text:
    ETTA L. SWEARINGEN, Appellant, v. WABASH RAILROAD COMPANY et al.
    Division Two,
    June 29, 1909.
    1. NEGLIGENCE: No Evidence. The petition charged that the Wabash tracks ran under a bridge or trestle work of the Santa Fe tracks; that the iron posts of said bridge were set so close to the Wabash tracks as to be dangerous to brakemen in the performance of their duties on Wabash trains; that deceased was a brakeman on a Wabash freight train, and was directed by the conductor to go down on a car to examine and watch a hot box, and as he was obeying that direction he was struck by the post and killed. The testimony showed that he was not so directed, but of his own motion left the engine of the moving train, to examine the hot box, against the suggestion of the engineer that he let it alone; and that he was never again seen alive. No one saw him strike the post, or saw him on the car, or on any of the other nine cars he had to cross in going from the engine to reach the car with the hot box. It was not shown that there was a ladder on the side of the car, plaintiff’s witnesses saying that most of the cars did not have ladders on the side but some of them might have had. He was found with a broken skull lying five or six feet from the-track near the bridge. Held, that -the evidence absolutely fails to support the allegations of negligence charged, the manner in which he came to his death is left to conjecture, and the court properly sustained a demurrer to plaintiff’s case.
    2. -: -: Conjecture: Presumptions. A verdict cannot stand upon conjecture; nor can one presumption be based upon ■ another. Presumptions are inferences drawn from established facts.
    Appeal from Jackson Circuit Court. — Eon. W. B. Teasdale, Judge.
    Affirmed.

      McCullough, Aleshire & Showen and Hollis & Fidler for appellant.
    “In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, make in his favor; and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained. But the court is not at liberty to make inferences of fact in favor of the demurrant to countervail or overthrow either presumptions of law or inference of fact in favor of the other party.” Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Cameron v. Railroad, 5 Am. Neg. Rep. 454; Hughes v. Railroad, 48 S. W. 671; Ray v. City of Poplar Bluff, 70 Mo. App. 252; Fitzgerald v. Railroad, 55 N. Y. Supp. 1124, 37 App. Div. 127; Schultz v. Moon, 33 Mo. App. 329; Railroad v. Pointer, 14 Kan. 66. “Presumption is a principle of law, by which, for the furtherance and support of right, facts not established by positive evidence, are inferred from circumstances.” Erhart v. Dietrich, 118 Mo. 227; Matthews on Presumptive Evidence, p. 1; Lynch v. Railroad, 112 Mo. 433. “Where the presumption is one of fact the inferences are to he drawn therefrom by the jury.” Best on Presumptions, pp. 46-51; Matthews on Presumptive Evidence, pp. 388-399. “The law out- of regard to the instinct of self-preservation presumes that a person who has suffered death by a railroad accident, was at the time of the accident in the exercise of due care, and this presumption is not overthrown by the mere fact of the injury.” Flynn v. Railroad, 78 Mo.-196; Beusching v. Gas Light Co., 73 Mo. 219; Parsons v. Railroad, 94 Mr. 286. “A structure like a signal post or fence, placed so near the track as to strike the servants when in discharge of their duties is necessarily and inherently dangerous. When it is found that the company has itself placed such a structure (or maintained it) so near the track as to he dangerous to its servants in the discharge of duties assigned to them, and an injury has occurred from that cause without fault on the part of the servant injured, the liability of the company is fixed. Additional proof is not necessary in such a case.” Murphy v. Railroad, 115 Mo. 119; Devlin v. Railroad, 87 Mo. 545; Waldhier v. Railroad, 87 Mo. 37; Johnson, v. Railroad, 41 Am. and Eng. R. R. Cases 293; Railroad v. Davis, 92 Ala. 300. “Evidence of negligence need not be direct and positive; it may be inferred from the surrounding circumstances.” Riñe v. Railroad, 100 Mo. 228; Haynes v. Railroad, 54 Mo. App. 582; Hudson v. Railroad, 32 Mo. App.' 668; Hill v. Scott, 38 Mo. App. 370; McCray v. Railroad, 34 S. W. 95.

      J. L. Minnis and Frank P. Sebree for respondents.
    (1) There was a total failure of proof of the material allegations of the petition, and the court did not err in instructing a verdict for defendants. Appellant’s whole case is built upon her presumptions and these presumptions, even when taken alone, have no foundation in fact. It is well settled that a fact cannot be established by building one presumption on another. If a certain fact is proven, reasonable inferences of another fact may be drawn from the fact proven, but this is as far as the rule of presumption goes. It is not permissible to undertake the establishment of a fact by several presumptions, the one resting upon the other. The authorities are harmonious and very positive on this question. Swartz v. Frank, 183 Mo. 447; Yarnell v. Railroad, 113 Mo. 580; Douglass v. Mitchell’s Exr., 35 Pa. St. 440; State v. Lack-land, 136 Mo. 32; Manning v. Ins. Co., 100 U. S. 697; U. S v. Ross, 92 U S. 283; Glick v. Railroad, 57 Mo. App. 104; Bigelow v. Railroad, 48 Mo. App. 372; Moore v. Renick, 95 Mo. App. 211; Diel v. Railroad, 37 Mo. App. 458. (2) There was no evidence of negligence on the part of defendant in reference to the iron post in question. In the Murphy case, 115 Mo. Ill, chiefly relied on by appellant, where the engineer was struck by a fence at a cattle-guard while ón the side of his moving engine making repairs, the court laid great weight upon the fact that the engineer had no knowledge of the fact that the fence “was close to the track. He had only passed this cattle-guard twice in the day time. The facts in the case at bar concerning the knowledge of the alleged obstruction and its relation to the track are entirely different from the facts in the Murphy case. No intelligent man could have worked switching cars and manipulating the switch under this bridge for years as did Swearingen without observing that these posts were close to the track. And having this knowledge he could not have complained that the company was negligent in respect thereto, nor can plaintiff. On the other hand, his act in getting on the side of the car, if he did so, when the train was approaching this bridge was such. negligence on his part as defeats this action.
   FOX, J.

The plaintiff, the widow of Charles M. Swearingen, deceased, brought this suit in the circuit court of Jackson county, at Kansas City, Missouri, against the defendant railway company and the defendants Crumrine and Drennen, the locomotive engineer and conductor, respectively of said company, for 'five thousand dollars damages, for the death of her husband, which occurred May 5, 1902.

The petition in this cause, among other things, alleges “that one of defendant Wabash Railroad Company’s lines of railroad extends from Kansas City, Jackson county, Missouri, in an easterly direction to St. Louis, Missouri, by “way of a point known on said line as Fleming, at which point the defendant Wabash Railroad Company’s road is operated and run under the track of the Atchison, Topeka and Santa Fe Railway Company, which said track is supported by a bridge or trestle-work over the road and tracks of defendant, the Wabash Railroad Company. That defendant, the Wabash Railroad Company, had prior to the injury' complained of caused or permitted iron posts to be set and erected on its right of way to support the said bridge or trestle-work and track of said Atchison, Topeka and Santa Fe Railway Company; said posts were set and permitted to be set in a dangerously close proximity to defendant Wabash Railroad Company’s track at and prior to the date of the injury herein complained of, making the same dangerous to life and limb of the defendant Wabash Railroad Company’s brakemen in the performance of their duties in caring for and managing the cars of said defendant railroad company at said point.” Then follows the allegation that on the 5th day of May, 1902, deceased was in the employ of the defendant railway company as brakeman, under the charge and control of the other defendants and especially of the defendant A. Crumrine, the conductor of said train; and “that the defendants caused said train to be run at a dangerously high and reckless rate of speed, to-wit, thirty-five or forty miles per hour, which caused a boxing of one of the wheels of a freight car in said train to become heated and dangerous to said car to be run in that condition. That when nearing said Fleming the defendant, A. Crumrine, conductor as aforesaid, with the knowledge of the defendant, J. Drennen, who was the engineer on the engine of said train, at said time, ordered plaintiff’s husband to go forward and climb down the side of said box car and examine and watch said hot box and see if it would do to run to a station a few miles east known as R. & L. Junction, and if not to signal for sidetracking at a station next east and close to said Fleming known as Camden station. That while plaintiff’s husband was in the performance - of said duty at said point and when down on the ladder on the side of said car to make the examination in obedience to said order he was struck by one of said iron posts which knocked him off the side of said ear and caused his death. That plaintiff’s husband had never before done such work at said point and did not know of the dangerous position of said posts, nor of his nearness to said locality,' the night being dark, but the defendants knew or by the exercise of reasonable care on their part Would have known of the danger, and with such knowledge did carelessly and negligently at said time order plaintiff’s husband to perform the duties as aforesaid at said dangerous place, and defendants well knowing that he was in the performance of said duty, did carelessly and negligently run and cause said train to be run at said dangerous, high and reckless rate of speed as aforesaid,” etc.

The answer of the defendants was a general denial.

Upon the trial the defendants objected to the introduction of evidence as to the defendant Drennen on the ground that the petition did not state a cause of action as to this defendant, which objection was sustained.

The facts of the case upon the record are, that on the 5th day of May, 1902, Charles M. Swearingen, the husband of plaintiff, was, and for a period of five years prior thereto had been, an employee of the defendant as a brakeman on freight trains running between Moberly and Kansas City, Missouri. On that day he was on a through freight which left Kansas City at 5:30 o ’clock p. m. for Moberly. This train left Harlem, Missouri, just across the Missouri river from Kansas City, Missouri, an hour and five minutes late, and just before reaching Orriek, a station about thirty miles east of Kansas City, a hot box was discovered by Mr. Swearingen on the rear truck of a Rock Island freight car, located about the middle of the train consisting of nineteen loaded cars, and Mr. Swearingen reported it to the conductor, Crumrine. This hot box was on the front journal of the rear truck on the north side of the car, the course of the train being eastward. The train was stopped at Orrick, the hot box cooled off and the conductor and brakeman attached what is called a water bag to this box. This water bag is described as being of canvas and holds about three buckets of water. There is a hose connected with it about two feet and a half long with a nozzle at the end and a clamp so that it can be fastened to the car and so arranged that it would throw a stream of water about the size of the lead in a pencil on the journal next to the brass for the purposé of cooling it off. The deceased was present when this water bag was attached, and when all was ready for the train to proceed the evidence shows that the conductor thought they had just about time enough, if the box ran cool, to make Lexington Junction, and there meet a passenger train, and the conductor said to Swearingen, “We’ll have to watch this box and if it won’t run with water running on it, we’ll have to stop at Camden and head in out of the way of No. 9 to put in a brass.” Camden was about six miles from Orrick. As the train started, Swearingen said to the conductor, “I’ll go overboard, I’ll watch it from there,” and the conductor said to him, “All right. You can do as you like about that. ’ ’ Swearingen went forward and got on the engine, the conductor got on the caboose and the train started on its way. Shortly after the train left Orrick Swearingen said to the engineer, “I’ll go back and look at the box, and if it’s all right :we go to Lexington then, and if not we had better head in at Camden.” The engineer testified that he told Swearingen not to go, saying, “Let the box go to Lexington then and let the car repairer look after it. We can wait there for No. 9, and you will have time to look after it while we are there.” The engineer was looking forward through his window at that time and did not see Swearingen leave the engine, nor did he or anybody else see him alive again.

The train proceeded running about thirty miles an hour until it reached Lexington Junction, about ten or twelve miles east of Orrick. At Camden the conductor says he missed Swearingen; that he also noticed the box, that there was nothing showing up on it, and added, “I thought probably that he had seen the box was all right and went back to the engine again or if he had left the train I didn’t know; I didn’t see nothing of him.” At Lexington Junction, when Swearingen’s absence from the train was discovered by the crew, they detached the engine and caboose from the train, lit torches and lamps and went back looking for him. They found his body at a siding called Fleming, about three miles east of Or-rick. The body lay about six or seven feet north of the track and about fifteen or eighteen feet east of a girder bridge which passed over the Wabash railroad tracks at that point. The face of the body was bruised and scratched and on the back of the head the skull was crushed. The cap Swearingen had worn was found between the body and this bridge, the front part of which was broken or mashed in.

Witness Gear testified that the morning following the accident he made an examination of the iron post at the end of the bridge; that he found a dent on it about six feet' from the ground; this dent was twelve or fourteen inches long and about two inches wide. Conductor Crumrine testified that he made an examination of this post, but found no mark or dent of any kind on it. The distance between the iron post and the outer edge of a box car is estimated by the witnesses testifying upon this point, to be from twenty to twenty-four inches.

The Atchison, Topeka & Santa Fe Railroad crosses the Wabash Railroad at this point overhead and this bridge was constructed by the Atchison, Topeka & Santa Fe Railroad Company sometime after the Wabash Railroad Company had built and occupied its railroad at this point. In building its railroad the Atchison, Topeka & Santa Fe Railroad Company constructed this bridge, and in doing so placed two upright iron posts — one on the north and the other on the south side of the Wabash track — which were the supports of the bridge. These railroads did not cross at right angles but diagonally, hence one of the posts was on the north and the other on the south side of the Wabash track. The posts were located four and a half feet from the Wabash track, and this had been the condition there for a time exceeding nine years prior to the time of the accident. The evidence showed that the Wabash track under this bridge and for at least a quarter of a mile both east and west of it was straight and in good condition. The evidence also showed that the deceased had worked on local freight trains between Moberly and Kansas City for several years immediately preceding his death, and that almost daily these trains stopped at Fleming to do switching on a side track which ended directly under this bridge.

The only evidence in the record of the character of car and as to whether there was any ladder on same was that given by witness introduced by plaintiff, Mr. Crumrine, the conductor of the train referred to, as follows:

“Q. Do you know what character this (car) was, whether it was an ordinary box car, that the hot box was under? A. Why, I think it was just an ordinary box car, I am pretty positive of it really.

“Q. Did it have ladders on the side? A. Well, now I couldn’t say that, but most of them Rock Island box cars has no ladder on the side, they have their ladders on the end, this was a Rock Island box car.

“Q. Well, do you know whether this is a Rock Island box car? A. Yes, sir.

“Q. Do you know there was no ladder on the side? A. I wouldn’t say positive whether there was or not.”

On cross-examination this witness further said on this point:

“Q. You spoke about the character of car. You say it was a Rock Island? A. Yes, sir.

“Q. Now, you say you are not sure whether there was a ladder on the side or on the end? A. No, sir; I am not sure of that.

“Q. The Rock Island cars generally don’t have any ladder on the side? A. No.

“Q. They do have on the end of the car? A.. They have it on the end of the car, and very few of them over on the side.”

This witness further testified on the part of the plaintiff that there was room between the posts and the box car for a man the size of plaintiff to pass safely on a ladder on the side of the car, but that he would have to get pretty close to the car. Witness Crumrine also testified that he did not order the deceased to get on the side of the car, but simply that he should watch the hot box, and that in order to watch it, it was not necessary for him to get on the side of the car, but that he could have performed this duty from the top of the train without leaning over the side.

This substantially indicates the nature and character of the testimony upon which appellant relied in the trial court for a recovery, with the exception of a deposition offered in evidence of a witness by the name of B. B. Morris. His testimony was in the nature of expert testimony. He was not at work on the train when this accident occurred, nor had he been iworking on this line of road for some time previous. There is a dispute between counsel as to what portion of this deposition was admitted in evidence. The appellant embraced the entire deposition in her abstract and respondent filed an additional abstract, in which a large portion of the deposition is left out, as asserted by counsel, on the ground that objections were made to certain questions and answers and by the court sustained. The original deposition was filed in this court for our inspection, and we find in an abbreviated form to certain questions and answers, objections made; then following the objection is the letter “S.” While it is true that the ground of the objections to the questions and answers are not fully indicated upon the deposition, nor is the word “sustained” fully written out; but we take it that it is common knowledge that in the trial of cases, when depositions are used, neither the trial court nor counsel representing the parties undertake to set out fully the objections upon the deposition itself, but it is common practice to merely, in an abbreviated form, indicate the objections and the ruling of the court as to the particular questions and answers which Were not offered in evidence, for the purpose of a guide in copying the deposition to omit those questions and answers objected to, where the objections were sustained. We do not deem it essential to reproduce the deposition of witness Morris, as in our opinion, his testimony, as admitted, does not affect materially the rights of the parties in this controversy.

At the close of the plaintiff’s evidence, at the request of the defendants, the court instructed the jury that under the pleadings and evidence their verdict must be for the defendants, and the jury returned their verdict in accordance with such instructions.

Timely motions for new trial and in arrest of judgment were filed and by the court overruled. From the judgment and decree entered in this cause the plaintiff appeals, and the record is now before us for review.

OPINION.

The record in this cause discloses but one legal proposition, that is embraced in the assignment of error that the court, at the close of the evidence on the part of the plaintiff, erroneously declined to submit the cause to the jury, and gave a peremptory instruction to the jury to find the issues for the defendant.

We have indicated in the statement of this cause the allegation in the petition, in which is embraced the charge of the specific negligence relied upon by the plaintiff for a recovery in this cause. We have also set out substantially the testimony offered by the plaintiff to support the allegation of negligence in the petition. We have carefully read in detail all of the disclosures of the record, and while it must be conceded by every one that this was an unfortunate accident, yet it must not be overlooked that this is simply a lawsuit in which it is charged that plaintiff’s husband lost his life through specific acts of negligence alleged in the petition, and in order to warrant a recovery there must be at least some substantial testimony tending to establish such acts of negligence which resulted in the death of her husband.

After a most careful consideration of all the evidence, we see no escape from the conclusion that there is an entire absence of any substantial evidence showing how the deceased met his death.

The petition alleges that at a point on defendant’s line of railroad known as Fleming, the defendant railway company is operated and run under the track of the Atchison, Topeka & Santa Fe Railway Company, which said track is supported by a bridge or trestle-work over the road and tracks of defendant, the Wabash Railroad Company. That defendant, the Wabash Railroad Company, had prior to the injury complained of caused or permitted iron posts to be set and erected on its right of way to support the said bridge or trestle-work and track of said Atchison, Topeka & Santa Fe Railroad Company. It is further alleged that said posts were set and permitted to be set in a dangerously close proximity to defendant’s railway track at and prior to the date of the injury herein complained of, making the same dangerous to life and limb of the defendant Wabash Railway Company’s brakemen in the performance of their duties in' caring for and managing the cars of said defendant railroad company at said point. In addition to this there are allegations that the train upon which plaintiff’s deceased husband was working was run at a dangerously high and reckless rate of speed, which caused a boxing of one of the wheels to become heated and dangerous to said car to be run in that condition. It is further charged that the conductor, “with the knowledge of the engineer' operating said train, “ordered plaintiff’s husband to go forward and climb down the side of said box car and examine and watch said hot box and see if it would do to run to a station a few miles east known as R. & L. Junction, and if not to signal for sidetracking at a station next east and close to said Fleming known as Camden station.” It is then charged that plaintiff’s husband, in pursuance to the directions given him by the conductor, with the knowledge of the engineer, went down on the ladder on the side of said car to make the examination, and that while on said ladder he was struck by one of the iron posts, which knocked him off the side of said car and caused his death.

We repeat, that the testimony absolutely fails to support the allegations of negligence as charged in the petition. It is assumed by the appellant that her husband was knocked off of a freight car by striking an iron post on the side of the track while he was standing on a ladder on the side of the car examining a hot box. This, in our opinion, is predicated upon mere conjecture. There was no testimony that there was a ladder on the side of this car. The only evidence introduced upon that subject was given by Mr. Crumrine, the conductor of the train, and he stated that this was a Rock Island box car, and while he would not say positively whether there was any ladder on this particular car or not, he said most of the Rock Island cars had no ladders on the side; that their ladders were on the end. In giving his testimony he indicated perfect fairness, and stated that he would not undertake to state positively that there was no ladder on the side of the car, but simply answered that this was a Rock Island car and that those cars generally did not have any ladder on the side.

There was no evidence introduced that plaintiff’s husband went down on any ladder to examine a hot box. The testimony clearly shows that the deceased was upon the engine, and there is no evidence by any witness that Mr. Swearingen was seen after he left the engine. In order to reach the car which was affected by the heated box the plaintiff’s husband would have had to walk over about ten cars before reaching this particular car. No one saw him, and in fact the record is absolutely silent as to when or how he fell off this train.

Upon the trial plaintiff offered no evidence tending to establish the allegation that her husband had been directed by the conductor or the engineer to go down on the ladder and examine the heated box while the train was in motion. The only testimony introduced upon that subject was by the conductor and the engineer, who both testified positively that they did not so direct him. The engineer also testified that when plaintiff’s husband suggested that he would go back and look at the box he told him not to go, saying, “Let the box go to Lexington then and let the ear repairer look after it. We can wait there for No. 9, and yon will have time to look after it while we are there.” The engineer said that about the time of this conversation he was looking forward through his engine, and in fact did not see Swearingen leave the engine; nor did he or anybody else see him alive again. It follows from this that not only was there an abso-. lute failure to make any proof of the allegations about directions to plaintiff ’s husband concerning the heated box, but the proof absolutely shows that no such directions were given.

It is also assumed by the appellant that while standing on the ladder on the side of the car the deceased struck the post of the Santa Fe bridge and was thereby killed. A careful examination of the evidence disclosed by the record shows that there was no substantial evidence to prove this fact. The conductor testifies that he made an examination to see if he could find any marks of any kind on this post, and he states positively that he could find none. George Gear, a witness for the plaintiff, did testify that there was a dent on the iron post six or seven feet' from- the ground; that this dent was twelve or fourteen inches long and about two inches wide. This was an iron post and we are of the opinion that it would be indulging a very violent presumption to believe that this character of dent on this iron post was made by one’s head striking against it. Plaintiff also introduced the cap worn by deceased at the time of his death, which, it is claimed, shows a dent on its visor. The-cap was attached to and made a part of the record and is now before us. An examination of this cap shows that its forepiece which projects down over the eyes is stiffened by some sort of card board, and the only indication we find on the cap is a slight loosening of this card board upon a small portion of its front piece. There is no breaking of the cloth covering the card board, but just in one little piece tbe card board seems to be loosened. As to the weight of this testimony, it is sufficient to say, as before indicated, that there was no evidence to show when or how this slight loosening of the card board in the front piece of the cap was made, and in addition to this, the evidence clearly shows that it Was the bach part of the head that was crushed; hence, it would logically follow, unless he had the front part of this cap on the bach part of his head, that the object which his head struck did not make a dent on the front part of the cap. The contention that’ the dent or loosening of the card board on the front part of the cap was made by the striking of this iron post, stands upon the same ground as the contention as to there being a ladder on the side of the car, and that the deceased went down on the ladder to examine the hot box; it is purely speculation and conjecture.

No one can read the disclosures of the evidence in the record and reach any satisfactory conclusion as to how this accident occurred. There is nothing to show how deceased fell from this train, nor on what part of the train he was at the time he fell. As is suggested by learned counsel for respondent, in order to reach the car which was affected by the hot box he had to walk over nearly ten cars, and in doing that he may have slipped or stumbled while walking on a car and struck his head on the car and fell off. But this, also, is mere conjecture and speculation, but equally as tenable as the conjecture that he was down on the ladder and struck this particular iron post.' There is no substantial evidence to support the theory of the plaintiff in this case.

Manifestly plaintiff’s case rests upon mere presumption. In fact it is sought to recover in this action by building one presumption upon another.

In Yarnell v. Railroad, 113 Mo. l. c. 580, it was clearly stated by this court that it was not allowable to build one presumption upon another and thus make a cause of action, and that negligence cannot be assumed by the mere fact of an accident and an injury, citing in support of the announcement of this doctrine, 1 Shearman & Redfield on Negligence (4 Ed.), sec. 59. In announcing the final conclusion in that case it was ruled that it was quite legitimate, when facts are admitted or proven, to draw from them such reasonable inferences as will be sufficient to sustain a verdict ; but without this basis of fact a presumption has no office to perform, citing Railroad v. Henrice, 92 Pa. St. 431; Railroad v. State to use, 54 Md. 113; Sorenson, Admr., v. Paper & Pulp Co., 56 Wis. 338. See also Wintuska’s Adm’r v. Railroad, 20 S. W. 819.

In State v. Lackland, 136 Mo. 26, the authorities upon the subject of presumptive evidence and building one presumption upon another, were thoroughly and exhaustively reviewed by this court, and after such review the rule as announced in the last case cited was strictly adhered to, and it was expressly held that “a presumption of any fact is, properly, an inference of that fact from other facts that are known,” and that presumptions in order to be available in the proof of a cause of action must rest on established facts, and not upon other presumptions; citing Richmond v. Aiken, 25 Vt. 324; Pennington’s Ex’rs v. Yell, 11 Ark. 212; O’Gara v. Eisenlohr, 38 N. Y. 296; Railroad v. Henrice, 92 Pa. St. 431; Yarnell v. Railroad, 113 Mo. 570.

The cause of action, as alleged in the petition, charges specifically the acts of negligence and the-manner in which this accident occurred. As we have heretofore stated, there is no proof that it occurred in the manner as charged in the petition, and manifestly it was not known how this accident occurred, and if we were to indulge in conjecture and speculation, one can account for it upon some other theory equally as probable as tbe one alleged in the petition. But as was ruled in the case of Swartz v. Frank, 183 Mo. 438, the law requires proof of the facts constituting the cause of action, and does not indulge in speculations.

Our attention is directed to the case of Murphy v. Wabash Ry. Co., 115 Mo. 111. It is this case upon which the plaintiff chiefly relies; but a careful examination of that case will demonstrate that the facts as developed upon the trial were essentially different from the proof in the case at bar. In that case it will be noted that there was substantial proof as to how the accident occurred. In this case it is a mere speculation or conjecture as to how it occurred. This is a sufficient distinguishing of the two cases to show that the Murphy case furnishes no support to the case at bar. But aside from that there is another material difference in the two cases. In the Murphy case the injury resulted from the negligence of the defendant in erecting and maintaining a fence on its right of way so close to its track as to imperil the lives and limbs of its servants engaged in operating trains; by reason of this fact the engineer operating the train, while tightening some of the nuts on the outside of his engine, was injured by coming in contact with this fence. There was as to these facts substantial proof offered. It was not a mere conjecture or speculation as to how this engineer received his injuries, but the facts were shown in evidence tending to prove the allegation in the petition. The court, in its final conclusion, in discussing the question as to assumption of risks, said: “It is clear that the plaintiff did not assume any risk arising from the fact that this fence was too close to the track, unless he knew the fence was close enough to the track to strike his body, and we have seen that this court cannot say that he'had such knowledge.”

In the case at bar the record discloses that plaintiff’s husband had been an employee of the defendant as a brakeman on freight trains running between Moberly and Kansas City, Missouri, for a period of about five years. Manifestly plaintiff’s husband could not have worked as brakeman for the defendant along its line of road, as heretofore indicated, which required switching of cars, manipulating the switch under and near where these posts were located, without observing and thereby obtaining full knowledge that these' posts were close to the track. However, we deem it unnecessary to discuss that phase of the case, for our conclusions are predicated upon the broad proposition that the evidence fails to show that the death of plaintiff’s husband resulted through the negligence of the defendant, and in the manner alleged in the petition.

In arriving at the conclusions in this case we are not unmindful of the authorities cited by appellant. While we have not reviewed those authorities it by no means follows that we have not carefully examined them. In our opinion they in no way conflict with the conclusions as reached by this court as herein indicated.

We see no necessity for pursuing this subject further. Our views upon the legal proposition disclosed by the record are fully indicated, which results in the conclusion that the action of the trial court in giving the instruction requested in the nature of a demurrer to the evidence was entirely proper, and the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    J. N. STREET v. SCHOOL DISTRICT OF ST. JOSEPH, Appellant; MARY G. McCARTHY v. SCHOOL DISTRICT OF ST. JOSEPH, Appellant; CHARLES B. ABLER v. SCHOOL DISTRICT OF ST. JOSEPH, Appellant; WILLIAM DROWNS v. SCHOOL DISTRICT OF ST. JOSEPH, Appellant.
    Division Two,
    June 29, 1909.
    1. APPELLATE JURISDICTION: Constitutional Question. In order to raise a constitutional question so as to give the Supreme Court jurisdiction of the- appeal, it is necessary that the particular provision of the Constitution be pointed out in the trial court.
    2. -: -: Might Have Been Raised. Where, under appellant’s answer, the point might have been raised that the contracts sued on were invalid under the Constitution, but that point was not raised, either during the trial or in the motions for a new trial and in arrest, and the construction of the particular provision of the Constitution now invoked was not necessary to a decision of the case before the trial court, it will be held that appellant waived the constitutional question, and that the Supreme Court does not on that ground have jurisdiction.
    Appeal from Buchanan Circuit Court. — Hon. Henry M. Ramey, Judge.
    Transferred to Kansas City Court of Appeals.

      William H. Sherman and James W. Boyd for respondent.
    This court has no jurisdiction of these cases. Respondent Abler recovered, by the judgment of the circuit court, $182.55. The other respondents recovered each a smaller sum, so that, as to the amount involved in any one of these cases, no jurisdiction was conferred upon this court. Section 12 of article 6 of the Constitution confers jurisdiction upon the Court of Appeals in cases wherein the amount recovered does not exceed the sum of $4,500.00. No question arises in this case invPving a construction of the Constitution of this State, nor of any law the validity of which is questioned by and on account of any constitutional limitation or restriction. In order to bring an appeal within the jurisdiction of the Supreme Court, a constitutional question must be involved, and such question must be raised on the record. Holland v. DePriest, 130 Mo. 89. It must appear that a constitutional construction was essential to the deciding of the case. State ex rel. v. Smith, 141 Mo. 1; State ex rel. v. Smith, 152 Mo. 444; State ex rel. v. Smith, 176 Mo. 44; Curtis v. Smith, 177 Mo. 69; City of Tarkio v. Loyd, 179 Mo. 600'. It must appear that a constitutional question was raised, in the trial court and ruled on against the party or person appealing. Hardin v. Carthage, 147 Mo. 442; Brown v. Railroad, 175 Mo. 185. Until the trial court has passed on the legality of an act the Supreme Court does not have jurisdiction on the ground that a constitutional question is involved. Colman v. Cole, 158 Mo. 253; Baldwin v. Pries, 103 Mo. 286. A constitutional question cannot be injected into a case for the first time by the appellant by argument, or brief of counsel in the appellate court. Kirkwood v. Johnson, 148 Mo. 630. To raise a constitutional question, it is necessary that the particular provision relied on be pointed out in the trial court. Ash v. City, 169 Mo. 77; St. Joseph-v. Metropolitan Ins. Co., 183 Mo. 1.

      H. K. White for appellant in reply.
    Respondent claims that this court has no jurisdiction of this appeal. It is true no question was raised involving the constitutionality of any statute. Appellant pleaded such facts that, if true, the contracts sued upon were invalid under section 12 of article 10 of the Constitution of the State, and on trial proved these allegations to he true. The constitutional prohibition constitutes the major premise of the syllogism. The pleading of appellant constitutes the minor premise. If these facts were proved, the alleged contract never had any vitality. There is but one clause of the Constitution which affects these contracts, and the court below thought that the application of the facts pleaded and proven, when applied to the above provision of the Constitution, gave the Supreme Court jurisdiction of this case. If it erred in this respect and should have sent the ease to the Kansas City Court of Appeals, this court should transfer the case to that court and should not follow the revolutionary suggestion made by respondent to dismiss the appeal. R. S. 1899, sec. 1657; Turley v. Barns, 131 Mo. 548; Parker v. Zeisler, 139 Mo. 298; Cody v. Gutman, 135 Mo. 250; State ex rel. v. Gravel Road Co., 187 Mo. 439. If transferred to that court because no question of constitutional construction has arisen, that court can decide whether or not at any time the alleged contract had any vitality. Still, upon the record, appellant claims that the Supreme Court should hear and decide the case.
   GANTT, P. J.

The above four cases have been submitted under one brief. Each of the said plaintiffs sought to recover in the circuit court of Buchanan county from the defendant, School District of St. Joseph, damages for failure to perform certain contracts alleged to have been made by the plaintiffs severally with School District Number Seven, township 57, range 35 of Buchanan county. Each of the petitions alleges the corporate capacity of the two districts as school districts and that on the 9th day of September, 1904, the voters of Number Seven voted in favor of becoming incorporated with the defendant, and on September 15,1904, tbe directors of tbe St: Joseph School District voted to accept District Number Seven and receive all of its property, real and personal, and assumed its debts. The petitions then alleged that before the above vote said School District Number Seven entered into separate contracts with plaintiffs for performance by them of work for it during the next ensuing year. Two of the plaintiffs, Street and Abler, claim to have been employed as janitors, and the other two, Drowns and Miss McCarthy, as teachers — the janitors that they had entered upon their duties under their contracts and worked a few days prior to September 19, 1904, but except as to these few days of service they were not permitted by the defendant to carry out their contracts, although willing to do so, and each severally claim damages accordingly. Miss McCarthy and Drowns did not teach under their contracts, but claim damages for being denied the right to teach, although they were willing and offered their services.

The answers of defendants in the Street and Abler cases admitted the corporate capacity of the two school districts, the merger of District Number Seven with the defendant district on the date specified, and denied the other allegations of the petition. These answers also set forth that the only property the St. Joseph District received from District Number Seven was the McKinley School and the sum of $2,072, which had been collected by tax levies for interest and sinking fund on bonds theretofore issued by District Number Seven. The defendant further alleges that the pretended contracts relied upon by the plaintiffs were void because District Number Seven had not provided any income and revenue for the fiscal year commencing July 1, 1904, and had failed to make any levy of any taxes upon the property Within its limits for the expenses of the fiscal year and had failed to make any estimate of the amount needed for sustaining the schools and the rate required to raise such amount needed, and had failed to make any enumeration of children of school age within the limits of the district, so that it was not entitled to any portion of the public school funds required to be apportioned by the clerk of the county court of Buchanan county, including the moneys received by the county of Buchanan in the treasury of the State of Missouri, and including moneys arising from the interest on funds derived from the sale of school lands, and moneys arising from the county school fund and moneys arising from the railroad and bridge corporations of the taxes levied on their property. It was also alleged that District Number Seven had no other funds or sources of income whatever at the time of making the alleged contracts.

The answers in the McCarthy and Drowns cases tendered the identical defenses above set forth, but alleged in addition that the plaintiff had not at the time of making the alleged contract any license to teach in the schools of Buchanan county.

In each of the four cases the defendant alleges that the plaintiffs might have earned during the term of exclusion all that said District Number Seven had agreed to pay them.

The plaintiff filed replies in the nature of general denials of these answers.

By agreement all four cases were treated at the same time and were submitted to the court without the intervention of a jury. Nearly all the evidence was applicable to all four of the eases, but a part was applicable only to each case. By the record of District Number Seven, it was shown that at a meeting of the directors of said district held on September 2, 1904, the plaintiffs had been selected as janitors and teachers respectively at the salaries claimed in their respective petitions. The plaintiffs Street and Abler, the janitors, and the plaintiff Miss McCarthy, a teacher, introduced without any objection their contracts as such, and no question is raised as to their formal sufficiency. They all bore date September 6, 1904. Miss McCarthy also introduced in evidence a certificate in due form issued to her by the superintendent of schools of Buchanan county, Missouri. The plaintiff Drowns introduced in evidence over the objection of the defendant, his certificate, allowing him to teach for a term which would expire before his alleged contract time would expire and also his contract. All four of the plaintiffs showed that the defendant, St. Joseph School District, refused to permit them, after September 19;, 1904, to carry out their contracts. The plaintiffs also testified as to their earnings after their exclusion, and it was conceded that proper rulings were made by the court as to this defense.

The defendant introduced, as applicable to all the cases, the record of School District Number Seven against St. Joseph School District and the opinion therein reported in 184 Mo. 139. In brief it appeared from that case that in 1901, owing to a mutual mistake as to the effect of the extension of the limits of the city of St. Joseph over a portion of the territory of District Number Seven, the directors of Number Seven had surrendered to the defendant school district jurisdiction over all that portion of the district which had been taken into the city limits. At the same time it turned over a small amount of money in the general fund, which, with some additional money collected from the delinquent tax list, the defendant district had used in paying the debts of district Number Seven and repairing the McKinley school house, which was in the surrendered part of the district. The defendant district had also used some of its own money for these purposes, in addition to the above fund belonging to Number Seven. District Number Seven had turned over to the defendant district at this time its balance in the interest and sinking fund. Between the time of receiving these moneys and the institution of the suit by Number Seven, tbe defendant district bad paid interest on tbe bonds issued by Number Seven. Tbe Supreme Court allowed tbe defendant its disbursements, so that when tbe case was decided tbe defendant district was found not to owe Number Seven anything on general account, but to owe it exactly the amount tendered for the interest and sinking fund. After the merger of the two districts, the money deposited by the defendant district was returned to it and this was the only fund received by the defendant district from Number Seven, and it was placed in the interest and sinking fund.

In all the cases it was admitted that in 1904 and in 1905 there was no money whatever to the credit of District Number S.even upon the books of the county treasurer. It was also admitted that the directors and officers of District Number Seven did not make any enumeration of the children within the school district or any estimate of the funds needed for school purposes, either for general purposes or for the interest and sinking fund for the fiscal year commencing July 1, 1904, and that no certificate of any character was sent to the county clerk of funds arising from said school funds, county school funds or interest from the proceeds arising from the sale of section 16, township 35, and the taxes arising from assessments of railroads and bridges. No portion of those taxes or those funds was appropriated to School District Number Seven for the year commencing July 1, 1904, and neither was any levy of taxes made by said district for school purposes for that year.

No instructions of law were asked by either party. After argument the court found the issues for the respective plaintiffs and entered judgment accordingly. In due time succeeding the entry of the said several judgments, the defendant filed in each case its motion for a new trial, which was heard and overruled by the court, and the defendant in each case preserved its exceptions and took its appeal.

At the time these cases were submitted leave was given to the plaintiffs to file abstracts and briefs and we were not advised as to what position they would take. In their briefs now on file they insist that this court has no jurisdiction of these appeals. It is apparent that the amount involved in either of the cases is not sufficient to confer jurisdiction, since the judgment of Abler for $482.55 is the largest of either of the four judgments, so that either individually or collectively the amounts involved would not give this court jurisdiction. Indeed it is apparent that unless it can be said that there is a constitutional question arising under the provisions of section 12 of article 10' of the Constitution of this State, then this court has no jurisdiction. As already said all cases were tried before the court without a jury and no instructions or declarations of law were asked or given on either side and the motions for new trial make no reference whatever to this provision of the Constitution or any other provision thereof, so that whether there is a constitutional question depends entirely upon that paragraph of the defendant’s answer wherein it is alleged that “this defendant says that said alleged contract was void because said School District Number Seven had not provided any income and revenue for the fiscal year commencing July 1st, 1904,” etc. Now for the first time, in this court, the defendant makes the point that under section 12 of article 10 of the Constitution of Missouri these several contracts were void, because at the time of their execution School District Number Seven had no funds to meet the claims sued on and had not provided any means by which funds would accrue to meet these obligations.

Section 12 of article 10 of the Constitution provides: “No county, city, town, township, school district or other political corporation or subdivision shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose.” Neither in its answer, nor in any objection to the testimony, nor in its motion for new trial, nor in any declaration of law asked by it, was this constitutional provision invoked by the defendant in the circuit court. The circuit court was not requested to declare these contracts void on the ground that they were prohibited by this section of the Constitution at any stage of the ease in that court. In the motion for new trial the circuit court was not told that it had violated the Constitution in any respect in rendering its judgment for these several plaintiffs. Nor does it appear that a construction of this particular provision of the Constitution was essential to a decision of the case by the circuit court.

It has been so often ruled that, in order to raise a constitutional question so as to give this court jurisdiction of the appeal, it is necessary that the particular provision be pointed out in the trial court, that it would seem almost unnecessary to cite cases. [Ash v. City of Independence, 169 Mo. 77; State ex rel. Loan Co. v. Smith et al., 176 Mo. 44; City of St. Joseph v. Metropolitan Insurance Company, 183 Mo. 1.] But, we think that the fact that the defendant in its motions for new trials in these four cases nowhere alleged a violation of this provision of the Constitution, nor called the circuit court’s attention thereto, but restricted its application for new trial to the grounds specified therein, to-wit, the admission of improper evidence on the part of the plaintiffs, the exclusion of proper testimony offered by the defendant, that the finding of the court was against the law and the evidence, and should have been for the defendant, excluded from the consideration of the circuit court any constitutional question, and it was perfectly competent for the defendant to avail itself of such an objection, or to waive it, as it saw fit, and it is elemental that unless a party complains of an error against it in its motion for new trial and gives the circuit or trial court an opportunitly to correct its own errors, the appellate courts will not consider errors alleged in this court for the first time, unless they go to the very jurisdiction of the court, or the absolute failure to show a cause of action.

In our opinion the objection to the jurisdiction of this court of this appeal by the plaintiffs is well taken and this court had not under the Constitution jurisdiction of either of these appeals and it is therefore ordered and adjudged that each of these appeals be transferred to the Kansas City Court of Appeals.

Burgess and Fox, JJ., concur.


text:
    JOSEPH R. HUBBARD et al., Appellants, v. CHARLES W. WHITEHEAD et al.
    Division Two,
    June 29, 1909.
    1. CONVEYANCES: Mistake in Description: Made Certain: Intention, A deed, made fifty years ago for a valuable consideration, under which the grantee took immediate possession and under which he and his grantees through mesne conveyances have since been in continuous possession, will not, at the suit of the grantor’s children who under a will were his devisees in remainder after their mother’s death in 1900, because of a mistake in the description, be held to have been a mere blank piece' of paper, if by giving effect to the intention of the parties the uncertain description may be made certain.
    2. -: -: Ambiguity: Rejecting False Call. Where there are two descriptions, the one consistent with a reasonable hypothesis and the evident intention of the parties, and the other would result in the conveyance being held inoperative. the contradictions will not be held to create a patent ambiguity. but the false or incorrect call will be rejected, and the remainder interpreted in the light of the facts existing at the time.
    3. -: -: Intention of Parties: Description Made Certain: This Case. In 1856, Hubbard and wife by warranty deed conveyed to Platt land in Jackson county thus described: “Beginning at the north line on the east side of Wyandotte street in block 15 in Hubbard’s Addition to the City of Kansas, running south by said Wyandotte street 122 feet, more or less, to land owned by Kersey Coates; thence east to land belonging to the estate of Elijah Jackson, deceased; thence north 122 feet, more or less, to land owned by Swope, being same formerly owned by James Gregory; thence west 127 feet to place of beginning.” At that time there was a filed plat of Hubbard’s Addition, showing lots 81 to 85 to be in block 15 and lots 90 and 91 to be in block 13, the lots in both blocks fronting on the east side of Wyandotte street, and block 14 lying between them. Hubbard died in 1861, leaving a will by which he devised his real estate to his wife for life with remainder to his children, the plaintiffs, and the wife died in . 1900, and this suit in ejectment for lots 90 and 91 in block 13 was brought in 1902. Under the deed from Hubbard and wife, Platt took possession in 1856 of lots 90 and 91 in block 13, and he and defendants through mesne conveyances have been in continuous possession since. The first course in the description is “south by said Wyandotte street 122 feet, more or less, to land owned by Kersey Coates”; at the date of the deed the only land owned by Kersey Coates was lot 92 in block 13. The description fixes the eastern boundary as “land belonging to estate of Elijah Jackson”; the said estate owned no lands in block 15, but did own land forming the eastern boundary of lots 90 and 91 in block 13. The description fixes the northern boundary as the “land owned by Swope, being the same formerly owned by James Gregory”; the land owned by Swope and conveyed to him by Gregory in 1856, joined block 13 on the north, while the northern boundary of block 15 belonged to La Sarge. The description calls for lots 127 feet deep; the lots in block 13 are 127 feet deep, but those in block 15 are 70 feet deep. Within a month after the deed to Platt, Hubbard and wife conveyed lots 81 to 85 in block 15 to King. Held, that that description is certain which can be made certain, and if the starting point is understood to be the north line of block 13 instead of the north line of block 15 the description fits exactly lots 90 and 91 in block 13, and the parties intended to convey said lots, and the false call will be rejected, and the deed held to have conveyed said lots.

      4. -: -: Extrinsic Evidence is always admissible to explain descriptive calls in a deed.
    5. -: -: First Call. Where the first call or starting point in the description of the land is inconsistent with all other calls, and being rejected there remains enough to ascertain with precision the land intended to be conveyed, the first call will be rejected.
    Appeal from Jackson Circuit Court. — Hon W. B. Teasdale, Judge.
    Aeeikmed.

      Edward P. Gates, Geo. H. English and Geo. H. English, Jr., for appellants.
    (1) If the Platt deed be construed to embrace the land in question, it must necessarily follow that two descriptions are embraced in the deed, and this constitutes a patent ambiguity, rendering the deed void, and parol evidence is not admissible to aid such description. Mudd v. Dillon, 166 Mo. 110; Carter v. Holman, 60 Mo. 498; Devlin on Deeds, sec. 1010. (2) The description in the Platt deed cannot be so construed as to embrace the property in question.

      ‘McGune, Harding, Brown & Murphy and C. S. Palmer for respondents.
    (1) Every deed must if possible be made operative. Peter v. Byrne, 175 Mo. 233; 4 Am and Eng. Ency. Law (2 Ed.), 798. (2) The pole star of construction in this State is the intention of the parties to the deed as gathered from the four comers of the instrument in the light of the circumstances in which the parties were when they executed it. Utter v. Sid-man, 170 Mo. 284; Krueger v. Railroad, 185 Mo. 234; Whitaker v. Whitaker, 175 Mo. 1; Walton v. Drumtra, 152 Mo. 489 ; Presnell v. Headley, 141 Mo. 187; Gibson v. Bogy, 28 Mo. 478; Shultz v. Lindéll Heirs, 40 Mo. 330; Thomson v. Thomson, 115 Mo. 56; Bean v. Kenmnir, 86 Mo. 666 ; Brown v. Gibson, 82 Mo. 529; Speed v. Railroad, 163 Mo. Ill; Linville v. Greer, 165 Mo. 380. (3) And this is the rule in other States. Cannon v. Emmons, 44 Minn. 294; Perry v. Scott, 109 N. C. 374; Wharton v. Eborn, 88 N. C. 344; Edwards v. Bowden (N. C.), 5 S. E. 283; Talkin v. Anderson (Tex.), 19 S. W. 350; Jackson ex dem. Smith v. Marsh, 6 Cowen (N. Y.) 281; Walsh v. Hill, 38 Cal. 481; Johnson v. Simpson, 36 N. H. 91. (4) The leading rule in construing descriptions is that effect must be given to the intention of the parties and to. that end that shall be considered certain which can be made certain, for a grant shall not fail if the meaning can be spelled out. 2 Am. and Eng. Ency. Law (2 Ed.), 794; Prior v. Scott, 87 Mo. 303; Coe v. Ritter, 86 Mo. 277; Owens v. Frieman, 48 Minn. 483; Shewalter v. Pirner, 55 Mo. 231; Bruensmann v. Carroll, 52 Mo. 231. (5) And actual occupation of the premises may be considered in determining the intention of the parties. Reed v. Locks and Canals, 8 How. 288; Jones on Real Property (1 Ed.), sec. 340; Jones v. Pashby (Mich.), 29 N. W. 374. (6) The. starting point in a description is of no more dignity than other calls, if they are readily ascertainable, and if the starting point conflicts with all the other calls, the latter must control. Cooley v. Warren, 53 Mo. 166; Walsh v. Hill, 38 Cal. 481; Jackson ex dem. Smith v. Marsh, 6 Cowen (N. Y.) 281; Cannon v. Emmons (Minn.), 46 N. W. 356; Scott v. Pettigrew, 72 Tex. 321; Miles v. Sherwood, 84 Tex. 485; Lancaster v. Ayers, 12 S. W. (Tex.) 163; Jones on Real Property, sec. 385; Norwood v. Crawford (N. C.), 19 S. E. 349; Cowles v. Reavis, 13 S. E. (N. C.) 930; Devlin on Deeds, sec. 1033; Edson v. Knox (Wash.), 36 Pac. 698. “Reversing the course is as lawful and persuasive as following the order given.” Edson v. Knox (Wash.), 36 Pac. 698; Pearson v. Baker, 4 Dana 323. (7) In case' of conflict, boundaries named in a deed control courses and distances, the reason for the rule being that errors are more likely to- occur with reference to measurements than with respect to objects which are fixed and ascertainable. Whittelsey v. Kellogg, 28 Mo. 407; Smith v. Gatlin, 117 Mo. 438; West v. Bretelle, 115 Mo. 653; Whitaker v. Whitaker, 175 Mo. 1; Johnson v. Bowlware, 149 Mo. 451; Powers v. Banks (Cal.), 69 Pac. 151; Hobert v. Cable, 102 Mich. 206. (8) Where unmarked lines of adjoining property are called for, such unmarked boundaries will prevail over courses and distances in case of conflict where such unmarked lines can be ascertained. Bartlett Lumber Co. v. Saunders, 103 U. S. 316; Kronenberger v. Hoffner, 44 Mo. 192; Maddox v. Turner (Tex.), 15 S. W. 237; Ragsdale v. Robinson, 48 Tex. 398; Worsham v. Chisam (Tex.), 28 S. W. 905'; Worsham v. Morgan (Tex.), 28 S. W. 918. (9) Where a part of a description is repugnant to or inconsistent with other parts, if sufficient remains from which the intention of the parties can be ascertained and identified, the part which is repugnant may be rejected, and this may be done in an action of ejectment, and resort to equity is unnecessary. Johnson v. Bowlware, 149 Mo. 451; West v. Bretelle, 115 Mo. 653; Presnell v. Headley, 141 Mo. 191.
   GANTT, P. J.

This is an action in ejectment. The petition is in the ordinary form and the answer, is a general denial. The land in dispute is the following: Lots 90 and 91, block 13, Hubbard's Addition to the City of Kansas (no'w Kansas City) and consisting of about 85 feet at the southwest corner of Eighth and Wyandotte streets in Kansas City. A portion of lot number 90, in fact, all thereof except two' feet and three inches, was condemned and taken as a part of Eighth street in 1880: The said portion is not in question in this suit.

On March 8, 1834, the United States issued to Callise Montardeau a patent for the northwest quarter of section 5, township 49, range 33, which includes the land sought to be recovered in this action. Chester Hubbard, the father of appellants, Joseph R. Hubbard and Ellen R. Jeffries, is the common source of title. Chester Hubbard died in 1861. By their warranty deed dated August 9,1856, Chester Hubbard and Mary R. Hubbard, his wife, conveyed to S. J. Platt land in Jackson county, Missouri, described as follows: “Beginning at the north line on the east side of Wyandotte street in Block 15 in Hubbard’s Addition to the City of Kansas, and the State aforesaid, running south by said Wyandotte street 122 feet, more or less, to land owned by Kersey Coates; thence east to land belonging to the estate of Elijah Jackson, deceased; thence north 122 feet, more or less, to land owned by Swope, being same formerly owned by James Gregory; thence west 127 feet to the place of beginning.”

Plaintiff asserts that Chester Hubbard by his last will and testament devised his real estate to his wife Mary for life with remainder to plaintiffs, his children. Defendants contend that the record fails to show that the will of Chester Hubbard was ever proven in accordance with the laws of Missouri, and it was therefore insufficient to pass title to said lands in this State.

Mrs. Mary Hubbard died in 1900, and the plaintiffs claim that by her death the life estate fell' in and they as remaindermen became entitled to possession of the said lands. The respondent, the Missouri Union Trust Company, claims title to the tract in controversy through mesne conveyances from said Samuel J.. Platt, and the sufficiency of these conveyances to» vest in respondents whatever title Samuel J. Platt acquired by his deed from Chester Hubbard and wife is not now disputed by the plaintiffs.

Hubbard in bis lifetime platted a tract of land, wbicb includes tbe lots in controversy, calling it “Hubbard’s Addition,” and this plat is referred to in all tbe deeds under wbicb tbe defendants claim. Tbis plat is copied in tbe record. Tbe only question in tbis case is whether or not tbe deed from Hubbard and wife to Platt includes tbe land in controversy herein. It is tbe respondent’s contention that tbe description in this deed conveys land in block 13 in Hubbard’s Addition, wbicb lies three blocks south of block 15, and it is clear from tbe monuments and pointers referred to in tbe description that tbe point of beginning should be tbe northwest corner of block 13 instead of tbe northwest corner of block 15. At tbe date of tbe execution of tbis deed, Chester Hubbard owned all tbe lots in block 15 fronting on Wyandotte street and also lots 90 and 91 in block 13 fronting on Wyandotte street, together with a portion of tbe frontage on said street between said blocks 13 and 15. Tbe first course set out in tbe description is “South by said Wyandotte street 122 feet, more or less, to land owned by Kersey Coates.” At tbe date of tbis deed, tbe only lot owned by Kersey Coates in Hubbard’s Addition on tbe east side of Wyandotte street was lot 92 in block 13, and Kersey Coates owned no lot in block 15. Tbe description in tbe deed fixes tbe eastern boundary as “land belonging to tbe estate of Elijah Jackson.” Tbe estate of Elijah Jackson owned no land adjoining lots in block 15 on tbe east, but did own land forming tbe eastern boundary of lots 90 and 91 in block 13. Tbe description also fixes tbe northern boundary as tbe “land owned by Swope, being tbe same formerly owned by James Gregory.” Tbe land owned by Thomas H. Swope and conveyed to him by James Gregory and wife on February 20, 1856, joined block 13 on tbe north, while tbe northern boundary of block 15 belonged to John La Sarge. Again tbe description calls for a lot one hundred and twenty-seven feet in depth. This is the exact depth of lots 90 and 91 as shown by the plat. While the lots in block 15 are only seventy feet in depth and the land adjoining block 15 on the east-was not owned by Hubbard. On September 8, 1856, and within one month after the execution of the deed in question, Chester Hubbard and wife conveyed to Hezekiah H. King lots 81 to 85 inclusive in block 15, being the land at the northwest comer of block 15. The abstract of title admitted in evidence under the stipulation of counsel showed that Chester Hubbard never attempted to make any conveyances of lots 90 and 91 in block 13 other than by his deed to S. J. Platt. The land immediately joining lots 90 and 91, block 13, was known as Jackson estate land when this deed was executed. Neither Chester Hubbard nor his wife nor children have ever been in possession of this property since this deed to Platt was executed in 1856, nor have they or any of them ever paid any taxes thereon since that time. A portion of this lot 90 as already said was condemned in 1880 as a part of Eighth street, and only two feet and three inches of said lot remains unappropriated for street purposes. The land claimed by the defendant, the Missouri Union Trust Company, consists of all of lot 91, block 13 and the south two feet and three inches of lot 90. The land in question lies at the southeast corner of what is now Eighth street and Wyandotte street in Kansas City. It is a very valuable piece of property, the present defendant trust company having paid $55,000 for it in 1886.

Samuel Platt took possession of this land before the death of Chester Hubbard and was living on it in 1857 and 1858 as his home. He occupied the premises until the war began in 1861 and 1862, when he returned to Kentucky. From the time of Platt’s departure until 1866 the property was in the possession of tenants of Platt; then Jenkins, to whom Platt conveyed the north 72 feet of the tract, moved into the property and lie and Ms heirs owned the part the house was on until 1880. In 1880 J. C. Grates, one of the owners in defendant’s chain of title, purchased the south 50 feet of lot 91, erected a two-story brick building thereon and thereafter collected the rents and paid the taxes until he sold to Dobson and Douglas in 1886. The defendant, the Missouri Union Trust Company, took possession of the entire tract in January, 1886, and from that time until the present has collected the rents and paid the taxes and been in possession. When the company took possession in 1886, the property was inclosed witMn a fence. The defendant, the'Missouri Union Trust Company, built a two-story brick building on the north side of the land in 1886, and then a year or two afterwards moved its office into the new building and until this suit was brought has occupied part of said building as its office. During the thirty years prior to the bringing of this suit, the taxes have been paid by the defendant, the Missouri Union Trust Company, and the owners of said property under whom it claims title.

I. In this suit the plaintiffs are assailing the sufficiency of a deed executed by their father, Chester Hubbard, over fifty years ago. By virtue of that deed S. J. Platt, the grantee therein, took immediate possession of the property in controversy in this suit and the respondent, the Missouri Union Trust Company, by mesne conveyances has acquired all the title which Platt obtained by that deed. Neither Chester Hubbard nor his widow nor Ms children have been in possession, nor have they paid any taxes on said lots since the delivery of the deed to Platt. Plaintiffs say that the only question in the case is whether or not the description in the deed from Chester Hubbard to S. J. Platt includes the lands in controversy: In Speed v. Railroad, 163 Mo. l. c. 125, it was said by this court: “When a deed is construed as a whole, as it should be, giving due consideration to every part and portion of it, . . . there ought not to be any serious difficulty in arriving at the true intent and meaning of the grantor.” It is manifest that this litigation is predicated upon the mistake made by Hubbard as to the beginning point in the description of the land he sold and conveyed to Platt in 1856. Common honesty and common sense equally require that this deed should not be held void for uncertainty if it can be given any other reasonable construction. The heirs or devisees of Hubbard should not be allowed to say that this solemn conveyance of their father for a valuable consideration meant nothing, and that the grantee, Platt, received nothing but a blank piece of paper, and that the possession of this land under that deed all these years with a full knowledge of Hubbard and his devisees was without any authority. In other words, effect must be given to the intention of the parties, and to that end that must be considered certain which can be made certain, and the grant shall not fail if this meaning can be spelled out. This court in Peter v. Byrne, 175 Mo. 233, l. c. 247, adopted the language of Roberts v. McIntire, 84 Me. 362: “But, with respect to conveyances to real estate, courts in modern times have shown more consideration for the substance of the contract than for the shadow, for the passing of the estate according to the intention of the parties than for the manner of passing it; and whenever the rules of language and of law will permit, that construction will be adopted which will make the contract legal and operative in preference to that which would have an opposite effect.”

It seems to be one of the principal contentions of the plaintiffs that by some kind of reasoning, the description in this deed would apply to a piece of ground owned by Hubbard at the time of the execution of the deed other than the lots now in dispute. They then deduce the rule that this brings about a patent ambiguity which, renders the deed void. But we are of the opinion that this case is one in which the old maxim 11 Falsa demonstratio non nocet” applies, In other words, that where we have two descriptions, the one consistent with a reasonable hypothesis and the evident intention of the parties and the other would result in the conveyance being absolutely inoperative, we reject the false or incorrect call and then apply the description in the light of the facts existing at the time. So in this case if we reject the first false call, to-wit, the starting point, and then apply the known facts at that time, we think there is no doubt whatever that the deed in question was sufficient to convey these lots 90 and 91 in block 13. It is obvious, we think, that the beginning point should have been the northwest corner of block 13 instead of the northwest corner of block 15, a mistake very easily made. We have already indicated in the statement of the facts that the first call of 122 feet along Wyandotte street to the land owned by Kersey Coates fixed Coates’s lot 92 as the south boundary of this tract conveyed to Platt. At that time Coates owned lot 92 in block 13 and owned no lot in block 15. This is not all; the deed just as effectually fixes the eastern boundary of the tract conveyed by the reference to “the land belonging to the estate of Elijah Jackson.” At that time the estate of Jackson owned no land adjoining lots in block 15 on the east, but did own lands which formed the eastern boundary of these lots 90 and 91 in block 13. Equally certain was the northern boundary fixed as “land owned by Swope being the same formerly owned by Gregory,” and this land joined this block 13 on the north.

The decisions are numerous that the starting point in a description is of no more dignity or importance than other calls, if they are readily ascertainable, and if the starting point conflicts with the other calls the latter must control. [Cannon v. Emmons, 44 Minn. 294.] Extrinsic evidence is always admissible to explain tbe calls of a deed for the purpose of applying them to the subject-matter and thus give effect to the deed. While it is true that a deed must so describe land sought to be conveyed thereby that it can be identified, that is certain which can be rendered certain and in construing a doubtful description in a grant, the court will put itself in the position of the contracting parties as near as possible and consider the circumstances of the transaction between them and then read and interpret the words used in the light of these circumstances. And when this is done, in this case, all that is necessary to do is to reject the first call, the starting point, and then applying the description to the land in the light of the various calls for the boundary thereof, we have no doubt whatever that it was sufficient to convey the two lots 90 and 91 in block 13 of Hubbard’s Addition. In Walsh v. Hill, 38 Cal. 481, approved by this court in Speed v. Railroad, 163 Mo. 111, it was said: “If the starting point is fixed, certain and notorious and there is a conflict between it and other calls, the latter must generally give way to the former, but when succeeding calls are as readily ascertained and are as little liable to mistake, they are of equal dignity with the first and when they all conflict with the first and agree with each other, their united testimony must control. ’ ’ [See, also, Scott v. Pettigrew, 72 Tex. 321.] In Cooley v. Warren, 53 Mo. l. c. 168, it was said, “The first or starting point was surely a mistake, but all the rest of the description was by natural objects and fixed and permanent monuments so as to leave no doubt whatever as to the true location. Strike out the first or inconsistent call, and still enough remains to designate the land with certainty. The rule is clearly established that whenever natural or permanent objects are embraced in the calls of a survey or deed, they have absolute control, and that a call

1 may be rejected for inconsistency or repugnancy, where description enough remains to ascertain and describe land with certainty. ’ ’ Many other cases' might be cited to establish these well-settled principles, but we deem it entirely unnecessary. We think the first, or the beginning point, should be rejected because it is utterly inconsistent with all the other calls in the deed; that having rejected that, there is sufficient certainty in the other calls to describe these two lots 90 and 91 in block 13 and that the deed was amply sufficient to carry the title of Hubbard to Platt. And in addition to that, we think a court of justice should, and we will, take notice, in arriving at the meaning of this deed, to the facts, that immediately upon the delivery of this deed to Platt, Hubbard gave him actual possession of these lots and Platt fenced the entire tract, built a house and bam upon it and resided upon the premises and neither Hubbard nor Ms heirs from that time until the filing of this suit, a period of forty-six years, ever made any claim of ownership to tMs land, nor paid any taxes upon it. And that Hubbard did not consider that he had conveyed Platt any part of block 15, is, we think, clearly established, by the fact that, in less than a month after he made the deed to Platt, Hubbard conveyed the property at the southeast comer of Fifth and Wyandotte, being the property at the northwest corner of block 15 in his addition, to Hezekiah King, clearly showing that he did not intend to convey to Platt the 122 feet of ground in the northwest corner of block 15, - and Hubbard never did make any other conveyance of the land in controversy in this suit.

Having reached this conclusion we deem it entirely unnecessary to pass upon the other propositions advanced by the respective counsel as to the Statute of Limitations and the tax title.

In our opinion the circuit court properly ruled and held that the deed from Hubhard to Platt of date Angnst 9, 1856, conveyed the land in controversy to said S. J. Platt, and accordingly the judgment is affirmed.

Burgess and Fox, JJ., concur.