author: JAMES T. BLAIR, J.

text:
    CUDAHY PACKING COMPANY v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant.
    Division One,
    April 9, 1921.
    APPEAL FROM JUSTICE: Waiver of Defects in Process. Under Revised Statutes 1909, Sections 7568 and 7579, the taking of an appeal from a justice of the peace invests the circuit court with power to hear and determine the case anew; and the appeal operates as a voluntary entry of appearance by the appellant in the circuit court, and if there is any defect in the summons or in the service thereof it is thereby waived. [Overruling Meyer v. Ins. Co., 184 Mo. 1. c 488, and subsequent cases.]
    Appeal from Jackson Circuit Court. — Hon. - W. O. Thomas, Judge.
    Affirmed.

      George Kingsley for appellant.
    (1) The court acquired no jurisdiction over the defendant, and had no authority to enter judgment against it, because no copy of plaintiff’s petition was served with the writ of summons. R. S. 1909, sec. 1760; 32 Cyc. 449; Peurt v. Caster, 174 Mo. 289. (2) Defendant being a foreign corporation, as the return to the writ of summons shows, should have been served according to Section 1760, R. S. 1909. Service was not good even under Section 1766, because it does not appear that the president or other chief officer of the defendant was absent from the county. Horn v. Railroad, 64 Mo. 561. (3) Defendant by taldng an appeal to the circuit court did not waive the' defects of jurisdiction. Meyer v. Ins. Co., 184 Mo. 481; Bente v. Typewriter Co., 116 Mo. App. 77; State ex rel. Fairbanks v. Ayers, 116 Mo. App. 90.

      New, Miller, Gamack & Winger, P. E. Reeder and John Taylor for respondent.
    The alleged defects in the summons and return were cured by defendant’s appeal from the judgment of the justice. Secs. 7568, 7579, R. S. 1909; Ser v. Bobst, 8 Mo. 560; Damhorst v. Railway Co., 32 Mo. App. 350; Gant v. Railway Co., 79 Mo. 502; Fitterling v. Railway Co., 79 Mo. 504; Boulware v. Railroad, 79 Mo. 494; Hull v. Beard, 80 Mo. App. 200; Musgrove v. Mott, 90 Mo. 107; Lesan Adv. Co. v. Castleman, 265 Mo. 345; Powell v. Railroad, 178 S. W. 216; Whiting v. Railroad, 101 Mo. 631; Idalia Realty & Dev. Co. v. Norman, 184 Mo. App. 146.
   JAMES T. BLAIR, J.

In this case the Kansas City Court of Appeals rendered a decision (Cudahy Packing Co. v. C. & N. W. Ry. Co., 207 S. W. 70) which it deemed contrary to a previous decision (Swezea v. Jenkins, 186 Mo. App. 428) of the Springfield Court of Appeals. This explains the presence of the case here. [Sec. 6, Amd. of 1884 to Art. VI. of the Constitution of Missouri.]

Plaintiff Packing Company sued in a justice’s court to recover from defendant Railway $156.75 damages for losses it alleges it suffered by reason of defendant’s failure to re-ice a car of meat. Summons issued and an attempt at service was made. A motion to quash the return was overruled by the justice. Defendant made no further appearance in the justice’s court, and judgment went for plaintiff. In due time defendant filed its affidavit and bond for appeal. The appeal was duly granted by the justice and the case properly lodged in the circuit court. In that court defendant filed its motion to “quash, set aside and vacate” the writ of summons and the return' thereon. This motion was overruled. Defendant made no further appearance, and judgment again went for. plaintiff. Prom this judgment defendant appealed to the Kansas City Court of Appeals, which affirmed it and transferred the cause to this court for the reason stated.

Several questions are discussed in the briefs, but the Court of Appeals disposed of the case by a ruling that the taking of an appeal from a justice’s court “waives the question of defective summons” in that could “and amounts to a general appearance in the circuit court.” This ruling, if correct, disposes of the case. The question would not seem to require much space for its discussion were it not for the fact, pointed out by the Court of Appeals, that there is considerable conflict in this State in the decisions upon the subject. In view of this it is necessary to examine several previous decisions.

The effect of an appeal from a justice’s court upon defects in or want of summons or service in that court depends upon the governing statute. That the Legislature constitutionally may enact that such an appeal, taken to a court where a trial de novo is to be had, shall constitute a general appearance in the cause, cannot be seriously questioned. Decisions subsequently referred to disclose that no constitutional obstacle is thought to intervene. The question in this case, therefore, concerns solely the meaning of the applicable statute as written.

In 1835 (Sec. 8, p. 370, R. S. 1835) it was enacted that upon the filing of the transcript “in the clerk’s office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the justice. ” In the first case we have found in which this court referred to this section, it is clearly indicated that the court thought the taking of an appeal from the justice constituted an appearance having some efficacy to waive the insufficiency of the return of the summons in the justice’s court. [Atwood v. Reyburn, 5 Mo. 533.] In Lutes and Dulany v. Perkins, 6 Mo. 57, there had been no service upon Lutes, one of the defendants, in the justice’s court. Lutes and Dulany both appealed from the judgment of the justice. In the circuit court both moved to set aside the judgement of the justice for the reason that the justice had no jurisdiction of the cause of action and none of the persons of movents. The court said that the return on the justice’s process showed no service on Lutes and that “the circuit court committed error in entering- up judgment against Lutes.”- Section 8, p. 370, Revised Statutes 1885, was neither cited in the briefs nor mentioned in the opinion. In Ser v. Bobst, 8 Mo. 506, the service of the summons had been insufficient to give the justice jurisdiction of the person. The case was under the forcible entry and detainer act. The justice entered judgment by default. Defendant appealed. The controlling statute (Sec. 36, p. 49, Laws 1838-39; Act of January 28, 1839) was, in so far as concerns the question here, like Section 8, page 370, Revised Statutes 1835. The circuit court dismissed the appeal. This court held that the circuit court should, “without regarding any error, defect, informality, or imperfection, in the proceedings of the justice, have proceeded to hear, try and determine the same aneAv, as if it had originated in that court . . . The appellant, by bringing- up the cause, had dispensed with the necessity of a regular summons before the justice.” In Williams v. Bower, 26 Mo. 601, the summons issued by the justice had been made returnable in nine days instead of the minimum fifteen days prescribed by the statute. There was judgment by default and an appeal to the Law Commissioners Court (R. S. 1855, p. 1596, et seq.) where a motion to dismiss for the mentioned defect was overruled and the cause was then brought to this court. The question of the effect of the appeal upon defects of service Avas not men-tinned; but the court did reverse the judgment and dismiss the cause because, it held, the summons was void. Sanders v. Rains, 10 Mo. 770, was cited. In that case no appeal bad been taken from the justice’s court, and the question of the effect of an appeal was neither presented by the record nor referred to by the court. In Hunt v. Cobb, 28 Mo. 198, the rule in Williams v. Bower, was applied. The question before us .was not referred to by the court. Judge Scott dissented on another ground. In Blunt v. Railroad, 55 Mo. 157, defendant moved in the justice’s court to set aside judgment by default, on the ground that ‘ ‘ the process was not legally issued and served.” The motion was overruled and defendant. appealed to the circuit court. There it moved to dismiss the cause for the same reason but did not except to the adverse ruling of the circuit court. On error this court said that under the statute (like that of 1835) “the effect of an appeal, to the circuit court, without anything further, amounts to full appearance to the action of the circuit court.” This would seem to dispose of the matter, but the court added: “But the appellant is allowed by motion in the appellate court to demonstrate the purpose of liis appeal, which was done in this case. This motion, however, was overruled.” If the defect of service was waived by appeal, it would seem the permission to demonstrate such a “purpose of his appeal” would contain small comfort for the defendant. The court further said it could not consider the overruling of the motion because no exception had been saved. Unless the appeal waived the defect in the process it would seem the question could have been reached on the record. This decision has the appearance of deciding the question both ways. In Jordan v. Railway, 61 Mo. 52, defendant objected to the justice’s process by motion to set aside judgment by default. The motion was overruled and defendant appealed to the circuit court. That court overruled a motion to dismiss the cause because of defects in the justice’s process. On appeal this court reversed the judgment and remanded the cause with direction that the case he dismissed unless facts were shown which justified an amendment showing service. The question of the effect of the appeal as an appearance was not suggested or considered. This decision was rendered at the October Term, 1875.

Thereupon the Legislature came to the rescue; In 1879 (Sec. 3052, R. S. 1879) the old statute (Sec. 13, p. 724, G. S. 1865), which had remained the same since 1835 and under which the varying decisions referred to had been rendered, was amended to read as follows:

“Upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the original summons or the service thereof, or on the trial, judgment, or other proceedings of the justice or constable in relation to the cause.”

The italics indicate the words added by the amendment.- This change in the law seems designed to reach the question left in doubt by the decisions. The Circuit Court of Linn County thought so in Brandenburger v. Easley, 78 Mo. 659, but the decision of this court was, in effect, to the contrary. In Boulware v. Railroad, 79 Mo. 494, the record presented the question, and Section 3052 and Ser v. Bobst, supra, were cited. The court nevertheless seems to have put the decision on the ground that defendant appeared generally in the justice’s court. In Grant v. Railway, 79 Mo. 502, the court held both (1) that an appearance to move'to set aside default constituted an appearance in the justice’s court, and (2) that the taking of the appeal from the justice, under Section 3052, “dispensed with the necessity of a regular summons before the justice.”

In 1875 the St. Louis Court of Appeals had been established. In 1882 in Gibbs v. Railway, 11 Mo. App. 459, it was held that under Section 3052, Revised Statutes 1879, an appeal from a justice constituted a waiver of all defects of service. The same holding appears in Heine v. Morrison, 13 Mo. App. 590, and Martin v. Prietto, 14 Mo. App. 596. In Smith, v. Simpson, 80 Mo. l. c. 636, and Fare v. Gunter, 82 Mo. 522, it seems that this court again thought that a defendant might, under Section 3052, appeal from a justice’s court and he entitled to object in the circuit court for the insufficiency or want of service. The case of Fare v. Gunter was decided at the October Term, 1884. In the Laws of 1885, p. 186, under date of March 31, 1885, appears a further effort to solve the problem. It was attempted to add a proviso to Section 3041, Revised Statutes 1879, expressly providing that “the affidavit and bond for appeal filed shall be taken and considered by the appellate court as an entrance of appearance.” "Whether this proviso fell outside the breastworks because of the title and the character of the introductory part of Section 2 of the Act, it is unnecessary to decide since it is certain it was validly incorporated in the section by the revised bill on Justices Courts which was passed in 1889. In 1887 the St. Louis Court of Appeals held in Eubank v. Pope, Lockwood & Co., 27 Mo. App. l. c. 464, that the taking of an appeal from a justice’s court “waives all defects or omissions touching the orignal service., and brings the appealing party into court for all the purposes of the cause.” In Witting v. Railroad, 28 Mo. App. l. c. 107, Rice v. Railway, 30 Mo. App. l. c. 112, and Fitzpatrick v. Railway, 34 Mo. App. l. c. 285, like holdings appear. The "Witting case reached this court by transfer, and it was held, Witting v. Railroad, 101 Mo. l. c. 635, that the appeal from the justice waived “all errors and defects in the original summons and in the service thereof.” In Carter v. Wamack & Staggs, 64 Mo. App. l. c. 341, 342, the same rule was applied. In 1901 (Meyer v. Ins. Co., 92 Mo. App. l. c. 398) it was held that an appeal was equivalent to a" general appearance in the circuit court. The cause was transferred to this court because of conflict on the point. While it was pending here the Witting case was followed in Winer v. Maness, 94 Mo. App. l. c. 164 and 165,

In due time the Meyer case came on for hearing in this court. [Meyer v. Ins. Co., 184 Mo. 481, l. c. 487.] This court held that the defendant in that case was properly brought into court by valid summons properly served and that, therefore, the “appeal by the defendant from the justice of the peace cuts no figure in the case.” The court then proceeded to point out, citing cases, that under our practice a “ defendant can unite in the same pleading a plea to the jurisdiction, as to the person as well as to the subject-matter, with .a plea to the merits, and that he does not thereby waive the question of jurisdiction of the court. ’ ’ Further, it was held that ‘ ‘ defendant did make timely objection” to the jurisdiction of the person “both in the justice’s court and the circuit court, and the fact that rvhen the justice ruled against him he took an appeal to the circuit court no more waived that objection than if it or any defendant had appeared to the action and pleaded to the jurisdiction and to the merits in the same ansAver. ’ ’ It Avas also said that the St.. Louis Court of Appeals erred in holding that by taking an appeal from the justice, “after the justice had ruled against it on its plea to the jurisdiction” of the person, ‘ ‘ the defendant AvaiAmd the plea to the jurisdiction. ” The court said that, on the contrary, “the defendant never waived the plea but has always properly made and preserved the question; ’ ’ that 'the £ £ St. Louis Court of Appeals OArerlooked the rule in this State that a defendant can appear and plead in abatement and in bar at the same time and in the same plea.” After that decision Avas promulgated the courts of appeals usually construed it as an abandonment of the decision in "Witting v. Railroad, supra, and like cases, and followed it as so construed until this court, in the same division, Number One, decided in Lesan Advertising Co. v. Castleman, 265 Mo. l. c. 351, that “the jurisdiction of the person of appellant was complete by his appearance in the justice’s court at the trial; by taking the appeal, and thereby going voluntarily into the circuit court (Boulware v. Railroad, 79 Mo. 494; R. S. 1909, sec. 7568) and by his general appearance in the circuit court.” In that case defendant’s motion in the circuit court contained grounds other than those going to the jurisdiction. Thereafter (Powell v. Railway, 178 S. W. 212) the Lesan case has been followed as overruling the Meyer case. The Powell case was transferred to this court hut dismissed before it was reached.

The practically universal rule in other jurisdictions is that an appeal from the judgment of a justice of the peace to a court where a trial de novo must be had waives all defects of jurisdiction over the person of the appellant and amounts to a general appearance in the appellate court. [2 R. C. L. sec. 96; 24 Cyc. pp. 694, 695.] In notes to Gulf Pipe Line Co. v. Vanderberg, 28 Okla. 637, 115 Pac. 782, which appear in 34 L. R. A. (N. S.) p. 661, et seq., and in 1912D Ann. Cases, p. 411, et seq., the cases are collected. They come from'the courts of more than a score of states and constitute an impressive array, whether considered from the point of view of numbers, the number of states from which they emanate, the character of the tribunals which decided them, the unanimity of opinion which they disclose or the soundness of the underlying reason upon which they are based. Later cases adhere to the same rule. [German Investment Co. v. Westbrook, 101 Ark. 124; Stephens v. Wheeler, 60 Colo. l .c. 356; Doggett v. Railway, 31 Okla. 177; Cohn v. Clark, 48 Okla. 500; Gibson v. Haworth, 47 Pa. Super. Ct. l. c. 622; Smith v. Thompson, 85 W. Va. 364, 101 S. E. 723.]

The purpose of an appeal from a justice of the peace in this State is to secure a “trial anew.” That is the sole purpose for which such appeal is permitted by the statute. [Sec. 2902, R. S. 1919.] When a defendant appeals he therefore appeals for that purpose and no other. The very lodging of the appeal in the circuit court constitutes an invocation of the appellate jurisdiction of that court; and, since the circuit court, on such an appeal, has no appellate jurisdiction except for the purpose of a trial anew, it is an invocation of that court to exercise its jurisdiction in a trial anew. This of itself constitutes such an appearance as to waive defects in or absence of summons or service. In this State this principle is supplemented, as already pointed out, by one statutory provision (Sec. 2902, R. S. 1919) which expressly directs the circuit court on appeal to disregard every “error, defect or other imperfection in the original summons or service thereof,” and another which expressly provides (Sec. 2891, R. S. 1919) that “the affidavit and bond for appeal filed shall be taken and considered by the appellate court as an entry of appearance.” No defendant is obliged to appeal. If not served properly he may elect whether he will or will not appeal. If he does so, he must abide the consequences. He has appeared. If he does not appeal and the service proves good, his “judgment” was had and the justice’s judgment will stand. If it is not good, then he is in no worse position than any other suitor against whom it is attempted to render a judgment without service of process. Of course, what we have said refers only to defects in jurisdiction over the person.

The case of Meyer v. Ins. Co., 184 Mo. 481, disposed of the question without discussing the cases, in or out of the State, or the statutes which relate to it. The decision was, in the main, put upon the ground that under our practice a defendant may unite in the same pleading a plea in abatement with a plea to the merits. We are unable to perceive the relevance of this principle to the question then and now being decided. The earliest of the cases cited in the Meyer Case on the point is Little v. Harrington, 71 Mo. 390, in which it was held that the then existing sections of the statutes (Secs. 3513 and 3522, R. S. 1879), which are still in force (Secs. 1224 and 1233, R. S. 1919), dispense with the common-law rule that matter in abatement might not be joined with matter in bar without waiving the former, and permitted all defenses, whether in abatement or in bar, to be pleaded in the same answer. The other decisions also plant the rule upon the same sections of the statute. Section 1224, Revised Statutes 1919, provides: “The only pleading on the part of the defendant is either a demurrer or an answer. ’ ’ That portion of Section 1233, Revised Statutes 1919, relied on in the case cited, reads: “The defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” What the court holds in the cases mentioned is that these statutory provisions mean what they say, i. e. that there can be but one answer and it must contain all the defenses the defendant may have. The fact that a defense may be pleaded in a certain way, if the defendant has such a defense, does not bear upon the question whether under given conditions, the defendant has that defense. The question upon which the Meyer case was certified here was not whether the supposed defect in the service could be pleaded with matter in bar. It was whether there had been a waiver of a supposed defect in the service. There was no contention in the Meyer case that defendant had waived its objection to the jurisdiction of the person by the filing of the motion in the justice’s court or of that in the circuit court, directed against such jurisdiction. No-matter in bar was included in either motion. [State ex rel. v. Grimm, 239 Mo. l. c. 171, et. seq.; State ex rel. Bulger v. Southern, 278 Mo. l. c. 621.] The insistence was that the taking of the appeal from the justice constituted a general appearance. It may be conceded that defensive matter in abatement may be pleaded in the same answer with matter in bar without being waived thereby. It may also be conceded that “in an ordinary action an appearance solely to challenge jurisdiction for want of service gives no jurisdiction of the person.” [State ex rel. Bulger v. Southern, supra.] Let it also be conceded that after such a special appearance, in a proper case, movent ordinarily may proceed with the case without thereby waiving the point of jurisdiction. Nevertheless, the question whether the appeal from the justice constituted a general appearance which gave full jurisdiction of the person of the defendant was not settled by either of these considerations. If the service was bad, it did not bring defendant into the justice’s court; but the appeal constituted a general appearance for all purposes, despite the motion to dismiss filed before the justice. That is the effect of a general appearance. We do not think the court meant in the Meyer case to hold that after objection once made, a defendant can enter his general appearance and still insist upon the objection. Let it be again conceded that he may do such things as would, absent . the previous objection, have amounted to a general appearance, without waiving the objection. The result of this is not to destroy the effect of a general appearance as a waiver of objections to the person, but, upon condition that objection to the jurisdiction is first made, to permit certain things to be done after such special appearance, without the doing of them being held to constitute a general appearance. In the Meyer case, as in this, defendant objected in the justice’s court to the sufficiency of the service. That objection did not give jurisdiction of the person. Defendant then appealed. Such an appeal is expressly and unconditionally declared by our Legislature to be' a general appearance. No exception is made of cases in which a plea to the jurisdiction previously shall have been filed. All are included. The appeal brought defendant into court. His motion in the circuit court was futile. He had already appeared generally. No question of pleading was involved. It is clear that the right to file a plea to the jurisdiction of the person does not include a right thereby to undo the effects of a previous general appearance.

We think the decision in the case of Meyer v. Ins. Co., 184 Mo. l. c. 488, 489, in so far as the point now in judgment is concerned, is erroneous and should no longer be followed. The same conclusion applies to a like ruling in Swezea v. Jenkins, 186 Mo. App. 428; Trimble v. Elkins, 88 Mo. App. 229; State ex rel. Fairbanks v. Ayers, 116 Mo. App. 90; Bente v. Typewriter Co., 116 Mo. App. 77; Mfg. Co. v. Railroad, 167 Mo. App. 683, and those other decisions already mentioned, and others if there be any, from this and the courts of appeals which hold contrary to the view taken in this case. It is due to our brethren of the several courts of appeals to say that they struggled valiantly against the errors of this court and rendered correct decisions in interims in which decisions of this court permitted the correct rule to be followed; and that several of the cases we overrule have already been overruled by the courts which promulgated them but in decisions not officially published, and we include them here for that reason. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SMALL, C. PER CURIAM:

license: Public Domain

text:
    SECURITY NATIONAL BANK OF OKLAHOMA CITY, Appellant, v. PEOPLE’S BANK OF SULLIVAN, MISSOURI.
    Division One,
    April 9, 1921.
    1. NEGOTIABLE SECURITIES: Powers of Congress: Delegation of Power. The Congress of the United States, having power under the Constitution to issue negotiable securities for governmental purposes, has the further power of delegating to the Secretary of the Treasury the determination of the question whether or not such securities should be negotiable, as in the case of the interim certificates issued during the World War for bonds not yet ready for delivery.
    2. -: Liberty Loans: Interim Certificates. The Act of Congress of April 24, 1917, providing for the issue of Liberty Bonds, gave the Secretary of the Treasury power to issue interim certificates to be held until the bonds could be prepared, and also to make them negotiable.
    3. -: Porm and Terms: According to Common Law and State Statutes. The power of the United States to make its securities negotiable is not subject to any rules of common law or state statute in respect to form or terms.
    4. -: Negotiable in Porm. Every interim' certificate issued under the Liberty Loan Act of Congress of 1917 provided that “upon surrender of this interim certificate, the bearer hereof will be entitled to receive, when prepared, definitive bonds in the amount of -dollars, bearing interest from June 15, 1917. This certificate and all rights under and by virtue hereof shall pass by delivery. .... There must be no writing on this certificate until it is presented for exchange for bonds.” Held, that these certificates were clearly intended to be and are negotiable instruments.
    5. -: Theft of Interim Certificates: Bona-Fide Purchasers. Certain negotiable interim certificates of the United States were stolen from a bank in Missouri, and were shortly afterward acquired by a bank in Oklahoma in the ordinary course of business from two of its customers who resided and did business in its home town, without notice of or resaon to suspect any defect in their title, and for their full face value. The Oklahoma bank was at the same time buying from other persons on the same terms. Held, that it was a bona-fide purchaser for value, and had the title as against the Missouri bank.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Reversed (with directions).

      Fordyce, Holliday & White for appellant.
    (1) Securities issued under acts of Congress exercising its power to borrow money on the credit of the United States, must be construed with regard to such act, and are not governed either as to their character or effect by local law. U. S. Constitution, Art. 1, sec. 8; United States v. Stephenson, 27 Fed. Cas. 16386; 1 McLean, 462; Legal Tender Case, 110 U. S. 421. (2) Even under local law the interim certificates are negotiable, because the holder has the option, either to exchange them for definitive bonds or to hold the same until maturity and demand payment in money. Hodges v. Schuler, 22 N. Y. 114; Hotchkiss v. National Bank, 21 Wall. 354; Jones on Corporate Bonds, sec. 190, p. 213. (3) Interim certificates, or scrip, when they provide for exchange for negotiable bonds, are themselves negotiable under the Law Merchant. Jones on Corporate Bonds, sec. 184, pp. 207-208; Goodwin v. Roberts, 1 App. Cases, 476; Rumball v. Metropolitan Bank, L. R. (Q. B. D.) 194.

      James Booth for respondent.
    (1) The interim certificates were issued and delivered in Missouri by one resident of the State to another resident of the State; and the bonds therein called for were to have been delivered in Missouri. The contract is to be construed by Missouri law. National Bank v. Cudahy, 126 Fed. 543; Trower Bros. v. Hamilton, 179 Mo. 205; 39 Cyc. 898; Davis v. McCall, 179 Mo. App. 198; Smoot v. Judd, 161 Mo. 673; 8 C. J. sec. 153, p. 92. (2) Under the Missouri law an instrument to be negotiable must comply with the following requisites: First, it must be in writing, and signed by the maker or drawer; second, it must contain an unconditional promise to pay a sum certain in money; third, it must be payable on demand or at a fixed or determinable time, and it must be payable to order or bearer. Sec. 788, R. S. 1919; Sec. 99721, R. S. 1909. (3) And because the certificates in question were not payable in money and. because they did not contain a promise to pay at all, they were not negotiable, either at common law or under the Missouri statute. 8 C. J. sec. 225, p. 130; Mathews v. Haughton, 11 Me. 337; Lawrence v. Dougherty, 5 Terg. 435; Jones v. State, 40 Ark. 345; First Natl. Bank v. Greenville Natl. Bank, 19 S. W. 334; Easton v. Hyde, 13 Minn. 90; Frt. & Cotton Press Co. v. Standard, 44 Mo. 71; Chandler v Calvert, 87 Mo. App. 368; Kessler v. Clayes, 147 Mo. App. 88; Farwell v. Kennett, 7 Mo. 595 ; Missouri v. Benoist, 10 Mo. 523. (4) The interim certificates not being negotiable the purchaser is not protected either by the Law Merchants or the local statutes of Missouri. 8 Cyc. 57; 8 C. J. sec. 1052, p. 797. (5) Under the supreme law of the land all legislative powers are vested in Congress; and the Secretary of the Treasury has never been delegated the power to legislate and make those instruments negotiable which, according to the due course of the •common law and local statutes, were not negotiable. U. S. Constitution, art. 1.; Morrill v. Jones, 106 U. S. 466; 17 C. J. sec. 39, p. 477.
   SMALL, C.

This suit was in equity against the Federal Reserve Bank of St. Louis, and the People’s Bank of Sullivan, Missouri, to enjoin the Federal bank from delivering to the Sullivan bank certain Liberty bonds called for by twenty interim certificates for such bonds which plaintiff claimed to own as an innocent purchaser for value. Eight of said certificates were for $50 each, eleven for $100 each, and one for $500. Each certificate called for a Liberty bond for the amount of such certificate. All the certificates were in the same form and alike, except as to amounts, and were all executed by the Federal Reserve Bank of St. Louis on September 1, 1917. Said form was as follows :

“The United States of America 15-30 Year Gold Bonds
“3y»</0 Liberty Loan Full-Paid Interim Certificates.
“Fifty Dollars ($50.00) 100 <f> paid:
‘ ‘ This is to certify that in accordance with the terms of Treasury Department Circular No. 78, dated May 14, 1917, payment in full has been made for fifty dollars face amount United States 15-30 year 3 % per cent gold bonds of the Liberty Loan authorized by Act of Congress approved April 24, 1917. Upon surrender of this Interim Certificate to the undersigned bank, the bearer hereof will be entitled to receive, when prepared, definitive bonds in the face amount of fifty dollars bearing interest from June 15, 1917. This certificate and all rights under and by virtue hereof shall pass by delivery hereof. This certificate shall not be valid unless executed in the name of a Federal Reserve Bank (as Fiscal Agent of the United States) by the cashier or an assistant cashier of such bank.
“W. G. McAdoo,
“Secretary of the Treasury.
“Dates:............
“Federal Reserve Bank of St. Louis,
“Fiscal Agents of the United States
“By....................
“Assistant Cashier.
“1760776
“There must be no writing in this certificate until it is presented for exchange for bonds.
“Upon presentation hereof for exchanges for bonds, when prepared, the following must be filled out and signed by the owner of this certificate:
“The undersigned owner of the within Interim Certificate desires:
“One Bonds of the Denomination of $.............
“In bearer Form with Coupons Attached.
“Bonds of the Denomination of $.................
‘ Registered as to Principal and Interest.
“ (Strike out the description of the form of bond not described.)
“Directions for Delivery of bonds.
“Name:
“Address:
“If Registered Bonds are desired, state in whose name they are to be registered and the address of the registered owner:
“Name:........................
“Address:........................
“Signature of Owner:....................
“Date:......................
“In the absence of written request on the foregoing blank for bonds of specific denominations and form, there will be delivered in exchange for this certificate, coupon bonds of the largest denomination or denominations in which coupon bonds are issued and contained in the amount of bonds called for by this certificate.
“Bearer bonds with interest coupons attached, will be issued in denominations of $50, $100, $500 and $1,000. Bonds registered as to principal and interest will be issued in denominations of $100, $500, $1,000, $5,000, $10,000, $50,000 and $100,000. Provision will be for the interchange of bonds of different denominations and of coupon and registered bonds — upon payment, if the Secretary of the Treasury shall require, of a charg'e not exceeding $1 for each new bond issued upon such exchange. Transfer of registered bonds and exchanges of registered and coupon bonds and of bonds of different denominations will not be made until October 1, 1917, or such later date as may be desigated by tlie Secretary of the Treasury.
“There Must Be No Writing on This Certificate Until It Is Presented for Exchange for Bonds.”

The petition further stated, that said certificates were negotiable, that the Liberty bonds called for by said certificates had been prepared and were held by defendant, Federal Reserve Bank ready to be exchanged for such certificates, which plaintiff had deposited with said Reserve bank. But it refused to deliver said Liberty bonds to the plaintiff, because it claimed said certificates had been stolen from the defendant, Sullivan bank, which claimed some right therein, and in the bonds called for thereby.

The said bonds, being deposited in court by the Federal Reserve Bank, the suit was dismissed as to it, and tried as between plaintiff and defendant, Sullivan bank.

The answer of the Sullivan bank admitted, the issue of the interim certificates, the holding of the Liberty bonds called for therein by the defendant, Federal bank, the surrender of such certificates by the plaintiff to the Federal bank, and its refusal to deliver the bonds thereon to the plaintiff. Denied that plaintiff purchased the certificates in good faith or paid value therefor.

By way of cross-bill and interpleader, the Sullivan bank, alleged that it was the owner of said certificates, having purchased the same from the said Federal Reserve Bank. That it placed said certificates in its safe at Sullivan, Missouri, from which they were stolen by unknown persons, who broke open the safe and carried away said certificates. That said certificates are and were not negotiable. That said defendants is still the owner thereof. That plaintiff knew at the time it purchased said certificates, that the persons from whom it obtained them had no title thereto. Wherefore, said Sullivan bank asked the court to declare that it was the owner of said certificates and bonds deposited in court, and for general relief.

Plaintiff’s reply put the new matter in the answer and cross-bill in issue.

There was an agreed statement of facts, which ad mitted the form and issue of the certificates as set out by the plaintiff in its petition, and the facts admitted by the pleadings. That said certificates were originally purchased from said Federal bank by the Sullivan bank, and afterwards stolen from it, as alleged in its answer and cross-bill. Touching the acquisition thereof by the plaintiff, the agreed statement recites:

“During'October and November, 1917, the Security National Bank of Oklahoma City purchased all of the certificates above mentioned under the situation set out in the deposition of J. C. Eagen and G. L. Kellog heretofore filed in this case. It is stipulated and agreed that said depositions shall be considered a part of this Agreed Statement of Pacts, and that such evidence is all the evidence touching the manner in which the Security National Bank of Oklahoma City acquired said interim certificates.”

J. C. Eagen, testified, for plaintiff, in his deposition, substantially, as follows: That in October and November, 1917, he was an employee of the plaintiff bank. Remembered some of the certificates were purchased from the Kelley Jewelry Company, and an individual named John Garrett, in Oklahoma City, where plaintiff bank was located; each were customers of the bank, and carried deposits with it. Tie advised the receiving teller to give said jewelry company credit for the face amount of one or more of these certificates. “ Q. Did the Security National Bank give credit for the face of each of the certificates you have referred to ? A. I have looked it up on the books of the bank, and find that credit was given or cash paid for the full face value of all the certificates.”

Continuing, the witness said: “I am under the impression I advised the receiving teller to give the Kelley Jewelry Company credit for the certificates. I also advised him to cash other certificates, which he had at the same time. The bank received other certificates, besides those in this litigation at that time. It received these certificates in the ordinary course of business. I know of no defect in the title to any of the certificates, and had notice of none. The Kelley Jewelry Company checked out its credit involved in this transaction. I knew of no fact that would lead me to believe that the title to these certificates was defective. The plaintiff bank gave credit or cash for full face amount of the certificates in each case.”

On cross-examination, witness said: Could not recall any conversation with either said -Jewelry Company or Garrett, prior to purchase of certificates. Could not recall the particular certificates bought from either, nor which witness handled personally. The particular instances he had in mind were two one-hundred dollar certificates, and some others, fifties and hundreds, could not give their numbers, nor how many were bought from Garrett, nor how many from the Jewelry Company. Had no talk with either of said parties. The Kelley Company informed him, that they had given merchandise for some of the certificates — referred to H. M. Kelley. Witness personally purchased none from Garrett. Garrett still lives in Oklahoma City. He is a trader — trades anything. Kelley is still in the jewelry business within two blocks of the bank.

L. G. Kellogg, in his deposition, testified for plaintiff, substantially as follows: Was assistant cashier of plaintiff bank in September, October and November, 1917. Handled the transaction by which there was purchased from John Garrett certain interim certificates, which are the subject of this litigation. He bought in some of the certificates, not certain as to the amount, and asked if the bank would take one or more of them, and witness said it would. “He asked me if they were worth their face value, and I said they were, and paid him the cash on them.” To the best of his knowledge, Mr, Kelley’s employee, a Mr. Milton, came in with a deposit including one or more of these certificates, and asked if the bank would take them, and witness told him it would. In any transaction handled by the witness, ‘ ‘ it was either •paid in cash, or deposited to the credit of the parties, the full face amount of the certificate.” Witness had no knowledge or notice at the time of any fact which would indicate to him, that the title was not good. The bank at that time was paying cash or giving credit for the full face amount of interim certificates of the same series as those involved in this litigation to -other persons. Could not say whether there was anyone other than Mr. Eagen and himself, who had anything’ to- do with these certificates. Does not remember of giving any instructions to others to pay cash or give credit for full amount of interim certificates. There were about 35 employees in the bank at that time. Cross-examination: Witness had no conversation with Kelley or Garrett as to purchasing certificates, prior to purchase. Nor as to from whom or under what circumstances they purchased the certificates. Could not identify any particular certificates purchased from Kelley or from Garrett.

At the close of the evidence, the plaintiff asked several declarations of law, one to the effect, that- under the Act of Congress and the regulations of the Secretary of the Treasury thereunder, the certificates were negotiable instruments and passed by delivery and that a bona-fide holder for value acquired a perfect title by purchase thereof. This declaration the court refused. The plaintiff also asked the court to find, as a matter of fact, that the £>laintiff acquired the certificates claimed by it, for value in the ordinary course of business, without notice of the fact that they had been theretofore stolen. This request was refused.

The court entered a decree confirming the agreed statement of facts, but there is no finding in the decree, as to whether plaintiff was a bona-fide purchaser for value. There was, however, a finding in said decree, that said certificates were not negotiable. The decree further adjudged that the Sullivan hank was the owner of the certificates, and the bonds called for thereby and that plaintiff had no interest therein.

Plaintiff’s motion for new trial being overruled, it appealed to this court.

I. It is no longer a debatable question, that either in time of war, or in time of peace, if the exigencies of the Federal Government in the judgment of Congress require the borrowing of money and issuing °f bills of credit therefor, Congress has full power so to do, and to issue such bonds, notes or other obligations of the Government, which shall pass from hand to hand, and be negotiable, and have even the quality of legal tender for the payment of debts, as the Act of Congress may prescribe. [Legal Tender Case, 110 U. S. 421.] In that case, as to the form of such obligations, the court says, page 144: “ Congress has authority to issue those obligations in a form adapted to circulation from hand to hand, in the ordinary transactions of commerce and business. In order to promote and facilitate such circulation, to adapt them to use as currency, and make them more current in the market, it may provide for their redemption in coin or bonds and make them receivable inpayment of debts to the Government.” So that, Congress, itself, by an Act of Congress, could have made these interim certificates pass current as negotiable instruments from hand to hand, cannot be doubted. Indeed, learned counsel for respondent makes no contrary contention.

II. But learned counsel does contend: First, that the power to make such certificates negotiable is a legislative power or function, which Congress could not delegate to the Secretary of the Treasury; and, second, if it could and did delegate such power, the Secretary did not so exercise such power by the terms he used in such interim certificates as to make them negotiable.

III. As to the power of Congress to delegate such power to the Secretary of the Treasury. Whether such interim certificates should be issued and the character thereof, as to being negotiable or otherwise, Ave wag an administrative matter proper to be vested in the discretion of the Secretary of the Treasury. The purpose of Congress was to raise money to prosecute the World War, and to raise it as expeditiously as possible. The issue of such interim certificates or interim bonds was a mere detail incident and appropriate to the main purpose for issuing the permanent bonds themselves and might properly be left to the discretion of the Secretary of the Treasury, who was charged with the duty of carrying out the great purpose and undertaking of the Government. It was a proper means to that end and was not prohibited by the Constitution.

In that landmark of the law, McCulloch v. Maryland, 4 Wheaton, 421, the power of Congress to create a banking corporation to carry on the financial affairs of the Government, was determined and Chief Justice Marshall, in affirming such power, said: “We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to he carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, and which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.’.’

If Congress can create a banking corporation, and give and delegate to it power appropriate or necessary to facilitate and carry on the fiscal operations of the Government, as held in this celebrated ease, it would seem incontestible, that Congress could give the head of the Treasury Department of the Government, itself, authority in his discretion, to determine whether the securities, ultimate or preliminary, to be issued to raise money under the Act of Congress, in the case before us, should be negotiable.

IY. Did Congress vest the power in the Secretary of the Treasury to make such interim certificates, and to make them negotiable 1 The Act of Congress of April 24, 1917, providing for the issue of the Liberty bonds in question, provided that such bonds should be c<in such form and subject to such terms and conditions of issue, conversion, redemption, maturities, payment and rate and time of payment of interest, not exceeding three and one-half per centum per annum, as the Secretary of the Treasury may prescribe.”

We hold, this provision gave the Secretary of the Treasury power as one of the terms and conditions subject to which he might issue said bonds to first issue negotiable interim certificates therefor. They were appropriate and adapted to expedite the raising of the funds by the sale of the bonds for cash in advance, and the subsequent delivery of the bonds, when prepared. The bonds themselves were to be negotiable and to give the subscribers of such bonds negotiable, certificates therefor, would, and without doubt did, greatly facilitate subscription for the bonds, in that the subscribers would receive, when they paid their money to the Government, a negotiable obligation of the Government, which would pass current and be as valuable as the bonds they subscribed and paid for, and which they could use in place of and with equal facility, as the bonds, until they received such bonds.

Form andTerms. V. But, it is said, by learned counsel, that in order to make such certificates negotiable, the terms used therein should conform to the common law or to the statute law of the State where issued, which, in this State, required an instrument to be payable at a certain time, and in money, in order to be negotiable, whereas, these certificates called for the delivery of other obligations of the Government, to-wit, Liberty bonds, at an uncertain time, to-wit, when said bonds were prepared, and the certificates therefor surrendered.

But, we hold, that it is not necessary to inquire of the statutes of this State or the common law of England as to making such securities negotiable. Not since the decision of the Supreme Court of the United States in the great case hereinbefore referred to,-has it ever been suggested that any other law, save the acts of Congress, had any bearing upon the authority or functions of ,any department or instrumentality of the Federal. Government w-ith reference to its financial operations, or any of its operations. Concerning this question, the illustrious Chief Justice said in the McCulloch Case, pages 426-7: ‘ ‘ This great principle is, that the Constitution and laws made in pursuance thereof are supreme; that they control the . . . laws of the respective states, and cannot be controlled by them. . . . It is of the very essence of supremacy to remove all obstacles to its action within its own sphere and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.” And again, on page 436: ‘ ‘ The result is a conviction that the states have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control, the operation of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. ”

What the statutes of this State or the English common law provided or required is, therefore, not relevant or germane to the question whether by their terms, said interim certificates were negotiable. The only pertinent inquiry is, did the Government of the- United States, through the language used by its Secretary of the Treasury, intend to make them negotiable — pass current from hand to hand — from bearer to bearer — without endorsement — to be “couriers without luggage,” as has been somewhere said by this court. In order to be interim certificates, at all, it was necessary that they should be exchangeable for bonds at some time certain or uncertain. There was no law of the United States prohibiting the provisions for such exchange being contained therein, or in any manner prescribing or limiting the contents of such certificates or any negotiable securities to be issued by the United States. Being authorized by the Act of Congress to make such certificates negotiable, in his discretion, if the Secretary of the Treasury used language intended to convey the idea, that they were to be negotiable, that is the end of the inquiry and the end of the discussion.

VI. We hold that the Secretary did so intend, and that such certificates were made negotiable by their terms. Such certificates expressly provide that “upon surrender of this interim certificate, the bearer hereof will be entitled to receive, when prepared, definitive bonds in the amount of -dollars, bearing interest from June 15, 1917. This certificate and all rights under and by virtue hereof, shall pass by delivery. ’ ’ Also that, ‘ ‘ There must be no writing on this certificate, until it is presented for exchange for bonds.” So that, clearly the certificates, with the title to the bonds called for, were intended to pass by delivery without endorsement, the same as a bond or note payable to bearer. It was, indeed, expressly provided that the “bearer” of the certificate should on its surrender be entitled to receive the Liberty bonds mentioned therein. Nothing could be clearer than that they were intended to be and, therefore, they were negotiable instruments.

VII. We also hold, that under the evidence, the plaintiff was the purchaser for value in due course, without notice of any defect in the title of its vendors, and, therefore, the bona-fide owner of the certificates in suit. While the lower court refused to so find, as a fact, when thereto requested by the plaintiff, there was no finding at all on the subject in the decree. In said decree, the court based its judgment against the plaintiff,' on the ground, that said certificates were not negotiable. This being a suit in equity, the lower court may have disregarded the request of plaintiff to find the fact of its ownership, as unnecessary, and not because it found plaintiff was not such bona-fide purchaser for value. Otherwise, it seems to us, the court would have expressly so stated in its finding of facts in the decree, which it rendered. In any event, the testimony, not being oral, but by deposition, this court may consider it de novo, entirely uninfluenced by the finding of the lower court. When so considered, we are satisfied that the plaintiff was a bonafide purchaser for value of said certificates, and has sustained the burden, which is upon it, to so prove, in view of the fact that said certificates were previously owned by, but feloniously taken from, the defendant, Sullivan bank.

The result is, the decree of the lower court is reversed, with directions to said court to set aside its judgment heretofore rendered herein', and to enter judgment for plaintiff as prayed, declaring it the owner of said certificates, and the bonds called for thereby, in possession of the court, and that they be delivered to the plaintiff, and that the defendant, Sullivan bank, has no interest therein.

Brown and Ragland, GO., concur.

PER CURIAM:

The foregoing opinion by Small, C., is adopted as the opinion of the court.

All of the judges concur, except Woodson, P. J., not sitting.


author: ELDER, J.

text:
    JOSEPH J. HARBACEK, Appellant, v. FULTON IRON WORKS COMPANY and JAMES B. DUNCAN.
    Division One,
    April 9, 1921.
    1. CONTRIBUTORY NEGLIGENCE: Definition. Contributory negligence rests on tort, and is the lack of that ordinary care on the part of a plaintiff which directly contributes to cause, or causes his injury.
    2. ASSUMPTION OF RISK: Definition. Assumption of risk is gen. erally limited to the relation of master and servant, and rests upon contract, either express or implied. It is a separate and distinct defense from contributory negligence, and is differently applied.
    3. PERSONAL INJURIES: Negligence: Failure of Proof. Where the specific act of negligence charged in the petition was that defendant failed to furnish plaintiff with goggles to protect his eyes while chipping iron -with a cold chisel, and the proof was that plaintiff was an experienced workman, knew the use of goggles, saw other men about the premises at the same kind of work using goggles, had been told by the foreman that defendant had in the tool room everything that pertained to the job, had in fact for four months been getting his tools from that room, but had never asked for goggles, held, that the proof did not support the charge and the plaintiff was properly non-suited.
    4.--: Assumption of Risk. Where the plaintiffs’ own evidence showed that the flying of chips or particles of iron from castings when excrescences were chipped off with a chisel was a usual and obvious risk incident to the business, and that plaintiff, an experienced workman, knew this and knew the danger to his eyes, held, that he assumed the risk when he entered and continued in the employment of the defendant, and could not recover damages for the loss of an eye.
    Appeal from St. Louis City Circuit Court. — Hon. Frank Landivehr, Judge.
    Affirmed.

      W. H. Douglass for appellant.
    (1) Defendant’s foreman was bound to know or at least should have anticipated that particles of iron chipped by plaintiff from castings while in the performance of his duty were apt to strike him in the eyes, unless his eyes were protected, and it was the duty of defendant to furnish plaintiff with goggles, the only known appliance, to protect his eyes. 3 Thompson on Negligence, sec. 3969; Curtwright v. Ruehlmann, 181 Mo. App. 557; Herdler v. Stove & Range Co., 136 Mo. 3; Smith v. Lidgerwood Mfg. Co., 67 N. Y. Supp. 533, 56 N. Y. App. Div. 528; Choate v. Rolling Mills, 27 Ont. App. 155; Thein v. Supply Co., 116 Mo. App. 1. (2). If it was negligence on the part of the defendant to fail to furnish plaintiff with goggles, then plaintiff did not assume the risk and injury as the servant never assumes a risk of injury caused by the negligence of the master. Williams v. Prior, 272 Mo. 613; Fisk v. Railroad, 263 Mo. 106; Patrum v. Railroad, 259 Mo. 109. (3) Plaintiff was not guilty of contributory negligence in continuing to do the work of chipping without goggles, as the danger was not so open and obvious that a reasonably prudent man would refuse to do the work. Jewell v. Bolt & Nut Co., 231 Mo. 176.

      Leigh G. Turner, W. E. Moser and Kelley & Starke for respondents.
    (1) The court properly sustained defendants’ demurrers, because the only allegation of negligence contained in plaintiff’s petition upon which recovery coaid be predicated was not proven by any evidence adduced upon plaintiff’s behalf. (2) Under the undisputed and uncontradicted facts in this case, plaintiff assumed the risk of being injured by flying pieces of metal, which was a risk incident to the work in which he was engaged. Johnson v. Brick & Coal Co., 276 Mo. 42; Patrum v. Railroad, 259 Mo. 109; Chrismer v. Bell Tel. Co., 194 Mo. 189; Powers v. Loose-Wiles Co., 195 Mo. App. 430.
   ELDER, J.

This is an action brought by plaintiff to recover damages for an injury to his eye, sustained while employed by defendant Pulton Iron Works Company. James B. Duncan, general foreman of the company is joined as a defendant.

At the close of the evidence in behalf of plaintiff, upon the request of both defendants the trial court gave as to each defendant an instruction in the nature of a demurrer to the evidence, the same being as follows: “At the close of plaintiff’s evidence, the court instructs the jury that under the law and the evidence your verdict must be in favor of defendant.” Plaintiff thereupon took an involuntary nonsuit as to both defendants, with leave to move to set the same aside. Thereafter, in due time, plaintiff filed his motion to set aside the non-suit taken. Said motion being overruled, he took an appeal to this court.

The facts, as developed by the testimony offered by plaintiff are as follows: The defendant Fulton Iron Works Company conducts a large iron foundry and steel plant in St. Louis County, of which defendant Duncan is general foreman. Plaintiff testified on direct examination that he was 37 years old; that he worked for the defendant Iron Company from the latter part of March, 1918, until June 20, 1918, the day upon which he was injured; that he was employed as a floor machinist and that his work was to assemble and erect sugar mills, fitting parts and putting them together on the floor of the machine shop; that this floor was about 80 feet square and there were about seventy men in the same room, engaged in the same kind of work he was doing; that at the time he was injured he was fitting a dust guard over a roller which grinds the cane, said guard being formed like a half cylinder, and being about three feet long, eight inches wide and five-eighths of an inch thick. Plaintiff stated that when a guard was placed and it did not fit, it was his duty to chip it and make it fit, the chipping being done with a cold chisel and a hammer by taking the chisel in his left hand, placing it the way he wanted it, and striking the head of the chisel with the hammer held in his right hand; that some days he had to do more chipping than others, that there were days when he did none at all, but that on the average he chipped about three hours a day; that in this instance he was working with a man named Ed Kerns and had been instructed to do the particular chipping by Mr. Grier assistant to defendant Duncan; that he did not know how long he had chipped on the dust guard in question, hut that after he had made a few licks, a piece from the casting he was chipping flew in his right eye; that after the piece of metal struck his eye his fellow-workman Kerns came up and opened his eye and the piece of metal fell out; that after the accident a doctor was called, who looked at the eye and sent him to Doctor Henderson who treated it, after which he went to the office of Dr. Briggs, who took an X-ray picture; that he suffered pain for about six months and that Dr. Henderson treated the eye from die day of the injury until about April, 1919, removing the eye in February, 1919. He further stated that when he was doing chipping, particles chipped off would fly in all directions and you could never tell where they were going to fly; that these pieces had struck him on different parts of the body and he thought that some of them had struck him in the face; that he wore nothing over his eyes while he was chipping; that he never saw any of the floor machinists who did the same work as he was doing wear goggles; that no one told him that there were any goggles there for him to wear while he was chipping; that there were men who worked out in the yard at the plant called “steady chippers,” they doing the same work all the time, and that they wore goggles while at work. During the direct examination counsel for plaintiff offered to show by him that since the injury plaintiff had made an effort to get work as a machinist, but that he had been refused because of the fact that he had but one eye. Counsel for defendant objected and the objection was sustained.

On cross-examination, .plaintiff testified that he had been working for the defendant Iron Company three or four months before the day lie was hurt; that before he began work there he had worked for the Diesel Engine Company, before that for the Cabanne Motor Car Company, and before that for the Dorris Automobile Company, having been a machinist and having handled machinery at all those places; that he had been, a machinist for five years before going to work for the defendant company and was experienced in that line of work, having so told defendant Duncan at the time he was employed; that when he went to work for the defendant company he knew that he would be required to do some chipping and during all the time that he Avas employed he did chipping to make castings fit on sugar machines; that Mr. Grier told him, Avhen he first Avent to Avork for the defendant company, Avhere the tool room Avas and had given him checks for the purpose of going to the tool room and obtaining tools; that when ho Avould return the tools to the tool room he wonld receive these checks back; that in chipping he would measure off the part that was a little too large and that he wanted to chi]) off or cut off and then Avith a cold chisel in the left hand and a hammer in the right, would do the chipping; that he selected the place he wanted to chip off and Avhere he AA-anted to place the blade of the chisel against; that he kneAV all the time he was employed by the company that, AAdien he set a cold chisel against metal and hit the head of the chisel with the hammer, pieces of iron would fly off, and that he kneAV that fact before he began work for the company; that he also kneAV before he went to defendant’s plant, and during all the time that he Avorked there, that he could not tell in Avhieh direction the pieces of iron Avere going to fly and that he had no control of the direction in which the small pieces would fly; that he knew that if one of these pieces struck him in the eye it would hurt his eye; that there was no foreman present directing him where to place the chisel; that before the accident he had chipped similar metal of the kind he Avas Avorking on when injured; that he had chipped the day before the day of the accident and had no trouble; that the hammer and chisel he was using were all right; that he did not know Avhether they had goggles in the tool house or not, because he had never asked for any; that he saw other men who were “steady chippers” at defendant’s plant wearing goggles all the time that he Avas employed there; that he kneAV Avhat goggles were for and knew it when he was employed at defendant’s plant; that he knew they were to keep things from getting in the eye, but never asked for goggles while he was there; that he never made any complaint to any one in authority for the defendant company at any time that he wanted or needed goggles; that he did not think it was necessary for him to use goggles when he was chipping.

On re-examination, plaintiff testified that when defendant Duncan hired him, he did not tell plaintiff that they had hammers, chisels, saAvs, files and all those kind of tools, but he kneAV that they had tools or they could not run the place; that defendant Duncan and Mr. Grier told him that they had anything that pertained to the job.

John Nieman testified on direct examination that he was then and had been employed by the defendant company for two and a half years; that he did chipping; that no goggles were furnished to the floor machinists that he knew of; that he did not see any machinists doing the work which plaintiff did Avearing goggles while they were chipping; that he did not know whether they had goggles in the tool house or not; that he had chipped and fitted parts for the. American Steel Foundry and was furnished goggles there. On cross-examination, the witness testified that he had never gone to the tool house and asked for goggles; that he saAV that chippers in the yard used goggles; that after plaintiff was injured the defendant company compelled him to Avear goggles Avliich he obtained from the tool house. . ,

Edw. A. Kerns testified that he was Avorking for the defendant company as a floor machinist on the day plaintiff was injured and was close to him at the time of the accident; that he heard plaintiff make a noise, Avent over to him and saw a chip in his eye; that he had been doing the same kind of Avork about a year and a half before the accident to plaintiff occurred and never saw any of the machinists wearing goggles while they were chipping. On cross-examination the witness stated that he did not know whether there Avere any goggles in the tool house or not and that he had never asked for goggles; that he wore goggles sometimes; that he wore glasses, both for the purpose of seeing better and of protecting Ms eyes; that he never heard plaintiff complain to anyone that he wanted goggles or needed them; that on a previous trial of the case he had testified that there were a few of the men who did steady chipping that wore goggles.

The foregoing outlines the case made.

The specific allegation of negligence pleaded by plaintiff is thus stated in the petition:

“Plaintiff further says that said injuries were directly caused on account of the negligence of the defendants in failing to furnish plaintiff a reasonably safe place in which to work and reasonable safe tools and appliances with which to work in this, to-wit: That defendants knew or by the exercise of ordinary care could have known or should have anticipated that particles of steel when chipped" by plaintiff were apt to strike plaintiff in the eye and injure it and had the defendants exercised ordinary care for the safety of plaintiff they would have provided him with goggles, or furnished him other means or method of protecting his eyes from pieces of iron chipped off as aforesaid.”

The answer of defendant Fulton Iron Works Company was a general denial,,coupled with a plea of contributory negligence, as follows:

“That at and prior to the time when plaintiff is alleged to have been injured defendant furnished to plaintiff and other employees, engaged in chipping iron, goggles which were convenient and accessible to plaintiff and which were adequate and sufficient to protect the eyes of plaintiff and other employees against injury, and that plaintiff was directed and instructed always to wear said goggles while chipping iron, but defendant avers that on said occasion plaintiff, in violation of said orders and instructions, negligently and carelessly failed and omitted to wear said goggles or ask for the same. And defendant states that said acts of negligence and carelessness on the part of plaintiff directly contributed to cause whatever injuries, if any, were sustained by him on said occassion.” The answer of defendant Duncan was a general denial.

I. Plaintiff assigns as errors the action of the trial court: (1) In holding that plaintiff was guilty of contributory negligence as a matter of law; (2) in sustaining defendants’ demurrers to the evidence; (3) in rejecting testimony offered by plaintiff; (4) in overruling plaintiff’s motion to set aside the involuntary nonsuit.

An examination of these assignments of error in the light of the pleadings and evidence adduced, demonstrates that the real questions are: First, Was the negligence of defendants in failing to provide plaintiff with goggles shown by the proof? and, second, Did plaintiff assume the risk of being injured by flying pieces of metal? If the demurrers were rightly sustained, it must have been upon the ground that, as a matter of law, no negligence of defendants was shown, or, that, as a matter of law, plaintiff assumed the risk.

II. Learned counsel for plaintiff, in his brief, seems to assume that the' trial court sustained defendants’ demurrers upon the theory that plaintiff was guilty of contributory negligence. However, a careful reading of the record shows that there is nothing contained therein which indicates that the demurrers were sustained on that ground. The record is silent as to upon what ground the court acted. While defendant Pulton Iron Works pleaded contributory negligence in its answer, in this court both defendants urged that plaintiff assumed the risk of being injured, this we presume on account of the construction placed by them upon the evidence adduced at the trial.

While some confusion has arisen in the discussion of the doctrines of contributory negligence and assumption of risk, and while it is sometimes diffienlt to draw the line of demarcation between them, nevertheless, it is the set-tied law of this State that these two defenses are separate and distinct and are differently applied. Contributory negligence may be said to be that negligence, or want of ordinary care, on the part of a plaintiff which directly contributes to or causes his injuries. It rests on, and is applicable in actions of tort. Assumption of risk is generally limited to the relation of master and servant and rests upon contract, either express or implied. [Fish v. Railroad, 263 Mo. 124.] In the case of master and servant, contributory negligence, while it implies negligence in the master, further consists in the performance by the servant of some negligent act, or the negligent omission to perform some duty, which materially contributes to, and, in conjunction with the negligence of the master, constitutes one of the elements of, the proximate cause of the injury to the servant. On the other hand, assumption of risk does not involve the negligence of the master, but consists in an ordinarily prudent servant, voluntarily for hire, taking the chances of known or obvious dangers incident to his employment by the master. As was said by Vahdiant, J., in Curtis v. McNair, 173 Mo. l. c. 281, in distinguishing the two doctrines upon a question of pleading: “If the plaintiff’s suffering was solely from a risk incident to the business, he cannot recover because it was a risk he assumed when he undertook the service, and this fact the defendant may show under his plea of general denial, because by so showing he disproves the allegation of negligence on his part. A special plea that plaintiff assumed such risk is unnecessary. But if the defect in the machinery is obvious or is known, or by the exercise on his part of ordinary care would have been known, to the servant who continued, nevertheless, to use it until the accident occurred, those facts may be pleaffed as going to constitute contributory negligence, and in such case if the issue so tendered is found for the defendant, the plaintiff cannot recover, not because he has assumed the risk of his master’s negligence, but because notwithstanding the negligence of his master, the law will not allow him to recover when his own negligence lias contributed to the result.” And enlarging upon the difference further, as expressed by Paris, J., in Patrum v. Railroad, 259 Mo. l. c. 121: “We have here in Missouri, whether logically or illogically we need not here pause to discuss, come to use the term ‘assumption of risk’ to express the mere hazards which appertain to a dangerous avocation when unaffected by the negligence of 'the master. When, however, the servant enters into or remains in the service of the master with actual or constructive knowledge of defects arising from the master’s negligence and without a promise of remedy, we speak of this in our Missouri courts as contributory negligence.”

With these principles in mind, upon approaching the questions before us, we find at the outset that plaintiff in his petition charges that “had the defendants exercised ordinary care for the safety of plaintiff they would have ¡provided him with goggles or furnished him other means or- method of protecting his eyes from pieces of iron chipped off as aforesaid.” Plaintiff, in his brief, admits that goggles are the only known appliance to protect the eyes and consequently the device for safety which should have been furnished by defendants will be considered as limited to goggles. Furthermore, a proper construction of the language used in the charge would limit the appliance to goggles. Therefore, the negligence attributed to defendants was a failure to provide plaintiff with goggles. Let us then proceed to a consideration of the evidence bearing upon that question in order to determine whether such negligence was proven.

Plaintiff, on direct examination, testified that while he was working for defendant Fulton Iron Works he never saw any of the floor machinists doing the work that he was engaged in wear goggles while they were chipping; that no one ever informed him whether or not there were any goggles to wear while lie was chipping; that “there were other men that worked out in the yard at the Fulton Iron Works that did chipping besides the floor machinists. They were what they call ‘steady chippers.’ They do the same work day in and day ont. They wore goggles for their eyes while they did this work.” On cross-examination, he testified: “I saw other chippers at work in the yard under another boss in the plant of the Fulton Iron Works. They were steady chippers and wore goggles. I saw them during all the time I was there. I knew what the goggles were for and knew it when I went out there. I never asked anybody for goggles while I was there. When Mr. .Duncan hired me he did not tell me to get goggles down at the tool house. I never asked the tool house man for goggles.” On being asked, “Now, you don’t know whether they had goggles in the tool house or not because you never asked for any, did you?” he replied, “No, sir.” Further, he said, “I saw a man away up in the corner in the room where I was that ran an emery wheel wear goggles.” On re-direct examination, on being asked, “Did anyone at the Fulton Iron Works in authority ever suggest to you that you ought to wear goggles ? ” he replied, over an objection by counsel for defendant which was overruled, “No, sir.’’ On re-cross examination, he said, that when first employed “they told me they had anything that pertained to the job.”

John Nieman, witness for plaintiff, testified on direct examination, that no goggles were furnished to floor machinists. On cross-examination he said, “I never went to the tool house and asked for goggles. 1 don’t know whether they had any goggles in the tool house or not. I saw other chippers out in the yard use them.” And, “I never saw the emery wheel man on the floor where we were use them.”

Edward A. Kerns, witness for plaintiff, testified on direct examination that no one ever told him that there were goggles in the tool house which he could use if he wanted them. On cross-examination he testified as follows :

“Q. Did you see any machinists who did the same kind of work that you and Mr. Harbacek was doing, I mean, engaged in assembling there, wear goggles when they did chipping? A. No, sir. There are lots of us wear glasses. I have not seen many of them wear goggles.

‘ ‘ Q. You. say you have not seen many? Did you see any of them? A. No, there were not many of them.

“The Court: Not many? A. No, once in a while I would see a fellow have a pair of goggles.

“The Witness : That is right. That is the men next to the laborers that done the chipping.

“Q. You Avere in the same department as they were in? A. Yes, sir.” Further, he said, “I don’t know whether there were any goggles doAvn at the tool house or not. I never asked for goggles at that time. I wore goggles sometimes.”

From the foregoing it appeal’s that those employees of defendant Fulton Iron Works who did steady chipping, work largely of the same character as that done by plaintiff, wore goggles; that “once in a while” employees in the same department as plaintiff would wear them; that although there Avas no evidence as to Avhom the goggles belonged, it is fair to assume that they were furnished by defendant as plaintiff had been told, when first employed, that defendant had everything “that pertained to the job,” and, furthermore, if the goggles had not belonged to defendant, plaintiff Avould have most likely offered testimony i o that effect; that no request was ever made by plaintiff for goggles; and that plaintiff did not knoAV whether defendant had any goggles in the tool room or not. Under his petition the burden was upon plaintiff to prove that defendants failed to provide him with goggles, which means nothing more than that goggles must have been procured by defendant beforehand and made ready for plaintiff’s use. This, in our opinion, the testimony failed to do. The nearest approach thereto Avas that neither plaintiff or his Avitnesses kneAv Avhether defendant had any goggles in the tool room or not. On the contrary, the evidence tended to show by plain inference if not directly, that defendant did furnish goggles to some of its employees. Accordingly, Ave hold that the negligence charged was not proven. It follows that plaintiff Avas not guilty of contributory negligence.

Counsel for plaintiff contends that defendant Fulton Iron Works Company’s plea of contributory negligence admits negligence in said defendant. To this we cannot give assent and the point is ruled against plaintiff. [Peterson v. Railway Co., 211 Mo. l. c. 519, 520.]

III. With reference to the question of assumption 'of risk, a review of the evidence shows that under the uneontroverted facts in the case plaintiff had had five years’ experience as a machinist before he was employed by defendant and understood when he was employed that he would be required to do some chip-l)ing; that he had been employed by defendant three or four months before the day he was injured, during all of which time he had been doing chipping of the character he was doing when injured; that some days he did more chipping than on others, but averaged about three hours a day; that the work of chipping was comparatively simple, consisting of smoothing off or removing rough places from castings by placing a cold chisel against the part desired to be chipped off and striking the head of the chisel with a hammer; that no one directed him as to where to place the chisel, he having complete control of the manner in which the chipping was done; that he knew that when he placed the cold chisel against a part of a casting and struck it with a hammer, chips or pieces of iron would fly in all directions; that he knew that if one of these pieces struck him in the eye it would hurt his eye; that he had previously been struck on different parts of the body by such chips and thought that some had struck him in the face; that the cold chisel and hammer used by him were in good condition, with no defects; that he saw other employees who did steady chipping wearing goggles and also saw a man working on an emery wheel on the same floor with him wearing goggles; that he procured his tools from the tool house but at no time asked for any goggles; and that he had never complained to any one that goggles were not furnished him, or that he needed the same.

An analysis of these facts, when measured by the principles hereinbefore enunciated, leads us to the conclusion that the flying of chips ox particles of iron from castings was an usual and obvious risk incident to tU business of defendant Fulton Iron Works Company as it was carried on, which plaintiff assumed when he entered and continued in the employ of said company: Without remonstrance, he voluntarily exposed himself to the hazards of the employment, in effect waived the danger and consented to assume it. [Johnson v. Brick and Coal Co., 276 Mo. l. c. 53; Patrum v. Railroad, 259 Mo. 109; Morris v. Pryor, 272 Mo. 350; Chrismer v. Bell Tel. Co., 194 Mo. 189; Powers v. Loose-Wiles Company, 195 Mo. App. 430; Wexler v. Salisbury, 91 Minn. 308; Cripple Creek S. & O. Co. v. Souza, 37 Colo. 393; Illinois Central Ry. Co. v. Young, 124 Ky. 8.]

As was said by Woodson, J., in Johnson v. Brick and Coal Co., 276 Mo. l. c. 53, in speaking of risks incident to employment and illustrating the same in a manner closely correspondent to the facts in the case at bar:

“Such risks are purely incidental to the employment, and is such an injury as is liable to occur at any time during the performance of the work undertaken, unaided in any degree by the negligence of the employer. For instance, should Jones employ Brown as a blacksmith, it would be the duty of the former to furnish the latter with reasonably safe tools or appliances with which to do that work, and it would be the duty of the latter, among other things,' to weld iron, and in order to do that it would be necessary for him to heat the ends of the two pieces of iron to almost a white heat, and place them in contact with each other and hammer them together, and as a necessary incident thereto hot scales and sparks will fly therefrom, which would be liable to strike him in the eye and destroy the sight thereof; such a liability would be a risk incident to the work undertaken, in which the employer would have had no part, and which the employee assumed as an implied part of his contract of employment, and for such an injury he could not recover damages from Ms employer for the reason he assumed the risk. But suppose upon the other hand the injury had occurred to his eye by reason of a sliver of steel flying from a defective and dangerous hammer negligently furnished by the employer while he was pounding the iron mentioned. Such injury would be the result of negligence of the employer. ’ ’

In Wexler v. Salisbury, supra, defendants were the manufacturers of iron beds. It was the duty of plaintiff to chip bed rails, which required him to pound on the same with a hammer to remove ragged edges and pieces of iron which adhered thereto. While so doing a piece of iron flew from the portion of the bed rail which he was striking and injured one of his eyes. Plaintiff claimed that he had not been furnished goggles, in use for persons engaged in such work. It was shown, as in the case under review, that small pieces of iron would, and did continually, fly from the rails when the necessary hammering was done, striking plaintiff’s face. From a directed verdict for defendants plaintiff appealed. It was held that the court properly directed a verdict for defendants as plaintiff assumed the risk. The court said, at page 310:

“It is urged that the danger to the eyes of the laborer that arose from the flying particles in the process of the work was so apparent that the risks were assumed by him. Whatever views may be suggested about the policy which underlies the doctrine of the assumption of risks by servants in hazardous occupations, it has been repeatedly held that where a servant enters another’s employment, and is put to work at an occupation which is dangerous by reason of plain and apparent risks, which he appreciates,- and continues therein, after knowledge of the hazards incurred without objection or promise by the employer to furnish protection he cannot recover damages for injuries arising therefrom.” .

In Cripple Creek S. & O. Co. v. Souza, supra, a servant was engaged in chipping certain rolls of an ore crusher, by using a hammer and chisel as in the case at har. He well, knew that pieces of steel flew about the room as they were chipped off. After he had been so engaged an hour or so, upon the request of a co-employee, he surrenderee the hammer with which he had been'striking the chisel to said co-employee and took a position in the line and direction of the blows. While in this position he was injured by a piece of steel chipping striking him in the eye. Held, that, having continued to work with knowledge of the dangerous character of the employment, and without protest, he assumed the risk.

For the reasons appearing herein, we therefore hold that the trial court properly sustained the demurrers offered by defendants at the close of plaintiff’s evidence and that the judgment should be affirmed. It is so ordered.

All concur.


author: RAGLAND, C. PER CURIAM:

text:
    PEARL McALISTER v. T. E. PRITCHARD, Appellant.
    Division One,
    April 9, 1921.
    CONVEYANCE: Reserving Life Estate: Testamentary. A deed of gift in tlie usual form of a general warranty deed in fee contained a clause declaring that the land should “remain the property of the grantor during the term of his natural life.” This deed was immediately delivered and recorded. Held, that it did not operate a testamentary disposition .of the land, but was a present conveyance in fee subject to the life estate only, and took effect immediately upon delivery. A subsequent deed from the same grantor passed his life estate, but nothing more.
    Appeal from Dunklin Circuit Court. — How. W. 8. G. Walker, Judge.
    Affirmed.

      Ely, Pankey & Ely and Orville Zimmerman for appellant.

      (1) The deed under which plaintiff claims did not convey -any present vested interest in the real estate, was not to become effective until after the death of the grantor, and was, therefore, testamentary in character and void. Murphy v. Gabbard, 166 Mo. 596; Aldridge v. Aldridge, 202 Mo. 572; Griffin v. McIntosh, 176 Mo. 392; Goodale v. Evans, 263 Mo. 219.; Dawson v. Taylor, 214 £>. W. 852; Hudspeth v. Grunke, 214 S. W. 867; 18 C. J. 149. (2) In arriving at the intention of the grantor, resort must be had to the actual language used in the deed which was, in the deed in question, as follows; “The above to remain the property of C. M. Pritchard during the term of his natural life.” Ashaugh v. Asbaugh, 273 Mo. 353; McKinney v. Settles, 31 Mo. 541; Murphy v. Gabbard, 166'Mo. 602; Elsea v. Smith, 273 Mo. 396; Goodale v. Evans, 263 Mo. 219. (3) The intention of the grantor cannot be found to be contrary to the plain meaning of the language used. Goodale v. Evans, 263 Mo. 219; Asbaugh v. Asbaugh, 273 Mo. 353; Aldridge v. Aldridge, 202 Mo. 572. (4) The consideration named in the deed being “One Dollar and love and affection,” the transaction was a gift, and the plain meaning of the words used in the deed is too clear for any interpretation other than that the conveyance was, to operate as a gift only at the death of the grantor, and, not being in conformity with the Statute of "Wills, the deed is void. Aldridge v. Aldridge, 202 Mo. 572; Belgrade v. Carter, 146 S. W. (Tex.) 964; Long v. Timms, 107 Mo. 512; Speed v. Railroad, 163 Mo. 111.

      McKay & Jones for respondent.
    The deed was clearly not testamentary, and could not be affected by the subsequent execution of the deed under which appellant claims. Wimpey v. Ledford, 177 S. W. 302; Wimpey v. Lawrence, 208 S. W. 54; Christ v. Kuehne, 172 Mo. 118; Dawson v. Taylor, 214 S. W. 852; Priest v. McFarland, 262 Mo. 238; 1 Dozer v. Toalson, 180 Mo. 552.
   RAGLAND, C.

This is an action to determine the title to the northeast fourth of the southeast quarter of Section Twenty-five, in Township Twenty, north, of Range Nine east, in Dunklin County, and to recover the possession.

Tie pleadings are conventional. Whether plaintiff has the legal title to the land just described is the main issue; questions relating to the value of the rents and profits are incidental and not the subject of controversy on this appeal.

O. M. Pritchard is the common source of title. On November 16-, 1911, he and his wife, for the expressed consideration of love and affection, executed and delivered a deed to Frances Bullock, a daughter of Pritchard by a former marriage, purporting to convey to her the land in controversy. The deed contained this language immediately following the description of the land: ‘ ‘ The above to remain the property of C. M. Pritchard during the term of his natural life.” In all other respects it followed exactly the form of general warranty deed in general use in this State. Frances Bullock promptly recorded her deed. She died July 2, 1916, leaving plaintiff as her sole heir.

O. M. Pritchard had three other children by the former marriage, and the defendant was one of them. At the time he gave the deed to his daughter Frances, he •made and delivered a deed to each of the other three, conveying land to them severally. Each of the deeds was precisely like the one he gave Frances, except as to the name of the grantee and the description of the land. Two years later his wife brought suit for divorce, and pending the suit, May 1, 1913, he executed and delivered to the 'defendant a general warranty deed purporting to convey to him the land in question and other land. The deed recited a consideration of $6000. Pritchard died January 16, 1918, and this suit was commenced August 22nd next following.

The cause was tried without a jury. The trial court held that by his deed of November 16, 1911, Pritchard conveyed to Prances Bullock the land in fee, subject to an estate for his own life] which he therein reserved; and that by his deed of May 1, 1916, he conveyed that life estate to defendant. It accordingly gave judgment for plaintiff. Defendant appeals.

I. The sole contention of appellant is that the deed from Pritchard to his daughter Prances Bullock was testamentary in character and therefore revocable at pleasure during his lifetime; and that it was revoked by the subsequent deed to appellant. There is nothing in the form of the instrument, or in its wording, that remotely indicates that Pritchard though he was making a will; nor was there evidence of any extrinsic fact showing that it was his purpose to execute such an instrument. But it is insisted that it is immaterial that he called the instrument a deed and in fact thought it was such. This, because, as it is claimed, the language of the instrument shows that the grantor did not intend to pass to the grantee any present interest in the land; that it was his purpose to retain for the period of his life, not only the use and enjoyment, but the entire title — in other words, that it was his intention that the deed should not become operative until his death.

As showing that it was the grantor’s intention that the deed should not take effect until after his death, appellant points to the clause, “The above (referring to the land) to remain the property of C. M. Pritchard during the term of his natural life.” If that language were the sole indicia of the grantor’s intention we might agree with appellant. But the first rule of construction with respct to either .a deed or a will is to ascertain the intention of the. grantor or testator from the four comers of the instrument, giving effect, if possible, to every part of it. There is another rule or maxim, sometimes overlooked, and it is this: a court will not be over zealous in tryng to find an intention that cannot be given effect without violating positive rules of law — it will, if possible, so construe an instrument as to give it effect, not destroy it.

There are no express recitals in the instrument under consideration to the effect that it L not to take effect until after the death of the grantor, such as are found in the deeds under review in Murphy v. Gabbert, 166 Mo. 596, 601; Givens v. Ott, 222 Mo. 395, 411; and Terry v. Glover, 235 Mo. 544, 547. Nor does it contain any words of similar import. Eliminating the clause, “the above to remain the property of C. M. Pritchard during the term of his natural life,” the remaining language of the deed and the conduct of the parties clearly and unequivocally show that it was the intention of the grantor that the deed should take effect as a present conveyance immediately upon its delivery. Is the clause just quoted repugnant to the remaining portions of the deed? or may it reasonably be given a construction that harmonizes with the other parts and by that means effect be given the whole?

Property is nomen generalissimum, and extends to every species of valuable right and interest. [6 Words and Phrases (1 series), 5693.] The meaning of “property” is frequently to be discovered from the context of the instrument in which it is used. [22 R. C. L. 37.] It cannot be presumed that the grantor (or his scrivener) used the term “property,” as expressive of a metaphysical concept. He must have meant by the expression in which the word occurs, either that he was to continue to be the absolute owner of the land in fee with unlimited power of disposition, or that he merely reserved the right to continue in the possession, use and enjoyment of it during the remainder of his life. If given the first meaning, the expression is repugnant to everything else contained in the deed; if given the second, it is entirely consistent therewith. It seems clear, therefore, that the grantor intended the instrument to effect a present conveyance of the land, subject to his continued possession, use and enjoyment “during the term of his natural life.”' [Wimpey v. Ledford, 177 S. W. 302; Hudspeth v. Grumke, 214 S. W. 665.] This intention should not be defeated simply because it was awkwardly expressed by an unlearned scrivener.

The judgment of the circuit court is affirmed.

Small and Broivn, GO., concur.

PER CURIAM:

The foregoing opinion of Ragland, C., is adopted as the opinion of the court.

All of the judges concur, except Elder, </., not sitting.