author: KENNISH, J.

text:
    PACIFIC MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant, v. JOSEPH GLASER et ux.
    Division Two,
    October 9, 1912.
    1. INSURANCE: Untrue Representations: Warranties: Suit to Cancel: Statute. Untrue statements made by an applicant for insurance to the effect that no other company had refused" him insurance, made in his application for a policy in which he warranted his statements to be true, afford a sufficient basis for a suit to cancel the policy on the equitable ground of mistake, in a suit brought by the company for that purpose, after having tendered a return of all the premiums paid. The statute (Sec. 6937, R. S. 1909) providing that “no representation made in obtaining or securing a policy of insurance . . . shall be deemed material or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable,”' has no application to such a suit. It applies only to cases in which the “event on which the policy is to become due” has actually happened, and the liability of the insuring company under an existing policy is to be determined. That is an entirely different matter from a timely suit brought to cancel a policy issued to a living policy-holder in pursuance to misrepresentations.
    2. -:,-: -: Fraud: Cancellation: Mistake. Where the policy stipulates that the insurance provided thereby is based on the application, and the application warrants that the statements made therein are “complete, true and correct,” and they are not true, the policy may be cancelled upon the' equitable ground of mistake unknown to the company alone, in a suit brought by the company, upon a return of the premiums paid, etc. A warranty is a part of the contract, and must be strictly true, whether material to the risk or not, or whether or not the untrue statement was the inducement for issuing the policy.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Reversed and remanded (with directions).

      Jones, Jones, Hooker & Davis for appellant.
    (1) Whether an applicant has ever applied to other companies for insurance and been rejected is regarded as material to the risk, and a false statement in this regard will void the policy. Aloe v. Insurance Co., 147 Mo. App. 647; McDermott v. M. W. A., 97 Mo. App. 561; M. W. A. v. Angle, 127 Mo. App. 119; Insurance Co. v. Webb, 106 Fed. 808, 126 Fed. 635; Elliot v. Benefit Assn., 76 Hun, 378; Kelley v. Insurance Co., 113 Ala. 453; Barnard v. Association, 32 N. Y. Supp. 223; Kemp v. Insurance Co., 19 N. Y. Snpp. 435,135 N. Y. 658; Fletcher v. Insurance Co., 119 N. Y. Snpp. 801; Insurance Co. v. Judge, 191 Pa. St. 484; Edington v. Insurance Co., 77 N. Y. 564, 100 N. Y. 538; Insurance Co. v. Raddin, 120 U. S. 189; Jeffries v. Insurance Co., 22 Wall. 47; March v. Insurance Co., 186 Pa. 629; Moore v. Mut. Res., 133 Mich. 526; Insurance Co. v. Mahone, 56 Miss. 181; Cooke on Life Insurance, Sec. 18, p. 34; May on Life Insurance, Sec. 184; 3 Cooley’s Briefs on Insurance, p. 1935. (2) A breach of warranty will void the policy, though the insured had no knowledge of the falsity constituting the breach, and did not intend to deceive the insurer. M. W. A. v. Angle, 127 Mo. App. 116; McDermott v. M. W. A., 97 Mo. App. 647; Kemp v. Grood Templars, 19 1ST. Y. Supp. 435; Insurance Co. v. Webb, 106 Fed. 808, 126 Fed. 635; Elliot v. Association, 76 Hun; 378; Clemans v. Association, 131 N. Y. 485; Kelley v. Insurance Co.,' 113 Ala. 453; Insurance Co. v. Myers, 112 Fed. 846; Insurance Co. v. Sole, 121 Fed. 664; Insurance Co. y. Llewellyn, 58 Fed. 940; Insurance Co. v. Johnson, 80 Ala. 467; Kelley v. Insurance Co., 113 Ala. 453; Insurance Co. v. Rogers, 119 111. 474; Insurance Co. y. Cannon, 48 Ind. 264; Cushman y. Insurance Co., 63 N. Y. 404; Baker v. Insurance Co., 64 N. Y. 648; Insurance Co. v. Pyle, 44 Ohio St. 19; Dinan y. Supreme Council, 201 Pa. 363; Boyle y. Relief Association, 95 Wis. 312; McGowan v. I. O. O. F., 104 Wis. 173; Peterson y. Life Association, 115 Iowa, 668; 3 Cooley’s Briefs on Insurance, p. 1954; Cooke on Life Insurance, Sec. 19, p. 35; May on Life Insurance, Sec. 184. (3) Where a contract has been entered into by the parties through a mutual mistake concerning a fact which is, or is agreed to he,' material, the contract may he rescinded and canceled at the option of either party. Currey v. Greffet, 115 Mo. App. 364; Voorhis v. Manufacturing Co., 11 Mo. App. 108; M. W. A. v. Angle, 127 Mo. App. 94; Griffiths v. Townley, 69 Mo. 13; Brooks v. Gaffin, 192 Mo. 228; N. & M. Co. v. Kehlor, 155 Mo. 643; 24 Am. & Eng. Ency. Law (2 Ed.), 618; 1 Cooley’s Briefs on Insurance, p. 551; Joyce on Insurance, Sec. 1674; Richards on Insurance, p. 108; Wilson v. Insurance Co., 5 Fed. 674; Cooke on Life Insurance, Secs. 133, 134; Bacon on Ben. Societies and Life Insurance, Sec. 285; Beauchamp y. Winn, L.' R. .6, H. L. 233; Lyman v. Insurance Co., 14 Johns. 382; Eaton on Equity, p. 267; Thwing v. Lumber Co., 40 Minn. 184; Moran y. McLarty, 11 Hun, 66, 75 N. Y. 25; Welles v. Yates, 44 N. Y. 525; McHugh v. Insurance Co., 48 How. Pr. 230; Hearne v. Insurance Co., 87 U. S. 20; Latuarche v. Insurance Co., 126 Cal. 498.

      David Goldsmith for respondents.
    (1) Glaser’s withdrawal of his application to the Illinois Life Insurance Co; for insurance was effective, and rendered nugatory the alleged refusal of the application by that company. 1 Cooley’s Briefs on Insurance, p. 416. But, regardless of that withdrawal, the alleged refusal was rescinded according to the evidence, and the application was never finally acted upon. (2) Glaser’s statement that no application for insurance previously made by him .had been refused, was made in good faith, and, therefore, does not support the action herein for the cancellation of the policy issued to birri by the appellant, a. That statement, if made in good faith, would not have constituted a breach of warranty at common law. Henn v. Insurance Co., 67 N. J. L. 312; Aufderheide v. Association, 66 Mo. App. 285; Semm v. Knights of Honor, 29 Fed. 895; Insurance Co. v. Ford, 126 Ky. 49; Ames v. Insurance Co., 58 N. Y. Supp. 244, 172 N. Y. 659; Kettenbach v. Association, 49 Neb. 842; Mouler v. Insurance Co., Ill U. S. 335; Owen v. Insurance Co., 67 Atl. 25; Association v. Wagner, 188 111. 133; Knights of Honor v. Dixon, .102 Tenn. 255; Annotated Case, 11 L. R. A. (N. S.) 958. b. But in this State the doctrine of warranties in life insurance no longer applies. Keller v. Insurance Co., 198 Mo. 456; Jenkins v. Insurance Co., 171 Mo. 383; Lynch v. Insurance Co., 150 Mo. App. 468. c. And, treated as a representation, the statement, if made in good faith, will not support the present action. Semm v. Knights of Honor, 29 Fed. 895; Insurance Co. v. Ford, 126 Ky. 49; 3 Cooley’s Briefs on Insurance, p. 1956; Schuermann v. Insur-. anee Co., 165 Mo. 649'; Keller v. Insurance Co., 198 Mo. 455. (3) The provision in the application for the policy in question, that the falsity of any statement in the application should invalidate any claim under the policy, if the death of the insured should occur within one year, limits the rights of the appellant, and debars it from invoking any statement made in good faith in the application as ground for an action in equity to cancel the policy. Insurance Co. v. Lear, 31 App. Cas., D. C. 190. (4) The alleged misrepresentation was not material, and, therefore, cannot be the basis of an action in equity for cancellation. Fidelity Association v. Miller, 92 Fed. 63; Tribes v. Hanes, 100 111. App. 1.
   KENNISH, J.

— This suit in equity was brought in the circuit court of the city of St. Louis by the Pacific Mutual Life Insurance Company as plaintiff, against the defendants, Joseph Glaser and Carrie Glaser, his wife. The purpose of the suit was to have cancelled and annulled by decree of court a certain policy of insurance for ten thousand dollars, theretofore issued by plaintiff upon the life of defendant Joseph Glaser. Upon a trial the court dismissed the bill and plaintiff appealed.

In substance it is alleged in the petition that the defendant Joseph Glaser on the 27th day of December, 1906, made written application to plaintiff for a policy of insurance on his life in the sum of ten thousand dollars and payable to the defendant Carrie Glaser in the event of his death; that said policy was issued to the said Joseph Glaser and was then in his possession; that said policy was issued by the plaintiff and accepted by the defendant Joseph Glaser solely upon certain statements, warranties and representations contained in the application and made a part of the policy; .that said statements, warranties and representations were false, incomplete and untrue, and that the same were intentionally false or answered by mistake or inadvertence and constituted a fraud upon the plaintiff; that immediately upon discovery of the falsity of the statements, etc., plaintiff tendered to the defendants the full amount of the premium paid to plaintiff upon said policy and demanded the surrender and return of said policy, which defendants refused to do. The prayer is that the court require the defendants to produce said. policy in court and that the same be adjudged void, and for general relief. The answer was a general denial.

Plaintiff introduced in evidence the policy in controversy ; also the written application and medical examination of the defendant Joseph Glaser, upon which the policy was issued. It was stipulated in the policy that: “All insurance provided by this policy is based upon the written and printed application therefor, which is made a part of the policy,” etc. In the written application the applicant, Joseph Glaser, made the statement that: “No company or association to which I have ever applied for any life, accident or health insurance has refused me on the plan asked for, or postponed me.” And in the medical examination, attached to and made a part of the application, the applicant was asked the question: “What company or society has declined to issue a policy on your life?” and answered “none.” The following declaration was also contained in said application, namely: “I hereby warrant that all the foregoing statements and answers and all those that I make to the company’s medical examiner are complete, true and correct, and, if any such statement or answer is incomplete, untrue or incorrect, no valid claim shall arise under such policy on account of death or disability occurring within one year from its date. ’ ’

Plaintiff also introduced testimony tending to prove that on the 21st day of November, 1904, being about two years prior to the date of the application for the policy in suit, the defendant Joseph Glaser made a written application for insurance upon his life to the Illinois Life Insurance Company, through its agent, Charles K. Lehrberg; that he was examined by the physician of the said last named company, and that on the 3d day of December, 1904, the application was rejected by the medical board of said company, on the ground that the medical examination- disclosed that the applicant was afflicted with glycosuria, a disease of tlie kidneys; that on tlie 7th day of December, 1904, letters properly addressed were sent to both Lehrberg, the agent, and the defendant Joseph Glaser, notifying them of. the rejection of said hpplication.

It was further shown by plaintiff that on the 14th day of June, 1907, plaintiff notified defendants in writing that the policy issued to Joseph Glaser was can-celled and rescinded on account of misrepresentations and concealment of material facts and breach of warranties, and tendered to defendants the amount received as premiums on said policies.

The defendant Joseph Glaser, as a witness in his .own behalf, admitted haying made application for .insurance to the Illinois Life Insurance Company as shown by the testimony for plaintiff, but further testified that a day or two after he had delivered the application to agent Lehrberg he met said1 agent on the street and directed him to withdraw and cancel his said application, and that he never received any notice or communication thereafter from the company or from Lehrberg “that they received my application or that they refused me;” that when he applied for insurance to the plaintiff insurance company, he did so in good faith and had no knowledge that his application to the Illinois Life Insurance Company had been rejected.

The only conflict in the testimony was as to whether the defendant notified Lehrberg, the agent of the Illinois Life Insurance Company, that he cancelled and withdrew his application for insurance in that company, and also as to whether defendant had received any notice from the Illinois Life Insurance Company or had any knowledge that his application had been rejected.

Upon the question of fact as to whether Glaser had notified Lehrberg of the withdrawal of his application, the testimony shows the following;

Glaser testified in his deposition that lie met -Lehrberg on the street a day or two after lie had signed the application and informed him that lie did not want the insurance applied for. The application was dated November 21, 1904. At the trial Glaser testified that it might have been two or three days after he had signed the application when he met Lehrberg and informed him-as above. When shown his medical examination, dated and signed November 30, 1904, he admitted that he must have been mistaken as to the time of meeting Lehrberg on the street. On the other hand there is the testimony of Lehrberg denying, that Glaser had ever spoken to him as to the withdrawal of the application. In corroboration of Lehrberg it was shown in evidence that the proper officers of the company, after the date of the alleged withdrawal, proceeded to paás upon the application -and after rejecting it wrote letters to Glaser and Lehrberg to that effect. There- was also a letter from Lehrberg to the company, dated December 8, 1904, acknowledging the receipt of the letter notifying him of the rejection of Glaser’s application, protesting against the action so taken and insisting upon a reconsideration of the application; also the answer of the company, dated December 9, 1904, suggesting a medical re-examination of Glaser and that a physician would be in St. Louis within a few days, at which time such re-examination could be made; that the medical examiner of the company, Dr. Wood, and Lehrberg thereafter went to see Glaser for the purpose of re-examination, hut did not find him at home.

Upon the remaining question of fact as to the notification of Glaser by the Illinois Life Insurance Company that his application had been rejected, against the testimony of Glaser that such notification was never received by him and that he had no knowledge of such action of the company upon his application, there is the testimony of the employees of the company that said letter of notification was written and the circumstantial evidence as to the course of business of the company in addressing' and mailing such letters.

IJpon the foregoing issues and testimony we are to determine whether the trial court erred in its decree denying the relief prayed for and dismissing plaintiff’s bill.

Most of the cases in the books that treat of alleged untrue statements and misrepresentations and the legal effect thereof, in applications for life insurance, are cases in which the issue of such false statements and misrepresentations is made as a defense in an action to recover on the policy. In such case the insurance company-has received the premiums from the insured and has raised no question as to the validity of its contract until called upon to respond under the contingency for which the insurance was obtained. The case at bar presents a very different situation. Plaintiff’s contention is that as soon as it became aware of facts not disclosed by the application, increasing its risk and liability under the policy, it promptly returned to the insured all that he had paid and asked to be relieved from further liability under its contract. We refer to the two classes of cases because the principles of law applicable to each are essentially different, a distinction overlooked or not recognized in the defendant’s brief.

Sec. 6937, R. S. 1909, provides that: “No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this State, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury.” It is apparent that this statute applies only to cases in which the “event on which the policy is to become due” has actually happened, and the liability of the insurer under the policy is the question to be determined. It was not intended to restrict the freedom of contract except in such cases as came within its provisions. The case before us is not an action to enforce liability under a contract of insurance'. The event on which the obligation is made contingent had not occurred and therefore the rights of the parties are not affected by the statute but are to be settled under the general law as though the statute did not exist. [Schuermann v. Insurance Co., 165 Mo. 649; Keller v. Insurance Co., 198 Mo. 440; Kern v. Legion of Honor, 167 Mo. 471; Union Life Insurance Co. v. Riggs, 123 Fed. 312.] In the case of Kern v. Legion of Honor, supra, the court (l. c. 488) said: “The statute takes away no material right that was enjoyed prior to its adoption. It is still competent for the company, during the life of the assured but not after his death, to bring a bill in equity to set aside the contract on the ground that it was procured by fraud.”

In the contract between plaintiff and defendants, we find it stipulated in the policy that the insurance provided therein is based upon the application, which is made a part of the policy. In the application the defendant warranted that: “All the foregoing statements and answers and all those that I make to the company’s medical examiner are complete, true and correct,” etc., etc. In one of such answers the defendant stated that no other company had refused him insurance, and in another that no company had declined to issue a policy upon his life. Under the testimony there can be no doubt that defendant had applied for insurance on Ms life to another company and that the company had refused it. It follows that the foregoing answers were both untrue and incorrect.

In cases not included within the provisions of said section 6937, a well-recognized distinction exists between a representation and a warranty in a contract of insurance. A representation is not a part of the contract “but only an inducement to make it” and will not invalidate the insurance unless false in a matter material to the risk. A warranty is a part of the contract and must be strictly true, whether material to the risk or not. [Aloe v. Insurance Association, 147 Mo. 561; McDermott v. Modern Woodmen, 97 Mo. App. 636; 3 Cooley’s Briefs on Law of Insurance, pp. 1935, 1954.] In Cooley, supra, at page 1935, the author says: “In pursuance of the general rule that statements and stipulations contained in, or expressly made a part of, the policy are warranties, it has been the generally accepted doctrine that where the application warrants the answers and statements therein to be full, complete, and true, and the policy recites that it is issued in consideration of the statements, agreements, and warranties in the application, which is referred to and made a part of the contract, such statements and agreements become warranties. ’ ’ ■ And at page 1954: “It is, however, well settled that a breach of warranty is fatal to the policy, though the insured had no knowledge of the falsity constituting the breach, and did not intend to deceive the insurer.” In the case of Aloe v. Insurance Association, supra, as shown by the facts stated (l. c. 579), the insured, “in answer to the questions put to him in his application for insurance as to whether or not any proposal by him to insure had ever been postponed or declined, and if so by what company or association, and for what reason, answered, ‘Yes, New York and Connecticut Mutual, about six years ago on account of traces of albumen;’ while the record discloses that he had been rejected eight times by six companies, while he disclosed but two.” As to the character of such statements and answers in the application for insurance, the court (l. c. 578) said: “In this case there can be no doubt that the answers of the assured to' the questions propounded to him in the application for membership in defendant company, were intended as warranties. It is -so stated in the application which is made part of the policy in terms so plain as to leave no room for doubt or construction, and there is no escape from the conclusion that they were so intended.” And (l. c. 579): “The uncontradicted evidence in this case showed that Aloe applied for insurance in different companies prior to his application in this case by which he had been rejected. That his answer did not disclose the truth, cannot be disputed; upon the uncontradicted evidence. The answer was a warranty and the evidence showed a breach thereof.”

It is true that in the decision just- quoted from it was held that the provisions of said section 6937 did not apply to the class of insurance companies to which the defendant company in that case belonged, and while said section would apply to and include the plaintiff herein in an action where liability under a policy is sought to be enforced, yet we have held that it is not applicable to a plaintiff in an action to cancel a policy as under the facts of this case.. It follows therefore that upon the subject of representations and warranties in insurance contracts, the law as announced in the ■ authorities cited and reaffirmed in the later cases, is also applicable to the case in hand. [Keller v. Home Life Ins. Co., 198 Mo. 440; Claver v. Woodmen of the World, 152 Mo. App. 155; McDermott v. Modern Woodmen, 97 Mo. App. 636; Modern Woodmen v. Angle, 127 Mo. App. 94.] From the foregoing it also follows that the statements of the defendant that he had not applied for and had not been refused insurance in another company, were warranties, upon the truth of which the contract of insurance was based and as such statements, under the uncontradicted evideuce, were not true or correct, tlie policy was invalid and void; not void ab initio, but void at tbe election of the insurer. The rule, as stated in Cooley, supra, 1962, is that: “In view of these cases, it may fairly be regarded as settled that a breach of warranty or a misrepresentation does not, ipso facto, render the policy void, but voidable merely, at the option of the insurer.”

The question remains whether the falsity of the statements and breach of warranties of the contract on the part of the defendant entitle the plaintiff to relief by an action in equity for the cancellation of the policy. The right of the insurer to relief in that form of action, for fraud of the applicant in the procurement of the policy, is well recognized in the decisions of the appellate courts of this State, but as á basis for such relief on the ground of fraud, the mere falsity of the statements and breach of warranties are not alone sufficient. It is essential that the applicant had knowledge of their falsity and acted in bad faith, to warrant that remedy. [Schuermann v. Insurance Co., 165 Mo. 641; Kern v. Legion of Honor, 167 Mo. 471; Keller v. Insurance Co., 198 Mo. 440; Modern Woodmen v. Angle, 127 Mo. App. 94.]

In the briefs of counsel the proposition is discussed with much ability as to whether the evidence warranted the conclusion that the defendant, at the time he applied for the policy, had knowledge of the action taken by the Illinois Life Insurance Company in rejecting his application for insurance. Plaintiff maintains that the evidence clearly shows such knowledge, while the defendants contend that it does not. However, plaintiff further maintains that it is entitled to relief, upon the equitable ground of mistake, regardless of whether defendant was so informed as to the fate 'of his former application. We are of the opinion that plaintiff’s latter contention is correct and that upon the uncontradicted, facts in evidence plaintiff is entitled to the relief prayed for.

Assuming the good faith of the defendant in making the statements in his application that he had not been refused insurance by any other company, nevertheless, as such statements were made warranties and a part of the contract, and as the policy was issued on the faith thereof and the statements were in fact untrue, there was necessarily “no meeting of the minds upon one of the essential elements of the contract,” and therefore such a mistake of fact as would authorize relief in a court of equity for the cancellation of the policy. [24 Am. & Eng. Ency. Law (2 Ed.), 618; 2 Joyce on Insurance, Sec. 1674; 1 Bacon on Insurance, Sec. 285; 2 Pomeroy’s Eq. Jur. (3 Ed.), See. 856; Curry v. Greffet, 115 Mo. App. 364.] Discussing-the law upon the subject of rescission and cancellation of insurance contracts, in Joyce on Insurance, supra, it is said: “If the contract is obtained by fraud or deception, or by false and fraudulent misrepresentations, or the relief sought rests upon accident or mistake, equity will take cognizance and grant relief.” And in Bacon on Insurance, supra: “The jurisdiction of equity to decree a cancellation upon proper showing has never been doubted, for insurance contracts, like other writings, may be reformed so as to express the intention of the parties, or, in cases of fraud, accident or mistake, be altogether avoided.” And in 24 Am. & Eng. Ency. Law, supra, upon the right to equitable relief for mistake of facts in contracts generally, the law is stated as follows: “Where parties have apparently entered into a contract evidenced by a writing, but owing to a mistake their minds did not meet as to all the essential elements of the transaction, so that no real contract was made by them, then a court of equity will interpose to rescind and cancel the apparent contract as written,, and to restore the parties to their former positions. , . . Where a contract in writing is executed under a mistake by only one of the parties as to a fact which is of the essence of the contract, the mistake constitutes a ground for a court of equity to rescind and cancel the apparent contract as written, and place the parties in statu quo.”

It is shown by the uncontradicted testimony that a mistake was made in the contract of insurance between plaintiff and defendant as to a fact material to the risk assumed by the plaintiff; that as soon as this mistake was discovered plaintiff tendered to defendant all that he had paid as premiums and thereupon rescinded and cancelled the contract. Plaintiff had done all it could do to avoid the effect of the mistake, both as to the defendant and itself, before coming into court for relief. It was without adequate remedy at law and we think it was entitled to a decree of cancellation of the policy as prayed.

The judgment is therefore reversed and the cause remanded, with directions that a decree be entered requiring the policy to be surrendered up and that .the same be cancelled.

Brown, P. J., and Ferriss, J., concur.


source: Caselaw Access Project

author: FEEEISS, J.

license: Public Domain

text:
    MOLLIE WADDLE et al. v. WILLIAM FRAZIER, Appellant.
    Division Two,
    November 13, 1912.
    1. LIFE ESTATE: To Malinda and Heirs of Her Body. A deed . to Malinda Frazier and “to the heirs of her body,” under Sec. 5, Ch. 32, E. S. 1855, created a life estate, in her and a remainder in fee in the heirs of her body; and when she died without issue, the estate in fee vested in her brothers and sipters.
    2. -: -: Husband’s Dower: Heirship. And though Malinda was married when the land was conveyed to her and “to the heirs of her body” in 1860, and she and her husband continued to reside on the land as their home until her death, without issue, in 1907, he is not entitled to one-half of the land under Sec. 350, R. S. 1909, which provides that “when a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payments of the wife’s debts.” As she owned only a life estate, her husband under that section can take no interest in the land after her death. And as she left brothers and sisters surviving her, he cannot claim heirship under Sec. 332, R. S. 1909.
    3. HEIRS: Under Widower's Dower Act and Statute of Entails. The term “heirs,” when used in reference to real estate, means kindred who by the law of descent are entitled to an interest in land, and excludes the husband or wife, where there is nothing in the statute in the connection in which it is used to indicate otherwise. And there is nothing in the Widower’s Dower Act (Sec. 350, R. S. .1909), declaring that when a wife shall die without descendants her widower shall be entitled to one-half of the real estate belonging to her, when read in connection with the statute .abolishing entails (Sec. 5, Ch. 32, R. S. 1855), declaring that where the life tenant shall die without issue the fee shall vest in “his or her heirs,” which would authorize a holding to the effect that the husband becomes an heir of the wife to land conveyed to her and “to the heirs of her body,” upon her death without issue, but leaving brothers and sisters surviving her.
    ’4. PARTITION: Adverse Possession: Voluntary Appearance of Adverse Claimant. As a rule partition cannot be adjudged where a party claims adversely to all those seeking it; in such case the right to possession must first be determined by ejectment; and the rule is based upon the proposition that in partition the court does not try title and the right to possession, and upon the practical difficulty of enforcing a decree of partition against one in exclusive adverse possession. But this rule does not apply when the adverse claimant in exclusiye possession voluntarily enters the partition suit as a party, sets up an equitable title to the land and prays an adjudication thereon, and prays for such other and further orders and decrees as to the court may seem proper. In such case the rule that when a court of equity has acquired jurisdiction of a cause for one purpose, it will proceed to complete justice between the parties, and determine all matters in issue, even if this involves adjudicating matters at law, is applied. Where such claimant invokes the judgment upon his claim of equitable ownership, the court may decree the title in the other parties and that they are entitled to possession.

      5. LIFE TENANT: Adverse Claim to Remaindermen: Limitations. Neither the life tenant nor any grantee of her life estate can claim adversely to the remaindermen, and the Statute of Limitations does not, until her death, begin to run against them in favor of a purchaser of the life estate, whether he be- her husband or some other. So that where Malinda’s father in 1860 conveyed the land’ to her and “to the heirs of her body,” and she and her husband, William, conveyed it to James in 1862, and in 1866 the administrator of James, by due proceedings, conveyed it to William, and he and Malinda thereafter occupied it as their home until her death, without issue, in 1907, William owned only her life estate and did not at any time prior to 1907 hold adversely to her brothers and sisters; and, at’ the time of the institution of suit in partition in 1908, Willi-am had neither title nor the right to possession.
    6. RESULTING TRUST: Deed to Wife and Bodily Heirs. Where the owner of land on April 13, 1860, conveyed forty acres to his son-in-law, and in May following conveyed the forty acres adjoining to his daughter, and one witness testified that he understood this forty was given to' her by her father as a home, and she and her husband occupied the said eighty as their home until her death in 1907, except from 1862, when they conveyed it to his brother, to 1866, when the brother’s administrator sold and conveyed it to the husband, it will not be held that the said husband bought the forty conveyed to the wife from her father and paid for it with his own money and that she therefore held the title as trustee for him, if the testimony going to establish the resulting trust is at best vague and fragmentary, and the chancellor who saw the witnesses did not consider it sufficient.
    Appeal from Sullivan Circuit Court. — Eon. John P.. Butler, Judge.
    Affirmed.

      John W. Clapp and D. M. Wilson for appellant.
    (1) The deed from James Lee and wife to Malinda Frazier and the heirs of her body, created an estate tail, and by the statute then in force vested in her a life estate, remainder in fee to her issue, and she dying without issue, remainder in fee to her heirs. Sec. 5, Ch. 32, R. S. 1855; Clarkson v. Clarkson, 125 Mo. 381. (2) The widower is an heir of his wife, and under the statute is entitled to the one-half of the real estate. Sec. 2938, R. S. 1899. (3) And the statute applies to those who were married before as well as after its enactment. Spurlock v. Burnett, 183 Mo. 524; Gilroy v. Brady, 195 Mo. 205. (4) The deed from William and Malinda to James M. Frazier expressed to convey an indefeasible estate in fee simple, and by the statute then in force, she and her heirs are bound by the express and implied covenants therein so far as to effectually convey such estate. Secs. 35 and 36, Ch. 32, R. S. 1855. (5) To maintain partition the parties seeking it must have either actual or constructive possession. Partition is not a suit to try the title or to settle the right to a disputed possession. If the defendant William Frazier was in the actual possession, claiming the land sought to be partitioned adversely to plaintiffs and his codefendants, partition cannot be maintained. Lambert v. Blumenthal, 26 Mo. 471; Shaw v. Gregoire, 41 Mo. 407; Colvin v. Hanenstein, 110 Mo. 575; Hutson v. Hutson, 139 Mo. 229; Estes v. Nell, 140 Mo. 639; Snyder v. Arn, 187 Mo. 165; Coberly v. Coberly, 189 Mo. 1; Chamberlain v. Naples, T93 Mo. 96. (6) A deed purporting to convey the fee, though void, is an assurance of title so as to support a claim of title by adverse possession thereunder and will cause limitations to run in favor of such possession. Smith v. Cross, 140 S. W. 1060. (7) In a suit in equity the Supreme Court, as an appellate tribunal, is charged with the determining it under the evidence, on the very right of the case, irrespective of the conclusion arrived at by the trial court. Primm v. White, 142 S. W. 804. (8) Where the evidence is oral and the trial court has an opportunity to observe the conduct of the witness upon the stand, that court is in a much better position to judge of the weight to be given to his testimony than is the appellate court. But when the testimony is documentary, or in the form of a deposition, the advantage of the trial court does not exist. Neil v. Store Co., 149 Mo. App. 53.

      John W. Bingham and W. E. Childers for respondents.
    (1) The finding, judgment, and decree of the trial court was for the right party, is justified, supported, and maintained by legal and competent evidence, and the court did not err in rendering the judgment it did. R. S. 1855, Ch. 32, Sec. 5; G. S. 1865, Ch. 108, Sec. 4; R. S. 1899, Sec 2954; R. S, 1909, Sec. 2872; Wood v. Nice, 103 Mo. 329; Bone v. Tyrrell, 113 Mo. 175; Clarkson v. Clarkson, 125 Mo. 381; Brown v. Rogers, 125 Mo. 392; Hunter v. Patterson, 142 Mo. 310; Hall v. French, 165 M6. 430; Miller v. Ensminger, 182 Mo. 195; G-odman v. Simmons, 113 Mo. 122; Reed v. Lane, 122 Mo. 311. (2) The trial court did not err in holding that the heirs of Malinda Frazier are not bound to any of the covenants in the deed from William Frazier and Malinda, his wife, to James M. Frazier, dated February 14, 1862, for the reasons: (a) That deed on its face purports and is a deed from William Frazier and wife to James M. Frazier, (b) The wife, Malinda Frazier, joins with her husband for the purpose only of relinquishing her dower, and not the fee in the land conveyed by the deed; and, (c) though this was her own warranty deed, she could by it .only sell and convey her life estate in the land even though she intended thereby 'to convey the fee title. Salmons v. Davis, 29 Mo. 181; Foote v. Sanders, 72 Mo. 621; Phillips v. LaForge, 89 Mo. 72; McDonald v. Quick, 139 Mo. 498; Henley v. Wilson, 77 N. C. 216. (3) And even though the grantee paid its full value and believed he was purchasing the fee title, he took only her life estate in the lands. Salmons v. Davis, 29 Mo. 181; Foote v. Sanders, 72 Mo. 621; Phillips v. LaForge, 89 Mo. 72; McDonald v. Quick, 139 Mo. 498; Charles v. Pickens, 214 Mo. 215; Jackson v. Van Hoesen, 4 Cowen 325; King v. Sharp, 6 Humph. (Tenn.) 55; Taylor v. Kemp, 86 Ga. 181; Roberts v. Forsythe, 14 N. C. 26; 16 Cyc. 636. Remaindermen are not responsible for covenants of warranty made by the life tenant to the land. Barlow v. Delaney, 86 Mo. 587. The possession of the life tenant or her grantee and all holding or claiming under her or them, is the possession of the remaindermen, and such life tenant or her grantees’ possession is the possession of the remaindermen upon the falling in of the life estate. Robidoux v. Cassilegi, 10 Mo. App. 516; 'Wilson v. Lerche, 90 Mo. 473; Pharis v. Jones, 122 Mo. 130. Appellant having acquired possession of the premises during the life of the life estate, his possession in law was not adverse to, but presumed to be for the remaindermen. Kellogg v. Mullen, 39 Mo. 178. (4) The trial court did not err in holding that the plaintiffs could maintain this action. R. S. 1909, Secs. 2559, 2562, 2564; Carr v. Dingo, 54 Mo. 102. The possession of the life tenant or her grantees, and all holding and claiming under or through her or them, hold for the use and benefit of the remainder-men upon the falling of the life estate. R. S. 1909, Sec. 2867; Sutton v. Casseleggi, 77 Mo. 405; Keith v. Keith, 80 Mo. 127; Hall v. French, 165 Mo. 438; Rozier v. Griffith, 31 Mo. 173; Wommack v.,Whitmore,' 58 Mo. 458; Colvin v. Hauenstein, 110 Mo. 582; Boland v. Ross, 120 Mo. 216; Chapman v. Kullman, 191 Mn 247. (5) Appellant by his answer changed this from an action at law to a suit for the equitable partition of the land in dispute, and the trial court was not compelled to relegate the parties to an action in ejectment to determine their right to possession of their aliquot parts, but was authorized to hear and determine every issue raised and render such judgment and decree as would effectually determine the whole matter without further litigation, Rozier v. Griffith, 31 Mo. 173; Dameron v. Jameson, 71 Mo. 100; Colvin v. Hauenstein, 110 Mo. 582; Boland v. Eoss, 120 Mo. 216; Coberly v. Coberly, 189 Mo. 16; Chapman v. Kullman, 191 Mo. 247; Barnard v. Keithley, 230 Mo. 223; Brown v. Moore, 74 Mo. 635; Holmes v. Kring, 93 Mo. 458; Sherwood v. Baker, 105 Mo. 478; Eoberts v. Thomason, 174 Mo. 387.
   FEEEISS, J.

— This is a suit to partition forty acres of land. The original parties are the collateral heirs of Malinda Frazier, who died in 1907. This forty acres was conveyed to said Malinda. by her father in 1860 — to her “and to the heirs of her body.” She died without issue. The record shows that in April, 1860, James Lee and wife, by general warranty deed, conveyed to William Frazier, the appellant, the southwest quarter of the northeast quarter of section twenty, township sixty-two, range nineteen, in Sullivan county, for a recited consideration of three hundred dollars. In May, 1860, the said James Lee and wife, by general warranty deed, conveyed the adjoining forty, namely, the southeast quarter of the said northeast quarter, the same being the land in controversy, to their daughter, Malinda. Frazier, wife of said William, “and to the heirs of her body,” for a recited consideration of four hundred dollars. In February, 1862, William Frazier and wife, by general warranty deed, conveyed the above described two tracts, eighty acres in all, to James M. Frazier, brother of said William. In July, 1866, said William Frazier purchased the aforesaid eighty acres from the estate and widow of said James M. Frazier, and received proper conveyance thereof. William Frazier went into possession of this eighty acres in 1866, and occupied same as a home for himself and wife until her death in 1907. After her death, William Frazier continued in the possession of the land, and held such possession until this present suit for partition of the forty acres conveyed by James Lee to Malinda was instituted by the brothers and sisters of Malinda Frazier, in February, 1908, the said Malinda having died without issue.

The petition in this case is based upon the theory that the deed from James Lee to Malinda Frazier and the heirs of her body, made in 1860, gave her, under the statute then in force, a life estate, with remainder to her heirs, in default of bodily issue; that the persons seeking partition were her heirs; that the sale of the land by William and Malinda Frazier, in .1862, to James M. Frazier, and the subsequent conveyance from his estate to William Frazier • carried only the life estate of Malinda, and that consequently, upon her death, in 1907, the title passed to her heirs. William Frazier, upon his request, was made a party defendant in this partition suit. He filed an answer in which he claims to be the owner of the land, that he bought and paid for it with his own money, and that his wife held the title as his trustee. He also pleads adverse possession, under the deeds from the estate of James M. Frazier, since July 1866. He further says in his answer that if the said Malinda had any right or interest in the land, he, as her husband, would, under the statute, be entitled to “one-half of all real estate which her heirs would inherit.” He prays that all rights which the parties seeking partition may seem to have, “if any they have,” be divested out of them and vested in him; that he be declared the absolute owner; that plaintiff’s petition be dismissed, and for “such other and further orders, judgments and decrees herein as to the court may seem right and proper.” A reply was filed, alleging that William Frazier took the deeds from James M. Frazier’s estate with full knowledge of the condition of the title.

When the case came to trial, plaintiffs proved the conveyances as alleged, the death of Malinda' Frazier without issue, and the relationship of the parties asking partition. Several witnesses were examined orally upon the issue raised by the defendant as to his having bought the land with his own money, and as to his having claimed it as his.

The court rendered judgment which, in part, is as follows:

“Now, to-wit, on the 9th day of January, 1909, this cause having béen heretofore heard by the court, comes on for final determination; and the court, having been fully advised in the premises, and as to the evidence adduced on the part of the defendants, as well as on the part of plaintiffs, being duly advised as to such evidence and the facts, finds that the impleading defendant, William Frazier, has no right, title, claim or interest in and to the southeast fourth of the northeast quarter of section twenty, township sixty-two, of range nineteen, Sullivan county, Missouri, sought to be partitioned herein; and the court finds that said land was conveyed to Malinda Frazier, wife of said William Frazier, and her bodily heirs; and although subsequently conveyed to one James M. Frazier by warranty deed, the effect thereof was to vest in the- grantee a life estate only in the land in controversy; that although the defendant, William Frazier, subsequently purchased said land from the administratrix of the estate of James M. Frazier, deceased, he made such purchase with full knowledge and notice of the condition of the title, that a life estate only could be sold or purchased, and that although he remained in the rightful possession of such land, as a purchaser of his wife’s life estate, until the time of her death, to-wit, on the 15th day of September, 1907, he -is not now entitled to the possession and control thereof; but on the contrary, the said Malinda Frazier having died without issue of her body, the plaintiffs and defendants, other than said William Frazier, as her collateral heirs, are the owners of the legal title, and entitled to the possession of said land, which is hereby declared to be vested in them.”

The judgment further finds that the original parties to the partition suit own the land in fee; finds their respective interests; that the land is not susceptible of division in kind, and orders it sold for cash, and the proceeds divided among the parties entitled thereto. William Frazier appeals.

I. It is conceded by appellant that, by its terms, the'deed from James Lee to Malinda Frazier and the heirs of her body gave her a life estate, with remainder to her heirs in the event she should die without issue, and. this by virtue of Sec. 5, Chap. 32, R. S. 1855, which reads as follows:

“Sec. 5. That, from and after the passage of this act, where any conveyance or devise shall be made whereby the grantee or devisee shall become seized, in law or equity, of such estate,, in any lands or tenements as, under the statute of the thirteenth of Edward the First, (called the Statute of Entails) would have been held an estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over, and right in, such premises, and no other, as a tenant for life thereof would have by law; and, upon the death of such grantee or devisee, the said lands and tenements shall go, and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee; and if there be only one child, then to that one, in fee; and if any child be dead, the part which would have come to him or her, shall go to his or her issue; and if there be no issue, then to his or her heirs.”

It is further conceded in the answer of the- appellant that Malinda died without issue of her body, and that the parties seeking partition are her heirs. Appellant contends, however, that as her husband he is entitled, as heir of his wife, to one-half of the land under Sec. 350, R. S. 1909, which reads thus:

“Sec. 350. When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts.”

Obviously, the husband could take no interest directly under this section, in land in which his wife owned a life estate only. Nor could he claim heirship under the law of descent (Sec. 332, R. S. 1909), his wife having left'brothers and sisters surviving her. The claim of heirship on the part of appellant must, therefore, rest on the proposition that section 350, supra, constitutes him an heir of his wife so as to bring him within the final clause of the law in force in 1855, and quoted above. We think this proposition unsound. Section 350, giving the husband an interest in his wife’s real estate, was enacted to equalize the rights of widows and widowers. That which the husband takes under this section is in the nature of dower. His claims are limited to property belonging to her at her death. It does not make him his wife’s heir in the full sense of that term. The term “heirs,” in its accepted legal signification, means kindred who by the law of descent are entitled to an interest in real estate (Ruggles v. Randall, 70 Conn. 44; Dodge’s Appeal, 106 Pa. St. 216; Jarboe v. Hey, 122 Mo. 1 c. 354); and, under the authorities, excludes the husband or wife, where there is nothing in the connection in which it is used to indicate otherwise. [Dodge’s Appeal, supra; Fabens v: Fabens, 141 Mass. 395; Jarboe v. Hey, supra; Clarkson v. Clarkson, 125 Mo. 381; 15 Am. & Eng. Ency. Law (2 Ed.), 329.] The word “heir” has been construed in many cases to include the wife or husband where personal property was involved, and the intent was manifest, particularly in provisions in benefit certificates; but with regard to real estate, the rule stated above is uniform. There is certainly nothing in the law quoted above from the Revision of 1855 to indicate that this rule does not apply, and there is nothing in Sec. 350, R. S. 1909, to extend the rights of the husband beyond the plain limitations and purposes of that section.

II. Appellant asserts this proposition in his brief: .

“To maintain partition, the parties seeking it must, have either actual or constructive possession. Partition is not a suit to try the title or to settle the right to a disputed possession. If the defendant, Wm. Frazier, was in the actual possession, claiming the land sought to be partitioned adversely to plaintiffs and his -codefendants, partition cannot be maintained. ’ ’

Appellant cites several cases to the effect that partition cannot be rendered in a cause where a party claims adversely to all those seeking partition,- and that in such case the right to possession must be first determined by an action in ejectment. [Chamberlain v. Waples, 193 Mo. 96, and cases cited.] The above rule is based upon the proposition that in partition the. court-does not try title and right-to possession, and further, upon the practical difficulty in enforcing a decree of partition against one in adverse, exclusive possession. Does this rule apply when the adverse outside claimant voluntarily comes into the partition suit as a party, sets up an equitable title to the land and prays ,an adjudication- thereon, and prays for such other and further orders and decrees as to thé court may seem proper? In this case the appellant asserted equitable ownership of the land, and asked a court of equity to decide between his rights and those of the parties asking partition. The court tried the issue thus presented, and decided it against appellant, and adjudged the title and right to possession to be in the claimants -seeking partition. The court, as a court of equity, took jurisdiction, as requested by appellant, of the issue presented by him. The general rule applicable to such a situation is this: When a court of equity has acquired jurisdiction of a cause for one purpose, it will proceed to do complete justice between the parties, and determine all matters in issue, even if this involves adjudicating matters of law. [Dameron v. Jameson, 71 Mo. 97; Real Estate Savings Inst. v. Collonious, 63 Mo. 290; Paris v. Haley, 61 Mo. l. c. 462; Hagan v. Bank, 182 Mo. l. c. 342.]

This doctrine has been applied by this court in modification of the rule above stated applicable to partition. In Rozier v. Griffith, 31 Mo. 171, this court said: “The fact that the defendant is in possession of the premises, claiming to hold them adversely to the plaintiff, is in general a sufficient ground for denying a partition in a court of law; but when the question arises upon an equitable title set up by either of the parties, the reason of the rule fails. WTien the questions are such as belong to a court of equity, there can be no reason for suspending the proceedings short of complete justice between the parties. [Cox v. Smith, 4 Ch. 275; Hosford v. Mervin, 5 Barb. 62.]”

In Dameron v. Jameson, supra, this court says: “It is urged by defendant that partition will not lie when defendant is in adverse possession of the premises, of which partition is asked. This doctrine, in cases to which it is applicable, is well settled, but no case can be found in our reports where the principle was applied in a proceeding to establish an equitable title, and also for partition. When the plaintiff asks for partition, and the defendant is in the adverse possession of the property, the courts refuse to partition the land between them, until plaintiff establishes his title, and a suit in ejectment is the proper proceeding for that purpose; but where, as here, the plaintiff has an equitable title, and asks the aid of the court of equity to establish it, if the court ascertain that he has an. interest, and what that interest is, the doctrine that partition cannot be had when the defendant is in the adverse possession of the premises, does not apply. The decree establishes plaintiff’s title, and under it the court may put him in possession, and a suit in ejectment becomes necessary [unnecessary.] The court, having acquired jurisdiction of the cause, may proceed to determine the whole controversy by decreeing a partition of the premises. [Rozier v. Griffith, 31 Mo. 171.]”

To the same effect is Holloway v. Holloway, 97 Mo. l. c. 643-4.

Appellant invoked the judgment of the court upon his claim to equitable ownership of the land. The judgment deereed the title to be in the other parties, and that they were entitled to possession.

It is obvious that appellant’s claim of title by adverse possession is without foundation. The deed to him from the administratrix of James M. Frazier conveyed only the life estate of Malinda Frazier, as that was the only estate conveyed to James M. Frazier by the deed from Malinda and William Frazier. Neither Malinda nor any grantee of her life estate could claim adversely to the remaindermen; hence, the statute could not begin to run in favor of appellant until the death of Malinda, in 1907. It follows that appellant, at the time of the institution of this suit, had neither title nor the right to possession. [Charles v. Pickens, 214 Mo. l. c. 215; Dugan v. Follett, 100 Ill. 589; Colvin v. Hauenstein, 110 Mo. 575; Scott v. Colson, 156 Ala. 450.] The court below, having acquired jurisdiction of all the issues in the cause, rendered judgment on this issue of adverse possession, and decreed the title and right to possession to be in the collateral heirs of Malinda Frazier, parties to the partition suit. It thus became unnecessary to resort to ejectment to try the question of title by adverse possession. [Coberly v. Coberly, 189 Mo. 1.]

III. Appellant, in his answer, alleged that he bought and paid for the land conveyed to his wife, Malinda, and that she held the title in trust for him. Evidence was introduced upon this issue by both sides. Upon the testimony, the court found against appellant. James Lee, the father of Malinda, conveyed forty acres to "William Frazier, April 13, 1860. In May following, James Lee conveyed' the forty acres in controversy to Malinda Frazier. The two tracts are adjoining, and together make the eighty acres which William Frazier and his wife occupied as a home, except during the interval from 1862 to 1866 when the eighty acres were in possession of James M. Frazier under deed from William and wife. Appellant claims that he bought the eighty acres at one time from James Lee. No explanation is given for the conveyance of one forty to his wife. One witness stated that he understood that the forty was given to her by her father for a home. The language of the deed to her “and to the heirs of her body” is consistent with this, and tends to negative the claim to a resulting trust. We deem it unnecessary to detail the oral testimony. It came from friends and neighbors, who testified, pro and con, to fragments of conversations, and to remarks by James Lee, Malinda and William Frazier, some of them as far back as fifty years. One witness, fifty-nine years old, testified to a conversation heard by him in 1859, before he was ten years old. The evidence at best is vague and fragmentary. It fails to measnre up to the rule declared by this court in King v. Isley, 116 Mo. 155, where, speaking of the quantum of evidence essential to establish a resulting trust, we say: “ ‘The rule in this court is settled by a uniform line of decisions that parol testimony, in order to accomplish such an object and secure such an end, must be clear, strong and unequivocal; so definite and positive as to leave no room for doubt in the mind of the chancellor as to the existence of such a trust.’ [Allen v. Logan, 96 Mo. 591.] ‘These resulting trusts must not be declared upon doubtful evidence, or even upon a mere preponderance of evidence. . . . There should be no room for a reasonable doubt as to the facts relied upon to establish the trust.’ [Adams v. Burns, 96 Mo. 361.]”

We are not bound by the finding of the chancellor, but we may properly defer in some degree to his superior opportunity to weigh the testimony. Our views upon testimony of this character in such a case as this are expressed at length in Williams v. Keef, 241 Mo. 366, and need not be further extended here.

We think the. judgment is sustained by the record. We find no reversible error. The judgment, therefore, is affirmed.

Brown, P. J'., and Kennish, J., concur.


author: BLAIR, C. PER CURIAM.

text:
    RUPERT WINN, by his Next Friend, v. KANSAS CITY BELT RAILWAY COMPANY, Appellant.
    Division Two,
    November 13, 1912.
    1. PLEADING: Defective Statement of Cause of Action: No Demurrer: Appeal. An. appellant cannot, in view of Sec. 2119, R. S. 1909, complain of a defective statement of a cause of action to which he failed to demur in the trial court.
    2. JOINT TORTFEASORS: General Charge: Recovery Against One: Negligence. Under a general charge of the common negligence of three, recovery may be had against the one defendant found guilty.

      3. NEGLIGENCE: Master and Servant: Jerking Boy from Moving Train: Question for Jury. Where a flagman in the employ of defendant railroad forcibly jerked the plaintiff (a thirteen-year-old trespasser) from a ladder on the side of a moving freight car, thus depriving him of the power of protecting himself, and permitted him to fall under the train, the question of neligence was for the jury. [Following Brill v. Eddy, 115 Mo. 596, and distinguishing Lillis v. Railroad, '64 Mo. 464; Randolph v. Railroad, 129 Mo. App. 1, and Bolin v. Railroad, 108 Wis. 333.]
    4. -: -: -: Scope of Employment. A railroad is liable for the act of its crossing flagman who, having authority to prevent boys from boarding trains and while at his post engaged in the performance of his duty, pulled a boy from a ladder he had just mounted on a moving freight car and allowed him to fall beneath the train.
    Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.
    Affirmed.

      M. A. Low, Paul E. Walker, Sehree, Conrad & Wendorff, W. F. Evans, and Sam B. Sehree for appellant.
    (1) The court committed error in Refusing to give the demurrer to the evidence, and the instruction in the nature of a demurrer to the evidence, for the reasons: (a) The act of the watchman in attempting to remove the plaintiff from the ladder on the car was not proven to be within the scope of his employment. Drolshagen v. Railroad, 186 Mo. 258; Sherman v. Railroad, 72 Mo. 62; Marcum v. Railroad, 139 Mo. App. 217; Farber v. Railroad, 32 Mo. App. 378. (b) The burden was upon plaintiff to prove that the injury to him was occasioned by the negligence of the defendant, and this he failed to do. Bolin v. Railroad, 108 Wis. 333; Mugford v. Railroad, 173 Mass. 10; Lillis v. Railroad, 64 Mo. 464; Randolph v. Railroad, 129 Mo. App. 1. (c) The plaintiff was a trespasser and his resistance contributed to cause him to fall from the train. Hutchison on Carriers, Sec. 593; 1 Thompson Com. Law Neg., Secs. 206, 7, 8; Railroad v. Swope, 115 Ala. 287; Moore’s Case, 38 S. C. 1; Railroad v. Gants, 38 Kan. 608; Hall v. Railroad, 15 Fed. 7. (d) The charge of negligence in the petition was a joint charge against three corporations, and there was- a total failure of proof of any joint negligence. In such case as here shown, there being no pretense in the evidence of joint wrong or concurrent act by defendants producing injury to plaintiff, there is no separate liability of any defendant for its separate wrong, or tort. The proof failing, as it does, to show any joint, concurrent act or wrong, the defendant’s demurrers to the evidence should have been sustained. Secs. 1734, 2772, 5431, R. S. 1909; Otrich v. Railroad, 154 Mo. App. 430; Laughlin v. Powder Co., 153 Mo. App. 508; Barton v. Barton, 119 Mo. App. 531; Timber Co. v. Railroad, 180 Mo. 463; Livesay v. Bank, 36 Colo. 526; Bank v. Reynier, 41 Pa. Sup. Ct. 1; 15 Ency. Pl. & Prac. 502; Howard v. Traction Co., 195 Pa. St. 391; Wiesh v. Traction Co., 200 Pa. St. 148; Railroad v. Eggman, 71 Ill. App. 42; Forsell v. Copper Co., 38 Mont. 403; Meyer v. Railroad, 120 Mo. App. 292; Hoxie v, Nadine, 123 Fed. 379; Nunnich v. Railroad, 203 Pa. St. 632. In the case made by the petition defendant would be entitled to contribute from the Terminal Company, but in the case submitted to the jury there could be no contribution. Laughlin v. Powder Co., 153 Mo. App. 508; Paddock v. Rice, 179 Mo. 480; Mulderig v. Railroad, 116 Mo. App. 655; Eaton & Prince Co. v. Trust Co., 123 Mo. App. 117; Hubbard v. Railroad, 173 Mo. 249; Denta v. Morrison, 160 Mo. 581; Bride v. Railroad, 192 Mo. 331; Stanley v. Railroad, 114 Mo. 623. (2) The court committed error in giving instruction 1 on the part of the plaintiff. This instruction leaves out of consideration the act of plaintiff in resisting the watchman, and also does not require a finding that the watchman was within the scope of his employment in his effort to remove the plaintiff from the car. (3) The petition does not state a canse of action, in that it does not charge any negligence.

      A. F. Smith, Boyle & Rowell, Joseph S. Brooks and Guthrie, Gamble & Street for respondent.
    (1) The act of the watchman in removing the plaintiff from the moving car was the act of the defendant. Haehl v. Railroad, 119 Mo. 325; Meade v. Railroad, 68 Mo. App. 92; Cnrtis v. Railroad, 99 Mo. App. 502; Boden v. Railroad, 108 Mo. App. 696; Compiler v. Railroad, 127 Mo. App. 553; Brill v. Eddy, 115 Mo. 596; Knowles v. Bnllene & Co., 71 Mo. App. 341; Houck v. Railroad, 116 Mo. App. 559; Garretzen v. Duenckel, 50 Mo. 104; O’Brien v. Railroad, 185 Mo. 263, 212 Mo. 59; Wahl v. Railroad, 203 Mo. 261; Barree v. Cape Girardeau, 197 Mo. 382; Chandler v. Gloyd, 217 Mo. 394. (2) Plaintiff sufficiently proved that his injuries were 'caused by the negligence' of defendant. Railroad v. Hock, 66 111. 238; Brill v. Eddy, 115 Mo. 596; Kreuger v. Railroad, 84 Mo. App. 358; Johnson v. Railroad, 112 la. 639. (3) There was no proper issue nor evidence in this case that plaintiff caused his own injury by an unlawful resistance of an attempt to properly remove him from defendant’s train. Railroad v. Shaw, 86 Fed. 865; Brill v. Eddy, 115 Mo. 596. (4) The fact that plaintiff charged that the defendants named in the petition, with another defendant, caused his injuries, does not invalidate his judgment against the appellant only. Railroad v. Noland, 75 Kan. 691; Fulwider v. Gas Co., 216 Mo. 582; Noble v. Kansas City, 95 Mo. App. 167; Chlanda v. Railroad, 213 Mo. 244'; Wahl v. Transit Co., 203 Mo. 261; Augustus v. Railroad, 153 Mo. App. 572; Wiggin v. St. Louis, 135 Mo. 558; Weathers v. Railroad, 111 Mo. App. 315; Wills v. Railroad, 133 Mo. App. 625; Stoller v. Railroad, 200 Mo. 107; Moudy v. Railroad, 149 Mo. App. 413. (5) The court committed no error in giving instruction 1 on behalf of plaintiff, (a) There was no error in omitting in that instruction to submit the issue of contributory negligence on the part of plaintiff. There was no plea of contributory negligence in defendant’s answer. There .was no substantial evidence of contributory negligence on the part of plaintiff. The court gave an instruction, at defendant’s request, submitting 'that issue, and therefore it was not necessary to submit it in plaintiff’s instructions. Owens v. Railroad, 95 Mo. 169; Meily v. Railroad, 215 Mo. 567, 588; Underwood v. Railroad, 125 Mo. App. 490; Johnston v. Railroad, 150 Mo. App. 304. (b) The instruction properly submitted the issue of. whether the watch,man was acting within the scope of his authority. (6) Plaintiff’s petition properly charged negligence on defendant’s part. A general allegation of negligence is sufficient as against a plea that the petition does not state a cause of action. Conrad v. DeMontcourt, 138 Mo. 311; LeMay v. Railroad, 105 Mo. App. 361; Deiter v. Zbaren, 80 Mo. App. 612; Johnson v.. Railroad, 104 Mo. App. 588; Baskett v. Railroad, 123 Mo. App. 725. On objection to the sufficiency of a petition, first made in the appellate court, every intendment • is indulged in favor of the sufficiency of the petition. Sharp v. Railroad, 213 Mo. 517; Bragg v. Railroad, 192 Mo. 331.
   BLAIR, C.

— This action was instituted- in the circuit court of Jackson county by Rupert Winn, by next friend, against the Kansas City Belt Railway Company and the Kansas City Terminal Railway Company to recover damages for the loss of an arm and other injuries alleged to have resulted from defendants’ negligence. At the close of his evidence plaintiff dismissed as to the Kansas City Terminal Railway Company and subsequent proceedings resulted in a judgment against the Kansas City Belt Railway Company, from which judgment this appeal is prosecuted.

The count of the petition on which recovery was had charges, among other things, that “defendants and some other railway company were operating a moving train on the tracks and road of the defendants under and by virtue of a license, permit, lease or running arrangement, with or from said defendants” and “while plaintiff was riding on said moving train, which was running on the tracks and road of the defendants . . . and while he was standing in a position of safety on said train, the defendants, and said lessee railway company caused the plaintiff to be removed therefrom in such a manner that plaintiff, fell or was thrown under said moving train and his right arm, etc., . . ,. Plaintiff says that the conduct of the defendants and said lessee railway company in removing and causing to be removed the plaintiff from said train under the circumstances was negligent. Wherefore,” etc.

Appellant’s answer was a general denial.

The injury occurred at Twentieth and Campbell streets in Kansas City, at which point appellant’s road crosses Campbell street where a flagman or watchman was and long had been stationed. A freight train was proceeding westward along appellant’s tracks and across Campbell street, when respondent, a thirteen year old boy, in the flagman’s presence got upon the ladder at the side and near the end of one of the cars, and took a position with his feet in the stirrup and his hands grasping one of the rounds of the ladder. As this car passed over the crossing the evidence tends to show the flagman stepped up behind respondent, seized hold of the belt of his trousers at the back and pulled him from the car. At this juncture the flagman released his hold on the respondent and the latter fell between the cars and upon or beside the rail and his right arm was caught and crushed beneath the wheels. The evidence tends to show the flagman was old and weak. The evidence showed it was the flagman’s duty to keep boys from getting on trains at his crossing and that for years and in many instances he had exercised this authority. His own testimony is to this effect and is clearly susceptible of the further interpretation that his instructions were to see to it, generally, that no accidents happened at the crossing and that he did whatever in his judgment would “protect the situation better.” Appellant’s superintendent testified it was the flagman’s duty to “warn and prevent boys getting on trains, if he could” and that the same instructions were given to all flagmen. For respondent one of appellant’s former flagmen, in service in 1906, had testified the instructions were not to, permit persons to get on trains at crossings.

I. It is said no negligence is charged. In view of the failure to demur and the statutory provision (R. S. 1909, Sec. 2119) that after verdict the judgment thereon shall not be reversed “-for the want of any allegation or averment on account of which omission a demurrer could have been maintained” nor “for omitting any allegation or averment without proving which the triers of the issue' ought not to have given such a verdict,” the objection comes too late. In the circumstances appellant cannot now complain of a defective statement of the cause of action.

II. The petition charges joint negligence but the evidence has no tendency to connect any save appellant with the injury and appellant’s counsel earnestly insist this constitutes a total failure of proof. The argument is, in substance, that under a petition charging a joint tort, prool of a tort committed by one, alone, is insufficient to authorize judgment against even the guilty defendant.

In Winslow v. Newlan, 45 Ill. l. c. 148, it was said that in actions of tort “it is a rule of practice, coeval with our system of jurisprudence, that a plaintiff may recover against as many, and only such, defendants as he proves to be guilty” and in Railroad v. Laird, 164 U. S. l. c. 400, it was said that since “in an action against joint tortfeasors recovery may be had against one, it follows that allegations alleging a joint relationship and the doing of negligent acts jointly are divisible, and that a recovery may be had where the proof establishes the connection of but one defendant with the acts averred.” At common law “in actions ex delicto a joint liability need not be proved and consequently a misjoinder of defendants will not defeat a recovery.” 15 Ency. PI. and Prac., p. 583, and cases cited. To these authorities may be added: Tompkins v. Railroad, 66 Cal. 163; Railroad v. Thompson, 101 Ga. 26; Louisville, etc. R. R. v. Duvall, 40 Ind. 246; Matthews v. Railroad, 56 N. J. L. 34; Louisville, etc. R. R. v. Treadway, 143 Ind. l. c. 703; Krebs Hop Co. v. Taylor, 52 Ore. 627; Texas and Pacific Ry. v. Sheftall, 133 Fed. 722; Linquist v. Hodges, 248 Ill. l. c. 497; Firor v. Taylor, 116 Md. 69; Atlantic and Pacific Ry. v. Laird, 58 Fed. 760; Black on Judgments, Sec. 207; Dicey on Parties- to Actions, pp. 431, 432; Cooley on Torts, 227 (156); Pomeroy’s Code Remedies, p. 278 (Secs. 192, 291). That this rule has always been accepted in this State is evidenced by many decisions. [Noble v. Kansas City, 95 Mo. App. l. c. 172; Hunt v. Railroad, 89 Mo. 607; Kleiber v. Railroad, 107 Mo. 240; Wahl v. Transit Co., 203 Mo. 261; Wiggin v. St. Louis, 135 Mo. 558; Moudy v. Provision Co., 149 Mo. App. 413; Wills v. Railroad, 133 Mo. App. 625; Stotler v. Railroad, 200 Mo. l. c. 149, 150.] Certainly the statutes have not affected the principle, and Sec. 1734, R. S. 1909, which is relied upon, relates to actions in which a joint liability exists, not to actions in which joint liability is merely charged and does not exist. Besides, its provisions are enabling and not restrictive. 'The cases announcing the rule in actions on joint contracts are not in point, the common law in such cases being wholly different from that applicable in actions of torts. Further, those cases have been overruled.. [Bagnell Tie & Timber Co. v. Railroad, 242 Mo. 11.] In the other Missouri cases cited (Otrich v. Railroad, 154 Mo. App. 420, and Barton v. Barton, 119 Mo. App. 507) there had been a joint recovery and the courts merely held that proof of a joint wrong was necessary to uphold the joint judgment.

It has been pointed out (Cooley on Torts, supra) that the rule in Pennsylvania is or was in some respects somewhat ■ different from that commonly accepted and it may be added that a like observation would seem to apply to certain decisions of the courts of Illinois. It appears now to be held, however, that if two or more-are joined and the proof, shows but one to be guilty, a dismissal as to those not involved, ipso facto, no point being made at the trial, ordinarily amounts to an amendment eliminating all allegations save’as to the remaining defendant and a judgment against him alone will be sustained. [Sturzebecker v. The Inland Co., 211 Pa. St. 156; Linguist v. Hodges, 248 Ill. 491.]

It is true there might arise a case in which the’ admission of evidence against a defendant not liable on the facts might be harmful to the defendant found guilty, but no such question is in this case. .The sole question is whether, under a general charge of the common negligence of three, recovery may be had against the one defendant guilty. The decisions in cases in which separate concurring acts, all necessary to constitute a cause of action, were charged, and those merely holding .that a joint recovery cannot be had under allegations of joint wrong, on.proof of separate unconnected torts by the several defendants, as well as those in cases in which concert of action is necessary to the existence of any cause of action, are not applicable. The authorities are practically unanimous and the point is ruled against appellant.

III. In the case of Brill v. Eddy, 115 Mo. 596, this court had before it, so far as concerns the negligence involved, facts strikingly like those in the present case. It is unnecessary to say more than that, under the rule then announced, the question of negligence was for the jury. The cases cited in support of the contrary contention (Lillis v. Railroad, 64 Mo. 464; Randolph v. Railroad, 129 Mo. App. 1; Bolin, Admr., v. Railroad, 108 Wis. 333) are beside the question. The first two were actions to recover for injuries alleged to have been inflicted by the use of excessive force in ejecting from passenger trains persons who refused to pay fare and the last discusses the rule applicable when a trespasser is ordered off a slowly moving train and, while in the possession of all his faculties and in control of his own movements, is injured by his own negligence.

In the case at bar the flagman forcibly jerked respondent from the ladder which supported him. He did not order respondent off the car and permit him to exercise his judgment and control his own movements in' dismounting but took the matter into his own hands. Having undertaken this and deprived- respondent of the power of protecting himself, he permitted him to fall, dropped him, upon or near the rail and the injury followed. "What was said in Brill v. Eddy, supra, as to the resistance offered by the boy when grasped, is applicable here and is supported by authority elsewhere. In that case it appeared the boy had no warning; in this it cannot, as a matter of law, be said the boy knew he was suddenly to be grasped and pulled from the car. The difference, if any, can no more than affect the weight, not the legal effect, of the circumstance. It may be added there was no plea of contributory negligence, but the jury was instructed that if respondent’s resistance, if any, to the flagman, materially contributed to the injury, the verdict should be for defendant.

IV. The flagman or watchman’s act was clearly one for the results of which appellant is liable. His authority to prevent boys from getting on trains at his crossing was established by the superintendent whose duty it was to promulgate instructions to flagmen. It is an established fact, on this record. He was at his appointed station on the crossing engaged in the performance of his duty when respondent got upon the car ladder in his very presence and almost immediately was seized by him and pulled from the car. There is no hint in the evidence that the flagman was actuated by any possible motive other than the performance of his duty as the servant of appellant. In this state of things the fact that the instructions on this phase of the case are not so clear as they might have been is not sufficient ground for reversal. [Haehl v. Railroad, 119 Mo. 325; Southern Ry. v. Hunter, 74 Miss., 444.]

The judgment is affirmed.

Hoy, G., concurs.

PER CURIAM.

— The foregoing’ opinion of Blair. C., is adopted as the opinion of the court.

All the judges concur.