a case, held, that defendants were trustees ex maleficio, and that the Statutes of Limitations did not run against, the cestui que, trust. That "they took the legal title just as Terrell held it, as trustee for Frances Case during her life, with remainder to her bodily heirs.”

It was the peculiar province of the trial court to pass upon the facts, and determine the credibility of the testimony taken before it. The findings and judgment of the trial court is -sustained by substantial evidence, and is conclusive against appellants on the record before us. In the former trial Court in Banc, with- all the facts before it, held, that these same defendants were ex maleficio trustees, and occupied no better position than did Terrell, the trustee. The trial court, in this case, had before it all the testimony in both cases, and, hence, was fully justified in reaching the same conclusion as that expressed by Court in Banc in the former litigation.

II. The trial court was justified in finding, from the record before us, that the title which Terrell, as trustee, conveyed to William Brown, passed by mesne conveyances, to these defendants as successors in title; that they took possession of said land under their deed from John R, Caldwell, who claimed to be the absolute owner of same, in 1880’, by virtue of his record title through the mesne conveyances aforesaid; that appellants’ possession was referable solely to the title emanating from the trustee to Brown, and from the latter, through said mesne conveyances, to appellants. We arc, therefore, of the opinion, that defendants, by their purchase from Caldwell, became, and continued, as trustees ex maleficio and that the Statute of Limitations did not run in their favor against the cestui que trust. [Elliott v. Machine Co., 236 Mo. 546; Case v. Goodman, 250 Mo. l. c. 114-15.] The deed to Terrell, and the successive conveyances from him on down to appellants, were properly recorded and imparted notice to all those dealing with.said property, as to Terrell’s authority to pass title. [Garrett v. Wiltse, 252 Mo. l. c. 713; Case v. Goodman, 250 Mo. l. c. 115.] Upon the death of Frances Case in 1907, these, respondents became the fee-simple owners of said real estate, as remaindermen. [Sec. 2872, R. S. 1909; Elsea v. Smith, 273 Mo. l. c. 412-3, 202 S. W. 1071; Cox v. Jones, 229 Mo. 53; Reed v. Lane, 122 Mo. 311.]

As this suit was brought on September 26, 1914, respondents’ right of action is not barred by limitation or adverse possession.

III. These respondents did not take title from their mother, the life tenant, but from the original grantor. Nothing which the life tenant or the trustee did could affect their rights. It is manifest from the undisputed facts in the case that these respondents, ag ^ pocp|y peirs 0f Frances Case, had no right of action which could be asserted in court, or elsewhere, until the death of their mother. The Statute of Limitations, therefore, as heretofore suggested, did not bar their right of recovery. [Hall v. French, 165 Mo. 430-442; Charles v. Pickens, 214 Mo. 215; Armor v. Frey, 253 Mo. 471, 474; De Lashmutt v. Teeter, 261 Mo. 440, 447; Lewis v. Barnes, 272 Mo. 397, 406.]

IV. These appellants, having claimed in the former case under the trustee’s deed, as shown by their chain of title therein, and thereby acknowledged that they had information as to the trustee’s breach of trust in making the deed: are now precluded from denying knowledge, and escaping the penalty of that reliance. [Ogden v. Auer, 184 S. W. 72; Armor v. Frey, 253 Mo¡ 475; Elliott v. Machine Co., 236 Mo. 561; Emmert v. Aldridge, 231 Mo. 129; Coney v. Laird, 153 Mo. 408; Donnell v. Wright, 147 Mo. 647.]

V. Appellants contend that the abstract of record in Case v. Goodman, 250 Mo. 112, was improperly admitted in evidence in this case. The plaintiffs were the same in both cases. These appellants were defendants in both cases, and were the real parties in Merest. Both cases were' actions of ejectment, and the same land was in controversy in both suits. The record and proceedings in the former case were properly read in evidence. [Garton v. Botts, 73 Mo. l. c. 277-8; Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. l. c. 296-7; Southern Pacific Railroad v. United States, 168 U. S. l. c. 59-60, and cases cited.] With all the testimony that is now in the present case before it, Court in Banc, in Case v. Goodman, 250 Mo. l. c. 114-5, decided that appellants herein were trustees ex maleficio, as to the real estate in controversy, and that the Statute of Limitations did not run against the cestui que trust. The record was not only competent .for the purpose of disclosing the issues and facts in the original case, but was likewise competent, as res adjudícala, in respect to the matters involved in this litigation.

In Southern Pacific Railroad v. United States, 168 U. S. l. c. 48-9, Mr. Justice Hablan of the Supreme Court of the United States, in discussing this,subject said:

“The general principle announced in numerous eases is that a right, question or fact distinctly put in issue and directly determined 'by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a .subsequent suit between the same parties or their privies; and even if the second, suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue and actually determined by them.”

Numerous cases are cited by Mr. Justice Harlan, in support of above proposition of law. To the same effect are the following: Boas v. Branch, 208 S. W. l. c. 86; Richardson v. Dell, 191 S. W. l. c. 64; State ex rel v. Patton, 271 Mo. l. c. 559, 197 S. W. 35-3; Leslie v. .Carter, 268 Mo. l. c. 428, 187 S. W. 1196; State ex rel. v. Mining Co., 262 Mo. l. c. 501-2, 171 S. W. 356; Barnhart v. Little, 185 S. W. l. c. 177; Hines v. Hines, 243 Mo. l. c. 495, 147 S. W. 774; Tie & Timber Co. v. Pulliam, 237 Mo. 1, 139 S. W. 144; Emmert v. Aldridge, 231 Mo. l. c. 128, 132 S. W. 1050; Spratt v. Early, 199 Mo. l. c. 509, 97 S. W. 925; Donnell v. Wright, 147 Mo. l. c. 647, 49 S. W. 874; Mo. Pac. Rv. Co. v. Levy, 17 Mo. App. l. c. 507-8; Hartford Life Ins. Co. v. Ibs, 237 U. S. l. c. 673.

On the facts presented in this record, the same principles of law apply to successive actions of ejectment. [Realty and Development Co. v. Norman, 259 Mo. l. c. 631-2; McAnaw v. Clark, 167 Mo. 443; Boas v. Branch, 208 S. W. l. c. 86; 9 R. C. L. sec. 95, p, 926; 15 R. C. L. sec. 512, p. 1037; Warvelle on Ejectment, sec. 209, p. 214, and cases cited; Newell on Ejectment, p. 656, secs. 21-2.]

In Realty and Development Co. v. Norman, 259 Mo. l. c. 631-2, Division One, in a unanimous opinion, in discussing this question, said:

“We cannot agree with the sentiment they express for two reasons: First, we are satisfied with the conclusion at which we then arrived after mature consideration and careful investigation; and, second, the form, er adjudication of the same question in the former suit between the same parties, upon the same evidence (the paper itself), is, even though the previous action was ejectment, conclusive in this, While a judgment in an ejectment suit is not a bar to another suit for the same premises, the action being only possessory, yet when the title is in issue, and the right of possession only an incident, it has all the consequences of an ordinary suit, when the parties are the same, the land is the same, and the evidence in support of the respective titles is the same. [McAnaw v. Clark, 167 Mo. 443; Potter v. Adams, 143 Mo. 665.]”

In McAnaw v. Clark, 167 Mo. 443, the facts and issues in the second ejectment suit were the same as those in the former, and it was held, that the judgment in the first suit was res adjudicate/,.

In Boas v. Branch, 208 S. W. 86, it appeared that an action of forcible entry'and detainer had-been commenced before the justice of the peace, to recover possession of the same real estate involved in the ejectment suit then pending. The action of forcible entry and detainer was decided by the justice in favor of Branch, and Boas appealed to the circuit court. The judgment of the latter remained unappealed from. The facts stated in the'action before the justice were the (same as those set up in the petition for ejectment. The other Division held that the judgment in the action for forcible entry and detainer was res adjudicata against plaintiff as to the same facts, set up in the ejectment suit.

Appellants are now insisting that they should be permitted to recover upon a part only of same evidence used in the former case. We hold that this position is untenable, and that the finding below is sustained by the law and evidence of the case.

Conclusion VI. At page 83 of appellants’ brief, it is said: .“And the only question in this case is whether or not the Statute of Limitation-has run against the legal title of the. trustee.” We have fully considered this question in the preceding part of this opinion. As hereto-tore suggested, it was the province of the trial court to pass upon the testimony. In doing so, it was not compelled to accept as true the testimony offered by appellants, in respect to the questions of adverse possession and limitations. The finding and judgment of the trial court were against the appellants, and upon a full consideration of the entire record, we are satisfied with the conclusion reached by it.

The judgment below is accordingly affirmed.

White and Mosley, CG., concur.

PER CURIAM: — The foregoing opinion of Raileiy, C., is hereby adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: MOZLEiY, C.

license: Public Domain

text:
    KATIE REESE v. CITY OF ST. LOUIS, Appellant, and SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY.
    Division Two,
    December 4, 1919.
    1. RES ADJUDICATA: Demurrer to Evidence: No Appeal. Upon a demurrer to the evidence, given at the conclusion of the trial in behalf of one of the defendants, unappealed from by plaintiff, the litigation as to such defendant becomes res adjuclicata and the action ends as to it.
    2. ACTION AGAINST CITY: Notice to. Mayor: Exact Date of Accident. The statute precluding the bringing of an action against a city of one hundred thousand population, for personal injuries growing out of a defect in a street, unless a notice in writing shall have been given to the mayor within ninety days after said injury was received, “stating the place where, the time when such injury was received and the character and circumstances of said injury,” requires that the precise time of the accident causing the injury be set forth in the notice; and a notice which states that the accident occurred “on or about the 27th day of March 1914,” is not a compliance with the statute, and a failure to give a proper notice is a complete bar to the action for damages.
    Appeal from St.- Louis City Circuit Court.— Hon. Kent K. Koern&r, Judge.
    Reversed.

      Charles H. Danes and Everett Paul Griffin for appellant.
    (1) The main instruction is too broad and is misleading under the "issues and the notice served on the city. It fails to embody an essential element of plaintiff’s case, the question whether a valid notice was served on the city. Walker v. White, 192 Mo. Appi. 13; Burrows v. Likes, 180' Mo. App. 447; Oraton v. Hunt-zinger, 163 Mo. App. 718; Hackenyos v. City, .203 S. W. 986; State ex rel. v. Ellison, 272 Mo. 583; State ex rel. v. Ellison, 270 Mo. 645.

      Robert C. Grier, Eckoard H. Mitchell and Thomas P. Moore for respondent.
    (1) The construction of the written notice served on the mayor of the city and the determination of its legal force is a question of law for the court and not of fact for the jury. (2) The term, “on or about,” coupled with March 27, 1914, could refer to March 27, 1914, alone, and as the accident actually happened on March 27, 1914, this was a sufficient statement in the formal notice served on the mayor as to the time of the happening of the accident to comply with Laws 1913, p. 545. The “on or about” is mere surplusage. Hackenyos v. City, 203 S. W. 986.

      Jeffries $ Corum for S'ouithwestern Telegraph & Telephone Company; D. A. Frank of Counsel.
   MOZLEiY, C.

The plaintiff brought this action originally against the City of St. Louis, to recover dam,ages on acount of the death of her husband, David M. Reese, alleged to have been caused by the negligence of said city. On the 3'lst day of- August, 1914, the plaintiff amended her petition by making the Southwestern Telegraph & Telephone Company a party defendant. The petition upon which the suit was tried alleged that plaintiff was the wife of deceased up to his death; alleged the corporate character of both defendants and a number of other facts by way of inducement. It then proceeds as follows: “That on said date [March 27, 1911] deceased was lawfully driving along Washington Avenue in the exercise of ordinary care for his own safety, and said wagon run into a hole alleged to exist on said Washington Avenue, and in consequence of the jolt or shock, caused by said wagon running into said hole, deceased was thrown from it upon the street and run over, and thereby sustained injuries from, which he subsequently died, ’ ’ and that the occasion of running his wagon into said alleged hole and the death consequent thereto, were caused in these respects: “First, that the defendant Southwestern Telegraph & Telephone Company, under the supervision of the defendant City of St. Louis, carelessly and negligently filled an excavation theretofore made by it so as to leave the said hole in said street, whereby was occasioned the fall of David M. Reese, and his death consequent thereto; second, that defendants, although on said day, they knew, or in exercise of ordinary care would have known, the dangerous condition of said street, and the existence of said hole therein, carelessly and negligently failed then, or at any ‘other time, to fill said hole so as to render said street safe for persons using the same, whereby was occasioned the fall of the said David M. Reese, and his death consequent thereto; third, that the defendants, although on said day, they knew, or in the exercise of reasonable care, would* have known the dangerous condition of said street, and the existence of said hole thereon, carelessly and negligently failed then, or at any other time, to place any guard or protection around said hole, - so as to prevent persons using said street to be harmed by said hole, whereby was occasioned the fall of said David M. Reese and his death consequent thereto. ’ ’

To this petition each defendant filed a separate answer, consisting of a general denial and a plea of contributory negligence upon the part of .deceased. To each of these answers the plaintiff replied with a general denial of the new matter set np in” the answer.

The hole referred to in thie. petition, according to the testimony, was a “saucer like” depression in the pavement, which from north to south measured 6 feiet, and from east to west 5 feet and 10 inches, and! 3;% inches deep in the center. Deceased at the time of .bis injury was driving a “Jumbo” transfer wagon at the place of said depression, and while his attention was diverted to one Bremer, who had boarded the wagon from the rear, in conversation and in trying to make, room for him in a seat designed only for one man to ride in, which was a violation of the rules of the transfer company, he drove his- wagon into said saucer-like- depression, fell from it, and, was run over and lulled. Bremer escaped with his life, but was quite severly injured. B-oth deceased and' Bremer were under the influence of intoxicating- liquor.; Reese had a quart and a pint of whisky in the seat on which he was riding, which showed they had been subjected to liberal use. Bremer had a bottle of whisky in his pocket and had before getting on the wagon drunk a larg’e quantity of beer. At the hospital the fumes of liquor were so strong on both of these parties that physicians administering to their necessities testified that they were- under its influence. The whisky deceased had on the seat in which he was riding, unsupported and- with a serenity worthy of a better cause, withstood the drive over said depression and was taken therefrom without breaking a bottle or spilling a drop. At the conclusion of the trial the. court gave a demurrer to the evidence as to the Southwestern Telegraph & Telephone Company, and overruled the demurrer asked bv the city and submitted the cause to the jury as to it. which resulted in a verdict of $10,000' in favor of plaintiff. No appeal was taken bv plaintiff from the action of the court in divine the demurrer in favor of the Telephone Comma,nv. The city, after failing to get a new trial un-on proper motions filed, has appealed in due form to this court.

I. The demurrer given by the court at the close of the trial in favor the Southwestern Telegraph & Telephone Company, unappealed from by the plaintiff, became res adjudicata and marked the end! of the litigation so far as it was concerned. If the plaintiff was satisfied with the demurrer being given we fail to discover any reason for complaint elsewhere. It results that the Southwestern Telegraph & Telephone Company has no business in connection with this case in this court and no further attention will be paid to it.

II.- Can plaintiff recover against the City of St. Louis? We think not, for the reason that she has not complied' with the condition precedent prescribed by the statute which must be complied with strictly before suit is brought. The Laws of Missouri, Acts 1913, page 545, Section 1, reads as follows :

“No action shall be maintained against any city of this State which now has or may hereafter attain a population of one hundred thousand inhabitants,' on account of any injuries growing out of any defect in the condition of any bridg-e, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and' circumstances of the injury, and that the person so injured will claim damages therefor from such city.”

Plaintiff gave notice of intention to sue under Section 8863, Revised Statutes 1909, which ‘is, with a few minor changes unimportant here, the same as the statute above quoted. The vital question is, has the plaintiff given a notice of intention to sue that squares with the requirements of said statute? We think not. The notice reads as follows:

“St. Louis, Missouri, May 8>, 1914.
“To the Mayor of the City of St. Louis,
City Hall, St. Louis, Mo.
“Sir: You are hereby notified in accordance with Section 8863 of the Revised Statutes of Missouri, 1909, that the undersigned, Katy Reese, will make claim for damages against the City of St. Louis on account of the death of her husband, Diavid M. Reese, caused by said David M. Reese being thrown from a wagon upon which he was riding, run over and fatally injured, when one wheel of said wagon ran into a hole in the paving on Washington Avenue, at a -point opposite or near No. 210 Washington Avenue, north of City Block 65 in the City of St. Louis, State of Missouri, on or about the 27th day of March, 1914.
“Katy Reese.
City of St. Louis ) “State of Missouri, y ss
“I, Katy Reese, being duly sworn upon my oath, state that the facts concerning the death of my husband, David M. Reese, as set forth in above notice, are true, to the best of my knowledge and belief.
“Katy Reese.
“Subscribed and swom to before me this the 8th day of May, 1914.
“My commission expires February 21, 1916.
“E. H. Mitchell,
“(Seal) Notary Public.
“Service of above notice acknowledged this 13th day of May, 1914.
“Henry *W. Kiel, Mayor of the City of St. Louis.”

It will he observed from the above notice that the injury sued for is said to have happened “on or about the 27th day of March, 1914.” The statutes above referred to are mandatory as to the place where and' the time when the accident occurred, and the place where- and the time when it occurred must be stated with exactness. The purpose of the statute is manifest. Its design is to protect large cities from the assertion of stale, fraudulent or fictitious claims for damages by giving such cities opportunity to malee an early investigation of the facts and it is plain that the purpose of the statute would be wholy thwarted were it not mandatory as to the requirements of the notice of intention to sue. Our Court in Banc has recently passed upon the precise question in the instant case, in the case of Hackenyos v. City of St. Louis, 203 S. W. 986. There the notice to the mayor' of intention to sue for damages, in describing when the accident happened, employed the words “on or about” a certain date. In the case in band the notice states the accident happened “on or about the 27th day of March, 1914.” Thus the case in hand and the case cited are on all-fours. The court held, after a very, full consideration of the question, that a notice stating “on or about” was not a compliance with a statute requiring as a condition precedent to bringing the action, that the precise time of the accident must be set forth therein, and affirmed the lower court in giving judgment of nonsuit against plaintiff. Under the ruling of this case, which we are quite sure is correct, we hold in the instant case that the notice of intention to sue was not a compliance with the mandatory provisions of the statute and accordingly reverse the judgment.

White, G., concurs; Bailey, G., not sitting.

PER CURIAM: — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.


text:
    THE STATE v. TONY OERTEL, alias TONY ORTEL, Appellant.
    Division Two,
    December 4, 1919.
    1. INFORMATION: Burglars’ Tools. Tbe information set out in the ■ statement, both in form and substance, fully meets the requirements of the statute defining the crime of felonious possession of burglars’ tools.

      2. EVIDENCE: Insufficiency. The appellate court will not set aside a verdict, even in a criminal case, on the ground that the evidence is not sufficient to support the verdict, unless there is a total failure of evidence, or the evidence is so. weak that the necessary inference is that the verdict is the restilt of passion, prejudice or partiality.
    3. -: Burglars’ Tools: ' Expert Testimony: Policemen. Police officers who have had many years’ experience in dealing with burglars and are familiar with the character of tools they use. are competent to testify, in the prosecution of a defendant for having in his possession burglars’ tools in violation of the statute, that a hammer, bullets, a punch, jimmy, screw-driver and flashlight, found ill defendant’s automobile at the time of his arrest at one o’clock at night, are tools usually used by burglars in burglarizing dwellings, warehouses and such buildings.
    Appeal from St. Louis City Circuit Court. — Hon. Charles B, Davis, Judge.
    Appiejveed.

      Frank W. McAllister, Attorney-General, and Shrader P. Howell, Assistant Attorney-General, for the State.
    (1) The information, both in form and substance, fully meets all requirements. Secs. 4529, 4913', R. S. 1909; State v. Moore, 121 Mo. 517; State v. Vaughan, 199-Mo. 108; State v. Collins, 266- Mo. 95; State v. Levy, 262 Mo. 181; State v. Moulton, 262 Mo. 137; State v. Payne, 223 Mo. 112; Ex parte Roberts, 166 Mo. 207. (2) The court correctly and fully instructed the ¡jury on all questions of law necessary for their guidance in reaching a verdict under the evidence. State v. Boyd, 178 Mo. 2; State v. Levy, 262'Mo. 181. (3) The court didl not err in admitting the testimony of police officers that the tools and instruments introduced in evidence were such as were usually employed by burglars. State v. Daly, 210 Mo. 677; Helfenstein v. Medart, 136- Mo. 615; State: v. Mount, ,79 Minn. 121; Rogers on Expert Testimony, secs. 16 and 18, pp. 39, 41; 1 “Wharton’s Crim. Evidence, sec. 403, note 1; State v. ITarrold, 38 Mo. 496. (4) ’ The evidence submitted on the trial is amply sufficient to establish all the elements of the crime charged and fully supports the verdict returned by the jury. State v. Vaughan, 199 Mo. 108; State v. Ooncelia, 250 Mo. 411.
   RAILEY, C.

On February 6, 1917, the Assistant Circuit Attorney of the City of St. Louis, Missouri, filed, in the Circuit Court of said city, a verified information, charging defendant with the crime of felonious possession of burglars’ tools. The information, without caption and verification, reads as follows:

“Ym. S. Connor, Assistant Circuit Attorney, in and for the City of St. Louis aforesaid, within and for the body of the City of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
“That Tony Oertel, alias Tony Ortel, on the 24th day of March, in the year of our Lord one thousand, nine hundred and fifteen, at the City of St. Louis aforesaid, in the Circuit Court of the City of St. Louis, was duly convicted on his own confession of the offense of grand larceny and in accordance with said conviction was duly sentenced by said court to an imprisonment in the penitentiary of the said State of Missouri for the term of two years, and was duly imprisoned in said penitentiary of the State of Missouri in accordance with said sentence, and that the said Tony Oertel, alias Tonv Ortel, was duly discharged from said penitentiary of the State of Missouri after and upon lawful compliance with said sentence; and that the said Tony Oertel, alias Tony Ortel, after the said discharge of said Tonv Oertel, alias Tonv Ortel, from said penitentiary of the State of Missouri, to-wit. on the 30th day of December, in the vear of our Lord one- thousand, nine hundred and sixteen, at the Gitv of'St. Louis aforesaid, did then and there unlawfully and feloniously have in his eustodv two punches, one piece of iron, of the length of about two feet and of tbe weiaht of about three pounds, curved at the end, commonly known as a gooseneck £come-along,’ one screw-driver, one hammer and one flashlight, said instruments being’ then and there material, implements and mechanical devices, adapted, designed and commonly used for breaking into a warehouse, store, shop, office and dwelling house: contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

On February 12, 1918, defendant was formerly ar-' raigned and entered his plea of not guilty. The trial was commenced in the above court’on February 12, 1918, and resulted in a verdict being* returned the following day, as follows:

“We the jury in the above entitled cause, find the defendant guilty of unlawfully having burglars’ tools in his possession as charged in the information, and assess the punishment at imprisonment in the penitentiary for two years! ”

The evidence in behalf of the State is substantially as follows:

It appears' from the testimony of Police Officer F'ehU P. Katke. that at about 1 a. m. on the morning of December 30, 1916, this officer, together with Policeman J ones, was standing on Market Street about twentv-five feet east of Grand, when they observed an automobile going- west on Market at a very high rate of speed, containing three or four men. Officer Jones called to the men to halt, but instead of doing so they increased the speed of the car. The two officers thereupon commandeered a nearby car and pursued the car containing the three or four men, which they over took at Grand and Hickory Streets near the front of the Armorv. Tim officers lumped off the running board of their car and ran to the car they were pursuing, which was a large Packard, covered the chauffeur and the defendant, who was in the fear Seat, with their suns, it appearing that the other two men had left the car before' the officers arrived. Witness-Katke. further testifying, stated that the defendant was sitting in the back seat and Officer Jones jerked the curtain open and covered Mm with his gun, and, upon the officer ordering him to come out, the: “defendant went down to Ms Mp; pocket and throwed a gun down on the seat as he was stepping out of the car.” The officers then threw their searchlight on the floor and seat, where defendant had been sitting, and found a hammer, bullets, a punch, a jimmy, an instrument used to drive out rivets on a combination, and all of which, the policeman testified, were tools and implements usually employed by burglars in plying their trade. The witness further testified that he was familiar with the tools and implements employed by burglars, and was able to testify that the hammer was used to knock off the knob of the safe, and the punch to drive out the rivets which held the tumblers to the safe, and the screw-d'river and jimmy were used to pry and force doors and windows and for breaking into dwelling and warehouses. All of these instruments were identified by this witness and introduced in evidence.

On cross-examination, Officer Katke stated that, in his judgment, the car was running at the rate of twenty-five or thirty miles an .hour. He also admitted that while the tools and implements were such as commonly employed by burglars, at least the flashlight and screwdriver might be used in the repair of automobiles, but the jimmy could not be so employed.

The State introduced John Shea, who was Superintendent of the Bureau of Identification, and had been connected with the Police Department of St. Louis for about Mneteen years. The witness testified, that lie had occasion, in the prosecution of his work as a police officer, frequently to see and examine tools and implements employed by burglars in opening safes and breaking into dwellings and warehouses, and upon being shown the implements and tools which had been taken from the car in which this defendant was riding on the night of December 30, 1916, he testified that all of them were the kind and character employed by burglars. The jimmy was used ordinarily to pull off combinations to safes, the punch to knock ont the rivets so as to remove the tumblers, the screw-driver to force and pry, and the hammer' and flashlight were such as were usually carried by burglars.

The State then introduced Frank McKenna, who had been a police officer in St. Louis for twenty-four years, and who testified that he had knowledge of and was familiar with the kind and character of tools employed by burglars in breaking open safes and forcing the doors and windows of dwellings, warehouses and such places. Upon being shown the instruments found in the car in which the defendant was riding on the night in question, he affirmatively testified that thej’were instruments used! by burglars and commonly known as burglars’ tools. ITis testimony as to the particular use of each of the instruments introduced in evidence, was substantially the same as that given by Officer Katko and Superintendent of the Bureau of Identification, John Shea.

Gustave Slingman, a deputy clerk in the criminal division of the St. Louis City Circuit Court, was called to the stand and read into the record a judgment of conviction of this defendant on March 25, 1915, on the charge of grand larceny and for which he was sentenced to serve two years in the penitentiary. In connection with this, the State then offered in evidence the record showing- that this defendant bad in fact been received at the State penitentiary and had served his term and had been discharged under the three-fourths law, on December 23, 1916.

The evidence in behalf of appellant is substantially as follows:

Herbert Schultz, who was called on behalf of the defendant, testified that he was in the automobile repair business, and that he had rented to the defendant, on the night of December 30, 1916, a seven-passenger Packard car. This witness testified that the flashlight and hammer, introduced in .evidence, belonged to him, and that they, together with at least some of the other instruments, which are not clearly identified in the evidence, were in the car when he rented it to this defendant.

On cross-examination, the witness stated that he had hut the one car on December 30, 1916. He identified the hammer as belonging to him, and. said: “Well, it looks like my prunch — that is all I can say about it.”

Sam Prussen, who was a fruit dealer, formerly a carpenter and had had experience in handling automobiles, testified that the hammer and screw-driver and the other tools shown to him were such as could be used by carpenters and persons other than burglars. On cross-examination, he stated that he had known the defendant about nine months, and that he had signed the bond of the defendant in a former case which was in the courts about nine or twelve months prior to the instant case.

The defendant, Tony Ortel, took the witness stand in his own behalf, and, after admitting that he had served eighteen months in the Missouri State Penitentiary on the charge of grand larceny, stated that on the night in question he hired a car at Grand and Olive for the purpose of going to a roadhouse somewhere in South St. Louis, but that he was unable to give the name or place where such resort was located. He 'further stated that it was a Packard car, and that there was no one in the car but himself 'and the chauffeur, and that he afterwards learned that the car belonged to a man by the name of Schultz. He further said that he was tending bar in December, 1916, for a man by the name of Gleason, but that he was off duty on the night of December 30, 1916. At the time of his arrest, he denied seeing the gun in the car and said that he knew nothing about the tools and implements being in the car, as testified to by Police Officer Katke. On cross-examina-. tion, defendant stated that he had been working for Gleason for only about a month and that Ms employer was, at the time of the trial, out of business, and he didn’t know where he was, nor did he know where the roadhouse was located, except that it was on South Grand AVenue. The witness further admitted that he had not had a subpoena issued for. the chauffeur, whose name was Nolte, nor had he made any effort to find the chauffeur, to locate him, so as to have him present at this trial. He also said that he had been drinking the evening of his arrest and was pretty full at that time. ■

The court gave, without objection, eight instructions, which properly declare the law of the case, and none of which are challenged in defendant’s motion for a new-trial.

.Appellant, in due time, filed his motion for a new trial and assigned as error therein, only three grounds, as follows:

“(1) That the verdict is against the law and evidence ;
“ (2) That the verdict is against the weight of evidence ;
“(3) That the court erred in admitting evidence which was incompetent, irrelevant and immaterial. ”

The above motion was overruled and, on March 29, 1918, the circuit court pronounced judgment and sentence upon defendant in conformity to the law and verdict of the jury. Defendant, in due time, appealed the cause to this court.

I. The information, both as to form and substance, fully meets the requirements of the law. [Secs. 4529 and 4913, R. S. 1909; State v. Collins, 266 Mo. 95; State v. Levy, 262 Mo. 181; State v. Moulton, 262 Mo. 137; State v. Payne, 223 Mo. 112; State v. Vanghan 199 Mo. 108; Ex parte Joseph Roberts, 166 Mo. 207; State v. Moore, 121 Mo. l. c. 517.]

II. The court fully and correetlv instructed the jury on all questions of law necessary for their guidance in passing upon the case. [State v. Loonev, 204 S. W. 25; State v. Wansong, 271 Mo. 50, 58-9: State v. Rowe, 196 S. W. 7; State v. Gifford, 186 S. W. 1058; State v. Levy, 262 Mo. 181; State v. Boyd, 178 Mo. 2.] None of the instructions given by the court were objected to by defendant, nor is any error assigned in the motion, for a new trial, in respect to instructions.

III. The first two errors assigned by appellant in his motion .for a new trial, are:

“(1) That the verdict is against the law and evidence ;
“ (2) That the verdict is against the weight of evidence. ’ ’

The law is well settled in this State that, even in criminal cases, before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice or partiality. [State v. Cook, 58 Mo. l. c. 548; State v. Musick, 71 Mo. 401; State v. Zorn, 71 Mo. 415; State v. Claim, 97 Mo. 689; State v. Howell, 100 Mo. l. c. 659; State v. Concelia, 250 Mo. l. c. 424-5; State v. Snyder, 263 Mo. l. c. 669; State v. Miller, 264 Mo. 441; State v. Looney, 204 S. W. 25.] The record of defendant’s former conviction of a felony shows that he was a criminal. The evidence, heretofore, set out, in our opinion, was amply sufficient to sustain his conviction.

The two assignments of error, supra, in the motion for a new trial, are without merit and overruled.

IV. Appellant’s third assignment of error in his motion for a new trial, reads as follows:

“(3) That the court erred in admitting evidence which was incompetent, irrelevant and immaterial. ’ ’

The defendant has filed no brief or argument in this court and, hence, we are unable to determine from the above assignment, whose evidence, he claims, was improperly admitted at the trial. Outside of the record, evidence relating to defendant’s former conviction of a felony, and the service of his term in the Missouri Penitentiary, practically all of the State’s evidence was given by policemen of the City of St. Louis. The court committed no error in permitting said officers to testify that the tools and instruments taken from the automobile in which defendant was riding at the time of his arrest, were such as were usually employed by burglars. These officers, from their experience in dealing with such questions, were competent to testify as to whether the tools, etc., in said automobile, were such as burglars were in the habit of using. Policemen who have arrested, and successfully prosecuted, criminals found in possession of the tools described in Section 4529, Revised Statutes 1909, under which this proceeding was commenced, are in much better position, by reason of their practical experience, to express an opinion as to the tools generally used by burglars, than those who have studied the question scientifically. The court, therefore, did not 'err in admitting, the testimony of the police officers, to the effect that the tools andl instruments introduced in evidence were such as are usually employed by burglars. [Rogers on Expert Testimony, secs. 16 and 18, pp. 39-42; 1 Wharton’s Criminal Evidence, sec. 403, note 1; State v. Daly, 210 Mo. 664, l. c. 677; Helfenstein v. Medart, 136 Mo. 595, l. c. 615.; State v. Harrold, 38 Mo. 496; State v. Minot, 79 Minn. 118, l. c. 121.]

Upon a careful consideration of all the proceedings which occurred during the progress of the trial, we do not find any rulings of the court which deprived defendant of any of his legal rights. In other words, we find no adverse rulings of the court of which defedant has any just ground of complaint. The above assignment is, therefore, without merit and is overruled.

Upon a full consideration of all the facts before us, we are of the opinion, that there is ample evidence in the record to sustain (Defendant’s conviction, and that he has received a fair and impartial trial. We accordingly affirm the judgment of the trial court, and direct.that the sentence pronounced be executed. [R. S. 1909, sec. 5301.1

PER CURIAM: — The foregoing opinion of Rajeey, C., is approved.by the court.

All of the judges concur.