text:
    IDA HACH v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    December 24, 1907.
    1. NEGLIGENCE: Defective Track: Demurrer. The engine was going west and turned over on tbe right side of the track; a piece of the rail on that side was broken off about six feet from its east'end; at the joint at tbe east end there was a decayed and broken tie; the break was not square off, but slanted down towards the east; at the point where the break was on the west, there was a sound tie; the ball on top of the long piece of the rail was battered at its east end, and that piece was turned over on its side, and a crease ran along its web for some distance; the roadbed had been in this condition for some time; and the engine turned over, and the engineer, plaintiff’s husband, was killed. BeKL, that there was sufficient evidence from which it could be inferred that the rail was broken by a train going west, and that the break was due to the rotten tie, and to sustain the charge that defendant was negligent “in permitting the roadbed of its railroad to be in an unsafe and dangerous condition, and in failing to replace the decayed and rotten ties upon which the broken rail rested.”
    2. -: -1 — : Erroneous Evidence: Harmless. Under said charge the real issue was whether or not the road was in a reasonably safe condition, and hence it was wholly immaterial whether or not the section foreman had a sufficient force of men and a sufficient amount of material to keep the road in proper and safe condition, and hence it was not reversible error to permit plaintiff to show there was not a sufficient amount of material and a sufficient force of men to keep the track in safe condition.
    3. -: -: -- — : Increase of Damages. And it will not be held that such evidence increased or might have had a tendency to increase the amount of the verdict, where no such point was at any time adverted to until the case reached the appellate court.
    4'. -: -: —--: Previously Answered. And where practically the same question had been previously asked and answered without objection, it cannot be seen in what manner defendant was injured by that evidence.
    Appeal from Butler Circuit Court. — No». J. C. Shep-. pard, Judge.
    Affirmed.

      Martin L. Clardy, James F. Green and E. A. Green for appellant.
    (1) The court erred in refusing to give to the jury instruction 1 requested hy defendant. It was the duty of plaintiff to prove that the derailment of- the engine resulted in consequence of the specific negligence charged in the petition. McGrath v. Railroad, 197 Mo. 104; Brown v. L. & Co., 65 Mo. App. 163; Trigg v. Land & Lumber Co., 187 Mo. 227; Harper v. Terminal Co., 187 Mo. 575; Breen v. Cooperage Co., 50 Mo. App. 202; Plefka v. Knapp, Stout & Co., 145 Mo. 316; Fuchs v. St. Louis, 167 Mo. 620; Oglesby v. Railroad, 177 Mo. 301; Smart v. Kansas City, 91 Mo. App. 586; Goransson v. Mfg. Co., 186 Mo-. 300. (2) The court erred in not confining the- testimony to the negligence charged in the petition, to-wit: the alleged defective condition of defendant’s roadbed and ties. Root v. Railroad, 195 Mo-. 375;. Goble v. Kansas City, 148 Mo. 470; Alcorn v. Railroad, 108 Mo. 81; Edwards v. Barber Asphalt Paving Co., 92 Mo. App. 221; Kolb v. Chicago Stamping Co., 33 111. App. 488; Railroad v. Wynant, 114 Ind. 525; Smart v. Kansas City, 91 Mo. App. 594; Coale v. Railroad, 60 Mo. 227; Patton v. Railroad, 87 Mo. 117; Lester v. Railroad, 60 Mo. 265; Newcomb v. Railroad, 182 Mo. 715. (3) As to employees, defendant was only required to have its roadbed in reasonably safe condition, and as the testimony offered on part of plaintiff showed that the road was in reasonably safe condition for travel, plaintiff was not entitled to recover. Minnier v. Railroad, 167 Mo. 112; Flynn v. Bridge Co., 42 Mo. App. 529; Wojtylah v. Coal Co., 188 Mo. 260; Pursell v. Shoe Co., 187 Mo. 285; Krampe v. Brewing Assn., 59 Mo. App. 277; Furber v. Bolt and Nut Co., 185 Mo. 301; Glascock v. Dry Goods Co., 106 Mo. App. 657; Kelly v. Railroad, 105 Mo. App. 365; Hach v. Railroad, 117 Mo. App. 17.

      Wilson Cramer for respondent.
    (1) It is the duty of every railway company to use ordinary care to keep its roadbed and track in a reasonably safe condition, and for a failure so to do it is liable in damages to its operatives who sustain injury by reason of such neglect. Stoker v. Railroad, 91 Mo. 509; McPherson v. Railroad, 97 Mo. 253; Benedict v. Railroad, 123 Mo. 221. (2) In the case at bar it is shown by the evidence of every witness who testified that defendant’s road at the time and place of the accident was in an unsafe and dangerous condition by reason of the fact that the rails rested on rotten cross ties. (3) A rail on the north side of the track broke, causing the derailment of the engine, and the uncontradicted proof is that the east end of this rail rested on a rotten tie. Experienced railroad men testified that the yielding of this rotten tie under the weight of the engine caused the rail to break. (4) The evidence shows that the road had béen in bad condition as much as six months, or more, and that the section foreman had neither men nor material sufficient to keep up the road. (5) Defendant’s demurrer offered at the close of plaintiff’s case was properly overruled. The demurrer admitted every fact which the jury might infer from the evidence. Barth v. Railroad, 142 Mo. 549. (6) Plaintiff’s instructions are clear, clean-cut and few, and correctly declare the law. (7) Nothing was denied defendant company by the trial court. All of the instructions asked by it were given, and it was afforded the opportunity to make every defense in the cause.
   WOODSON, J.

The plaintiff instituted this suit in the circuit court of Butler county to recover the sum of $5,000' damages for the death of her husband, caused by the alleged negligence of the defendant “in permitting the roadbed of its railroad to be in an unsafe and dangerous condition, and in failing to replace the decayed and rotten ties upon which the broken rail rested by sound and sufficient ties, and having the same properly ballasted,” and that in consequence thereof, while her husband, an engineer in the employ of defendant, was running his engine and train of cars over said defective place on said road, it was derailed and turned over and he was caught underneath thereof and crushed and scalded to death by the escaping steam.

The answer was a general denia], and a plea of assumed risks.

There was a trial before the court and jury, and a verdict and judgment for plaintiff for the sum -of $5,000'; and defendant has duly appealed the cause to this court.

The facts are practically undisputed, and are substantially as follows:

The plaintiff and deceased were husband and wife at the time of his injury and death, and he was an engineer, in the employment of defendant; the accident occurred on a branch line of defendant’s road, running from Cairo, Illinois, to Poplar Bluff, Missouri, about one mile west of Sikeston; the train was running-west, with deceased in charge of the engine, and when it reached the point above indicated the engine and some ten or twelve of the cars were derailed, and the engine turned over and caught and crushed deceased, and, before he could be released, he was scalded to death by escaping steam.

All the evidence shows that at the point of the-accident, and immediately thereafter, it was discovered that from two to six feet of the east end of a rail was broken off, and from two to twenty ties were rotten, some of them very badly, and several of them were broken in two, and that one tie rested under the east end of the broken rail and that it was very rotten, so much so that it had been crushed by the weight of the engine and cars, and had left a depression where it should have been. The evidence also showed that at the point of the break in the rail it rested upon and was spiked to a sound tie, and that the break was slantingly from the top of the rail downward. There was also evidence tending to show that the roadbed was not properly ballasted, that is, there was too much earth and sand in the center of the bed and not enough at each edge thereof, which prevented the ends of the ties from resting on the ground.

We will permit three of defendant’s employees to describe the accident in their own language, which is as follows:

C. C. Hardy, who had been a railroad man for twenty-four years, a conductor for the defendant company six years and in its employ for sixteen years, testified:

“Q. I will ask you. if you made an examination then to see what caused the wreck, and, if so, I will get you to state what you found and what you did? A. Yes, sir. I made an examination, looked to see what caused the wreck and how it occurred, and, in my opinion—

“Q. What did you see there? A. I saw that there were broken and' rotten ties there and a broken rail.

“Q. A broken rail? A. Yes, sir — a broken rail.

“Q. Describe to the jury this broken rail you saw. A. Well, from indications that rail had been broken by a train west-bound, as the ball of the rail was battered and tom as though the flange of the engine wheel had cut down through the rail — it looked like the flange of the engine wheel had cut down in there and thrown the engine over.

“Q. What is the ball of the rail? A. It is the top.

“Q. What do you call the bottom of the rail? A. It is the base.

‘ ‘ Q. And what do you call the space between the bottom and top. A. The web.

“Q. How much of the rail was broken off? A. About six or seven feet.

“Q. You saw that rail broken? I mean what was the character of the break, describe it to the jury? A. Well, it was not a square break of the rail, the rail was cut under, a jagged break.

‘ ‘ Q. What indications, if any, did you see on the long part of the rail? A. The web of the rail was cut as though it had been done by the flange of an engine or car running down it.

“Q. Did you notice anything else besides that cut ? A. Not on the web of the rail.

“Q. Notice anything on the hall of the rail? A. Yes, sir; the ball of the rail was battered.

“Q. Which end of it was battered? A. The east end of the rail.

“Q. At what part of the ball? A. Top.

“Q. Top? A. Yes, sir; top.

“Q. Did yon fit the two pieces of rail together? A. Mr. Mulkey, roadmaster; Mr.' Garner, the bridge foreman, and myself did.

“Q. ■ Was there any indication of the short piece of rail being battered? A. No, sir; there was none.

“Q. If I understand you correctly, the batter was on the top of the east end of the broken long part? A. On the long part, yes, sir.

“Q. By what in your opinion was that end battered? A. My opinion is that it was battered by the wheels of the engine or cars striking it, of a west-bound train. It could not have been done by an east-bound train, because the short part would have been battered, instead of the long.

‘ ‘ Q. Now, Mr. Hardy, I will get you to state if you noticed the ties there? A. The ties immediately where the wreck occurred were all broken and torn up.

“Q. Did you notice the condition of the tie at the place where this broken rail had been connected to the rail immediately east of it? A. That was a rotten tie.

‘ ‘ Q. Did you notice the fish plates ? A. Yes, sir; they were broken.

“Q. Attached to the short piece, were they? A. Broken parts of them were.

“Q. I will get you to state what, in your opinion, caused that rail to break? A. Well, there was a weak spot there; the joint tie and the fish plates, or angle bars, being broken allowed the engine to go down and break the rail.

“Q. Was that rotten tie still there under the east end of the rail? A. The rotten tie was there: the roadmaster showed it to me.

Cross-examination.

11Q1. Then, in your opinion, the weight of the westbound engine striking that rail caused the rail to break? A. Yes, sir.

“Q. You said it was a west-bound engine, and in your opinion the rail was not broken till that westbound engine struck it. A. That is my opinion.

“Q. You know, don’t you, that a train passed over that same piece of track about ten or fifteen minutes before No. 791? A. I guess they met at Sikeston, that is their meeting place.

“Q. This rail that was there was a standard steel rail, was it; that is, it was a medium weight steel rail? A. Yes, sir.

“Q. What is that, a 60-pound or 75-pound? A. I think it is about a 56-pound rail.

‘1Q. And on that rail freight trains were running every day? A Yes, sir.

“Q. And over that piece of track freight trains were running every day? A. Yes, sir.

“Q. How many passenger trains? A. A daily passenger train every day.”

George Beard, conductor of the wrecked train testified:

“Q. How soon after the wreck did you go to the . place of the wreck? A. I was on the rear end of the train — it was some four or five minutes before I got there, not later than that.

“Q. Did you see any broken rails there? A. Yes, sir.

“Q. Tell the jury what you saw in the way of a broken rail? A. Well there were some sis or seven feet of the west rail broken off, which joined the east rail, after the wreck occurred.

“Q. Which rail was broken, on wbicb side? A. On the north side.

“Q. What kind of break was that in the rail? A. Well, it was not exactly a square break, it was a little bit under from the ball down to the bottom of the rail.

“Q. The break was a little bit slanting, was it? A. Yes, sir.

“Q. Where was the long part of the rail at the • time you saw it? A. It was lying just in front of the other part of the rail, turned on its side.

“Q. Turned on the side? A. Yes, sir.

“Q. Did you notice the ties there? A. A little bit, yes, sir.

“Q. Tell the jury what you saw about the ties at that place. A. I noticed there was some good ties and some bad ones. I noticed one bad one in particular.

Q. Where was that bad one, that you noticed in particular? A. It was placed under the joint of the rails where they come together.

“Q. Under which rail? A. The north rail.

“Q. The one that broke? A. It was under the joint where the two rails connect.

“Q. What was the matter with the tie? A. I don’t know, it was decayed.

“Q. I will ask you to state, Mr. Beard, what, in your opinion as a railroad man, caused that rail to break? A. I cannot possibly explain that — you can give an idea but you cannot say what caused it to break.

“Q. I am asking you for an opinion as an experienced railroad man? A. I think the pressure of the engine broke the rail, there not being sufficient ties under it to hold it up, and it being at a joint where there is an extension between the two rails — when it hit that it broke the end of the rail off.

“Q. What do you mean by the quarter in the mil? A. A quarter is something like four or five feet from the joint.

Q. Did you notice this rail? Whether the quarter was still fastened to any other tie or not? A. Tes, sir; it was.

“Q. Now, explain to the jury, if-you can, how that break was made, in your opinion. A. Well, there was some sound ties in the.quarter — some three, four or five feet from the joint, there was a sound tie there. The rail was spiked to a sound tie and the bad tie was under the joint, and my opinion is that an engine,either this engine or some other one that used this track, possibly broke the tie and caused the joint to have play to go down, and the weight being in the quarter, that broke off the rail.

“Q. The giving way of the place under the joint and the rail being fastened to a sound tie caused it to break, is that correct? A. In my opinion, yes, sir.

“Q. What caused the engine to leave the track? A. I cannot say that, the rolling stock or machinery, we cannot tell when that will leave the track.

“Q. I know, but I am asking you your opinion. From the condition of things you found] there, what caused the engine to leave the track. A. A broken rail.

“Q. At what rate of speed was your train going? A. I judge about twelve or fifteen miles per hour.

Cross-examination.

“Q. The part of the rail that was broken, Mr. Beard, was some six or eight feet west of the joint, was it not? A. Tes, sir.

“Q. And the place where the joint of that rail connected with the rail east of it was still connected with the angle bars, was it not? A. Tes, sir.

“Q. That is, they were together? A. Yes, sir.

“Q. Now, the had tie you speak of was not at the place where the rail broke? A. No, sir; it was not.

“Q. There was a good tie there? A. Yes, sir; a good tie.

“Q. And the place where yon say there was a bad tie, or defective tie, was over there further east, under that joint? A. Yes, sir.

“Q. And at that place the angle bars connected the two rails ? A. Yes, sir, they were still connected.

“Q. So that the break did not occur at that point —that is, the rail was not broken there? A. No, sir; not at the joint.

“Q. But some six feet or more west of that? A. Yes, sir; west of that.

“Q. Then-there was still a portion of rail west of where the break was, was there not? A. Yes, sir.

“Q. To refresh your memory, Mr. Beard, I call your attention to a part of your testimony given in the former trial. I call your attention to this question to you and this answer given by you: ‘ Q. Then you have been working on the railroad for twenty-two years? A. Yes, sir. Q. Tell the jury whether or not in your judgment the railway roadbed at the place of this wreck was in a reasonably safe condition? A. Yes, sir; I think so.’ That question was asked and an swered by you? A. Yes; sir.

“Q. That was your judgment at that time? A. Yes ,sir.

“Q. You were running a train over that road every day? A. Yes, sir; every day.

Redirect Examination.

“Q. What is the roadbed, Mr. Beard? A. The roadbed is the part of the road that we call ballast— made of cinders, gravel, sand and such as that.

“Q. In the term roadbed yon do not include tics and rails, do you? A. No, sir; not in the roadbed.”

E. E. Arthur, defendant’s section foreman in charge of the section on which the accident occurred, testified as follows: That he had been section foreman for defendant for four years; that his section was eighty-seven and was eight miles in length, and extended four miles each way from Sikeston; that he noticed one broken rail at the wreck on north side of road and that the engine was on the north side also.

Q. Now, you may tell the jury how that rail was broken — I mean describe how it looked? A. It was broken about something like six feet oif of the east end. The short piece was still fastened by the angle bars to the good rail, the other piece was lying on its side.

“Q. The long piece? A. The long piece was turned on its side.

“Q. What do you call the top> of the rail? A. Ball.

“Q. The bottom of the rail? A. Base.

“Q1. And the part between the two? A. Stem or web.’

“Q. Well, now, this long piece was lying on its side — did you notice any marks on the web of the long piece? A. I noticed a mark the full length of the long piece.

“Q. What kind of a mark? A. Looked like it might have been made with the flange of a wheel.

“Q. Did you examine the long piece of rail? A. Yes, sir.

“Q. You may tell the jury what kind of a break it was in that rail? A. Well, it was not exactly a square break — it was something of an angling shape.

“Q. Was it broken in a slanting direction like that? (Witness shown tracing on paper.) A. Something like that — hardly so much of a slant.

“Q. Now, if you noticed the ball of the long piece of the rail, I will ask you to state what you saw on that, if anything — any marks? A. I did not notice anything except that the end was battered.'

“Q. Tell the jury where the end was battered? A. Right on top of the ball of the rail.

‘ ‘ Q. Where was that battered part with reference to the break? A. I do not understand you.

“Q. Well, if this pencil is the ball of the rail, and the break is here (indicating) where was the battered part? A. Right at the top — right at the end of the long piece.

“Q. Where the break had occurred? A. Right at the break.

“Q. I will ask you to state to the jury by what that battered condition of the ball of the rail was produced, if you know? A. Well, I do not know, but I think it was caused by the train going west battering the end of the rail.

“Q. How long have you been a railroad man? A. About seventeen years, since I first began.

“Q. Seventeen years ? A. Yes, sir.

“Q. Have you been continuously in the employ of the Iron Mountain? A. No, sir.

“ Q. But for the last four years you have been in the employ of the Iron Mountain? A. Yes, sir.

“Q. I will get you, Mr. Arthur, to describe to the jury the condition of the short piece of the rail, which you said was about six feet long, did you not? A. Yes, sir.

Q. Tell them where that was lying and what appearance that presented? A. The short piece of the rail was setting workway on its base, still fastened by the angle bars — the angle bars were broken in two.

“Q. What do you mean by workway? A. Seting upon its base.

“Q. Still fastened to the angle bars? A. Tes, sir.

“Q. Were the angle bars fastened to anything else? A. Fastened to the good rail east of that.

“Q. What are the angle bars? A. The angle bars are the fasteners that fasten the rails together.

“Q. Plow are they put on? A. With bolts.

“Q. What are they — describe them to the jury? A. I do not know whether I can exactly — two pieces of iron with holes through them, and we use bolts to fasten the rails together.

“Q. One on each side of the rail where they join, and bolts fasten through them? A. Tes, sir.

“Q. Those are what you call angle bars? A. Tes, sir.

‘ ‘ Q. This short piece of the rail was still fastened to the rail east of the broken one? A. Tes, sir.

“Q. Were the angle bars broken? A. Tes, sir.

“Q. I will ask you to state what, in your opinion, from what you saw there, caused the breaking of the rail? A. I do not know what caused the breaking of the rail.

“Q. Well, your opinion? A. They break in various ways. It might have been caused by a flaw in the rail, or by a bad tie.

“Q. From what you saw, what was your opinion? A. I cannot say.

Q. What was the condition of the tie under the joint? A. Tie was bad.

“Q. What was the matter with it? A. Well, it was broken in two ánd it was partially decayed.

“Q. That partially decayed and broken tie was under the joint? A. Tes, sir.

“Q. I will ask you to state what, in your opinion, caused the engine to leave the track at that place? A. I do not know.'

“Q.- Well, you have an opinion about it, have you not ? A. I never formed an opinion.

“Q. You formed no opinion about what caused the engine to leave the track? A. No, sir.

“Q. Have you not expressed the opinion before, that the breaking of the rail caused the train to leave the track?

“Objection by defendant, because he said he had formed no opinion.

“Objection overruled by the court, to which ruling defendant then and there duly excepted.

“Q. Do you remember? A. No>, sir.

“Q. Now, then, I will ask you to state, Mr. Arthur, what your duties were as section foreman? A. Keep the track in repair and fences, and telegraph lines to a certain extent.

“Q. What do you mean to' a certain extent? A. Keep the track in repair altogether, so far as we are able to — telegraph lines, whenever we find a broken wire, to repair it and notify the lineman.

“Q. I will ask you to state to the jury how long before this wreck you had done any work on this particular place of the road where the accident occurred? A. I do not remember — something like six or seven months — I suppose.

“Q. Had you put any new ties in there at any time within six months before this accident? A. I do not think I had — do not remember.

“Q. Now, Mr. Arthur, I will get you to state to the jury what the condition of the'railroad was at the place of this wreck on the 25th day of February, 1904? A. I do not know whether I can answer that question satisfactory or not. The road at that point, so far as ties and rails go, was in about as good condition as it was any place on that end of the section.

“Q. I am not asking you about that — I am asking you what the condition of the track was at that place on the 25th day of February, 1904? A. That is all the answer I can give you.

“Q. What was the condition of the other part of the road? A. I can not say it was good.

“Q. Tell the jury, Mr. Arthur, why this road was not in good condition? A. Well, if we were allowed the material and men that we should have had, I guess the road would have been in better condition than it is in.

“Q. If I understand you, then, you did not have material and men to put the road in better condition, is that correct? A. Yes, sir.

“Q. Who is your immediate superior, or was your immediate superior, on your road. A. Mr. Mulhey is the roadmaster — he was at that time.

“Q. You was the section foreman working under the roadmaster? A. Yes, sir.

“ Q. Now, I will ask you again how many men you had on that eight miles of road?

“Objection by defendant as incompetent, for the reason that there is no averment in the petition as to any defect of track, due to the failure of not having a sufficient number of men.

“Objection sustained.

1 ‘Q. Did you have at that time, or previous to this wreck, a sufficient force of men and a sufficient amount of material to keep that road in proper and safe condition?

“Objection by defendant, for the reason that there is no averment in the petition as to' having an insufficient number of men or an insufficiency of supplies on that part of the road.

“Objection overruled, to which ruling of the court the defendant then and there excepted.

‘ ‘ Q. State whether you had a sufficient number of men and a sufficient quantity of material to keep> that road in as good condition as it should' have been? A. No, sir.

“Q. Was this decayed tie you saw there still under the rail that was immediately east of the broken rail, do you remember, at the time you saw it? A. I think it was, I am not sure.

Cross-Examination.

“Q. The part of the rail that you saw was broken off — assuming this pencil to be lying east and west, the east end towards Charleston and the west end towards Poplar Bluff — the break in the rail, you say, was some six feet from the east end? A. Yes, sir.

“Q. And the long part of the rail was the part that you think was struck by the engine going west— that is, the long part here (indicating) ? A. Yes, sir.

“Q. You think that the engine ran over this part (indicating) and that the weight of the engine broke the rail, as you say? A. I did not mean to say it broke the rail — I say the rail was broken.

“You found the rail broken? A. Yes, sir.

“Q. You don’t know what caused the rail to break? A. No, sir.

“Q. And have you never formed an opinion to tills time? A. No', sir.

“Q. Now, this part (indicating) the east end you say was still attached by the angle bars to the rail immediately east of that? A. Yes, sir.

“Q. That part of the broken rail then was still attached to the rail next to it, and connected by the angle bars which fastened the two rails at the point of intersection? A. Yes, sir.

“Q. You say these angle bars were broken? A. Yes, sir.

‘ ‘ Q. But the two rails were still attached by portions of the angle bars? A. Yes, sir.

“Q. And the rail broke beyond the angle bars? A. Yes, sir.

“ Q. Now, that is the condition you discovered when yon got there about an hour after the wreck? A. Yes, sir.

“Q. In that connection, Mr. Arthur, for the purpose of refreshing your memory, I call attention to this question to you and the answer given by yon on the former trial of the case: ‘ Q. What kind of ties were there at that place of the wreck? A. The ties were sound where the rail was supposed to be broken.’ You made that answer did you? A. As well as I remember, I did.

“Q. That was correct? A. Yes, sir.

“Q. Now, you had gone over that road from day to day, had you not, Mr'. Arthur, as section foreman? A. Yes, sir.

“Q: Could you, and did you, in going over that piece of track, noticing the rails as you went along there, discover that there was such a piece of track there as would justify you, as foreman, in saying that a train could not run over it? A. No, sir.

“Q. You did not detect anything of that kind? A. No, sir.

“Q. And it was your duty as section foreman to go over the track and inspect it? A. Yes, sir.

“Q. Now, Mr. Arthur, you say you had not discovered any defect in that track? A. No, sir; I discovered no defect.

“Q. Were trains running over it every day— passenger and freight trains? A. Yes, sir.

“Q. Was that track then-such as you would say, as a railroad man, in a reasonably safe condition for trains to run over it, and did not trains run over it day after day — they did, did they not? A. Yes, sir.

Q- What train had passed over that portion of track just a few minutes before this No. 79? A. No. 78, local freight.

“Q. In which direction was it going? A. East.

“Q. About how many minutes before this accident occurred did it pass over the road? A. Something like fifteen or twenty minutes.

“Q. I will call your attention to this question to you and answer given by you on the former trial, Mr. Arthur: ‘Q. I will ask you, if the ties on each side of the broken one at the joint was sound or not? A. To the best of my recollection they were both sound.’ Is that correct? A. Yes, sir.”

At the close of plaintiff’s evidence the defendant asked a demurrer thereto, which was, by the court, overruled, and defendant duly excepted.

And thereupon the court, at the request of plaintiff, gave to the jury the following instructions:

1. ‘ ‘ The court instructs the jury that if they find from the evidence that William Hach was a locomotive engineer, and was employed as such hy the defendant railroad corporation to run freight trains over the Cairo branch of its road leading from Cairo to Poplar Bluff, then the defendant owed' him, as such employee, the duty of using ordinary care to keep the track and roadbed of its said railroad in a reasonably safe and secure condition for the passage of such trains; and the court further instructs you that in the absence of knowledge to the contrary, the servant, while in the performance of his work, has the right to presume that the master has properly discharged his duty, and does not assume -risks, which may be shown by the evidence to have resulted from any omission or neglect of duty on part of the master.”

2. “And the court further instructs you that if you find from the evidence that Ida Hach, the plaintiff in this cause, was the wife of William Hach, and that he was killed on the 25th day of February, 1904, while in the discharge of his duty as a locomotive engineer for defendant, hy the derailment and overturning of his engine, and that such derailment and overturning of his engine was caused by the breaking of one of the rails of said railroad, and you shall further find from the evidence that the defendant railroad company failed to use ordinary care to keep its roadbed and track in a reasonably safe condition for the operation of trains, and that at the time and place of the accident, said railroad was out of repair ánd was unsafe, by reason of there being unsound and decayed ties under the rail which broke; and you further find from the evidence that the defendant knew, or by the exercise of ordinary care, might have known these facts, then if you find from the evidence that the breaking of said rail and the derailment of said engine were due to such condition of the road and such unsound and decayed ties, your verdict should be for the plaintiff.”

3. “If you find the issues for the plaintiff, you should assess her damages at such sum, not exceeding five thousand dollars, as you may deem just and fair under the evidence of this cause, with reference to the necessary injury resulting to her from the death of her husband, and in estimating such damages, you may take into con-si deration his age, the condition of his health and his earning capacity at the time of his death, as shown by the evidence. ’

To the giving of which instructions, on part of the plaintiff, defendant at the time objected and excepted.

The court then gave eight instructions at the request of defendant, but as they are not involved in this appeal they will be noticed no further.

As before stated, the judgment was for the plaintiff, and defendant appealed; and it assigns the following errors, to-wit:

“First. The court erred in refusing to give the demurrer to the plaintiff’s evidence.

‘ ‘ Second. The court erred in giving instructions one, two and three for plaintiff.

“Third. The court erred in admitting improper testimony offered by the plaintiff.”

I. The first assignment of error presented by defendant is that the trial court committed error in refusing to' give its demurrer to plaintiff’s evidence.

The law of this State is too firmly established to need the citation of authorities to show that the demurrer admitted as true every fact and legitimate inference which a jury might infer from the evidence before it. [Barth v. Railroad, 142 Mo..535-549.]

This rule of evidence calls for a brief summary of the evidence in order that we may determine what facts and inferences the jury was warranted in drawing therefrom. The following facts are undisputed: The engine was going west and turned over to the right; a piece of the rail about six feet in length was broken off of the east end thereof; that there was a decayed tie just underneath the joint of the east end of. the broken rail and the rail lying just east of it; that rail rested upon a sound tie at the point where it broke; that the decayed tie was broken and mashed, which left a depression where it should have been; that the east end of the long piece of the broken rail was battered on the ball or upper side as if struck with a sledge hammer or some heavy weight; the long piece of the rail was turned over on the side and had a crease along the entire web, that is, on the thin part between the ball and base; and that the road had been in bad condition for several months.

From these facts we think it was clearly inferable, and that the jury was warranted in finding that, when the engine struck the joint of the two rails just over the rotten tie, it broke and gave way, thereby permitting the end of the rail to sink down into the said depression, and thereby caused the rail to' break or snap at the point just over the sound tie, which acted as a fulcrum upon which the rail rested. This’ conclusion is irresistible when we consider the point of the break, the sound tie at that point, the size of the rail and the great weight of the engine.

This inference, taken in connection with the undisputed fact that the hall of the east end of the long piece of the rail was battered as if struck with a heavy sledge, demonstrates almost conclusively that the train was going west and .when it struck the point of the rotten tie it gave way, thereby causing the east end of the rail to snap or break, and when the wheels of the engine struck the east end of the long piece of the broken rail, they heat and pounded the hall as with a sledge, which tore it loose from the ties and caused it to turn over on its side, and was passed over in that prostrate form by some of the wheels of the engine, which is indicated by the crease on the web thereof, and when the end of the displaced rail was' reached the engine must have left the track as if passing over and off of an open switch.

These inferences are not only legitimately and logically deducible from the facts of the case hut they-are expressly corroborated in every detail by two of the witnesses, who were experienced railroad men and were in the employment of defendant.

We are not only of the opinion that there was sufficient evidence to carry the case to the jury, but are unable to see how their verdict could have been otherwise; and we must, therefore, hold that the court properly refused the demurrer asked, and committed no error in submitting the case to the jury.

II. It is next insisted by defendant that the court erred in admitting in evidence the following question and answer of witness Arthur, the section foreman of defendant, to-wit: “Q. Did yon have at the time, or previous to this wreck, a sufficient force of men and a sufficient amount of materials to keep the road in proper and safe condition? A. No>, sir.”

The ground assigned by defendant for its objection to the admission of this evidence is based upon the fact that there is no issue made by the pleadings in the case that defendant was negligent in failing to furnish sufficient men and material with which to keep the road in safe condition.

It is true no such allegation is contained in the petition, and speaking for the writer and Graves, J., only, we think the court erred in the admission of that evidence. It was wholly immaterial and irrelevant to any issue presented by the pleadings and on that account should have been excluded from the jury; but we are all of the opinion that even though the admission of that evidence was erroneous, yet we are unable to see in what possible way it operated to the prejudice or injury of the defendant. The real issue in the case was whether or not the road was in. a reasonably safe condition, and the jury found it was not, and it is wholly immaterial why that was true. Whether it was caused from the failure to supply sufficient men and materials with which to keep it in good condition, or whether it was the negligence of the company in failing to have the men actually furnished to do the work and make the repairs, is entirely immaterial in so far as the issues of this case are concerned. The road was found to be out of repair and in a dangerous condition, and the cause thereof is not an element which entered into the liability or non-liability of defendant.

Especially are we unable to comprehend in what manner the defendant was injured by that evidence when the record discloses the fact that practically the same question had been asked and answered by the witness, without objection, just prior to the admission of the evidence complained of. The evidence was then before the jury, and the repetition of the question and answer under the facts and circumstances clearly produced no prejudicial effects upon defendant's case.

If we correctly understood’ counsel for defendant in his oral argument, he laid much stress upon the fact that such evidence might or would have a tendency to so influence the minds of the jurors against defendant as to induce them to increase the amount of the verdict. In reply to that contention it is sufficient to say that there is no intimation shown by this record that such a thing was done, or that any such thought ever entered the minds of the court, counsel or jury, until after the case reached this court. If any such question had been submitted or argued to the jury quite a different proposition would be here for consideration; but under the present state of the record no court would be justified in disturbing the verdict of the jury. ■

III. The last assignment of error regards the instructions given for the plaintiff. The objection to them is general, and no specific criticism is pointed out - by counsel for defendant. We have carefully read all of them and have been unable to detect any error in them, but, upon the other hand, we are of the opinion that they fully and fairly presented the issues to the jury; and, finding no error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    SAMUEL GARDNER et ux. v. JAMES M. ROBERTSON et al., Appellants.
    Division One,
    December 24, 1907.
    1. PLEADING: Misjoinder of Parties and Causes. A petition whicb unites several distinct and independent causes of action, is bad. Where a husband and wife each holds distinct title in different parcels of land, the husband should bring a separate suit to quiet the title to his land, and the wife separate actions to quiet the title to hers. And where the defendants do not all claim interests adverse to plaintiffs in the same tracts, a separate action should be brought against the different groups of defendants jointly interested.
    2. -: -: Waiver. But where such defects in the petition are not demurred to, they are waived by answering over.
    3. APPEALS: Objections and Exceptions: Preservation. The bill of exceptions itself is the only receptacle of objections and exceptions. Notes and memoranda of objections and exceptions made by appellant’s attorney at the trial cannot be injected into the abstract unless they were made a part of the bill.
    4. APPEAL: Motion to Affirm: Overruled: Reopened: No Notice. Where respondent’s motion to affirm or dismiss the appeal has been overruled, it will not be reopened unless grave error has been committed or in aid of broad justice. And the fact that respondent’s counsel was not served with a copy of appellant’s suggestions in opposition to the motion and of the affidavits in support thereof, in the absence of any rule of the court requiring the service of such a copy, is not sufficient for reopening the matter of affirmance or dismissal for failure to file a timely appeal.
    5. QUIETING TITLE: Sufficiency of Evidence: Presumption. The burden is on appellant on appeal to show that the judgment was for the wrong party. And where the case was tried by the court, and the petition counted both on paper title and limitations, and the court’s finding was general for plaintiffs, there being no finding of facts, and there is some substantial evidence upon which a judgment for them, on one theory or the other, might rest, the appellate court will not undertake to reconcile the confused and elusive evidence, but will presume that the trial judge was better able to do that
    Appeal from Butler Circuit Court. — Eon. J. L. Fort, Judge.

      Affirmed.

      Phillips £ Phillips for appellants.

      L. B. Thomason for respondents.
   LAMM, J.

Plaintiffs, husband and wife, sued Robertson and twenty-three others to quiet title in divers tracts of land in Butler county, under Revised Statutes 1899, section 650. Among- the twenty-three are three Barkers, to-wit, Albert W., Oody and Frank. Plaintiffs had judgment, and from that judgment the Barkers appeal.

The petition is an omnibus pleading (not the draft of plaintiffs’ present counsel) and on its face discloses a bundle of vices, viz.: a misjoinder of plaintiffs, a misjoinder of defendants and a misjoinder of causes of action. Plaintiffs are not jointly interested in the several parcels of land described in the petition. Each holds title distinct from the other in separate parcels; therefore, the husband should have brought a separate action covering his land, and the wife might have brought a separate action covering hers, though she had statutory option of joining her husband. [R. S. 1899, sec. 4335.] Defendants, as likewise disclosed by the petition, do not in every instance claim interests adverse to plaintiffs in the same tracts of land; therefore,' a separate cause of action should have been brought against the different groups of defendants jointly interested, or severally claiming an adverse interest, in any one body of the land. Such being the case, the petition was bad, for that it improperly united several distinct and independent causes of action in one. The to-be-expected evil result followed, to-wit, a conglomeration of evidence thrown at the court and making a maze of uncertainty wherein the judicial mind may grope as in a fog, unable to clearly apply the evidence to the issues, tracts, individual claims, etc. These defeets in the petition were not struck at by demurrer or otherwise below, hence were waived by answering over (Hudson v. Wright, 204 Mo. 412) and are now only noticed because they and their attending chaos make a clear and full statement of the facts and issues out of the question.

I. Appellants file a motion to strike out respondents’ “Abstract of Pleas, Proceedings and the Record.” In aid of that motion, we are asked to pass a rule commanding the clerk of the circuit court of Butler county to produce here for inspection all the original files, including the bill of exceptions in this case, and a rule commanding respondents to produce for similar inspection a certain abstract of title, called for in the bill of exceptions and introduced below as evidence by them, under a rule of the trial court.

. Without awaiting a rule, there have been submitted here the original bill of exceptions and files together with the document designated as “Plaintiffs’ Abstract of Title.” The integrity of these documents is not questioned.

The only thing left for determination in this behalf, then, is whether appellants’ motion to strike out .respondents’ counter abstract should be sustained. To get at the merits of that matter we must go back a little in the history of the case in this court. There fell a time at a former term when respondents filed a motion to affirm, grounded on the fact that the cause was returnable to the October term, 1904, of this court, and appellants had failed to timely lodge here either a complete transcript, or a certified copy of the judgment with the order granting an appeal. On its face the motion was well made; but appellants made a counter showing by suggestions and affidavits. This phase of the case will receive further attention in the next paragraph of the opinion. For the present it is sufficient to say the motion to affirm was overruled. Thereupon appellants in due time served and filed their abstract of record.

The bill of exceptions contains the following offer of evidence and, makes the following call on the clerk, to-wit (by plaintiffs’ attorney): “I now offer the entire abstract of the plaintiff” (which, being interpreted, means plaintiffs’ abstract of their title to the lands in controversy) “which is as •follows-. (The clerk will here copy abstract.) ”

It seems when appellants ’ counsel came to make an abstract of the record they could not find, with respondents ’ counsel or in the files of the case, the abstract of title called for, as said, by the bill of exceptions. It seems the attorney trying the case for the Barkers had died: and their present counsel, perplexed in this dilemma, cast about for a way out. In searching among the papers of the deceased attorney, they discovered what was conceived to be his original notes and memoranda of the trial. Deeming these memoranda and notes (in the absence of better data) a proper reservoir of facts and information, they drew therefrom the wherewithal to reconstruct the abstract of title called for, and they put such reconstructed abstract of title in their abstract of record. Not only so, but they found in such memoranda certain objections apparently made to the introduction of certain deeds, and certain exceptions apparently made to the rulings of the court. These, also, they wove into their abstract of record. When appellants served such abstract upon respondents’ counsel .he was not satisfied with it. In the meantime the lost abstract of title was discovered in the files of another case tried in the same court, it having been used in that case, under the same novel circuit court rule, as evidence. Accordingly, respondents’ counsel prepared a counter abstract of the record, including the contents of the newly-found abstract of title. But he circumspectly left out (as he had the right to do) the objeetions and exceptions supplied from the memoranda of the deceased attorney, and which were not in the hill of exceptions and hence without legal being. It is this counter abstract appellants move to strike from our files. The controversy being unfortunate in its details, need not be spread and embalmed in our reports. For our purposes it will do to say that the abstract of title was not suppressed by respondents’ attorney; it was temporarily lost track of by use in another case (with which he had no concern) and (by misadventure) was hid away in its files. Therefore, when found it was properly embodied in respondents’ counter abstract.

While appellants’ present counsel show diligence of search in uncovering, and zeal in desiring to use, the notes and memoranda of their predecessor in reconstructing the objections, rulings and other incidents of the trial, on behalf of their new clients, yet both diligence and zeal in this instance must go with mere mention and no substantial reward, because the bill of exceptions itself is the only receptacle of objections and exceptions. It alone can speak in that behalf, for obviously wise reasons; and this inexorably stiff rule must apply to all attorneys in all parts of the State, to all courts and to all bills of exceptions alike.

Respondents’ abstract of the record was properly made, served and filed. Hence the motion to strike out is overruled.

H. Respondents’ counsel in his brief renews his insistence that the judgment be affirmed because of appellants’ failure to bring the case here within the time required by the statute and our rules. His theory is that, with the record before us, we can now see that appellants’ affidavits and suggestions against sustaining the motion to affirm were not sufficient in substance to sustain our action overruling that motion. The fact being that he.was not served with a copy of the suggestions and the affidavits in support thereof, upon which we acted1 in overruling the motion to affirm, he argues that such fact is of significance, and, taken with the present record showing, suggests and constrains further action on our part.

Attending to this phase of the case, it may he said that notice lies at the root, is of the essence, of due process of law. On the other hand, a litigant is charged with notice of pleadings filed in a pending case. Vigilance is rewarded by the law. In a law suit one must watch, and, unless there is some court rule or statutory one requiring actual notice, a litigant stands charged with constructive notice of pleadings filed in the progress of live litigation.

Notwithstanding this is so, this court has not been loth or slack in impressing upon the brethren the necessity of giving notice of their briefs or motions and suggestions, and has refused to act in the absence of notice, even where our rules are silent on the question, as they unfortunately are in this instance. [See, for example, Padgett v. Smith, infra.]

Doubtless, we overlooked the fact that appellants failed to serve a copy of their suggestions and affidavits upon respondents’ counsel. . Doubtless, too, we have the inherent power of reopening the question closed by the motion. Doubtless, also, under the spur of grave error pointed out and in aid of broad justice, we would not hesitate to use such power. But the better plan is not to tread back, or thresh over old straw — undoing to-day what was done yesterday. Courts, being practical tribunals for the administration of justice in a sensible way, adopt those methods of getting on with business which people of good sense employ in the sober affairs of life, and in so doing give some heed to the proverb : the water that is passed will never turn the mill.

In Padgett v. Smith, 205 Mo. 122, by a motion filed at a later term, we were asked to set aside the affirmanee of a judgment theretofore made on motion. This we refused to do. The point in judgment in the Padgett case is the supplement of that in judgment here. There was affirmance in that case for failure, and appellant at a later term sought to he eased of the affirmance and have the motion to affirm overruled. Here the motion to affirm has been overruled, and respondents at a later term, in effect, seek to have the order overruling the motion set aside and a judgment of affirmance entered. Hence, what was said there applies here. The point is ruled against respondents.

in. The burden is on appellants to show error. They assign four errors, vis.-.

“First. The court erred in admitting irrelevant and incompetent testimony over the objections of the defendants.

“Second. The court erred in admitting the deed in which the name of Sadie Gardner had been erased and that of Sam Gardner had been substituted.

* ‘ Third. The court erred in not passing on the objections to testimony made at the time, but passed on to the end of the trial without having given its judgment on such objections.

“Fourth. The judgment was for the wrong party.”

Each and every of them must be disallowed, because :

(a) We are not able to put our finger on any irrelevant or incompetent testimony admitted over' the objections of defendants. As appellants’ counsel have not pointed out any error of that kind, we assume they labor under a like inability.

(b) The hill of exceptions contains no objections, no rulings, or exceptions to the admission of the “deed in which the name of Sadie Gardner had been erased and that of Sam Gardner had been substituted.” Indeed, there was no evidence of any erasure. Appellants’ trial attorney asked a witness to explain why a certain erasure was made, and the witness disavowed any knowledge of such erasure.

(c) The third assignment of error is not predicated of anything appearing in the bill of exceptions and, therefore, is bad.

(d) As to the fourth assignment of error to-wit, that “the judgment is for the wrong party,” the presumption is the trial judge did not commit error of the kind charged. . The presumption is the judgment went for the right party. Before judgment, the burden was on plaintiffs to show they were entitled to one; after judgment, the burden is on defendants to show plaintiffs were not entitled to one —i. e., the burden is on them to point us to reversible error.

Plaintiffs made two contentions: first, that they held title by limitations; second, that they had a good paper title. Contra, defendants denied title in plaintiffs by limitations, and in turn assert a good paper title of their own.

No instructions were asked or given; no finding of facts was made — the court finding generally for plaintiffs and leaving it at that. In this condition of things, it must have been on one or the other of plaintiffs’ theories that the court found as it did, and there is. nothing by which we can tell which one. If the judgment was based on plaintiffs’ paper title, when placed side by side with defendants’ paper title, then the conveyances are in evidence by which we could determine that view of the case. But when that point was settled it would not necessarily determine the case; for it is contended by appellants, and may very well be, that the Statute of Limitations controlled the decision, nisi. If this be true, then it is equally true that the facts directed to that issue are confused and dark. The evidence is elusive ; much of it may as well refer to one tract as another, to the land of one plaintiff as to the land of the other plaintiff. It eonld serve no purpose in jurisprudence to undertake to give our interpretation of even the substance of it. We will leave it where we find it, with its enigmas unsolved, its shadows not cleared away.

It seems, then, to be a typical case to apply another presumption, to-wit, that the trial judge who saw and heard the witnesses and who possibly caught the 'inner meaning of the questions and answers was better able to interpret, reconcile and apply the evidence and get at a correct conclusion than we are. So that, if the case be deemed in equity, we may defer to the chancellor — if it be deemed at law, we should defer to the trial judge.

Therefore, the judgment may be allowed to safely repose in the friendly bosom of a whole family of aforesaid presumptions (using the apt figure of an erudite counsellor in open court-in another case) and should be affirmed.

It is so ordered.

All concur.


author: BURGESS, J.

text:
    THE STATE ex rel. ENTERPRISE MILLING COMPANY, Appellant, v. BROWN, Receiver First National Bank, et al.
    Division Two,
    December 24, 1907.
    1. ATTACHMENT BOND: Limitations. A suit upon an attachment bond is not barred by limitations within ten years.
    2. -: -1 — : Unconditional Promise. Under the ten-year Statute of Limitations (Revised Statutes 1899, sec. 4272), which provides that an action upon any writing for the payment of money or property may be brought within ten years after the cause of action accrues, it is not necessary that the instrument sued on, in order for the statute to apply, should acknowledge an obligation to pay which is neither conditional nor contingent, or be one which acknowledges an existing debt to enforce which evidence aliunde is not required.

      Appeal from Pettis Circuit Court. — No». Jas. E: Ha-sell, Special Judge.
    Reversed and remanded.
    N. T. Williams and Won. D. Steele for appellant.
    Plaintiff’s right of action was not barred by limitation. See. 4272, R. S. 1899 ; Martin v. Knapp, 45' Mo. 48; Henoch v. Chaney, 61 Mo. 129; Nelson v. Barnett, 123 Mo. 564; Miner & Frees v. Howard, 93 Mo. App. 569.

      Robert F. Walker for respondents.
    (1) A petition which shows on its face that the action brought is barred by the Statute of Limitations is bad on demurrer. Heffernan v. Howell, 90.Mo. 344; State ex rel. v. Spencer, 79 Mo. 314; Henoch v. Chaney, 61 Mo. 129; State to use v. Bird, 22 Mo. 470. (2) An attachment bond is not ‘ ‘ a writing for the payment of money or property.” "Where the implied promise to pay money or property does not arise from the instrument itself, but appears only from outside evidence, the ten-year Statute of Limitation is not applicable. Menefee v. Arnold, 51 Mo. 536. The conditions of an attachment bond, like those of any other instrument to pay money to be subsequently ascertained', are of such a character that evidence aliuoide is necessary to show a promise to pay, and the Statute of Limitations of five years applies. Carr v. Thompson, 67 Mo. 472. An action upon an attachment bond is a suit to- recover damages for its breach or a failure upon the part of the plaintiff to sustain the grouuds of his attachment; it therefore should, like any other action for the breach of a contract, be brought within five years from the time the statute begins to run. Brady v. St. Joseph, 84 Mo. App. 404. (3) An instrument for the payment of money or property such as is meant by the ten-year Statute of Limitations, should acknowledge an obligation to pay which is neither conditional nor contingent; the execution of the instrument being admitted, and it being incumbent only on the plaintiff in an action to enforce it, to offer it in evidence to authorize a recovery, then the ten-year statute is applicable; in other words, the bond or instrument should be one which admits an existing debt and does not require evidence aliunde to enforce it. Trepagmer v. Rose, 18 App. Liv. (N. Y.) 393, 46 N. Y. Supp. 397; Ancient Order Hiber. v. Sparrow, 29' Mont. 132; Hurd v. McClellan, 14 Colo. 213; People v. Boylan, 25 Fed. 595; Hathaway v. Davis, 33 Cal. 161, dissenting opinion of Judge Sawyer. (4) The conditions of administrators ’ bonds are entirely different from those of attachment bonds. Administrators ’ bonds are clearly “writings for the payment of money or property, ’ ’ and are therefore within the provisions of section 4272, Revised Statutes 1899, or the ten-year Statute of Limitations. Howe v. Mittelberg, 96 Mo. App. 490.
   BURGESS, J.

This is a suit upon an attachment bond for $52,000', which bond had been executed and filed by defendants in the circuit court of Pettis county on the 8th day of May, 1894, and this suit was instituted in said circuit court by plaintiff against the defendants on the 3d day of October, 1903.

The defendants interposed a demurrer to the petition filed by plaintiff, the grounds whereof being, first, that said petition did not state facts sufficient to constitute a cause of action, and, second, that it showed upon its face that the cause of action therein attempted to be alleged was barred by the Statute of Limitations. On a hearing on said demurrer at the December term, 1904, of said court, the same was sustained. Plaintiff excepted to the action of the court in sustaining the demurrer, elected to stand upon its petition and refused to plead further. Thereupon the court rendered judgment in favor of defendants and against plaintiff for costs, and plaintiff appealed.

It is the contention of defendants that the cause of action was barred by the five-year Statute of Limita^ tions, and that the ten-year Statute of limitations does not apply.

Section 4272, Revised Statutes 1899, provides that an action upon any writing, whether sealed or unsealed, for the payment of money or property may be brought within ten years after the cause of action shall accrue.

Section 4273, Revised Statutes 1899, provides that actions may be brought within five years from the time the cause of action accrues upon contracts, obligations or liabilities, express or implied, except those mentioned in section 4272, and except upon judgments or decrees of a court of record, and except where a different time is by statute limited.

It has been uniformly ruled by the Supreme Court that an action upon an administrator’s bond may be brought within ten years from the date of the accruing of the cause of action. [State to use v. Pratte, 8 Mo. 286; Martin v. Knapp, 45 Mo. 48; Nelson v. Barnett, 123 Mo. 564.]

In Henoch v. Chaney, 61 Mo. 129, where the action was upon an instrument in the nature of a replevin bond taken by a special constable in a suit before a justice of the peace, the same rule was applied. It is, however, due the distinguished judge who wrote that opinion to say that, in the concluding paragraph thereof, he observed: “In the case at bar, over five years had intervened between the accruing of the right of action, and the institution of suit, and were the question an open one, we might not be able to yield assent to the idea that ten years instead of five is the statutory bar applicable to the case before us. But regarding the point as settled in the ease of Martin v. Knapp, 45 Mo. 48, the conclusion there reached will be adhered to.”

In Howe v. Mittelberg, 96 Mo. App. 490, it is held that the clause of the Limitation Law (sec. 4272, supra) which provides that no action shall be barred under ten years if it is founded on a writing for the payment of money or property, embraces any writing which expresses or implies a promise or agreement to pay money or property, whether the payment is to be certain or contingent.

The bond required by statute (sec. 18, R. S. 1899) of an administrator is conditioned that he shall faithfully administer said estate, account for, pay and deliver all money and property of said estate, and perform all-other things touching said administration required by law, or the order or decree of any court having jurisdiction; and while it is well settled that suit may be instituted upon such bond within ten years after the cause of action thereon accrues, defendants contend that an attachment bond contains no conditions for the payment of money or property, and does not, therefore, come within the provisions of said section 4272, but rather the provisions of section 4273, supra.

The parties signing the attachment bond sued upon' in this case acknowledge themselves to be indebted to the State of Missouri in the sum of fifty-two thousand dollars, for the payment whereof they bind themselves, their executors and administrators, the obligation to be void (otherwise to remain in full force), if the “plaintiff shall prosecute its action without delay, and with effect, refund all sums of money that may be adjudged to be refunded to the defendant or found to have been received by the plaintiff, and not justly due to it, and pay all damages that may accrue to any defendant or garnishee, by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment, or process thereon.”

It is true that in Menefee v. Arnold, 51 Mo. 536, it was held that a receipt given by the defendant to a third party for money therein stated to have been received on account of money paid out by defendant as surety for the plaintiff, which receipt was afterwards assigned by the defendant to the plaintiff, was not such a promise to pay as would take the case out of the Statute of Limitations; but the paper sued on contained no promise of any kind, either express or implied.

In Carr v. Thompson, 67 Mo. l. c. 476, the court said: ‘ ‘ The circuit court properly ruled that the plaintiff ’s suit was not barred by the Statute of Limitations. The promise to pay was in writing, and though the sum to be paid was not expressed in the writing, but was by the terms thereof to be thereafter ascertained, that fact would not take it from under the operation of the ten-year statute. Were the writing of such a character that evidence aliunde would be required in order to show a promise to pay, the limitation of five years would apply.”

Defendants claim that an instrument for the payment of money or property, such as is meant by the ten-year Statute of Limitations, should acknowledge an obligation to pay which is neither conditional nor contingent; one which admits an existing debt, and which to enforce does not require evidence aliunde.

If this position be correct, then all instruments other than notes, bonds, bills of exchange and other written promises or obligations to pay, unconditionally, specified sums of money, would be embraced by the five-year Statute of Limitations. To this we are unable to assent.

As supporting their ¡position defendants cite the case of Trepagnier v. Rose, 18 App. Div. (N. Y.) 393, in which it was held that a policy of fire insurance under which a loss has occurred is not “an instrument for the payment of money,” and that to constitute “an instrument for the payment of money,” within the meaning of the statutes of the State of New York, such instrument must acknowledge an absolute obligation to pay, not conditional or contingent. But such is not the law of this State, as we understand it.

Ancient Order of Hibernians v. Sparrow, 29 Mont. 132, is another case relied upon hy defendants. But in that case the condition of the bond sued on was that “if the said Edward B. White shall in all things comply with the contract in letter and spirit, and turn over to the said A. O. H. Div. No. 1, of Anaconda, the said building, fully finished and completed in all its parts, in strict compliance with the said plans and specifications, . . . then the above obligation to be void, otherwise to remain in full force and virtue.” The court properly held that an action against the sureties on such bond, which was for the performance of a contract, could not be maintained because not an action on a contract for the payment of money. It is plain that the bond in that case contained no promise whatever to pay money or to do anything else.

Hurd v. McClellan, 14 Colo. 213, was a suit by attachment upon an appeal bond conditioned for the prosecution of an appeal from a judgment for $4,437, the condition being that if the appellant shall prosecute said appeal, and, moreover, pay the amount of said judgment, costs, interest and damages, rendered and to be rendered against one of the appellees in ease the said judgment should be affirmed, then the obligation to be null and void, otherwise to remain in full force and virtue. The section of the code under which the action was brought reads as follows: “In all actions brought upon overdue promissory notes, bills of exchange, or other written instruments for the direct payment of money, and upon book-accounts, the creditor may have a writ of attachment issued upon complying with the provisions of this section.” The court said: “The meaning of the words ‘other written instruments for the direct payment of money’ should be construed in connection with the context. Other written instruments are specifically mentioned. It is clear that the statute was intended to apply to instruments of the nature of those specially mentioned. Such instruments are overdue promissory notes and bills of exchange. These are, manifestly, instruments for the direct payment of money. The payment provided for is absolute and unconditional. In other words, it is direct. In this case the obligation assumed by the sureties was not direct, but collateral. They could be charged only upon failure of the principal to pay. If he failed to pay the judgment appealed from, if affirmed by this court, then there would be a breach of the condition of the bond upon which a cause of action might be predicated.” In this State we have no such statute, nor have we any fault to find with the ruling in that case.

People to use v. Boylan, 25 Fed. 594, is also relied upon by defendants. as supporting their contention. That was an action by attachment under the same statute as in the next preceding case, and the same conclusion was reached.

Our attention is also called to a dissenting opinion in the case of Hathaway v. Davis, 33 Cal. 161, which dissenting opinion was by one of the members of a court composed of five members. It was also an action by attachment upon an appeal bond, and the question was whether it would lie under that provision of the California statute which provided that an attachment would lie “in an action upon contract, express or implied, for the direct payment of money,” etc., upon an appeal bond conditioned “that the appellant will pay all the damages and costs which may be awarded against the defendant on the appeal, not exceeding three hundred dollars, and that if the judgment appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be paid thereby, or the part of such amount as to which the same shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal.” It was held in that case that the undertaking on an appeal bond is an express contract for the direct payment of money in the sense of the statute in relation to attachments. As we have said-, one member of the court dissented. It is quite clear that this decision is not an authority in favor of the defendants, but against them.

There is no question that an administrator’s bond in this State may be sued upon at .any time within ten years after breach of its conditions. Now, in what respect do the conditions in an attachment bond differ from those of an administrator’s bond? The conditions of an administrator’s bond are that he, the administrator, “shall faithfully administer said estate, account for, pay and deliver all money and property of said estate, and perform all other things touching said administration required by law, or the order or decree of any court having jurisdiction.” To say nothing about the obligation, the conditions of an attachment bond are “that the plaintiff shall prosecute his action without delay, and with effect, refund all sums of money that may be adjudged to be refunded, to the defendant, or found to have been received by the plaintiff, and not justly due to him, cmd pay all damages and costs that may accrue to any defendant, garnishee or interpleader by reason of the attaclvment, or any process or proceeding in the suit, or by reason of- any judgment or process thereon, and pay all damages and costs that may accrue to any sheriff or other officer by reason of acting.under the attachment.” There is no material difference in the conditions and obligations expressed in these bonds, and the promise to pay, upon certain conditions, is as strongly expressed in the attachment bond as in the administrator’s bond. If an administrator’s bond may be sued upon within ten years after the cause of action accrues, it logically and conclusively follows that the plaintiff in this case had ten years within which to bring suit upon the attachment bond.

Our conclusion is that the judgment should be reversed and the cause remanded. It is so ordered.

All concur.