author: FARIS, J.

text:
    J. N. MILLER, Appellant, v. C. L. KEATON, Respondent.
    Division Two,
    July 14, 1914.
    ORDER OF PUBLICATION: Lost Files: Newspaper Itself as Evidence: Name of Party. Where, in a suit by Katie A. Viger to recover land, the old files and papers and judgment roll, including the order of publication in the tax suit, are shown to be lost, the trial court may permit the newspaper in which the order was printed to be introduced in evidence, as the best evidence obtainable, to show that the notice .was directed to Kittie A. Vigar and not to Katie A. Viger.
    Appeal from Butler Circuit Court. — Now. J. C. Sheppard, Judge.
    AeEIRMED.

      Henry S. Shaw, Mosley S Woody and Wammack S Welborn for plaintiff-appellant.
    (1) "Where special directions have been given to the lower court by the appellate court upon remanding a cause it'is out of the power of the lower court to open the cause for a new trial. Allen- v. Chouteau, 74 Mo. 56; Bridge Co: v. Stone, 194 Mo. 175; Black on Judgments (1 Ed.), sec. 614; Smith v. Kiene, 231 Mo. 234; Spratt v. Early, 199 Mo. 500. Such being the law, the judgment in the tax suit being the foundation of plaintiff’s title, it was a material issue in the first trial, was a part of it, and necessarily included in the judgment of the court, and cannot be considered ¿gain on this appeal. The recorded copy of the sheriff’s deed has been expressly passed upon by this court, adversely to defendant’s contentions in Miller v. Keaton, 236 Mo. 694. The deed from Carrie E. Thurber to Campbell cut out the remainder to her children. Russell v. Eubanks, 84 Mo. 82; Grace v. Perry, 197 Mo. 550; Lawless v. Kerns, 242 Mo. 392. The sheriff’s deed conveyed a fee -simple title to plaintiff, saving to all interested, who were not made parties, their day in court. R. ¡3. 1889, see. 7684. And conveyed the land and no particular interest in it. Stafford v. Fizer, 82 Mo. 393; Allen v. McCabe, 93 Mo. 138; Morey Co. v. Ice Co., 242 Mo. 241; Black, Tax Titles, sec. 421; Numan v. St. Joseph, 126 Mo. 89. The tax proceedings are notice of the lien. Flickenstein v. Baxter, 114 Mo. 493. It is not necessary that a deed under an execution follow the judgment, it is sufficient if it conforms to the execution. Wilhite v. Wilhite, 53 Mo. 71; Hall v. Kleipzig, 99 Mo. 83; D'avis v. Kline, 96 Mo. 401; 1 Freeman on Executions (3 Ed.), sec. 43. p. 194; Stewart v. Severance, 43 Mo. 322. Antecedent records may be considered in determining the effect of a judgment. McDonald v. Frost, 99' Mo. 44. Sufficiency of the order of publication cannot be assailed in a collateral proceeding. Vincent v. Means, 184 Mo. 327. Plaintiff’s deed is sufficient in form' and substance. Miller v. Keaton, 236 Mo. 694. Defendant’s so-called supplied files are incompetent for any purpose. George v. Middough, 62 Mo. 549; McClanahan v. West, 100 Mo. 309. Prior to the recording of the will of Nathan T. Thnrber, the parties were properly named as his widow and heirs. Keith v. Keith, 97 Mo. 223.-

      Keaton & Keaton and Phillips, Lentz & Phillips for defendant-appellant.
    (1) The rule is that a- question of law determined on the prior appeal is concluded only when considered thereafter with reference to the same state of facts. If the essential evidence is thereafter supplied upon a retrial and a new state of facts appear, the prior ruling is by no means conclusive. Rutledge v.. Railroad, 123 Mo. 131; Williams v. Butterfield, 214 Mo. 427; May v. Crawford, 150 Mo. 525; Crispen v. Hannovan, 86 Mo. 187; Vaughn v. Railroad, 78 Mo. App. 644; Smith v. Adams, 130 U. S. 167; Gardner v. Railroad, 150 U. S. 349; Bucher v. Railroad, 125 U. S. 555; Coal Co. v. Patting, 210 111. 342; Railroad v. Bentz, 108 Tenn. 670'. (2) When this case was presented on a former appeal, the question of whether there had been a valid order of publication, such as gave the court jurisdiction, in the case of Harty, Collector of Revenue, v. Carrie E. Thurber et al., the tax suit upon which the plaintiff’s deed for taxes is based, was not presented to this court, and was not passed upon in the first opinion. The judgment in that case, which is introduced in evidence on the last trial of this case, shows that whatever service there was in that case, was obtained by publication. The evidence shows that there was a paper, purporting to be an order of publication, published in the Bloomfield Vindicator. But the evidence further shows that there was no record or minute either by the court, or by the clerk in vacation, that any order of publication was ever made in that case. No publication appearing in the newspaper, however regular in form, can give the court jurisdiction unless the order appear in the records of the court. The order is the sole authority for the publication, and the evidence of it, which the law requires, is the record entry. Dick v. Foraker, 155 U. S. 413; Galpin v. Page, 18 Wall. 372; Cummings v. Brown, 181 Mo. 718. The statute requires that if the plaintiff shall state in his petition, or file an affidavit stating, that defendants or part of them are non-residents, etc., the court in which the suit is brought, or, in vacation, the clerk, shall make an order, etc. R. S. 1889, sec. 2022; R. S. 1909, sec. 1770. The statute defines an order, to-wit: “Every direction of a court or judge, made or entered in writing and not included in the judgment is an order, and an application for an order is a motion.”. R. S. 1909, sec. 2092: The statute further makes it the duty of every clerk of a court of record, to record the judgments, rules, orders, and other proceedings of the court, and make a complete alphabetical index thereto. R. S. 1909, sec. 2685'. These sections of the statute, when considered together, clearly require the order of publication to be made a matter of record in the. court where it is made, and there is no other construction to be put upon the opinion in Cummings v. Brown, supra. See also: Dick v. Foraker, 155 U. S. 413; Galpin v. Page, 18 Wall. 350. This must be so, because the rule is an inflexible one in this State, that acts of a court can only be shown by its record. Cummings v. Brown, 181 Mo. 718; Maupin v.#Franklin County, 67 Mo. 329; Dennison v. St. Louis Co., 23 Mo. 17.1; Medlin v. Platt Co., 8 Mo. 238. (3) In this case there was absolutely no proof of any kind or description, that either the court or the clerk in vacation, made an order of publication. On the contrary, the evidence of the clerk of the court is, that he made •a careful search of the records to ascertain whether any such order appeared in the records, and found none. In cases of this kind, no presumptions are to be indulged in favor of the jurisdiction of the court, but on the contrary, all presumptions are indulged against its jurisdiction, and it is only when it is shown that every requirement of the statute h? s been complied with that the court acquires jurisdiction in any case where service is attempted to be had by publication. State ex rel. v. Field, 107 Mo. 451; Mitchell v. Williams, 79 Mo. App. 392; Meyers v. McRay, 114 Mo. 382; Charles v. Morrow, 99 Mo. 646; Quigley v. Bank, 80 Mo. 289. Constructive service is not favored by law, and all presumptions are indulged against it. Cooper v. Gunter, 215 Mo. 562; State ex rel. v. Field, 107 Mo. 451; Galpin v.. Page, 18 Wall. (IT. S.) 350; Morris v. Presley, 5 East. (U. S. C. C.) 302. It is expressly provided by the statute of this State, that the clerk of the circuit court has the power to make an order of publication, in the vacation of the court. R. S. 1909, sec. 1770. The making of this order is a judicial act. 7 Cyc. 227, note 54; State v. Green, 34 La. Ann. 1027 ;■ Clapp v. Phelps, 19 La. Ann. 461; Paine v. Aldrich, 13 N. Y. Supp. 455.
   FARIS, J.

— This is a case which embraces a consolidated cross-appeal in an action originally brought in Stoddard county to determine interest to certain land¡§ in said county. It has been here before and is reported under the style of Miller v. Keaton, 236 Mo. 694. It is likewise practically in all respects a companion. case to Keaton v. Jorndt, heretofore decided and reported in 220 Mo. 117. The latter case of Keaton v. Jorndt, on a second appeal, is again here and an opinion has been rendered therein at this sitting. [259 Mo. 179.] To the cases of Miller v. Keaton, 236 Mo. 694, and Keaton v. Jorndt, 220 Mo. 117, and to the opinion in the latter case rendered at this term, reference for the facts as well as for the major part of the holding is made; all of them being companion cases and all of them resting upon the same common source of title, the same tax suit and the identical will discussed in the opinion at this term in Keaton v. Jorndt.

When the instant case was here before it was reversed and remanded with directions (Miller v. Keaton, 236 Mo. l. c. 711), which directions are as follows:

“We have no satisfactory basis for a final judgment upon the nature and extent of the interests of the parties. We reverse the judgment and remand the cause, with directions to the circuit court to enter a judgment in favor of plaintiff, vesting in him the title to whatever interest Carrie E. Thurber had in the lands acquired under the sheriff’s deed, and also vesting in him the title to the interest of Katie A. Vigar, if the evidence shows that in the order of publication her true name is correctly written as Katie A.- Vigar; such judgment to ascertain and declare the nature and extent of the title so acquired by plaintiff. We further direct the circuit court by its judgment to ascertain and declare, upon proper proof, whether the defendant has acquired any interest in said lands, and if so, the extent and nature thereof.”

In accordance with the mandate of this court, which followed the direction of the clause in the opinion above quoted, the learned judge of the circuit court of Butler county, to which court the instant case was removed from Stoddard county by change of venue, proceeded to hear and determine the same in accordance with the directions of this court. He found that the order of publication recited the name of Katie A. Viger as Kitie A. Vigar and that the interest of said Katie did not pass to plaintiff. He further found that Carrie E. Thurber had at and prior to the tax sale a life estate in the whole of the land, and following our opinion in Miller v. Keaton, supra, rendered judgment for plaintiff therefor and for defendant for the remainder in fee, subject to the life estate therein of the said Carrie. From this judgment both plaintiff and defendant have appealed and are here upon cross-appeals, which have been consolidated for the purpose of this hearing. It may be said in passing that since this case has been submitted, plaintiff, J. N. Miller, has departed this life testate. His devisees have been properly made parties herein in his stead, but no occasion is seen for interfering with the style of the case and thus destroying its identity with matters heretofore adjudicated.

Wé have disposed of all of the contentions made by defendant Keaton touching the question of whether the parties to this action are concluded by the former decision herein.. We have also considered the effect of the tax sale in 1898, prior to the election on the part of Carrie E. Thurber, which was exercised five years or more thereafter, to convert her life estate in the whole of the land into a fee, and to thus cut out the remaindermen, who were given a contingent life estate. All of these things are considered and ruled upon in the companion case of Keaton v. Jorndt, and we need not therefore burden the books by repeating them.

One sole point remains. This point differentiates in a slight degree this case from the case of Keaton v. Jorndt. That is the question as to the correctness of the ruling of the trial court upon the evidence offered as to the existence and contents of the order of publication. The original files were lost, mislaid or destroyed sometime in the fifteen years which had elapsed since the tax suit was filed and adjudged., No record of the order of publication appeared, nor any proof of publication, nor any evidence of same, except that noted below herein, further than the finding contained in the judgment that the court had acquired jurisdiction by publication. There was offered however the files for the month of July, 1897, of the “Bloomfield Vindicator,” a newspaper published in Stoddard county, and which purported to contain the published copy of an order of publication in the case of “State of Missouri at the relation and to the use of A. L. Harty, collector of the revenue of Stoddard county, Missouri, plaintiff, v. Carrie E. Thurber, Mollie H. Lemen, Austin H. Lemen, Kitie A. Vigar, Edward R. Vigar, Birdie E. Stone and Harry L. Stone, heirs of Nathan L. Thurber, deceased, Alexander McMurtrey and Lo’ Is D'eMont, court [sic] mortgagee, defendants.” This order, the above caption thereto not repeated, is as follows:

“Now at this day comes the plaintiff herein by his attorney Ralph 'Wammack and files his petition and affidavit, alleging, among other things, that defendants are not residents of the State of Missouri.
“Whereupon, it is ordered by the clerk in vacation, that said defendants be notified by publication, that plaintiff has commenced a suit against them in this court, the object and general nature of which is to enforce the lien of the State of Missouri, at the relation and to the use of A. L. Harty, collector, of the revenue of Stoddard county, for taxes due and remaining unpaid for the years 1894 and 1895 upon the following described real estate, to-wit:
“The southwest quarter and the west half of the northwest quarter and the northwest quarter of the southeast quarter and the west half of the southwest quarter of the southeast quarter of section 4, township 23, range 12, east, 300 acres, situated in Stoddard county, Missouri.
“And that unless said defendants shall be and appear at this court, at the next term thereof, to be begun and holden at the courthouse in the city of Bloomfield in said county on the 13th day of September, next, and on or before the 3d day of said term, if the term shall so long continue — and if not, then on or before the last day of said term — answer or plead to the petition in said cause, the same will be taken as confessed and judgment will be rendered accordingly.
“And it is further ordered that a copy hereof be published according to law, in the Bloomfield Vindicator, a newspaper published in said county of Stoddard, for four weeks successively, published at least once a week, the last insertion to be at least fifteen days before the first day of said next September term of this court.
“Witness my hand and seal of the circuit court of Stoddard county, this 28th day of June, 1897.
“(Seal) M. S. Phelan, Circuit Clerk.”

The present publisher of that newspaper, one Louis Jobe, was thereafter offered as a witness and from his testimony it appeared that all of the files for the month of July, 1897, of said newspaper, were in the custody of the witness. One of these the witness produced and from it read into the record the order of publication as above set out. The witness further stated that this same order appeared in the issues of the Blomfield Vindicator of July 2, July 9, July 16, July 23 and July 30, all of the year 1897. There was further offered what purported to be a supplied order of publication containing the above facts in a shorter and more concrete form, and which said supplied order of publication was sworn to on the 29th day of July, 1911, by the witness Louis Jobe. This supplied order, however, seems to have been stricken out by the court on objection thereto, on the ground that the manner in which the same was supplied did not appear, or appearing, was not in compliance with the law in relation to the supplying of files. No attack, naturally, is made ^y the defendant Keaton to the finding of the court- that the order or publication recited the name of Katie A. Viger as Kitie A. Vigar, and was therefore ineffectual as a foundation for a judgment passing the title of said Katie. Nor do we understand that plaintiff is making any serious contention as to this finding, since we gather from his brief that he practically concedes that the order of publication did in fact recite the name of Katie A. Viger as Kitie A. Vigar.

But be this as may be, it is one question to Ascertain whether in the order of publication as made the name of Katie A. Viger was set out as Kitie A. Vigar, and an entirely different one to decide as a matter of law the question of the sufficiency of the order of publication to constitute such constructive notice as to confer jurisdiction on the trial court to hear and determine the original tax suit. The latter question was determined upon the former appeal. This court there held that the tax sale as to Katie A. Viger was valid; therefore, by' the very strongest and most conclusive implication holding that the order of publication was properly made and properly published. [Miller v. Keaton, 236 Mo. 694.] The' sole duty relegated back to the trial court was to determine whether in such order of publication, as published and made to the trial court, the name of Mrs. Viger was printed Kitie or Katie. The learned trial court found that such order of publication as printed and filed recited her name as Kitie and that her interest did not pass. This was the identical thing and only thing, the trial judge was required by this court to do on this phase of the case. Did the court nisi, in order to determine this question (which we differentiate, and which in logic we ought to differentiate, from the proof of making, and the proof of publishing, an order of publication which shall be meet to give, and suffice as, constructive notice to confer jurisdiction in a tax suit over a non-resident), admit incompetent evidence when he allowed the present publisher of .the “Bloomfield Vindicator,” who, whilé not the publisher fifteen years before the instant case was tried below, was yet at the time of the trial In possession of the ancient files of that paper, to identify such files and to read therefrom the order of publication which we set out herein? The files as well as all pampers of whatever kind, in the old suit of “Harty, collector, etc., v. Thurber et al.,” being the original tax suit in issue herein, were not to be found after a sufficient search by the clerk who was the proper custodian thereof. Neither was the order of publication. as originally made, to be found upon the record. What then in this state of things was the next best evidence of th.e contents of the order of publication as published? We pretermit, for the reasons stated, the questions whether such order was made, whether it was published, whether as to its general contents and the number of insertions it was a sufficient notice to confer jurisdiction. For these things were found in the affirmative on the former appeal. Clearly, when the old files and papers and judgment rolls were lost, and 'such loss shown, the only proof of what the original order of publication contained, must of necessity come either from the newspaper files themselves, or come orally from some one who read the order of publication as it appeared in the newspaper fifteen or more years ago, and now remembers its contents in the behalf mentioned and now testifies on oath touching the same. Can there in common sense be two minds as to which should be accorded the greater degree of credence? We think not, and so thinking rule that on the precise point before the court below, that of allowing the old newspaper files from a proper custody to be competent evidence of the contents of a legal publication contained therein, all better evidence being lost, he did not err.

We have disposed, in the companion case above referred to and decided at this term, of the question of the amount of interest held by Carrie E. Thurber when the land was sold for taxes. The judgment nisi accords with our conclusions. The former opinion disposed of the question as to the taker of that interest. It therefore results that this case should be affirmed. Let this be done.

Walker, P. J., concurs; Brown, J., not sitting. »


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    JAMES W. SHOULTZ v. ELIZA JANE LEE, Appellant.
    Division Two,
    July 14, 1914.
    1. LIMITATIONS: Widow’s Possession: Adverse. The widow’s possession, before assignment of dower, of lands of which her husband died seized, is not adverse to his heirs, whether or not she had purchased at an administrator’s sale to pay debts.
    2. -: -: Termination of Quarantine: Laches. The heirs of the husband, who died seized of real estate, after reaching their majority, may terminate the widow’s right of exclusive possession in quarantine, by having her dower assigned to her; but they are under no legal obligation to do so, and are not chargeable with laches in delaying to do so, notwithstanding she purchased the property at the administrator’s sale, and thereafter, for thirty years after they became of legal age, claimed it as her own. .
    3. -: -: Purchase by Wife: Adverse. A widow who purchases real estate belonging to her husband at the time of his death, sold by the administrator in the course of his administration for the payment of debts, is a tenant. for life, and her possession is not adverse to the remaindermen (the husband’s heirs) until after steps are tafeen for the assignment of her dower therein. Such a life tenant cannot by her dealings with the property render her occupancy and possession adverse to such remaindermen so as to start the Statute of Limitations to running against them during the existence of the life estate.
    4. -: -: -: Reimbursement for Purchase Money. Although the possession of the widow who purchased real estate belonging to her husband at the time of his death and received an administrator’s deed thereto, was not adverse to his heirs, and she holds the property, subject to her unassigned dower, in trust for them, she nevertheless is entitled to restitution from them for the purchase price, with six per cent interest from the date of her purchase, as a precedent condition to their right to share in a partition of the property.
    5. QUARANTINE. Taxes: Interest. While the widow holds real estate belonging to her husband at the time of his death, under her widow’s quarantine, she is not chargeable with, taxes on the property, nor with rents — although she may have purchased at the administrator’s sale and after having received a deed from .him, remained in possession and claimed adversely to the heirs.

      Appeal from Hannibal Court of Common Pleas. — Him W. T. Ragland, Judge.
    Reversed'and remanded.

      Nelson S. Bigger for appellant.
    (1) Tbe entire subject-matter below is subject to review by this 'court. Benne v. Schnecko, 100' Mo. 257. (2) The plaintiff is not entitled to maintain partition, when the defendant is in possession and claims the property adversely to plaintiff. Chamberlain v. Waples, 193 Mo. 96. (3) The administrator’s deed to appellant is sufficient to constitute color of title. Plaster v. Gtrabeel, 160 Mo. 669; Shaffer v. Detie, 191 Mo. 377; Brewing Co. v: Payne, 197 Mo. 422. (4) The widow may establish title by adverse possession, as against the heirs, before assignment of dower. Nelson v. Davidson, 160 111. 254, 31 L. R. A. 325; Balkam v. Iron Co., 43 Fed. 648; 1 Cyc. 1051; Null v. Howell, 111 Mo. 278; Meddis v. Kenney, 176 Mo. 208; St. Louis v. Priest, 103 Mo. 652. (5) The plaintiff cannot maintain this suit by reason of laches. He has slept on his rights until the appellant has reached the age of more than her three score and ten, and is not entitled to the commendation that courts of equity generally accord to one who shows consideration for his foster mother. R. S. 1855, sec. 38, p. 696; Brewing Co. v. Payne, 197 Mo. 422; Hand v. St. Louis, 158 Mo. 204.

      M. L. Farres for respondent.
    (1) Partition is a proper action in which to have dower assigned. .Colvin v. Hanenstein, 110 Mo. 575; Weatherford v. King, 119 Mo. 51. (2) A widow in possession of the plantation of her deceased husband, being entitled to quarantine until dower is assigned, and no dower ever having been assignéd, there is no adverse possession, nor does the limitation begin to run till the death of the widow, as against the heirs of the deceased husband. Keith v. Keith, 80 Mo. 127; Melton v. Fitch, 125 Mo. 290; Holmes v. Kring, 93 Mo. 452; Sherwood v. Baker, 105 Mo. 472; Brown v. Moore, 74 Mo. 633; Carey v. West, 139 Mo. 176; Thomas v. Black, 113 Mo. 70; Hall v. French, 165 Mo. 430; Graham v. Stafford, 171 Mo. 692. (3) There is no sufficient allegation on which to base a claim of laches, nor any evidence in proof of such issue in the case. Graham v. Stafford, 171 Mo. 692. (4) The possession of the widow never did become adverse to the plaintiff, nor would it so long as she lives and her dower remains unassigned. Brown v. Moore, 74 Mo. 633; Holmes v. Kring, 93 Mo. 452; Sherwood v. Baker, 105 Mo. 472; Melton v. Fitch, 125 Mo. 290'; Carey v. West, 139’ Mo. 146. (5) The right to an action at law for the possession would not accrue to the heirs until after the death of the widow. Howell v. Jump, 140 Mo. 456; Shumate v. Snyder, 140 Mo. 87. (6) The possession of the life tenant is not adverse to the estate of the remainderman, and he cannot, by his declarations, acts or claim of a greater or different estate, make it adverse, so as to enable him or others under him to invoke the Statute of Limitations. Keith v. Keith, 80 Mo. 127; Thomas v. Black, 113 Mo. 70; Hall v. French, 165 Mo. 430. (7) Since Mrs. Eliza Jane Lee acquired nothing by her alleged deed from Abraham Curts, dated years after final settlement, the only right or interest she had was the right to quarantine, and that of dowress until her dower was assigned, which was never assigned herein. Melton v. Fitch, 125 Mo. 290; Carey v. West, 139 Mo. 176. (8) An administrator’s deed, not acknowledged in open court, as required by law in force at time of its execution, is insufficient to convey title. Campbell v. L. G. L. Co., 84 Mo. 352.
   WALKER, P. J.

— Plaintiff brou'ght suit in the Hannibal Court of Common Pleas against the defendant Eliza Jane Lee and a number of others, to partition a half acre of .ground in Mason township, Marion county, described as the east 104 feet of lot 11 of the Darr, tract, Oakwood, situated within or adjacent to the city of Hannibal. Upon a trial the court rendered a judgment partitioning the property, subject to the dower interest of said Eliza Jane Lee, and the land not being susceptible of division in kind was ordered sold. From this judgment defendant appealed to this court.

In 1857 one Cardiner Shoultz, then the husband of the defendant Eliza Jane Lee, acquired by purchase the lot above described, and he and his wife began to occupy same and continued in possession until 1859, when he died, leaving his widow, the defendant, and a number of children by a former marriage. The defendant continued thereafter to occupy the property as a home. An_ administration was commenced upon the estate of the deceased husband.

In 1862, the estate being still in process of administration, upon an application made to the probate court the sale of- the lot in controversy was alleged to be necessary to pay the debts of the deceased, and an order for such sale was made and entered of record.

No further record entries of said probate court were offered in evidence except a report of the adr ministrator as to the condition of the estate, and thereafter in June, 1862, an order accepting and approving his final settlement.

Defendant testified that the property was sold by the administrator under said order of sale and that she purchased same for $300', and offered in evidence a deed to same from the administrator, dated October 10, 1864, which was, on the 20th day of October, 1864, filed for record and recorded in the recorder’s office of Marion county; that under the purchase evidenced by said deed she has continuously been in the adverse possession of said property, claiming it as her own; that plaintiff was the youngest child of Gardiner Shoultz, being about six years of age at the time of the latter’s death in 1859; that plaintiff and the other children grew to manhood and womanhood, if not at the home occupied by their stepmother, in the immediate vicinity thereof, and had actual knowledge of her possession of said property during all the time of her occupancy of same, covering a period of more than fifty years from the date of her husband’s death, to that of the institution of this suit.

Plaintiff testified that he had known for about twenty-five or thirty years that the defendant, his stepmother, claimed this property as her own; that he had not conceived the idea of making a claim to it until about ten or fifteen years prior to the commencement of this proceeding; that he is now fifty-six years of age; that his knowledge of his stepmother’s claim to the property came from her.-

The petition is in the usual form of a proceeding-in partition; it sets out the interests of the defendants, and alleges that Eliza Jane Lee is entitled to a dower interest in the land sought to be partitioned. Aside from the said Eliza Jane Lee, three of the other defendants filed answers, admitting the allegations of the petition. All the other defendants made default.

The answer of the defendant Eliza Jane Lee, after a general denial, alleges the purchase of the property by her from the administrator of the estate of her husband; that she went into possession of the premises immediately thereafter, and has been in open and adverse possession of same under color of title for more than ten years; that she has made valuable and lasting improvements on the premises and that her possession has been continuous, adverse, hostile, etc., since the purchase of same; that she now occupies said property under the title thus obtained; that at the time she purchased said property the deed evidencing said purchase was recorded in the recorder’s office of Marion county, and that no one else than herself has been in possession of said property since said purchase, and up to the date of the institution of this suit, and that she has since paid the taxes thereon continuously without interruption for more than thirty-five years, and that plaintiff’s claim, if any he has, is barred by the Statute of Limitations, and that if he ever had any right, title or interest in said land by his laches and negligence in prosecuting his suit he has forfeited such right and cannot be heard to complain against defendant, who is a purchaser for value.

Plaintiff’s reply, after a,general denial, states that said Eliza Jane Lee, the defendant, is the widow of Gardiner Shoultz, and was the wife of said Shoultz at the time of his death; that she has been in possession of the premises in question from the death of her husband, as his widow, with her dower right unassigned, and that she is a tenant in common with plaintiff, and the Statute of Limitations has never begun to run against him. He denies the purchase of the land by her at the administrator’s sale, and says that said estate was settled by the administrator long before October 10', 1864.

In no jurisdiction has the rule been more definitely. stated or more firmly adhered to than in Missouri, that the widow’s possession of land of which her husband died seized before assignment of dower, is not adverse to his heirs. [Meddis v. Kenney, 176 Mo. 200; Fischer v. Siekmann, 125 Mo. 165; Null v. Howell, 111 Mo. 273; Colvin v. Hauenstein, 110 Mo. 575.] Anri while it has been intimated in some of the cases cited, that such facts might arise as to render the possession adverse, they have not been shown to exist here.

While it is true that plaintiff or any of the heirs-after reaching their majority might have terminated the right of exclusive possession in quarantine, by having the widow’s dower assigned, they were under no legal obligation to d.o so, and cannot be charged with laches in not having done so, notwithstanding the fact that she purchased the property at administrator’s sale, and thereafter claimed it as her own (Fischer v. Siekmann, supra); this is upon the principle that she was a tenant for life and her possession was not adverse to the remaindermen; such a tenant cannot by her dealings with the estate render her holding adverse to the heirs so as to start the Statute of Limitations against them during the existence of her life estate. [Moran v. Stewart, 246 Mo. 462, 474.]

This is other than a purely statutory proceeding. Its equitable features demand that consideration be given the fact that the payment of $300' made by the defendant to the administrator was in the protection and preservation of her rights and those of the heirs in the property. It is true there is a discrepancy in the dates as to the time of the administrator’s final settlement and the time of her payment to him, but the fact of the payment itself and' that the deed was made by him to her is not attempted to be questioned; although she claims to have been holding under this deed since it was made in 1864, .her possession was not adverse, but she held the property subject to her unassigned dower in trust for the heirs, and so holding it, she is entitled to restitution from them for the amount of her outlay and interest from the date of the administrator’s deed. Authority is not lacking for this ruling, as is evidenced by the following cases: Throckmorton v. Pence, 121 Mo. l. c. 57; McIntosh v. Smiley, 107 Mo. 377; Henry v. McKerlie, 78 Mo. l. c. 428; Schaefer v. Causey, 76 Mo. 365.

Usually a life tenant is required to pay the taxes (Bradley v. Groff, 243 Mo. 95), but while defendant .was holding under the widow’s quarantine she was not chargeable with the taxes on the property (Graves v. Cochran, 68 Mo. 74; State to use v. White, 61 Mo. 441); nor was she required to account for the rents. [Smith v. Stephens, 164 Mo. 415, 422; Gentry v. Gentry, 122 Mo. 202, 220.] This being true the allowance of interest on the amount of her outlay for the estate is not improper.

In view of the foregoing the defendant, in addition to her dower interest in the property, is entitled to a lien thereon in the sum of $300-, with interest at the rate of six per cent per annum from the date of the administrator’s (deed, and this case is reversed and remanded for further proceedings in accordance with the views herein expressed.

Brown, J., concurs. Faris, J., not sitting.


author: LAMM, J.

text:
    SAM B. STROTHER, Administrator of Estate of EDWARD B. PARKER, v. KANSAS CITY MILLING COMPANY, Appellant.
    Division One,
    July 14, 1914.
    1. APPEAL: From Motion Granting New Trial. It is assumed, and not decided, in this case, where a new trial was granted on account of • error in defendant's instructions, that a defendant may appeal from an order/granting to plaintiff a new trial (and have the order reversed) because plaintiff at the trial did not make out a case.
    2. NEGLIGENCE: Fellow-Servant: Superintendent: Directing Work in Hand. A superintendent of a mill, in full control of its management and of all men employed therein, who directed a millwright, employed for a month to make alterations in bleachers and working under his directions, and the alterations being completed and ready for testing, to assist him in the hazardous work of putting on a belt connecting the bleachers with the power, was a vice-principal, and not a fellow-servant of the millwright; and though the immediate work was extra hazardous and the field of operation was unreasonably unsafe and the injury was due to the superintendent’s own negligence in not using proper care to protect the millwright, the doctrine of fellow-servant does not bar a recovery.
    3. -: Putting Belt on Pulley: Crippled Hand of Superintendent: Instruction to Disregard: Limiting. Effect: New Trial. Where the plaintiff was injured by the fact that the superintendent pushed a heavy belt onto a dead pulley while plaintiff’s ladder was leaning against the shaft as he was endeavoring to “hand up the slack,” without giving warning to plaintiff that the belt was about to begin to “crawl,” whereby plaintiff was thrown to the floor, and the petition described the superintendent as “physically incapacitated to do such work,” and plaintiff testified that he did not know the superintendent had a crippled hand, and the superintendent denied that its crippled condition interfered with his use of it, and plaintiff’s instructions tendered no issue on the condition of that hand, it cannot be held that an instruction for defendant telling the jury that “there is no evidence in the case that the condition of the superintendent’s left hand directly caused, or directly contributed to cause, the plaintiff’s injuries, .and your finding on that issue must be for defendant,” merely limited the effect of the evidence, since it was so worded as to entirely destroy its effect. Nor, on the other hand, will :t be held, since neither on defendant’s nor plaintiff’s theory did the crippled hand connect itself in a causal way with the accident, that the giving of the instruction was a sufficient ground for granting plaintiff a new trial.

      i. -: -: Instruction: Diverting Jury’s Minds From Issue. An instruction should focus the minds of the jury on the real issues of the case, and not divert them therefrom. It should not lug in imaginary defenses unsupported by the evidence. Where plaintiff was assisting the superintendent of a mill to place a heavy belt upon a dead pulley, and both sides agree that it was the duty of the superintendent to give him notice when the belt began to “crawl” onto the pulley, and the vital issue is whether or not such notice was given, an instruction telling the jury that, though they may believe from the evidence that the superintendent “was negligent in the performance of the work in which he and plaintiff were engaged, and such negligence was the direct cause of plaintiff’s injuries, yet if you further believe from the evidence that such negligence consisted solely in the superintendent’s choice of the method of performing such work,” you will find for defendant, is erroneous, since there was no evidence tending to show that “the choice of the method of performing such work” was the only negligence of the master.
    5. -: Assumption of Risk: No Basis of Fact. Where the vital question in the case is whether the master gave the notice to the employee which it was his duty to give, and for failure to give which the injury resulted, there is no room in the case for an instruction on assumption of risks. Risks assumed by the servant are those which remain after the master has exercised ordinary care. And in this case it is held that the natural effect of such an instruction was to confuse and mislead the jury.
    6. -: Due Care: High-Sounding Definition. It is better that instructions use the words “due care” and then define what such care is, and not tell the jury that plaintiff “was bóund to use his senses, intelligence and experience” — words calculated to lead astray the minds of common-sense jurors.
    Appeal from Jackson Circuit Court. — Hon. Edward E. Porterfield, Judge.
    Aeeirmed.

      Boyle & Howell, Edward J. White, E. B. Morrison, D. W. Johnson and Joseph 8. Broohs for appellant.
    (1) Instruction number 2, given at request of appellant, was properly given. There was no evidence in the case tending to prove tbe converse. Sotebier v. Transit Co., 203 Mo. 721; Canaday v. United Railways Co., 130 Mo. App. 289; Peck v. Traction Co., 131 Mo. App. 141. Evidence having been admitted as to the fact it was proper for the court to limit its effect by instruction. (2) Instruction number 4, given at appellant’s request, was properly given. It isi horn-book law that the master has the right to choose the method of performing his work within the boundaries of reasonable care, and that the servant, in accepting the employment, impliedly agrees to perform his work his way, and cannot hold him for injuries resulting from dangers incidental to the work as he conducts it. Berning v. Medart, 56 Mo. App. 450; Mack v. Railroad, 123 Mo. App. 531; Coin v. Lounge Co., 222 Mo. 506; Steinhouser v. Spraul, 127 Mo. 562; Minnier v. Railroad, 167 Mo. 112; Chrismer v. Tel. Co., 194 Mo. 189; Alcorn v. Railroad, 108 Mo. 97; Brands v. Car Co., 213 Mo. 709; Blundell v. Mfg. Co., 189 Mo. 558. (3) Instruction number 5, given at appellant’s request, was properly given. It was in tbe form of tbe usual instruction -on assumption of the risk as to form and has been approved by this court. It merely told tbe jury- that tbe servant assumes tbe ordinary and natural risks incident to tbe service. Renfro v. Railroad, 86 Mo. 309. (4) Instruction number 7, given at appellant’s request, is in proper form and enunciates a plain principle of law supported by many decisions in this State. Alcorn v. Railroad, 108 Mo. 97; Gibson v. Bridge Co., 112 Mo. App. 598; Watson v. Coal Co., 5 Mo. App. 366; Bernina1 v. Medart, 56 Mo. App. 448.

      Shannon G. Douglass, Isaac N. Watson and Walter W. Galvin for respondent.
    Tbe court committed error in giving, at tbe instance of tbe defendant, instructions 2, 4, 5, and 7. Therefore, no error was committed by tbe court in sustaining plaintiff’s motion for a new trial, for tbe reasons assigned by tbe court, that it erred in giving certain instructions in tbe trial of this cause. (1) Whether or not tbe physical condition of Brown’s band was such, as shown by the testimony, as to directly contribute to cause him to allow the belt to slip over tbe face of tbe pulley, thus causing it to suddenly start, was clearly a question of fact, and should, therefore, have been submitted to tbe jury under an appropriate instruction. (2) Plaintiff by instruction number 4 was made to assume tbe negligence of tbe master, and tbe master, by becoming negligent in tbe selection of tbe method to be pursued in tbe performance of tbe work, was exonerated from liability for injuries consequent thereto. This instruction, then, becomes and is a plain statement of tbe old discarded doctrine of assumption of risk of tbe master’s negbgence. Blanton v. Dold, 109 Mo. 64; Pauck v. Dressed Beef Co., 159 Mo. 467; Wendler v. People’s, etc., Co., 165 Mo. 527; Curtis y. McNair, 173 Mo. 270; Charlton v. Railroad, 200 Mo. 413; George v. Railroad, 225 Mo. 364; Bien y. Transit Co., 108 Mo. App. 399; Strickland v. Woolworth & Co., 143 Mo. App. 528; Courtier v. Merc. Co., 146 Mo. App. 517; Gambino' v. Coal & Coke Co., 164 S. W. 264. Instruction number 5 constituted error sufficient to sustain the action of the court in awarding a new trial of this cause, and is erroneous, for the following reasons: (a) There was no testimony upon which the same might be predicated; (b), all the testimony was to the effect that the usual way of putting on a belt.was to put it on the dead pulley first, and then shift it upon the live pulley; (c), yet, by reason of the situation and construction of the shaft in question, and the location of the live pulley, the belt could not be adjusted in that manner; (d), it also assumes, and contrary to the testimony, that this belt was being placed over these pulleys in the usual and ordinary way. The giving of instruction number 7, also constituted error sufficient to warrant and sustain the ruling of the court, and is erroneous, for the-reason that it does not correctly define the doctrine of contributory negligence, (a) It directed the jury to return a verdict in favor of the defendant, without regard as to whether or not the dangers attendant upon plaintiff’s performing his task were so obviously apparent that a reasonably prudent man would -not attempt the performance of the task, (b) It directed the jury to return a verdict for the defendant if he knew, or could have known, of any dangers,'whatsoever, incident to the performance of the task, notwithstanding such dangers, if any, were the result of the negligence of the master, (c) It made plaintiff to assume the risk of being injured by his master’s negligence, and, arguendo, told the jury that plaintiff could not recover, no matter to what extent the master had become negligent. Jewell v. Bolt & Nut Co., 231 Mo. 176; Corby v. Telephone Co., 231 Mo. 417; Clark v. Railroad, 234 Mo. 396. It was unquestionably the duty of defendant to exercise reasonable care to avoid injuring plaintiff, and it therefore became the duty of its vice-principal, Brown, to warn or notify plaintiff'of the danger to which he, plaintiff, was about to be subjected by the starting of the belt in question, and Brown’s failure so to do constituted actionable negligence on the part of the defendant. Gayle v. Foundry Co., 177 Mo. 427; Koerner v. Car Co., 209' Mo. 141; Enloe v. Foundry Co., 240 Mo. 444; Butler v. Railroad, 155 Mo. App. 287; Ryan v. Railroad, 115 Fed. 197; Railroad v. Shaw, 116 Fed. 621. Etven though the method by , which Brown, the vice-principal, and Barker, the servant, were attempting to adjust the belt in question, was ¿attendant with more dangers than were other methods which might reasonably have been employed, yet, on account of Brown’s having chosen to adopt the former, and summoning plaintiff to assist him therein, it did not, and does not, lie in the defendant’s mouth to assert that on account of its having chosen a more dangerous method for the performance of that task, and on account of plaintiff’s assisting therein, he (plaintiff) should be denied a recovery. Hutchinson v. Safety Gate Co., 247 Mo. 116. And this principle applies, with the result that the defendant would still be held liable where the servant is injured through the negligence of the vice-principal, in consequence of a breach of some duty owing to such servant by the master, even though such vice-principal was, at said time, also temporarily acting in the capacity of a common laborer. Moore v. Railroad, 85 Mo. 588; Day-harsh v. Railroad, 103 Mo. 575; Bluedorn v. Railroad, 108 Mo. 448; Miller v. Railroad, 109 Mo. 350; Russ v. Railroad, 112 Mo. 45; Donahoe v. Kansas City, 136 Mo. 670; Bane v. Irwin, 172 Mo. 317; Fogarty v. Transfer Co., 180 Mo. 511; Schwyhart v. Barrett, 145 Mo. App. 332; Taylor v. Railroad, .6 L. R. A. 586; Railroad Co. v. Skola, 183 IH. 454; Norton v. Nadobak, 190 111. 599.
   LAMM, J.

In a case sounding in tort in the Jackson Circuit Court, wherein the damages were laid at $15,000, the jury found for defendant. Thereat, on motion, the court ordered the verdict set aside, granting a new trial on the ground of error in defendant’s given instructions. Thereat defendant, a corporation, appealed from such order. Plaintiff dying pending-appeal, Strother, administrator, is substituted. For convenience we continue to use “plaintiff.”

Defendant owned a flouring mill in Kansas City of a capacity of six hundred barrels daily. In this mill were devices known as bleachers, agitators, and conveyors. operated by belts, pulleys, and shafting and run by steam power. These bleachers, etc., were devices to whiten the flour by the use of a current of air and electricity. One Brown was defendant’s superintendent and in full control and management of the mill and all the men employed therein. About four weeks before the accident, plaintiff, a millwright, was employed by superintendent Brown to make some alterations in or put in some new bleachers. The bleachers or alterations were completed ready for testing, and while to that end plaintiff was assisting Brown in putting on a belt connecting the bleachers with the power he was thrown off a ladder and severely injured by the sudden and unexpected starting of the machinery. His suit for damages is bottomed on those injuries, and there is no question here as to their gravity.

It will not be necessary to set forth even a summary of the petition; for plaintiff’s principal instruction was within its allegations and we reproduce that to show the pleaded grounds of negligence and the theory on which recovery was sought, viz.:

“The court instructs the jury that it was the duty of defendant to exercise ordinary care to furnish plaintiff a reasonably safe place in which to do his work, and to do no act of negligence, as defined by these instructions, which would render such place not reasonably safe for plaintiff to perform the usual and ordinary work required of him by defendant, while engaged in its performance, taking into consideration the kind and character of work to be done and the place in which it was to be done. If, therefore, you shall find and believe from the evidence that on or about the 20th day of August, 1904, plaintiff was in the employ of defendant as millwright, at its mill in Kansas City, Missouri; and if. you shall further find and believe from the evidence that the defendant, at said time and place, had in its employ Patrick Brown as superintendent or head-miller at its said mill, and that said Brown had authority to hire and discharge plaintiff and direct him what to do and how to perform Ms duties in said mill; and if you shall further find and believe from the evidence that on or about the said date plaintiff was ordered and directed by said Brown, in Ms capacity as superintendent or head-miller as aforesaid, to get a ladder and go upon same, and thereby assist said Brown to put a belt upon the pulley mention in evidence; and if you shall further find from the evidence that, in obedience to said order, plaintiff did go upon said ladder, and while standing thereon it became reasonably necessary for plaintiff to occupy a stooping position for the purpose of raising the slack in said belt, and that he did occupy said stooping position on said ladder for the purposes aforesaid at and immediately before the happening of the injury complained of, and if you shall further find and believe from the evidence that while plaintiff was in such stooping position on said ladder for the purpose aforesaid, if you find he was in such position, defendant’s superintendent or head-miller Patrick Brown, without warning to plaintiff without plaintiff’s knowledge of his intention so to do, negligently and suddenly threw the belt into position on said pulley to start said belt and pulley revolving; and if you shall further find and believe from the evidence that by reason of such act of suddenly throwing said belt upon said- pulley and starting it to revolving as aforesaid, if you find he did so, the position or place in which plaintiff was working was rendered extra or unusually hazardous and not a reasonably safe place for plaintiff to work, and was not a usual and ordinary danger of such employment; and if you shall further find from the evidence that said Brown knew, or by the exercise of ordinary care on his part could have known, of the position in which plaintiff was situated immediately before and at the time of the putting on of said belt, and of the increased and unusual hazard, if any, of starting said belt and pulley while plaintiff was in such stooping position, if you find he was in such stooping position at said time, and that said Brown, under all the facts shown in evidence could, by the exercise of ordinary care on his part, have warned plaintiff that he was going to put said belt on said pulley in time to have permitted the plaintiff to have let go of said belt, if you find he had hold of the same; hut said Brown failed to do so; and if you shall further find and believe from the evidence that at said time and place plaintiff was in the exercise of such care for his own safety as a reasonably prudent person would exercise under like or similar circumstances, and that as a direct result of said Brown’s thi'owing said belt into position to start said belt and pulley revolving, without any warning to plaintiff, if you find that he did so without any -warning to plaintiff, and that he thereby put the plaintiff in a position of increased and unusual danger or hazard as aforesaid, if any, and that as a direct resxdt thereof plaintiff was thereby thrown from his position on said ladder to the floor of said mill and injured thereby, as a direct result thereof, then your verdict must be for the plaintiff.”

Plaintiff introduced evidence tending to prove the facts hypothesized and outlined in that instruction and the averments of his petition. The case will proceed on appeal more understandingly by summarizing the tendency of plaintiff’s proof, viz.: The bleachers, agitators, etc., were in an upper story of the mill. The shaft operating them was close to the ceiling of the story below. This shaft may be called the “upper shaft. ’ ’ On this tipper shaft was a pulley forty inches in diameter and ten inches wide, which, for the purposes of this case, we will call the ‘ ‘ dead pulley. ’ ’ The edges of this pulley were arranged so that the pulley had a rise towards the center, called a crown. In the room below this upper shaft close to the ceiling was another shaft directly connected by gearing and belts to the power. This shaft may be called the “lower shaft. ’ ’ On this lower shaft was a pulley thirty inches in diameter and ten inches wide, which, for the purpose of this case, will be called the “live” or “driving pulley. ’ ’ It revolved at the rate of 280 revolutions per minute. The live pulley was' not directly under the dead one, but to one side so that when the belt connecting the two was on it stood at an angle of, say, forty-five degrees. Holes were made in the floor at the right places above the live pulley through which the endless belt passed. The alterations had been made in the bleaching devices or new ones installed by plaintiff and another millwright, Bennett, and the two had tested the machinery by an old light six-inch belt which was found insufficient. Thereupon, by direction of Brown, the two made a new heavy stiff eight-inch belt of two-ply leather, about seventy-five pounds in weight, and sixty-four feet long. They put it over the upper and lower shafts and made an endless belt of it by bevelling the ends (making tongue laps) and fastening them together with “cement” and by hammering the tongue laps and leaving the cement to “set” until ready for use. Plaintiff, while experienced in putting on belts, had never put on one with Brown and was not familiar with his ways and methods. Brown’s left hand was crippled and plaintiff did not know that fact. At a certain time Brown directed plaintiff to assist him in putting oh the .new' belt that hung over the upper shaft hard by the dead pulley, and, as we understand it, also hung limp about the driving or live pulley on the lower shaft. The usual way of putting on such a belt is to first put it on the dead pulley and then on the live one, but in this case that plan was impossible because there was no room on either side of the live pulley for the belt to play in. Plaintiff knew that fact and knew the belt would be brought in contact with the live pulley first and while in such contact the edge of the belt above would be pressed or slipped on the dead pulley until by friction the power from below would be communicated through the driving pulley to the dead one. All sides agree that in putting on a belt in that way there comes an instant of time, as the belt is being shoved over toward the crown of the dead pulley, when it begins to bite or feed (one witness used the term “crawl on”) and that such fact can be “felt” by the man pressing it on. When that precise time is reached, then, by pressure on the edge of the belt by a gloved hand, it goes on and the full power is at once communicated from the driving to the dead pulley. In order to put on a heavy belt like the one in question in said way and with ladders (as here) two men are necessary; one to put the belt on the dead pulley, and the other to lift the belt, or, as expressed by plaintiff, “to hand up the slack,” in this instance several feet. When Brown directed plaintiff to assist in putting on the belt, plaintiff suggested that Bennett take part. We get the idea that plaintiff’s proposition was that Bennett act instead'of Brown and that plaintiff preferred.to work with Bennett because putting on a new, stiff and heavy belt in the way proposed was a ticklish operation attended with danger and it is better for the two men to have worked together till they think and act in accord. Brown did not take plaintiff’s suggestion but directed plaintiff to assist him and plaintiff acquiesced. Brown was a man of experience in putting on belts and did a great deal of it as a part of his daily routine of duty as superintendent; sometimes with the assistance of others. The shaft carrying the dead pulley was so far from the floor that ladders were necessary to stand on. Two were at hand, to-wit, a long and a short one. Brown took the long ladder and left the short one for plaintiff. The significance of this was that Brown would be higher than plaintiff in putting on the belt and this in turn meant that Brown, having the farther reach up, would put the belt over the dead pulley and that plaintiff, from a lower position, would pull up the slack and hand it to Brown. That was the way it was done. According to plaintiff’s evidence the upper end of Brown’s ladder rested either on a joist or on the shaft to one side of the dead pulley. Plaintiff thinks it was the joist at the ceiling. The upper end of plaintiff’s ladder rested against the shaft on the other side of the dead pulley. Defendant put in proof tending to show that plaintiff’s ladder rested against a wheat bin, or “stock hopper,” a little to one side, but the divergence is immaterial. When Brown took his position on the long ladder to put on the belt, he was in a position to look down on plaintiff in position on the short ladder. On his part plaintiff would also look down but away from Brown. Standing on the narrow rung of the ladder, to lean over and lift so heavy and stiff a belt, it was necessary for plaintiff to brace himself against something, and he did brace himself against the pulley. In this condition plaintiff handed up slack once and Brown took it. Plaintiff then reached down to pull up more of the slack, warning Brown at the time to be careful. All sides agree that it was customary and necessary for the man manipulating the belt on the pulley to give warning to the other man when the belt began to take hold or crawl, so that he might let loose or otherwise protect himself against its going on with the full force of the driving pulley. Plaintiff expected such warning but says he never received it. To the contrary, according to his testimony, when his face was toward the floor and he could not see Brown’s hands'or the position of the belt on the dead pulley, Brown put the belt on while plaintiff, so on the rung of the ladder, was in the very act of stooping over and pulling on it from below to assist him, and, the motion going on suddenly and without warning, he was thereby thrown vio-. lently to the floor and was gravely injured in having his hip fractured.

Brown, testifying for defendant, says he gave warning to plaintiff at the crucial instant, but at the same time says he did not know plaintiff had hold of the belt at that time or at any other time. As we gather it, his idea was that plaintiff was to use his hands in turning the dead pulley, not to hand up the slack. In other words, he, Brown, with his one hand was to lift the seventy-five pound stiff belt and put it on the pulley without plaintiff’s touching it. To contradict the theory that he was expected to' manipulate the pulley itself, plaintiff testified (and he had other testimony to the effect) that it would take five- or six-horse power to turn the dead pulley.

With the proof as outlined, defendant offered a demurrer at the close of plaintiff’s evidence in chief and again asked a mandatory instruction at the close of the whole case, both of which were refused, and now on appeal its counsel argue not only that the questioned instructions were good, but that plaintiff and Brown were fellow-servants in and about the matter of putting on the belt and therefore plaintiff made no case for the jury.

Plaintiff in turn complains of the giving of four instructions (two, four, five and seven) on behalf of defendant, all of which will appear in due course. His counsel argue that the motion for a new trial was well ruled because of error in those instructions; further that though the court did not specify other grounds in its order sustaining the motion, yet if there be other grounds for a new trial present then such other grounds sustain the order granting a new trial, and, on this head, his counsel invoice the doctrine that in granting a new trial there is a discretion in the trial court where the verdict is against the weight of the evidence. From that angle also they contend (that element being present and noticed in the motion for a new trial) the order granting a new trial was well enough. Such substantially is the case. Any other facts germane to a disposition of points ruled will appear further on in due order.

I. Of defendant’s demurrer (and herein of the mandatory instruction).

In their original brief counsel did not make the point that Brown and.Barker were fellow-servants and hence the demurrer lay. It is made in their reply brief for the first time, and is there justified because plaintiff insists on sustaining the order granting a new trial, not only on the specifications made by the trial judge, but on other grounds as well. The appearance of the point is, therefore^ late and somewhat by way of afterthought or counter thrust. Assuming, without deciding, that a defendant may appeal from an order granting a new trial and have the order reversed because plaintiff at the -first trial did not make out a case (thereby taking away his chance of making one at the second trial) we proceed to dispose of the demurrer and the mandatory instruction on their merits, applying the theory that if plaintiff made no case he could not complain of the verdict, or of defendant’s instructions (Fritz v. Railroad, 243 Mo. l. c. 69) and hence was not entitled to a new trial.

In our opinion the doctrine of fellow-servant does not bar recovery in this case as a matter of law. This because: There is no dispute on this record but that Brown was the superintendent of the mill and as such had exclusive supervision of its operations and of the men employed therein, including the two millwrights, Bennett and Barker. The whole case runs on the theory that Brown both in rank, capacity and act represented the master. To say that Brown and Barker were in a common employment is to say that the captain of a ship and a sailor are in common employment, because they are both, in a general sense, engaged in sailing the ship. The facts, then, make it a typical case of Superintendent Brown being the vice-principal of the corporate master. Unless his eye, voice, hand and acts were the master’s then the master on this record was absent from that mill and neither acted per se or per alium there at any time. This general relation obtained, too, in the very act of putting on the belt. Brown, for the master, appointed the time, directed the method and assumed an attitude of a superior to a subordinate in the performance of that service. Let us copy a bit of the record on the point and from that discern the trend of the whole of it (Brown being on the stand):

‘ ‘ Q. Tell us what you said to him. A. Well, sometime before we put the belt on I was up on the floor he was working on, and I told him, I says, ‘We will put the belt on, Mr. Barker.’ Q. Speak up so that I can understand. A. I says, ‘We will put the belt on when you get your work finished up, when you get that job completed.’ He was connecting the power of the lower part of the agitator. Q. Didn’t you mean by that a direction to come and assist you? A. I told him we would put the belt on. Q. You were right there and •had a right to direct him, didn’t you? . . . A .He ivas at worlc wider my directions and instructions. . . . Q. He was there subject to your direction and instuction? A. Yes, sir. Q. And you told him, you said you would put that belt on. Didn’t you mean that as a direction to assist whenever you got ready to do so ? A. It would mean that. Q. That was what you meant him to understand, wasn’t it, when you said that? A. Yes, sir.”

It would be unprofitable to reagitate the vexed question: Who is a fellow-servant ? Or to reformulate or reannounce the doctrine of this' court in that behalf. Error often lurks in generalities and no rule can be laid down that would fit all cases. It would be a bold judge who said that appellant courts had always been able to hold a steady and even voice in promulgating or applying general principles on this head. Cases may be found that approach the matter from this, that or the other angle (including that of “dual capacity”) ; but no soundly reasoned case can be found, I think, where the master had a conceded vice-principal present, as here, and where such vice-principal personally by virtue of being master and in the line of his rank and duty took charge of a transaction and injured an employee negligently by exposing him to extra hazard, or by making his field of operations unreasonably unsafe, where the doctrine of fellow-servant was allowed to bar recovery. The reasoning and facts of many cases sustain that view of it. For example: Hollweg v. Telephone Co., 195 Mo. l. c. 156 et seq., and cases cited: Russ v. Railroad, 112 Mo. 45; Burkard v. Rope Co., 217 Mo. l. c. 480 et seq.; Bien v. Transit Co., 108 Mo. App. 399; Dayharsh v. Railroad, 103 Mo. l. c. 576 et seq.; Miller v. Railroad, 109 Mo. l. c. 356 et seq.; • McIntyre v. Tebbetts, 257 Mo. 117. In the Miller case, supra, Black, J., summarizes the grounds of liability in this acceptable way:

“There is no doubt but a foreman or other representative of the master may occupy a dual position; that is to say, he may at the same time be a fellow-servant and an agent or representative of the master. There are certain duties which are personal to the master, and for the nonperformance of which he is liable to his servants. These duties may be delegated to a foreman or even to a servant, and the master is still liable for their nonperformance. Again, cases often arise where the master becomes liable by reason of the fact that he undertakes by himself or through a representative to do certain things which might have been left to the servant to perform.”

The premises considered, defendant’s demurrer and mandatory instruction were well ruled below.

II. Of the given instructions for defendant alleged to be erroneous.

Of the series of instructions given for defendant, plaintiff complains now of the second, fourth, fifth and seventh, and his counsel argue that the order granting a new trial may stand on the theory one and all were erroneous.

“2. The jury are instructed that there is no evidence in this case that the condition of Mr. Brown’s left hand diréetly caused, or directly contributed to cause, the plaintiff’s injuries (if any), and your finding on that issue must be for the defendant.

“4. Even if the jury believe from the evidence that the witness Brown was plaintiff’s superior officer, and that said Brown was negligent in the performance of the work in which he and plaintiff were engaged at the time plaintiff claims to have been injured, and that such negligence was the direct cause of plaintiff’s injuries (if any), yet if you further believe from the evidence that such negligence consisted solely in Brown’s choice of the method of place performing snch work, and that plaintiff and defendant were, or by the exercise of ordinary care should have been, equally advised that such method was not reasonably safe (if it was not), and of all the risks and dangers (if any) incident to the performance of such work according to such method, then your verdict must be for the defendant.

“5. The jury are instructed that the plaintiff in entering the employ of defendant and continuing to work for it, assumed the risks (if any) there were growing out of any danger there may have been in doing the work at which he was engaged in the usual and ordinary way. If therefore it appears from the evidence that the plaintiff’s injuries (if any) were the result of such risk, then defendant is not in law at fault therefor, and it is your" duty, without regard to the other questions in the case, to return a verdict in its favor.

“7. Plaintiff was bound to use his senses and intelligence and experience in and about the doing of his work, and if he failed to use either to the extent to which a person of ordinary care of his age and experience would have used them under the circumstances as they existed at the time he was injured, and if such failure directly contributed to cause his injuries (if any), then he is not entitled to recover in this case, and you must find for the defendant, and this is so even though you should find that the defendant was also negligent or failed in some duty it owed to plaintiff.”

(a) To determine whether defendant’s instruction number two was correct, attend to more of the record. The petition describes superintendent Brown as a man “who was physically incapacitated to do such work,” meaning thereby the work of putting on such a belt in the way adopted. Evidently at least defendant’s counsel had made reference in his opening statement to a crippled hand of Mr. Brown, and had advanced the theory that plaintiff knew all about it. We conclude so from the subjoined questions propounded to plaintiff when on the stand in chief and the answers thereto:

“Q. Now, yon heard Mr. Boyle’s statement here about Mr. Brown having a crippled hand? Did yon know about that? State what the facts were in regard to that. A. That is a false statement; I didn’t know it. I never knew he had a crippled hand until after the thing happened, because we had never done any work with him or been intimately associated with him. Q. Which hand was it that was crippled? A. I think it is his left hand.”

Presently when one Bemley was on the stand for plaintiff the latter’s counsel sought to show that Brown had a crippled hand. Thereat defendant’s counsel objected to the testimony because it “had no part or cut no figure in this accident ... as shown by plaintiff’s own testimony.” On this objection plaintiff’s counsel withdrew the challenged question. With the record in this fix, defendant’s counsel, not content, later opened up the matter anew on their own hook. When Brown was on the stand one of them propounded questions and received answers as follows:

“Q. Is this hand impaired as to strength by reason of.the bent condition of these two fingers? A. No, sir, I have as much strength as I ever had in the right hand. Q. Did the condition of this hand in any way prevent you in doing the work of putting on that belt? ... Q. Well, just describe to the jury in what way you used or did use this hand, if at all, and what, if anything, the condition of the hand interfered with or affected it? A. Well, I didn’t use this hand at all. All I used this hand for was on the ladder to support myself on the ladder, hold the ladder. I put the belt on — raised the belt with my right hand.”

When plaintiff came to his instructions, he tendered no issue whatever on the condition of Brown’s left hand and made no reference to the physical incapacity mentioned in his petition.

The real question, then, is: In the light of the whole record was it error to give instruction number two for defendant?

To support the instruction defendant’s counsel argue after this fashion: “It would appear from the record that the issue was not before the court, but evidence being admitted tending to show that the witness Brown had a crippled hand it was proper for the court to limit its effect by instruction.” But it will be observed that the instruction does not limit the effect of the evidence. Contra, it is so worded as to entirely destroy its effect. Presently we will set forth facts from which we can get at Brown’s theory of how the accident happened, but for present purposes it is sufficient to say that neither in his nor in plaintiff’s theory did the crippled left hand of the superintendent connect itself in a causal way with the accident. We conclude, then, that although defendant must stand sponsor equally with plaintiff for lugging Brown’s crippled hand into the case, and. though the court, without committing error, might have left the evidence stand as a circumstance for what it was worth in connection with all the other facts and circumstances, yet we cannot see that the merits of plaintiff’s case were materially affected by the instruction, even as broad as it is. Hence if there was no other error at the trial, the order granting a new one could not well stand on such a narrow and precarious point.

(b) In disposing of the fourth instruction, attend further to the record. Defendant’s principal witness, its only reliance, was Superintendent Brown. As already indicated, there is substantial agreement between him and plaintiff on the necessity of notice to the helper at the precise time the principal actor “feels” the belt beginning to crawl or bite on the dead pulley. Now, plaintiff says he received no such notice, though he was depending on it. Brown seems to admit the need of it and the right of dependence on it. He acquits himself by saying he gave it in this form, “Look out,” and received the response from plaintiff, “All right, ” or “ Let her go. ” As in the very old and quaint doctrine noticed by Abbott and borrowed from Boccus (Abb. on Shipping, *371): “If the mice eat the cargo and thereby occasion no small injury to the merchant, the master must make good the loss, because he is guilty of a fault; yet if he had cats on board his ship he shall be excused” — so here, this master stands on notice for his excuse. Notice is the cat that eats the mouse, negligence. It would be to read this whole record with inattention not to see that the the sharp turning point, the vital issue,' in the case, rests on the timely giving of that notice. If the jury believed Brown on that issue, then plaintiff’s case falls to the ground. If the jury believed plaintiff, then a clear case of negligence was made out on the part of the master whose alter ego Brown was; and so, in effect, the case was put to the jury in plaintiff’s chief (and only general) instruction hereinbefore set forth. The ladders used by Brown and plaintiff had iron spikes below, but nothing to fasten them above. As said, Brown’s leaned against the shaft or a ceiling joist, and plaintiff’s leaned against the shaft or a “stock hopper.” Mr. Brown says, in substance, that the belt was stiff and required strong pressure to put it on the dead pulley, and that while giving such pressure and after the “look out” notice, his ladder thereby was caused to slip away from the pulley and so far up-set that he jumped to the floor. As we read the record there is no causal connection between the shoving over of the upper end of Brown’s ladder and the accident to plaintiff. The inference to' be drawn from Brown’s version is that his pressure on the belt shoved his own ladder over, and that the notice he gave to plaintiff was timely and sufficient to put him on his guard. In this condition of things defendant asked and received instruction number four. It told the jury to find for defendant although the master was negligent and although sueh negligence was the direct cause of the injuries, provided the jury found further that the master’s negligence consisted “solely” in Brown’s choice “of the method of place [sic] performing such work, ’ ’ and also found that both the master and plaintiff were, or by the exercise of ordinary care should have been, equally advised that such method was not reasonably safe, and equally advised of “all the risks and dangers (if any) incident to the performance of such work according to such method.” That instruction was not the law of this case. It is wholly unsupported by the evidence. There was none tending to show that the choice “of the method of place performing such work ” (whatever that may mean) was the only negligence of the master. The broad and accepted current of the proof on both sides is directly to the contrary. The negligence of the master, if any, was in the failure to give notice at the crucial moment that the belt was going on. The method of performing the work called for that notice. The instruction eliminates that idea, and, while it is not clear precisely what it does mean, yet it is plain enough that it directs the jury’s attention to a feigned or false issue and away from the place or issue where the shoe' actually pinched. The quail uses that device to protect its young brood when surprised by an intruder. One Alcibiades used it. I remember to have read in an idle hour (i. e., -before I came on this bench) that he had a very fine dog with a beautiful tail, costing (that is, the dog did) a thousand dollars or so. This dog was a favorite in Athens (say B. C. 420) and its tail (proudly carried) was much admired by the versatile and artistic citizens of that town. Having cut off his dog’s tail, and being brought to book therefor (for all I know before the dicasts at the judgment-seat) Alcibiades justified himself by saying he cut it off so that the Athenians would talk of that and say nothing worse of him. But the foregoing plan of obscuring the issue by putting forward something else to talk about is no working theory in the administration of justice. The precept is: The law is always more praised when it is consonant with reason. Plaintiff was gravely injured and, if his story be true, had a meritorious case. He was entitled to have the jury’s mind focused on, not diverted from, the issues. Instruction number four did not fill that office, for that its tendency was to litter up the mind of the jury with a feigned issue. If the premises announce sound doctrine, as we think they do, then the order granting a new trial stands safely on the theory that instruction number four was erroneous.

(c) And this brings us to defendant’s instruction number five on assumption of risk. Assumption of risk has been defined by a discriminating writer as “a term or condition in a contract of employment, either express or implied from the circumstances of the employment, by which the employee agrees that dangers of injury ordinarily or obviously incident to the discharge of his duty in the particular employment shall be at his own risk.” [Bl. L. Diet.] The words “or obviously” connect themselves logically with the doctrine of volenti non fit injuria, and are broad enough to cover the idea (among others) of known dangers voluntarily encountered. In this jurisdiction it seems that to settle liability for encountering dangers arising from the master’s negligence that are so glaring and imminent an ordinary prudent person would not encounter them, reference is had to the doctrine of contributory negligence (sounding in tort) and not to the assumption of risk (sounding in contract); for in this jurisdiction it has become settled doctrine that the servant does not assume the risk of his master’s negligence. [George v. Railroad, 225 Mo. l. c. 408 et seq.] The Missouri doctrine is that there is another term express or implied in the contract of employment between master and servant, to-wit, that the master will. exercise care to protect his servant by (among other ways) providing’ him a reasonably’safe place to work; and that when the assumption of risk on the part of the servant and the aforesaid assumption on the part of the master are allowed to proceed hand in hand, as they should in holding the scales of justice true, it results that the risks assumed by the servant are those which remain after the master has exercised ordinary care, [ Charlton v. Railroad, 200 Mo. l. c. 433; Curtis v. McNair, 173 Mo. 270.] Assumption of risk and contributory negligence are two doctrines that so overlap and intermingle on certain phases that in some jurisdictions the obvious or known-danger-voluntarily-encountered theory is put under the head of assumption of risk. A great jurist, Chief Justice Lemuel Shaw, first announced the doctrine of assumption of .risk in this country in 1842 in the Supreme Court of Massachusetts in the celebrated- case of Farwell v. Boston, etc., R. R. Co., 4 Metc. 49. [2 Bailey, Pers. Inj. (2 Ed.), sec. 353; 1 White, Pers. Inj., p. 417, note 3.] In defining it he does not seem to include the element of known danger voluntarily encountered as Black does, but puts the matter in this guarded way:

“The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified, duties and services, for compensation, takes upon himself the natural and ordinary' risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjudged accordingly. ’

But philosophizing about the matter at this day is unprofitable. This court has a doctrine, as said, to-wit, that the master cannot impliedly or expressly contract against his own negligence, hence the servant does not assume the risk of the master’s negligence; and that doctrine must supply the test or. touchstone for the instruction in hand. [See cases supra; Hutchinson v. Richmond Safety Gate Co., 247 Mo. 71; Chambers v. Chester, 172 Mo. 461.]

In instruction number five the doctrine of assumption of risk is put to the jury as an abstraction of law. Broadly interpreted, it is likely its form would pass muster as an abstraction, although ci itically speaking it puts the cart before the horse, it makes the injuries result from the risk instead of from the danger ordinarily incident to the discharge of duty in the given employment. But that is by the by, for there is a deeper-going objection to it, to-wit, it had no place in thé case under- the facts of the record. The case hinging on the giving of timely notice by the master to the servant, what have the dangers, ordinarily incident to that form of employment or to the appliances they used, to do with the casé? Is a failure to give notice (the presiding fact in the case) an ordinary incident the risk of which the servant assumed? Would not the jury so interpret such rule falling from the lips of the judge and decisive of the whole case, as this one is ? If so, then the servant assumes the risk of the master’s negligence in a situation sprung suddenly and imperiously demanding the instant use of care and caution. - Much of what is said in considering instruction number four is applicable here. The natural result of that instruction was to confuse and mislead the jury, hence the order for a new trial may stand on the error of giving it.

(d) Speaking to defendant’s instruction .number seven, we say this: Plaintiff in his own quoted instruction put to the jury the issue of his due care. In that view of it, we need not seek for any real ground upon which to put the issue of contributory negligence to the jury as an affirmative defense, for by invoking the judgment of the jury on his due care he thereby invoked their judgment on his lack of it and that, in turn, spells contributory negligence. But we do not approve tbe form of that instruction. We eye it askance as a daring and anxious novelty that disturbs more than it benefits. It would have been better to have said that plaintiff was required to use due care in doing his work and then gone on and defined, in the accepted language of the law what due care was, instead of using the formidable words: “was bound to use his senses and intelligence and experience.” What does that sweeping and sounding aggregation of words mean, even to a lawyer or judge ? They swell by contemplation and broaden by analysis. What did the plain men in the box understand, either taken in the aggregate or severally,, by them? They smack much of argument by overpressing the matter; and in trying to assign a meaning to such all-embracing terms as “senses,” “intelligence,” “experience” might not the jury be led astray, and their native hue of common-sense (the immediate jewel of'an ordinary juryman’s mind) become “sicklied o’er with the pale cast of thought,” or lost in a fog? We ■fear so — nay, we think so. Those words do not form part and parcel of the mild, simple and colorless definition of due care the law delights in. The beaten way is the best way and the safe way.

The conclusions reached make it unnecessary to consider the question sprung by plaintiff, to-wit, that the order granting a new trial was within the discretionary power of the court relating to granting one when the verdict is against the weight of the evidence. In the face of another trial we prefer not to comment on that feature.

It follows from what has been said that the judgment should be affirmed and the cause remanded for the new trial granted’ below. Let it be so ordered.

All concur.