author: GRAVES, J.

text:
    STRODE, Curator, etc., v. ST. LOUIS TRANSIT COMPANY, Appellant.
    In Banc,
    June 20, 1906.
    1. NEGLIGENCE: Instruction: Disease of Deceased. An instruction which tells the jury that if at the time the injured party was struck by defendant’s car he was afflicted with a disease of which he afterwards died “and whatever injuries he received in the accident only hastened his death and were not the cause of the same, the plaintiffs,” his minor children, “are not entitled to recover” in their suit for the negligent killing of their father; “and this is true without regard to whether or not the defendant was negligent at the time of the accident,” is erroneous.
    2. -: Release of Cause of Action: Consideration: Going to Another. A release of the cause of action for damages of a party negligently injured by another, if not signed by him by inadvertence, but was understood, and if not obtained by fraud or mistake, and if not without consideration, whether the consideration was paid to him or not, is a bar to his action. If a loss or disadvantage accrues to him for whom the release is 'made, although without benefit to the maker, the consideration is sufficient to support the release.
    3. -: -: Death of Injured Party: Transmitted Cause to Wife or Children. The cause of action which is transmitted by the statute to the widow or children of the injured party is the right to recover for his death, when there has been no settlement or adjucation for his injuries in his lifetime.
    4. -: -: Release by Injured Party: Death: Right of Widow or Minors to Sue. The fact that the injured party gave a release to the railroad company which had negligently injured him bars the right of his widow or minor children, after his death as the result of such injuries, to sue to recover for the pecuniary interest in his life which the statute gives them. If he could not have maintained an action to recover for his injuries, they can not after his death, because of the right conferred by the statute, maintain an action for the pecuniary interest which they lost by the death of the husband or father, whether his cause of action was settled and adjusted by agreement or was adjudicated in court, and whether the action was brought under the second or third section of the Damage Act.
    Appeal from St. Charles Circuit Court. — -How. E. M. Hughes, Judge.
    Reversed and remanded {with directions).

      Boyle & Priest and Edward T. Miller for appellant.
    The following authorities hold that a release given hy the injured party bars an action for damages arising out of the death, whether brought by the personal representative or for the surviving husband or wife, or for the benefit of next of kin: Rice v. Railroad, 33 S. C. 556; Hecht v. Railroad, 132 Ind. 507; Diddle v. Railroad, 25 Barb. 183; Littlewood v. N. Y., 89 N. Y. 24; Re Taylor Estate, 179 Pa. 254; Walkerton v. Erdman, 23 Can. S. C. 352; Fowlkes v. Railroad, 9 Heisk. (Tenn.) 829; Holton v. Daly, 106 111. 131; Hill v. Railroad, 178 Pa. St. 223; Birch v. Railroad, 30 Atl. 826; Safford v. Drew, 3 Duer 672; Monroe v. D. & R. Co., 84 Cal. 515; Goodsell v. Railroad, 33 Conn.'52; State v. Railroad, 60 Me. 490; Senior v. Ward, 102 E. C. L. 392; Griffiths v. Earl of Dudley, 9 Q. B. Div. 357; Cooley, Torts, 263, 264; 2 Redf. on Railroads (4 Ed.), 250; Pierce on Railroads, 392; Pat. Ry. Ac. Law, 410, 508; 1 Shear. & Redf. Neg. (5 Ed.), sec. 140; Tel. Co. v. Cassin, 111 Ga. 575; Tiffany, Death by Wrongful Act, sec. 124.

      Gerald Griffin and A. B. Taylor for respondent.
    Dill might have had an action of his own, if he had lived — and this right of action he could control — but can he, by any act of his, destroy the cause of action which the statute says shall belong to his widow or minor children after his death? The Proctor case, 64 Mo. 126, only decides that the action is a transmitted action, and that, as the servant injured by the negligence of his fellow-servant never had a cause of action, therefore, there was none to transmit; but here there was a cause of action, and, by force of the staute, it is transmitted upon the death of the party injured, and it never does become a right until after the death of the party injured. The injured party could not sue for his own death as long as he lived. After his death, the statute declares who shall sue and recover, so that we submit that, the remedy for the death of a party, injured by the negligence of a public conveyance like a street car, being given by the statute to the widow or minor children, the injured party has no power, by any act of his, to release or in any manner affect the right so given, and the release given by the deceased in this case cannot affect in any way the right of action bestowed by the statute on the minor children.
   GRAVES, J.

The facts of this controversy are so fairly stated by Valliant, J., in the opinion filed in Division One, 87 S. W. 976, that we adopt the same, which is as follows:

“Plaintiffs are the minor children of John D. Dill deceased suing by their curator to recover damages for the death of their father which they allege was caused by the negligence of defendant.
- ‘ ‘ The petition alleges negligence as at common law and also a violation of the vigilant watch ordinance.
“The answer was a general denial, contributory negligence on the part of the deceased, and a release by the deceased.
“The plaintiff’s evidence tended to prove as follows :
“John D. Dill, the father of plaintiffs, was the driver of a wagon of the Walton-Knost Express Company. Defendant operated a double-track street railroad in Laclede avenue. On the night of the accident, December 14, 1899, Dill was driving a wagon in defendant’s south track between Sarah street and Vandeventer avenue going east; a street car of defendant going in the same direction in the same track approached the wagon from the rear, running at the usual speed, about eight miles an hour; when the car was at a distance of 75 or 100 feet from the wagon the motorman commenced sounding his gong and continued doing so as he continued to come forward until the car struck the rear end of the wagon and turned it over, throwing the driver to the street; the wagon was struck with such force that it was badly broken; the car struck the wagon just as the driver began to turn to get out of the track; it was down grade going east; the street was not well lighted at that point, but a wagon in front of the car could have been seen by the motorman for a distance of 500 feet or more; the car could have been stopped within a space of 40 to 50 feet and by use of the reverse within a shorter space. There was no effort to stop this car until it struck the wagon. The driver of the wagon did not seem at the time to have been seriously hurt. He continued his usual occupation for ten or twelve days when he gave up his work and went home, after which he rapidly declined in health, and died February 6, 1900, fifty-four days from the date of the accident. The death certificate was that it resulted from ‘heart trouble attributing traumatic injury, ’ and his attending physician testified that the disease was attributable to the accident.
“On the part of defendant the evidence tended to show as follows:
“The point of the accident was 300 to 400 feet east of Sarah street; there was a street light at Sarah street and one at Vandeventer avenue, the distance between the two being 1200 or 1400 feet, there was no light between them. A policeman arrived on the scene a few minutes after the accident and proposed to take Dill to the hospital, but he declined, saying he was not hurt, and stood around there until another wagon came and assisted in transferring the contents of his wagon to the other. There was also expert testimony tending to show that the disease of which Dill died could not have been caused by the hurt received in the accident.
“A few days after the accident and while Dill was still at work for the express company, a claim agent of the defendant called at the office of the express company and offered to settle the claim for $37.50, the estimate of the damage to the wagon which the express company was willing to accept, but the defendant’s representative said he would not settle with the express company unless Dill would also join in the settlement, so that it would be a release of the claims of both Dill and the express company. Dill was called into the office and informed of the proposition. Mr. Walton, the president of the express company said to Dill, ‘You haven’t lost anything by this accident have you?’ Dill replied, ‘No.’ But when Mr. Walton read the release which it was proposed they were to sign and saw that it purported to discharge the railroad company from liability to Dill, he asked if he was hurt, and Dill said his back was hurt. Walton then said if that was the case he (Walton) would not sign it, and explained to Dill that if he should sign it he could not recover for his injury of the railroad company, but Dill said he would sign it and did so, ^nd the money, $37.50, was paid to the express company, no part of which went to Dill.
“The case was given to the jury on instructions the correctness of but one of which is questioned and that one we will presently consider.
“There was a verdict for the defendant, the court sustained the plaintiff’s motion for a new trial on the ground that it was error to have given the instructions referred to. Defendant appeals.”

I. The instruction criticised and referred to above as well as in the motion for new trial, which was sustained by the trial court, is in this language:

“If the jury believe from the evidence that at the time of the accident detailed in the evidence, John Dill was suffering from phthisis pulmonalis, or consumption, and that he died from such disease, and that whatever injuries he received in said accident only hastened his death and were not the cause of the same, the plaintiff is not entitled to recover, and your verdict must be for the defendant; and that this is true without regard to whether or not the defendant was negligent at the time of said accident.”

This instruction was clearly wrong and should not have been given; a similar instruction has been expressly disapproved by this court. [Fetter v. Fidelity & Casualty Co., 174 Mo. 256.] In granting a new trial upon this point the trial court was right and were it not for other propositions its judgment should be affirmed.

II. The defendant pleaded and proved a written release, signed and given by deceased, John Dill, in his lifetime. This release was in the following words:

“For and in the consideration of the sum of $37.50 to us in hand paid by the St. Louis Transit Company, the receipt of which are hereby acknowledged,'we and each of the undersigned, John Dill and the WaltonKnost Express Company, hereby fully and forever release, acquit and discharge the said St. Louis Transit Company, the Forest Park, Laclede and Fourth Street Company and the latter’s successors and assigns from any and all claims and causes of action which we, or either of us may now, or hereafter have against the said St. Louis Transit Company, the said Forest Park, Laclede and Fourth Street Railway Company and the latters successors and assigns or any of these, on account of any and all injuries, damages and losses by us, or either of us sustained, though a collision between a wagon, driven Tby the said John Dill and owned by the said Walton-Knost Express Company, and an eastbound electric car of the said companies on Laclede avenue, at or east of its intersection with Sarah street, in the city of St. Louis, Missouri, on or about the fourthteenth day of December, 1899.
“Witness our hands this fourth day of January, 1900. “John D. Dill.
“Walton-Knost Express Company.
“Witness: S. A. Jenldns.” By F. Walton, Vice-president.

The evidence fails to disclose that this release was either without consideration, or that it was signed by inadvertance, fraiid or mistake as pleaded in the reply. On the other hand, the evidence, which is undisputed, clearly shows that the defendant company, through its agent, refused to pay the $37.50 unless the deceased, Dill, would sign the release, and that the same was read by him and fully discussed in his presence by both the agent and his employer. The evidence further showed that although he was claiming some injury to the back, he signed the release, even after his employer had advised him that he would thereby lose his right of action against the defendant, and after his employer had first refused to sign it for that reason.

It is true that the $37.50 went to the Walton-Knost Express Company and not to Dill, and it is equally true that this money would not have been paid without the signature of Dill to the release, all of which was fully understood and agreed to by deceased. The payment of the money under these circumstances was a sufficient consideration for Dill’s contract of release, although he did not receive a penny. In the case of Greene v. Higham, 161 Mo. l. c. 337, Gantt, J., in speaking of the sufficiency of a consideration, says: “These motives for the written contract constituted a valuable consideration which has been comprehensively defined to be ‘ a benefit to the party promising, or to a third person at Ms request, or an inconvenience, loss, or injury, or the risk of it to the party promised. ’ ” It is further said in the same case that “the amount of the consideration, so it be appreciable, is immaterial.”

The consideration for a contract has been further defined, as follows: “A valuable consideration consists either in some right, interest, profit or benefit accruing to the party who makes the promise, or some forbearance, detriment, loss, responsibility, act, labor, or service, given, suffered, or undertaken by the party to whom it is made.” [6 Am. and Eng. Ency. Law (2 Ed.), 703.] At page 689 of the same volume this definition of consideration is given: “If the promisee do any act to Ms injury, however slight, at the request of the proinisor, either express or implied, the detriment so sustained operates as a consideration.” In 1 Parsons on Contracts (4 Ed.), p. 357, the sufficiency of a consideration is stated in the following language: “If a benefit accrues to him who makes a promise, or if any loss or disadvantage accrues to him to whom it is made, although without benefit to the promisor, in either case the consideration is sufficient to support assumpsit.”

So that it is apparent, under this evidence, that there was a sufficient consideration for this release. There was no evidence of fraud, inadvertanee or mistake, and this release finally determines this case against the plaintiff unless the same is not binding upon the plaintiff for other reasons to be noticed hereinafter.

III. Plaintiff contends that, notwithstanding the fact that deceased made the release introduced in evidence, for a valuable consideration, and without fraud, inadvertanee or mistake, yet there should be a recovery.

In other words, the contention is made that our statutes create two separate and independent causes of action, one in the deceased, and another and different one in the widow and minor children, the latter of which cannot he compromised, settled or adjusted by the deceased in his lifetime, and this is the only seriously contested point in the case here, although the trial court tried the cause upon the erroneous theory that, if no consideration, in dollars and cents, passed directly to deceased, there could be no valid release. This we gather from the character of the instructions given and refused. The question first above mentioned is earnestly and ably presented by counsel, and even more fully presented by Judge Valliant, in the divisional opinion, which for thought and research cannot be said to be in any wise wanting.

We then confront, in direct and unmistakable terms, the question as to whether or not, where a person is injured through the negligence or default of another, and before death, makes a settlement with the wrongdoer, can his widow or children yet maintain an action for the death and accrued damage, if any, by reason thereof. This question, we feel constrained, under the authorities and our statutes, to answer in the negative. Such answer is right in principle and in our judgment right under a fair and reasonable construction of the statutes. Our statutes never contemplated that there should be two such independent and distinct causes of action in cases of death resulting from a wrongful act, as would authorize a recovery by the injured party in his lifetime, and afterwards another and further recovery by the widow and children in case of his death. Yet this is the force and effect of plaintiff’s contention. If one injured by the negligence of another, can, before death, settle with the tortfeasor, and yet leave a cause of action against the tortfeasor in favor of his wife and children, he can bring suit, recover judgment and receive payment of the judgment, and yet leave this cause of action, if death was in any way a result of the alleged tort. In other words, the alleged negligence might have reduced him to a condition nigh unto death, but with sufficient time before death to sue for and collect damages for his bodily ailments, and he thereafter die, and still leave in full force an action for damages for injuries growing out of the same negligent act, to be enforced by his wife or children, as the case may be. To this proposition we have been unable to give our assent. "Whether the cause of action given to the widow or children be denominated a transmitted right, a survival right, or an independent cause of action, it yet remains true that the foundation and gist of each and all is the negligent act which produced the injury. The negligent act was the basis, at common law, for the cause of action in the husband, and it is likewise the gist and basis of the cause of action.in favor of the widow or children, or of the administrator as in some States provided.

Our own court, however other courts have decided, look upon the right of the widow and children as a transmitted right and not strictly an independent right of action.

This court, in case of Proctor v. Eailroad, 64 Mo. l. c. 120, in discussing the several sections of our damage act, says:

“It creates no new cause of action, but simply continues or transmits the right to sue, which the party whose death is occasioned would have had, had he lived. It is not only a right transmitted, but it is restricted by limitations as to the persons who are to enjoy the right, the time within which it is to be enjoyed, and the amount of damages to be recovered. Section 4 provides that all damages accruing under section 3 shall be recovered by the same parties and in the same manner as is provided in section 2, and in every such action the jury may give damages not exceeding five thousand dollars. This section, in connection with section 2, designates the parties to whom this right is transmitted, and also the time within which it is to be exercised.”

In White v. Maxey, 64 Mo. l. c. 558, it is said:

“Neither of these sections created any new canse of action, but provided for a survival of a cause of action which existed at the common law, where the death of the party injured occurred, to certain representatives of the deceased party, and limited the amount of the recovery to a specific sum.”

In another case, that of Gray v. McDonald, 104 Mo. 311, this court said: ‘ ‘ This section, like the preceding one, does not, as is often supposed, create a new cause of action; it transmits to designated persons a cause of action that the injured party would have had, had death not ensued. In other words, the cause of action does not abate by reason of the death of the person injured. ’ ’

Further, in a later case, that of Miller v. Railroad, 109 Mo. l. c. 360, it is said: “ The Proctor case . . . proceeds on the principle that the, second and third sections were not intended to create an entirely new liability, but were designed to continue or transmit the right to sue, which the injured party would have had, had he lived.”

Yet later, in the case of Hennessy v. Brewing Co., 145 Mo. l. c. 112, this court said: “In cases like this, under the statute, the father and mother do not recover the value of services rendered by their child, as the father or stepfather does, as a corollary to the obligation to support in cases arising ex contractu or in assumpsit, but they recover, in tort, on the right which the child would have had if he had survived the injury, and which right died with the injured party at common law, but has been by our statute expressly transmitted to them, eo nomine. . . . It is solely a preserved, transmitted right. ’ ’

From the above it clearly appears that our court recognizes the right of action involved in the case at bar as purely a transmitted right of action. That is to say, the right of action which first existed in deceased, but which, under the terms of the common law, would have died with the deceased, but for these statutes which have preserved and transmitted the same. Onr court has not looked upon it as a separate and distinct cause of action. Being a right of action which first existed in the deceased, it necessarily follows that this right of action could be terminated by the deceased in his lifetime either by an adjustment and settlement thereof or by an adjudication in the courts. In either of which cases, at the death of the deceased, whether a settlement of the right of action was made by an adjustment out of court or by adjudication in court, there would be no right of action to be transmitted. And such adjustment or adjudication would be a bar to any subsequent action.

The Supreme Court of Indiana, in an opinion by Olds, J., in the case of Hecht v. Railroad, 132 Ind. 507, in discussing the proposition involved in the case at bar, under statutes very similar to those of this State, uses the following language:

The clear intention of the Legislature, as expressed by these sections, is in effect that when the injury to the person causes the death of such person the action shall survive in favor of the person in whose favor an action is given for the injury causing the death. An action for a cause of action liquidated and satisfied cannot survive in favor of any person. Section 281, supra, provides in terms that the action may be maintained by the personal representatives of the deceased for the wrongful act or omission of another if the deceased might have maintained an action, had he lived, for such wrongful act or omission. That is to say, if the deceased, at the time of his death, might have maintained such action, but the deceased having prosecuted to final judgment an action for such wrongful act or omission, and the judgment having been paid and received by him, he át the time of his death could not have maintained an action for such wrongful act or omission, as the right of action in his favor had merged into the judgment which was satisfied, hence no action exists in favor of the personal representatives of the deceased by virtue of the latter section. The position we have stated we think well supported by authority. In an action by the deceased in his lifetime, he is entitled to recover full compensation for the injuries sustained, including injuries for disease superinduced by reason of the injuries.
“In the case of Railroad v. Hecht, 115 Ind. 448, this court says: ‘Where a disease caused by the injury supervenes, as well as where the disease exists at the time of the injury, and is aggravated by it, the plaintiff is entitled to full compensatory damages. ’ See authorities cited in this decision. In such an action the injured party is entitled to recover full compensation for all the injuries which were the natural consequence of the wrongful act.
“It was certainly not the intention of the Legislature that where the person guilty of the wrong has been once subjected to a suit by the injured party in his lifetime, and compelled to pay all the damages resulting from the injuries sustained by the wrongful act, he should again be liable to an action in favor of the personal representatives of the injured party after his death, and be again compelled to respond in damages for the same act.
“It is suggested by the counsel for the appellant that the answers are not good, for the reason that the parties are not the same; that the judgment was on a different cause of action, and that different facts will be presented in this action, and different evidence be required to sustain them. But we do not think these objections well taken. The parties are the same except that the injured party, who has died, is represented by his personal representatives. It is true that the statute provides that the proceeds shall go to his widow or children, or next of kin, but the administrator ‘stands .in the shoes’ of the deceased. The cause of action is the same. If the administrator recovers he must do so by reason of tbe same wrongful act on tbe part of tbe appellee company tbat enabled the intestate to recover. It is suggested tbat tbe measure of damages is not tbe same, tbat tbe intestate might have recovered for suffering, loss of time, medical attendance, etc.; tbat tbe right to recover for these things died with him, and tbat by tbe statute a new cause of action is given for new injuries to other persons. By tbe survival of tbe action tbe right of recovery and measure of damages must necessarily be different but tbe gist of tbe action, tbe principal and paramount right of recovery, is on account of tbe destruction of tbe capacity and power of tbe intestate to earn money and accumulate wealth for his own support and benefit, and tbe support and benefit of bis family or next of kin.
“Tbe central and paramount thing or item for which damages may be recovered is tbe same whether tbe recovery be by tbe intestate in bis lifetime, or by bis personal representative after bis death. In minor particulars tbe measure of damages differs, but this'does not warrant such a construction of tbe statutes as contended for by counsel for appellant.
“It is further urged tbat tbe former judgment is not a bar for tbe reason tbat different facts are here presented and different evidence is required to sustain tbe suit. While it may be true tbat some items of evidence may be competent or even necessary in one case, tbat are not in another, and tbe method of proof may differ, yet it remains a fact tbat tbe action in either case is based on tbe negligence of tbe appellee causing tbe same and identical injury to tbe appellant’s intestate, and the damages sustained in either case grow out of tbe injury to tbe intestate caused by tbe negligence of tbe appellee. It is contended tbat tbe section of tbe statute, section 284, supra, gives a new right 'of action in favor of tbe administrator for tbe benefit of tbe widow and children, if any, or tbe next of kin. This is true in a certain sense. Without tbe statute tbe action could not Tbe maintained, but in order that it may be maintained the intestate must have had a right o£ action against the person whose wrongful act or omission caused the injury which he could have maintained bad he lived, and when, as in' this case, the injured party has prosecuted an action for damages on account of the injury to final judgment, and the judgment has been satisfied prior to his death, he, if he had lived, could not have prosecuted an action against the person causing the injury for the same act or omission. ’ ’

We have burdened this opinion with this lengthy quotation from the Hecht case for the reason that it clearly expresses our ideas as to the construction which should be given to our statutes. It is true that in the Hecht case the transmitted or survival right is vested in an administrator, but inasmuch as recovery must be for the benefit of the widow and children there is no substantial difference. Our statutes give them a direct right to sue, the Indiana statutes an indirect right through an administrator. In such cases the administrator is a trustee of an express trust. [Safford v. Drew, 3 Duer 627.]

In discussing Lord Campbell’s Act, from which our statutes are borrowed, Judge Cooley says: “It is seen, on a perusal of this statute, that it gives an action only when the deceased himself, if the injury had not resulted in his death, might have maintained one. In other words, it continues for the benefit of the wife, husband, etc., a right of action which, at the common law, would have terminated at the death, and enlarges its scope to embrace the injury resulting from the death. If, therefore, the party injured had compromised for the injury, and accepted satisfaction previous to the death, there could have been no further right of action, and consequently no suit under the statute.” [Cooley on Torts (2 Ed.), p. 309.]

And such has been the construction ‘placed on Lord Campbell’s Act by the courts of England. [Read v. Railroad, L. R. 3 Q. B. 555; Griffiths v. Earl of Dudley, L. R. 9 Q. B. Div. 357.]

In fact no English case, which we have found, gives to this statute other or different construction.

In Pierce oh Railroads, p. 392, the doctrine is thus announced: “Some authorities treat the statute as merely keeping alive a right of action, while others treat it as giving a new cause of action. But whether the statute gives a new cause of action or not, it should be interpreted as intended to give one only when the company would be liable at common law in the event of an injury not fatal in its results.....An action cannot be maintained under the statute for an injury for which the deceased received satisfaction in his lifetime.- It is not to be presumed that the statute contemplated a double payment and satisfaction. ’ ’

Shearman & Redfield, on the Law of Negligence (5 Ed.), 1, sec. 140, expresses the doctrine thus: “Where the right of action is given only by a survival statute (that is, containing the right of the injured person, after his death), it is too plain for argument that a release from the deceased in his lifetime is a bar to any action. But, furthermore, it has been held, under the broader statutes, that the foundation of every action of this kind is in the injury which caused the death, and not merely in the fact of death itself; and, therefore, that if an injured person recovers damages for that injury during his lifetime, or releases his claim, or (under peculiar English statutes) if he had contracted with his employer that the benefit of the statute should not be claimed, his representatives cannot maintain any action upon his subsequent death, resulting from the injury.”

In 8 Am. and Eng. Ency. Law ( 2 Ed.), 870, we find the following language: “When the right of action given by the statute is merely such as the deceased would have had if he had survived the injury, a release properly executed by him in his lifetime is a complete defense to an action by his personal representative or others to recover damages for his death. The same rule is true where the statute is not a survival statute, but creates a new and distinct cause of action in favor of certain beneficiaries, if it provides that the right of action shall exist only in cases where the deceased himself might have maintained the action had he lived.”

Whether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right, the general concensus of opinion seems to be that the gist and foundation .of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts, no further right of action existed. There are, however, a few cases to the contrary. Further excerpts from the decided cases and text-writers would burden this opinion to no good purpose, and suffice it to say that in addition to those cited above, the following cases uphold the doctrine in this opinion announced: Legg v. Britton (Vt.), 24 Atl. 1016; Needham v. Railroad, 38 Vt. 294; Price v. Railroad (S. C.), 12 S. E. 413; Littlewood v. City of N. Y., 89 N. Y. 24; In Re Taylor’s Estate, 179 Pa. 254; Hill v. Railroad, 178 Pa. 223; Birch v. Railroad (Penn.), 30 Atl. 826; Munro v. Dredging Co., 84 Cal. 515; Goodsell v. Railroad, 33 Conn. 52; Fowlkes v. Railroad, 9 Heisk. (Tenn.) 829; Holton v. Daly, 106 Ill. 131; So. Bell Tel. Co. v. Cassin, 111 Ga. 575 (majority opinion); Railroad v. Farrow, 6 Colo. 498.

Under the holdings in this State, it matters not whether the cause of action is under the 2nd or 3rd section of the Damage Act, there must have been a right of action in the deceased, had he lived, before there exists a right of action in the widow or children. The statutes of the different States have in a way affected the holdings of the courts, but Massachusetts and Kentucky are the only States where we find anything which militates against the conclusion reached herein.

We therefore conclude, whether the action is under the 2nd or 3rd section of the Damage Act, a settlement and adjustment or an adjudication in court, by deceased during Ms lifetime, is a bar to any action by the widow or children, and in this case the release in evidence is a complete bar to this action, and it follows that notwithstanding the conceded error of the trial court hereinbefore pointed out, the verdict was for the right party, and the trial court erred in setting the same aside. The judgment of the lower court is reversed and the cause remanded with instructions to enter judgment for defendant upon the verdict of the jury herein.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE ex inf. HADLEY, Attorney-General, v. RUSSELL.
    In Banc,
    June 20, 1906.
    1. TOWNSHIP ORGANIZATION: Resubmitted in 1898. Although township organization was first adopted in a county in 1880, under and in pursuance to a statute then invalid, for that it was not in harmony with the Constitution, yet if the question was resubmitted to the voters in 1898, upon a petition and orders in substantial compliance with the valid statute of 1897, and a majority of all the voters voting at the election voted for township organization, township organization was legally adopted in that county. And that will he the holding, although the purpose of the petitioners, as revealed by their petition, may have been to get rid of township organization altogether.
    2. -: Orders of Court: Reasons. The county court cannot take into consideration the reasons assigned in the petition for asking for a resubmission of the question of township organization.
    3. -: -: Form of Ballot. The statute prescribes the form of the ballot to he voted when the question of township organization is submitted to the people, and the order of the court directing the question to he submitted should not state what the form of the ballot shall be, and if it does it is to that extent binding on no one.
    Quo Warranto.
    Writ quashed and cause dismissed.

      Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for informant; John A. Davis and R. T. Railey of counsel.
    Section 9 of article 9, Constitution 1875, in express terms, provided for the discontinuance of township organization. Section 8517, Revised Statutes 1889, under which the petition of 1898 was presented, undertook to carry into effect, or to ignore, section 9, supra, which provides, that township organization may he discontinued when a majority of the voters, voting on said proposition, are against it. Whereas, said section 8517, ignores the same, and provides that a majority of all the votes cast at the election is necessary to discontinue same. Said section is in conflict with said section 9, of article 9, of the Constitution, is unconstitutional and therefore void, and hy reason thereof, the election held in 1898, as set out in respondent’s return, was and is coram non judice and absolutely void.

      Whitsitt & Jarrott and W. D. S G. M. Summers for respondent.
    (1) The petition signed hy the legal voters and presented to the county court September 19, 1898, complied with the statutes. Sec. 10226, R. S. 1899; Rousey v. Wood, 63 Mo. App. 460; State ex rel. v. Schmitz, 36 Mo. App. 558. (2) The petition and the order of the county court submitting the question of township organization, after the act of 1897, are in strict conformity to the provisions of article 1, chapter 168. “Under these sections when a connty court makes an order submitting the question at a general election, it is clearly the right of every qualified voter to cast his ballot at such election ‘For or Against Township Organization.’ ” Applegate v. Eagan, 74 Mo. 261; Attorney-General v. Page, 38 Mich. 285; Guebeele v. Epley, 28 Pac. 89. (3) The election was authorized by the statute. It was the intention of the Legislature to authorize county courts to take the sense of the voters on the question of township organization, when petitioned by 100 legal voters. The petition was presented and the order made under article 1, chapter 168, and if the provisions of this article were complied with, township organization was legally adopted. Hudson v. Solomon, 17 L. R. A. 104; Bowers v. Smith, 111 Mo. 45. (4) Neither the county court nor the petitioners could find or determine that township organization had been adopted in this county in 1880. No statute relating to general elections clothes the county court with such authority. State v. Searcy, 39 Mo. App. 393. (5) In 1880 the question of township organization was submitted under the law as enacted in 1879. A majority of all the votes cast were for township organization as shown by the record, but as to whether the statutory law was constitutional or not, we cite the following authorities: “If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” This proposition we have never heard questioned. Board of Supervisors v. Stanley, 105 U. S. 305; Muldroom v. Levi, 25 Neb. 457; People v. Pewy, 79 Cal. 106; Berry v. Railroad, 41 Md. 446; In re Groff, 21 Neb. 647; Railroad v. State, 29 Ala. 573; People v. Hill, 7 Cal. 97. (6) If a majority vote “For Township Organization,” it places the county so voting within the provisions of the law and the organization takes effect. If we organize under the provisions of the statute, we ought to he entitled to its provisions. We accepted the provisions of the statute, by a majority vote; it operated as a repeal in the county of the general law, regulating the organization of county organization. State ex rel. v. Pound, 93 Mo. 634.
   FOX, J.

This is an original proceeding in this court in which the aid of the court is sought to oust the respondent, William Russell, from the office of township assessor of Grand River township of Cass county, Missouri, which office, it is alleged, the respondent unlawfully and wilfully intruded into and usurps on the theory that township organization, under the law applicable to that subject, has been legally adopted in said Cass county, when in fact such township organization had never been and has not been legally adopted in said county.

On the 30th day of April, 1906, a petition was filed by the Attorney-General as informant against the respondent herein, William Russell, in which it was substantially charged that the respondent William Russell was unlawfully and wilfully usurping and exercising the prerogatives and duties of township assessor of Grand River township in Cass county, Misssouri. That the acts of such officer were performed upon the theory that township organization had been legally adopted in said county, when, as it is alleged, township organization had never been and has not been legally adopted in said county. Then followed a prayer for the issuance of process by this court directed to said respondent to be and appear before this court at a time certain, then and there to show cause why he should not be ousted from such office and from enjoying the privileges and emoluments thereof. Upon the filing of said petition this court issued its process directed to the respondent commanding him to be and appear before the Supreme Court of Missouri, In Banc, on or before tbe 4th day of May, 1906, to show by what warrant or authority he claimed to hold, use and exercise the office of township assessor of Grand River township within and for the county of Cass and State of Missouri, and show cause on or before that day why the writ of quo warranto should not issue as prayed for in the petition of the informant. This process was served upon the respondent on May 1st, 1906, and on May 4, 1906, respondent filed his return to such writ. This return to the quo warranto proceedings herein, substantially states:

1. That in the year 1880, a petition signed by more than one hundred legal voters of Cass county, Missouri, was duly presented to the county court of said county praying said court to submit to the qualified voters of said county the proposition as to whether township organization should be adopted in said county. The county court granted the prayer of said petition. Then follows a statement of the submission of the proposition at the general election in 1880 and the adoption of township organization. In other words, the return in effect shows that an election was held under the law as it then existed, submitting the proposition of the adoption of township organization, and that it was adopted and that the terms of the statute then in force were fully complied with.

2. It is shown by said return that afterwards, to-wit, on the 19th day of September, A. D. 1898, a petition signed by more than one hundred legal voters of said county was presented to the county court' of said county in which the said court was requested to re-submit to the qualified voters of Cass county township organization at the general election in November, A. D. 1898; that the prayer of the petition of such legal voters was granted and the proposition submitted to the qualified ■voters of that county, and that at said election 4264 votes were cast; that 2990 votes were cast for township organization and 438 votes were cast against township organization; that the votes were canvassed and returned in like manner to the vote for state and county officers. It is stated in said return that Cass county, by reason of such election in 1898, legally adopted township organization under and by virtue of the Constitution of Missouri and under and by virtue of article 1, chapter 168, Revised Statutes 1899, and also under and by virtue of the act of 1897. Then follows a statement of the election and qualification of the respondent as township clerk and ex-officio township assessor of Grand River township, heretofore mentioned in the quo warranto proceedings.

There is embraced in this return a copy of the petition and order of the county court respecting the election in 1898, however, we deem it unnecessary to reproduce them, as due reference will be made to them during the course of the opinion. There are also, by stipulation, exhibits on file which will also be given proper attention upon the consideration of the legal questions involved. The return of respondent closes with a general denial of each and every-allegation and statement in the information which is not admitted by the return and prays to be discharged with his costs.

Upon this state of the pleadings the informant files motion for judgment on the record and' pleadings, which motion, omitting formal parts, is as follows:

“Now comes the informant, Herbert S. Hadley, Attorney-General, and moves the court to enter a judgment of ouster herein against respondent, for the following reason:
“Because, the return of said respondent shows upon its face that township organization has never been legally adopted in Cass county, Missouri; and that said respondent is now a usurper in the alleged office of township assessor within and for Grand River township in staid county, and has no legal authority for holding said alleged office.” ,

On May 30th this proceeding was submitted to the court upon the petition, return and motion for judgment. On June 1st, 1906, this court announced its conclusion upon the record before it and caused to be duly entered of record an order quashing the writ of quo warranto issued on April 30th, 1906, and further ordering that this cause be dismissed.

This constitutes the record in this proceeding, and it only remains for this court to assign, in the way of a written opinion, the reasons for the conclusions reached, heretofore indicated.

OPINION.

The record in this cause presents but one crucial question, that is, was township organization, as provided for by chapter 168, Revised Statutes 1899, as submitted, legally adopted in Cass county, Missouri, at the general election held in that county in 1898? A correct answer to that question settles this controversy, and the solution of the proposition must be sought by a fair and reasonable application of the constitutional and statutory provisions applicable to and governing the subject involved.

The constitutional provisions applicable to this subject are as follows:

Section 8 of article 9 of the Constitution of 1875* provides that “the General Assembly may provide, by general law, for township organization, under which any county may organize whenever a majority of the legal voters of such county, voting at any general election, shall so determine; and whenever any county shall adopt township organization, so much of this Constitution as provides for the management of the county affairs, and the assessment and collection of the revenue by county officers, in conflict with such general law for township organization, may be dispensed with, and the business of said county, and the local concerns of the several townships therein, may be transacted in such, manner as may be prescribed by law: Provided, That the justices of the county court in such case shall not exceed three in number. ’ ’

Section 9 of article 9, of the Constitution of 1875, relative to the same subject, provides that “in any county which shall have adopted ‘ Township Organization, ’ the question of continuing the same may be submitted to a vote of the electors of such county at a general election, in the manner that shall be provided by law; and if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force in relation to counties not having township organization shall immediately take effect and be in force in such county.”

In pursuance of section 8 of the Constitution the General Assembly of this State enacted the following sections of the statute:

“Sec. 10225. At any general election that may be holden in the several counties of this State, the qualified voters in any county may vote for or against township organization, as provided by this article. [R. S. 1889, sec. 8.424.]
“See. 10226. The county court, on petition of one hundred legal voters of said county, shall cause to be submitted to the voters of the county the question of township organization under this article, by the ballot, to be written or printed, ‘for township organization,’ or ‘against township organization,’ to be canvassed and returned in like manner as votes for state and county officers. [R. S. 1889, sec. 8425.]
- “Sec. 10227. The clerk of the county court shall cause an abstract of the returns of said election to be made out and certified as in election for state and county officers, record the same at length upon the records of the county court of the county, and shall certify the same to the Secretary of State. [R. S. 1889, sec., 8426.]
“Sec. 10228. If it shall appear by the returns of said election that a majority of the legal voters of the county voting at said election are for such organization, then the county so voting in favor of its adoption shall be governed by and subject to the provisions of this chapter, on and after the last Tuesday in March next succeeding, [ft. S. 1889, sec. 8427, amended, Laws 1897, p. 234.]”

It will be observed that the three first sections above quoted are the same as in the revision of 1889, and the last section is the law as amended in 1897. In pursuance of section 9 of the Constitution of this State, section 10,317 was enacted by the General Assembly, which is the same as section 8,517, Revised Statutes 1889, which provides: “At any general election holden in this State, in any county having adopted township organization under this chapter, upon the petition of one hundred voters of the county, praying the county court to re-submit the question of township organization to the voters at said election, it shall be the duty of the county court to submit the question again at such election, in like manner as provided in article one of this chapter; and if it shall appear, after the canvass of the votes as provided in article one of this chapter, that a majority of all the votes cast at said election were against township organization, then such county shall be declared to be under the general laws of the State in relation to its local government, and to have rejected township organization, and the county court shall, at the first meeting thereafter, appoint such county officers as provided by law in counties not under township organization, and such officers, when so appointed, shall hold their offices and discharge the duties thereof in like manner as officers elected in counties never having adopted the provisions of this chapter.”

The record in this cause discloses that there was an election held in Cass county at the general election in 1880, in which it was sought to adopt township organization under the provisions of law applicable to that subject in the Revised Statutes of 1879. As to such election it is sufficient to say that this court, in State ex rel. Burns v. Gibson, 195 Mo. 251, held section 7,432, Revised Statutes 1879, unconstitutional. The rule as announced in that case is appliable to the election held in Cass county in 1880, and it is unnecessary to burden this opinion with a discussion of the law applicable to the election held in such county in 1880. Both the informant and the respondent, with commendable frankness, concede that the case of State ex rel. Burns v. Gibson, supra, settles the law as applicable to that election, hence it will only be necessary to incidentally refer to the election in 1880 in order to intelligently respond to some of the contentions of the informant.

¥e have carefully considered the disclosure of the record in respect to the petition presented to the county court in September, 1898, and the orders of the county court predicated upon such petition relating to the election in 1898, at which time the proposition of township organization was submitted to the qualified voters of Cass county, and we see no escape from the conclusion that township organization, as provided in chapter 168, Revised Statutes 1899, was legally adopted at said election.

A careful analysis of the petition to the county court to submit the proposition of township organization at the general election in Cass county, Missouri, in 1898, and the orders of the county court predicated upon such petition, will demonstrate that in the submission of this proposition to the qualified voters of that county the statutes upon which the action of the voters was taken were substantially complied with. The petition to the county court, and even the order of the county court based upon such petition, contains recitals which the county court of Cass county had absolutely nothing to do with, but we take it that such erroneous recitals should, by no means, be made the basis of ignoring the will of the voters of Cass connty, Missouri, as expressed at the general election upon the proposition of township organization.

As the main controversy in this proceeding grows out of the petition to the county court and its order based upon such petition submitting township organization to the qualified voters of Cass county, the burdening of this opinion with the reproduction of such petition and order of the county court, in order to fully appreciate the question presented, will, we trust, be pardoned. They were as follows:

“To the Honorable County Court of Cass County, Missouri:
‘ ‘ Gentlemen:
“'Cass county, at the general election of the year 1880, having adopted township organization; our revenue for county purposes being insufficient to maintain same, and our highways and bridges becoming in a dilapidated condition, your undersigned petitioners, more than one hundred of whom are legal voters of said Cass county, respectfully ask the court to cause to be re-submitted to the voters of said county the question of township organization at the next general election to be holden on the 8th -day of November, 1898.”
‘ ‘ Tuesday, October 4th, 1898.
“Now comes W. G. Virgin and 122 other resident voters and tax-paying citizens of Cass county, Missouri, and present to the court a petition praying the court to re-submit the question of township organization to the voters of said Cass county, Missouri, at the next general election, and the court finding said petition signed by more than one hundred legal voters of the county, grants the request of the' petitioners and hereby orders that said question of township organization be submitted to the voters of Cass county, Missouri, at the next general election to be held in said Cass county on the 8th day of November, 1898, and at said election those of the qualified voters who are in favor of the continuance of township organization shall have written or printed on their ballots they vote, ‘For Township Organization,’ and these who are opposed to the continuance of township organization in said county shall have written or printed on their ballots, Against Township Organization, ’ and the clerk of this court is hereby instructed to include this proposition in the official ballot to be published by him and voted at the general election to be held on November 8th, 1898.”

It is clear, so far as the petition to the county court is concerned, that the only subject of such petition that the county court had the right and jurisdiction to dispose of, was the submission to the voters of said county of the question of township organization at the general election to be holden on the 8th day of November, 1898. As to whether Cass county at the general election of the year 1880 had adopted township organization, the county court absolutely had no power to determine, and as to whether the revenue for county purposes was insufficient to maintain the county under township organization adopted in 1880, and as to whether the highways and bridges in said county were becoming in a dilapidated condition, were matters about which the county court had no Concern, and their recitation in the petition could not add any additional force or vitality to the subject over which the county court did have jurisdiction; nor could the county court legally take into consideration such recitations in determining their action upon the petition presented, and such recitations should not, and it will be presumed did not, in any way, influence their action in submitting the proposition of township organization to the voters of the county. What is said in respect to the petition is clearly applicable to certain recitations in the order predicated upon such petition. This order contains every essential element to meet the requirements of the statute in the submission of the proposition to the qualified voters of the county. It recites the presentation of the petition by the requisite number of legal voters of said county, praying the court to submit the question of township organization to the qualified voters of said county at the next general election; then proceeds to find that said petition was signed by more than one hundred legal voters of the county; then follows the order granting the request of the petition, and it in express terms orders that said,, question of township organization be submitted to the qualified voters of said Cass county at the next general election to be held in said Cass county on the 8th day of November, 1898; then follow's the recitation in the order, that is, the provision that at said election those of the qualified voters who are in favor of the continuance of township organization shall have written or printed on their ballots they vote, “For Township Organization,” and those who are opposed to the continuance of such township organization in said county shall have written or printed on their ballots, “Against Township Organization,” and the clerk of the court, by such order, was directed to include the proposition of township organization in the official ballot to be published by him and voted at the general election to be held on November 8th, 1898.

It is manifest that every essential requirement of section 10,226, which authorized the county court to submit the proposition of township organization, is embraced in the order of the county court as herein indicated; that is, the request of the requisite number of qualified voters is granted and the clerk is directed to include the proposition of township organization in the official ballot to be published by him and voted at the general election to be held on November 8, 1898. This was all that was necessary to be embraced in such order; there was no necessity for any reference to the form of the ballot, upon the order submitting the proposition; the statutes prescribe the form of the ballot, and clearly there was no power in the county court to indicate to the voters as to the form of ballot to be used, in order to suit their notions as to the continuance or discontinuance of township organization. In the first place, there was no township organization to be continued, and, secondly; the county court was without authority to indicate to the voters the intention of the use of a certain form of ballot. It should by no means be held that these unnecessary recitals embraced in the order nullified or in any way affected the force and vitality of the recitals in the order, which substantially complied with the provisions of the statute which authorized the county court to submit the proposition of township organization.

Now it must be frankly conceded that some of the recitations in the petition presented to the county court and the order of the court based upon such petition, indicate that the petitioners, as well as the court, were proceeding on the theory that township organization had been legally adopted in 1880, and that the purpose and object of the petitioners was to re-submit the proposition in pursuance of the provisions of section 10317, Revised Statutes 1899. However, we take it that this court would not be warranted in making a search for the objects and purposes, which; as asserted by counsel for informant, constituted the incentive and inducement for the action of the petitioners and the county court in respect to the submission of the proposition. We must apply the law to the action of such petitioners, as well as the county court in making the order, as it existed at the time of such action. The will of the electors at the different precincts in Cass county, at the general election in 1898, was expressed by their ballots, and it is fundamental that the ballots as cast constitute the primary and best evidence of the intention and choice of the voters. If the law was substantially complied with in the submission of this proposition at such election, this court, by no means, would be warranted in limiting the intention and purposes of the ballots cast by voters of Cass county to the particular objects and purposes of the petitioners of the county court in making such order. The election in 1880' in Cass county, at which this proposition was submitted, being void and of no effect, for the reason that the section of the statute which provides for the submission of the proposition of township organization was in conflict with section 8 of article 9 of the Constitution of this State, it logically follows that when the county court came to deal with this proposition in 1898, under the law, it was confronted for the first time with an application by the requisite number of qualified electors to submit the proposition of township organization; it makes no difference how the petitioners or the county court regarded the election of 1880; the law controls that, and the action of the petitioners and the order of the county court, if the law is to govern in this controversy, must be treated in the light that no prior election submitting this proposition had ever been held. The section of the statute, section 7432, Revised Statutes 1879, which was by this court held unconstitutional, was amended by the General Assembly at its session in 1897. The amended section is now section 10,228, Revised Statutes 1899, and in every essential particular conforms to the provisions of section 8 of article 9 of the Constitution of this State.

It was clearly the intention of the Legislature, and manifestly the design and purpose of the Township Organization law, to allow the electors of any county in this State to express tbeir will in respect to the adoption of the provisions of such law. Hence, in determining the proposition now confronting us, the general design and object of the this law must be kept in view. The question involved being one in which the will and choice of the voters has been expressed at an election held under the laws of this State, the design and object of the law should be effectuated and the will of the electors, as expressed by their ballots, respected, if it can be done without doing violence to the rule which justly and properly requires the courts of the country to predicate their conclusions upon a fair and reasonable application of the law to the subject in hand.

It is fundamental that “election laws are enacted for the purpose of ascertaining the will of the electors, and if the election shows a fair and honest expression of the electors’ will, that should be respected.”

That the proposition of township organization was submitted to the voters of Cass county at the general election in 1898 there can be no dispute, and it makes no difference whether you term it re-submission or submission; that the qualified voters of Cass county expressed their will upon this proposition at such election, is too plain for discussion. It is, however, earnestly and ably argued by learned counsel representing informant, that section 10,317-, Revised Statutes 1899, which provides for the re-submission of the proposition of township organization, is unconstitutional, for the same reasons as announced in the case of State ex rel. Burns v. Gibson, supra, therefore all the proceedings resulting in the election of 1898, as well as the election itself, is without any force or validity. In answer to this contention it will be observed, and that fact must not be overlooked, that the petition and the order of the court complied with every essential requirement of the statute authorizing the submission of this proposition. Conceding, then, that the section authorizing its re-submission is unconstitutional, that only emphasizes the correctness of the conclusion as herein indicated, for if the section providing for the re-submission of this proposition is invalid and of no force or effect, then the petition of. ■ the petitioners and the order of the county court based upon it (there being embraced in such petition and order all of the the essential allegations required by the statute, in submitting the proposition), it must logically follow, can only be treated as having reference to the submission of the proposition as provided by section 10,226, and this court would clearly not be justified in bolding that tbe action of tbe petitioners, as well as that of tbe county court in making tbe order, was in pursuance of an invalid and void statute and that tbeir action was simply meaningless; when by a fair and reasonable application of tbe law tbeir acts, by reason of a substantial compliance with section 10,226, can be given full force and effect.

We deem it unnecessary to pursue this subject further. Tbe general election was held on the 8th of November, 1898, in Cass county, Missouri, and tbe proposition of township organization was submitted at such election, and in harmony with tbe Constitution, and tbe statute enacted in pursuance of it, a majority of all tbe ballots cast at such election were in favor of township organization. While it may be true that some of tbe electors cast tbeir ballots upon tbe theory that they were voting to continue or discontinue in force such organization, which they supposed bad been previously adopted, yet it is equally true that at that election tbe contest was sharply presented on tbe proposition of township organization, and tbe electors gave expression to tbeir will upon tbe proposition, and tbis court is unwilling to say that such expressions shall be ignored. Tbe proposition having been submitted in substantial accordance with tbe provisions of tbe statute, and included in tbe official ballot published and the form of such ballot applicable to this subject being such as was prescribed by tbe statute, keeping in view that tbe manifest design and object of tbe law was to obtain tbe expression of tbe will of tbe electors upon township organization, and the qualified electors of Cass county, Missouri, having given such emphatic expression to their will upon tbis subject, we see no escape from tbe conclusion that tbe proposition of township organization was legally adopted at tbe election held in 1898.

Respondent having been duly elected and qualified to discharge the duties of assessor under the provisions of the law, after its adoption, it follows that the conclusion of this court announced and duly entered of record on the 1st day June, 1906, quashing the writ and dismissing the cause, was clearly correct, and it is, ordered that this opinion, assigning reasons for such conclusion so announced, he filed, now for then.

Brace, G. J., Gantt, Burgess, Valliant and Lamm, JJ., concur; Graves, J., not sitting.