author: BLAIR, J WOODSON, J.

text:
    MINNIE A. BOUTELL v. EDWARD F. SHELLABERGER, Appellant.
    Division One,
    March 2, 1915.
    1. LIABILITY OF HUSBAND FOR TORTS OF WIFE: In Connection With Her Separate Property. The husband is not liable in damages for personal injury to a passenger in an elevator in a building owned by his wife as her separate statutory property and leased and managed by her independently of her husband.
    2. -: -: Effect of Married Woman’s Acts. Sy the express terms of the statute (Sec. 8309, R. S. 1909) ah apartment house owned by a married woman in her own name is “under her sole control” and in no way liable for her husband’s debts; and another statute (Sec. 8304, R. S. 1909), with respect to her right to manage her property, to contract and be contracted with, to sue and to be sued, and to enforce and to have enforced against her property any judgment rendered for or against her, explicitly says she shall be deemed a femme sole, thereby completely emancipating her, at least so far as her separate property is concerned, and opening new fields of . endeavor closed to her at common law; and since the husband is left by said statutes no legal right to intermeddle with the business affairs and property of his wife, it is not logical to admit him to her new sphere solely that he may pay damages for torts committed by her in the management of her property; and he is not liable in damages for her torts committed in the management of her separate property, and out of his presence, without his participation and not under his direction. [Distinguishing Nichols v. Nichols, 174 Mo. 407, holding that, despite the Married Woman’s Acts, the husband, is still liable for the wife’s purely personal torts, or torts simpliciter, as at ■. common law; and Flesh v. Lindsay, 115 Mo. 1, in which was held in judgment the liability of the wife for damages caused by the falling in 1887 of a party wall weakened by the negligence of workmen employed by the husband in making repairs to a building erected on a lot inherited by the wife in 1877, the tort antedating the Married Woman’s Act.]
    3 -: -: Act of 1881. The Act of 1881 (Sec. 6870, R; S. 1889), providing that “the husband’s property, except such as may be acquired from the wife, shall be exempt from all debts and liabilities contracted or incurred by his wife before their marriage” is not opposed to the conclusion that the husband is not liable for the torts committed by the operator of an elevator in a building on the separate statutory property of the wife, leased and managed by her; nor did its reenactment in a revised bill in 1889 bring it into conflict with the Married Woman’s Act enacted in that year, but merely continued it as before and added nothing to its force and effect. [Again distinguishing Nichols v. Nichols, 147 Mo. 407.]
    Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.
    Reverseu.

      Marley & Marley for appellant.
    (1) The husband can only be jointly held with his wife, for the simple or personal torts of the wife. Merrill v. St. Louis, 83 Mo. 244; Flesh v. Lindsay, 115 Mo. 1; Writ v. Dinan, 44 Mo. App. 589; Bruce v. Bombeck, 79 Mo. App. 231; Rowe v. Smith, 45 N. Y. 230; Ball v. Bennett, 21 Ind. 427; Mahoney v. Roberts, 86 Ark. 130; Roberts v. Lisenbee, 86 N. C. 136; Woodmen v. Barnes, 46 Vt. 332; Keen v. Hartman, 48 Pa. St. 497; Komisky v. Goldberg, 44 Ark. 401; Wolf v. Lozier, 68 N. J. L. 103; Kowing v. Manly, 49 N. Y. 198; Schuler v. Henry, 42 Colo. 367; Strouse v. Leipf, 101 Ala. 433; Curtis v. Dineen, 4 Dak. 245; Graham v. Tucker, 56 Fla. 307; Braunnell v. Carr, 76 Vt. 174; Edwards v. Wissinger, 65 S. C. 161; Prentis v. Paisley, 25 Fla. 927. (a) The husband and wife must be sued jointly. Flesh v. Lindsay, 115 Mo. 1; Merrill v. St. Louis, 83 Mo. 244; Baker v. Young, 44 111. 42; Ball v. Bennett, 21 Ind. 427; Enders v. Beck, 18 Iowa, 86; Heckle v. Purvey, 101 Mass. 344; Flannigan v. Tiner, 53 Barb. 587; Marshall v. Oakes, 51 Me. 308; Wheeler S. M. Mfg. Co. v. Heil, 115 Pa. St. 487; Mahoney v. Roberts, 83 Ark. 130; Smith v. Taylor, 11 Ga. 20; Carlton v. Haywood, 49 N. H. 314; Dicey on Parties to Actions, rule 107. (b) The husband’s liability at common law, for the wife’s simple or personal torts does not rest upon the fact that in contemplation of law, he is the party guilty, of the tortuous act. Kominsky v. Goldberg, 44 Ark. 402; Kowing v. Manley, 49 N. Y. 192; Rodke v. Schmidt, 30' Ind. App. 213; Capelle v. Powell, 112 E. C. L. 744; Schuler v. Henry, 42 Colo. 367; Drury y. Dennis, Yelv. 106. (c) A judgment against the husband alone, for the wife’s torts, will be reversed. Flesh v. Lindsay, 115 Mo. 20; Gruen v. Bamberger, 11 Mo. App. 261; Wisdom v. New-berry, 30 Mo. App. 241; Gage v. Reed, 15 Johns. 403; Gray v. Thatcher, 4 Ala. 136; Grennlief v. B'eebe, 80 111. 5201; Mahoon v. Colment, 51 Miss. 60; Bacon v. Bevan, 44 Miss. 293; Roberts v. Lisenbee, 86 N. C. 136; Hutchison v. Henson, 7 Term. Rep. 348; Dure v. Thorne, Alyn. 72; Angel v. Felton, 8 Johns. 149; Plainer v. Patchin, 19 Wis. 333; Dicey on Parties to Actions, rule 69. (2.) The husband is not liable for the torts committed by his wife in the management of her separate estate. Staley v. Ivory, 65 Mo. 74; Gillies v. Lent, 2 Ab. Prac. (N. S.) 455; Quilty v. Battie, 135 N. Y. 209; Peak v. Lemon, 1 Lansing, 297; Fisk v. Bailey, 51 N. Y. 150; Baum v. Mullen, 47 N. Y. 577; Rowe v. Smith, 45 N. Y. 230; Lansing v. Holdrige, 58 How. Pr. 449; Eagle v. Swayze, 2 Daly, 140; Magan v. Peck, 111 N. Y. 401; Choen v. Porter, 66 Ind. 196; Wolff v. Lozier, 68 N. J. L. 103; Eliazon v. Draper, 8 How. Pr. 395; Graham v. Tucker, 56 Fla. 307; Mayhem v. Porter, 103 Ind. 328; Russell v. Phelps, 73' Vt. 393; Gustin v. Westenberger, 224 Pa. St. 455 ; Schuler v. Henry, 94 Pac. 360; Shane v. Lyons, 172 Mass. 199; Walker v. Swayze, 3 Abb. Pr. 136; Hinds v. Jones, 48 Me. 349; Martin v. Robson, 65 111. 137; Greenlief v. Beebe, 80' 111. 520; Madden v. Gilmer, 40 Ala. 637; Mahoon v. Colment, 51 Miss. 60; Bacon v. Bevan, 44 Miss. 293; Harvey v. Johnson, 133 N. C. 352; Pomeroy on Code Remedies, 222 ; Bliss on Code Pleadings, sec. 86. (3) The Enabling Act completely emancipates the married woman. Kirkpatrick v. Pease, 202 Mo. 490; Lyons v. Reynolds, 184 Mo. 693; Bank v. Hageluken, 165 Mo. 449. (4) Rosa Shellaberger, in the management of her own property, being as a stranger to her husband, to hold him liable in this action would be a taking of his property without due process of law. Camp. v. Rogers, 44 Conn. 296; Railroad v. Parsons, 100 Ala. 666 ; Ziegler v. Railroad, 58 Ala. 598; Railroad v. Outcault, 2 Colo. App. 398; Railroad v. Vaughn, 3 Colo. App. 465; Wadsworth v. Railroad, 18 Colo. 611; Catril v. Railroad, 2 Idaho, 578; Railroad v. Parks, 32 Ark. 131; Bielenberg v. Railroad, 8 Mont. 271; Jensen v. Railroad, 6 Utah, 253; East Kingston v. Towle, 48 N. H. 57; Jolliffe v. Brown, 14 Wash. 159; Railroad v. Lackey, 78 111. 56; Bowe v. The Reflector Co., 36 Hun, 407; Sunberg v. Babcock, 61 Iowa, 602; Coster v. Water Co., 18 N. J. Eq. 55; Mad-land v. Benland, 24 Minn. 379; Railroad v. Polt, 34 U. S. Sup. Rep. 301; Railroad v. Wynne, 224 U. S. 354; Adair v. U. S., 208 U. S. 161; Dewey v. Des Moines, 173 U. S. 202; Railroad v. Cleveland, 204 U. S. 117; Smith v. Bivens, 56 Fed. 353; Shaver v. Railroad, 71 Fed. 932; Johnson v. Hudson, 96 Tenn. 6301. (5) And is also a denial of the equal protection of the law. Wadsworth v. Railroad, 18 Colo. 611; Railroad v. West-by, 178 Fed. 621; Sams v. Railroad, 174 Mo. 53; Cotting v. Stock Yards Co., 183 U. S. 102; Railroad v. Swanger, 157 Fed. 783; Michigan Tax Cases, 185 Fed. 638; Yick Wo v. Hopkins, 118 U. S. 366; Railroad v. Ellis, 165 U. S. 151. (6) The ordinance through which the plaintiff attempts to fix a liability on the appellant here, is void, as no civil liability between persons can be created by a municipal ordinance. Fath v. Railroad, 105 Mo. 537; Moran v. Pullman Co., 134 Mo. 641; Eisenberg v. Railroad, 33 Mo. App. 85; Sluder v. Railroad, 189 Mo. 113.

      Brewster, Kelly, Brewster & B%vcl%holz and Hog-sett & Boyle for respondent.
    (1) Plaintiff is entitled to recover from defendant for injuries caused by the tort of defendant’s wife. (a) A person injured by the tort of the wife in the management of propery owned by her, has a cause of action against both the husband and the wife for such tort. Flesh v. Lindsay, 115 Mo. 1; Nichols v. Nichols, 147 Mo. 408; Taylor v. Pullen, 152 Mo. 434; Bruce v. Bombeck, 79 Mo. App. 236; Merrill v. St. Louis, 83 Mo. 244,12 Mo. App. 466. (b) The plaintiff having a cause of action against both Rosa R. Shellaberger and Edward F. Shellaberger, and being entitled by law to one satisfaction therefor, had the right to bring suit thereon jointly against both or against either, as plaintiff might think proper. Sec. 1734, R. S. 1909; Badgley v. St. Louis, 149 Mo. 122; Noble v. Kansas City, 95 Mo. App. 171; Hutchinson v. Safety Grate Co., 247 Mo. 110'; Winn v. Railroad, 245 Mo. 412. (2) The defendant by demanding a trial before his wife could be summoned into, court, waived the right to object to her nonjoinder. Mancuso v. Kansas City, 74 Mo. App. 138; State ex rel. v. Chemical Works, 2491 Mo. 721; Johnson v. United Railways, 247 Mo. 358; White y. Railroad, 202 Mo. 561; Hanson v. Neal, 215 Mo. 270; Hudson v. Wright, 204 Mo. 424; Paddock v. Somes, 102 Mo. 235; Aley v. Railroad, 211 Mo. 460; Schulenburg v. Werner, 6 Mo. App. 296. (3) The judgment in this case does not deprive defendant of his property without due process of law. Hulett v. Railroad, 145 Mo. 35; State ex inf. v. Shepher, 177 Mo. 243; State ex rel. v. Mercantile Co., 184 Mo. 183; St. Joseph v. Truckenmiller, 183 Mo. 16; Holmes v. Murray, 207 Mo. 418; Matthews v. Railroad, 121 Mo. 298, 165 U. S. 1; Levick v. Norton, 51 Conn. 461; Bidwell v. Murray, 40 Hun, 190; Darlington v. New York, 31 N. Y. 164; Champaign County v. Church, 62 Ohio St. 318; Bertholf v. O’Reilly, 74 N. Y. 509; Dugan v. Neville, 49 Ohio St. 462; Mullen v. Peck, 49 Ohio St. 447; Railroad v. Zernecke, 183 U. S. 582; Clark v. Russell, 97 Fed. 900'. (4) Defendant has not been denied the equal protection of the laws. State v. Brodnax,-228-Mo. 44; Matthews v. Railroad, 121 Mo. 298; Railroad v. Matthews, 165' U. S. 1; Campbell v. Railroad, 121 Mo. 349; Adams v. Railroad, 138 Mo. 242; Insurance Co. v. Railroad, 149 Mo. 165; Hines v. Railroad, 86 Mo. 629; Kingsberry v. Railroad, 156 Mo. 379. (5) The violation of the ordinance requiring a competent elevator operator, constituted actionable negligence. Sluder v. Railroad, 189 Mo. 113; Jackson v. Railroad, 157 Mo. 621; Wendler v. Furnishing Co., 165 Mo. 527; Hirst v. Real- Estate Co., 169 Mo. 194; Purcell v. Shoe Co., 187 Mo. 289; Johnson v. Railroad, 203 Mo. 4001; Holland v. Railroad, 210 Mo. 350; Laun v. Railroad, 216 Mo. 578 ; King v. Railroad, 211 Mo. 1'; Stafford v. Adams, 113 Mo. App. 721; Steinmann v. Transit Co., 116 Mo. App. 673; Stotler v. Railroad, 200 Mo. 120; Shellaberger v. Fisher, 143 Fed. 937.
   BLAIR, J

Respondent lived with her minor son in an apartment house in Kansas City, and the son was injured by the alleged negligence of the °PeraYr of an elevator maintained in the building by the owner for the use of the occupants. Appellant’s wife owned the building. Under our statute it was her statutory separate property, having been acquired in 1899, and was leased and managed by her, through her agent, independently of her husband.

This action for damages was begun against appellant and his wife. No service having been had upon thé wife the case proceeded to judgment against the husband alone and he appealed.

This record presents the question whether a husband is liable for the torts of his wife committed by her in the management of her separate real property, the husband neither being present, directing nor otherwise participating therein.

This question has been passed upon in many jurisdictions. In practically all of them it is held that in circumstances like those in this case the husband is not liable. The question has never been squarely decided by this court.

The decisions in other jurisdictions fall into several classes: First, those under statutes expressly exempt- . ing the husband from liability. These are not in point here because founded upon such statutes. Second, ' those which hold that the effect of statutes, substantially like ours, affecting married women, has been to sweep away all liability of the husband for the wife’s torts. Third, those holding that the husband’s liability for the wife’s torts remains unaffected by married women’s statutes and now includes liability in circumstances like those in the instant case. These are few. Fourth, those holding that the married women’s statutes do not affect the husband’s liability for the torts simpliciter, the purely personal torts, of the wife, and that this remains as at common law; but that the husband is not liable for the wife’s torts when committed in the management of her separate property and out of the husband’s presence, not under his direction and without his participation.

The courts of this State consistently hold that, despite our statutes affecting the status of married women, the husband is still liable for the wife’s purely personal torts, as at common law.

Instances are: Nichols v. Nichols, 147 Mo. 407 et seq., in which case the husband and wife were sued by their daughter-in-law for their act in alienating from her the affections of her husband, their son; Taylor v. Pullen, 152 Mo. 434, in wliich case the basis of the action was slander uttered by the wife, “without the presence, knowledge or consent” of the husband; Bruce v. Bombeck, 79 Mo. App. 231, in which case the facts were that the wife (so the jury found) was racing a horse in a city street and negligently struck and injured plaintiff.

The case of Wirt v. Dinan, 44 Mo. App. 583, was one in which the wife was charged with stealing cattle and selling them to plaintiff, falsely representing them as her own and that she was unmarried. The suit was to recover the” amount paid the woman for the cattle. The husband was held liable. The case arose prior to the enactment of the statute capacitating the wife to be sued as femme sole, though she might sue to protect her separate personalty. [Laws 1883, p. 113.] Ellison and Gill, JJ., concurred in the result only. The opinion is to the effect that the wife’s contract was void and that it was as if it had never been; that to sustain the action did not give any effect to the contract and, consequently, it was, in effect, a simple action for the wife’s fraudulent representations and fell within the general common law rule refining the husband’s liability for the wife’s torts. Whether we approve or disapprove the reasoning employed and the result reached, it is clear the decision adds nothing to those already mentioned, but falls within the same class.

Since these decisions, and their like, deal only with the simple personal torts of the wife, they are not authority beyond that field. For such torts the husband was liable at common law and the husband’s liability for such torts, these cases hold, is unaffected by the statutes changing the status of married women.

In this case the apartment house was Mrs. Shellaberger’s statutory separate estate. By the express terms of the statute (Sec. 8309', R. S. 190-9'), it was “under her sole control” and in no way liable for her husband’s debts. With respect to her right to manage the property and to contract and be contracted with, to sue and be sued, and enforce and have enforced against her property any judgments rendered for or against her, the statute (Sec. 8304, R. S. 1909) explicitly provides she shall be deemed a femme sole.

Under the common law, had there been no statutes affecting the situation, the husband would have been entitled to the use of the apartment house and the wife could have made no contract concerning it, nor could she have had an agent in connection with it. The statúte, however, declaring that the wife’s property, real and personal, shall be her separate property and it shall “be under her sole control” and declaring that she £ £ shall be deemed femme sole so far as to énable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued,” etc., both excludes the husband as a factor so far as the wife’s property, business and contracts are concerned and provides remedies' against her in behalf of those who have rights to enforce.

To hold that such a sweeping change in the wife’s status, introducing relations and activities on the part of the wife unknown to the common law, opening a field for torts by the wife which her former status made impossible, left the husband liable for torts committed by her in connection with the management of her separate property, would be not merely to adhere blindly to an ancient rule, but to attempt to bring within it things which could not have been within its purview as formerly understood.

The statutes wholly emancipate the wife, at least so far as her separate property is concerned, and open new fields of endeavor closed to the wife by the common law. Since the husband is left no legal right to inter-meddle with the business affairs and property of the wife, it is not logical to admit him to her new sphere solely that he may pay damages for torts the wife commits therein, excluding him for all other purposes.

The igreat weight of authority supports the conclusion that the husband is not liable in this case. [Quilty v. Battie, 135 N. Y. 201; Rowe v. Smith, 45 N. Y. 230; Henley v. Wilson, 137 Cal. l. c. 274, citing Pomeroy on Remedies and Remedial Rights, secs. 320, 321; Wolff & Co. v. Lozier, 68 N. J. L. l. c. 107; Harrington et ux. v. Jagmetty et ux., 83 N. J. L. 548; 1 Cooley on Torts (3 Ed.), sec. 135, p. 197; Vanneman v. Powers, 56 N. Y. l. c. 43.]

It is urged, however, that in Flesh v. Lindsay, 115 Mo. 1, this court passed upon the question here involved and committed itself to the position opposed to that taken in the cases just cited. An examination of the authorities in other jurisdictions discloses that such is the general reputation of the case of Flesh v. Lindsay. Such, however, is not its character.

In that case the principal question discussed was whether the wife could he held for loss caused by the falling in 1887 of a party wall weakened by the negligence of workmen making repairs on a building erected on a lot inherited by the defendant wife in 1877. The workmen were employed by the husband, with the knowledge and consent of the wife. That case is not in point as it appears from the facts (1.) that the property there involved was not the separate property of Mrs. Lindsay, as the court expressly, states in the opinion and as the facts stated clearly show; (2) that the statutes making the wife’s realty her separate property and declaring it should be under her sole control and declaring she should be deemed a femme sole with respect to her right to transact business, contract and be contracted with, sue and be sued, were not enacted until 1889, two years after the tort was committed in 1887, and were prospective in effect; (3) and that the real question discussed was not the husband’s liability, but that of the wife. Flesh v. Lindsay is not in point.

Nor is the Act of 1881 opposed to the conclusion that the husband is not liable in this case. That act is to the effect that: “The husband’s property, except such as may be acquired from the wife, shall be exempt from all debts and liabilities contracted or incurred by his wife before their marriage.” [R. S. 1889, sec. 6870.]

In Nichols v. Nichols, supra, it was said that “upon the familiar principle of expressio wnius, exclusio alterius” the act was “a positive expression of the legislative intent as to the extent to which” the married women’s statutes should exempt the husband from liability for the wife’s torts. That case, however, involved the question as to the husband’s liability for the wife’s torts simpliciter. It cannot be supposed that the , act was intended to extend the field of the husband’s liability. When it was passed (in 1881) the wife could have no statutory separate estate in realty. Such separate estate as she might have called for a trustee and was equitable. Besides the Act of 1881 can hardly be held to modify the effect of the acts of 1889 relating to married women. The re-enactment of the Act of 1881 in the revised bill of 1889 merely continued it as before and added nothing to its force or effect. The construction given the Act of 1881 in Nichols v. Nichols, supra, is fully preserved by applying it now to the legal status in the light of which it was first enacted. This was all that was done in the Nichols case.

We conclude that under the facts of this case appellant is not liable. The judgment is reversed.

All concur, Woodson, J., in separate opinion.

WOODSON, J.

I fully concur in the opinion of my learned associate filed in this case, not only for the reasons therein stated, but for the further reason I never have and never will subscribe to the doctrine that the husband is responsible for any of the torts of his wife committed after the enactment of the Married Woman’s Act of 1889.

There was a show of reason and justice for that rule prior to the emancipation of the wife and her property from the grasp of the husband. Then he took possession of her person and property by nature of the marriage — they becoming one, and he that one, and as. an incident thereto he swallowed up her property also. Having thus absorbed the personnel of his wife and her property, it was considered but just that he should assume all of the responsibilities for which she otherwise would have been liable. Otherwise, no redress ■ whatever could have been had for the torts committed by her.

But now, under the liberal legislative enactments- and judicial rulings completely emancipating the wife from her husband in all property and business relations, it seems to me that there is no longer a vestige of law, reason or justice left upon which to base a claim for damages against the husband for the separate torts of the wife. Such rulings are in my opinion wrong in morals and a travesty upon justice.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    EARL N. BOUTELL v. EDWARD F. SHELLABERGER, Appellant.
    Division One,
    March 2, 1915.
    For the reasons stated in the case of Boutell v. Shellaberger, ante, page 70, the judgment in this case is reversed.
    Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.
    Reversed.
    For attorneys and briefs, see ante, page 71.
   BLAIR, J.

The controlling question in this case is the same as that in the case of Minnie A. Boutell v. Edward F. Shellaberger, ante, p. 70. For the reasons given in the opinion in that case the judgment in this case is reversed.

All concur, Woodson, J., in separate opinion.


author: WOODSON, J.

text:
    CITY OF HARRISONVILLE, Appellant, v. NORA F. FOSTER et al.
    Division One,
    March 2, 1915.
    1. EJECTMENT: Street: Limitations: Possession Begun Prior to 1866. Adverse actual possession of a strip of ground designated on a plat as a street, begun by fencing the same and constructing a house thereon prior to 1860, and continued ever since except about one year during the Civil War beginning with October, 1863, bars a recovery by the city.
    '2. RES ADJUDICATA: Not Pleaded: Collateral Matter. A stipulation that the case is to abide the result in another case, and an adverse adjudication in such other case, to be held to be res adjvMoata should be pleaded, and the matters therein adjudicated should not be merely collateral to the issues on trial.
    .Appeal from Cass Circuit Court. — Eon. A. A. WMtsett, Judge.
    Affirmed.

      Charles W. Sloan and W. D. Summers for appellant.
    (1) The city of Harrisonville was the proper party to sue in ejectment for streets and alleys dedicated to public use. California v. Howard, 78 Mo. 88; Columbia v. Bright, 179 Mo. 441; McCarty v. Clark ■County, 101 Mo. 182; Elevator Co. v. Railroad, 135 Mo. •366. Nor can laches be imputed to a city or its officers for negligence or delay in suing. Wright v. Doniphan, 169 Mo. 614; St. Louis v. Railroad, 114 Mo. 24; State •ex reí. v. Vandalia, 119 Mo. App. 423; City Products Co. v. St. Louis, 246 Mo. 461. (2) The finding of facts and judgments, rendered by the circuit court, were unsupported by the uncontradicted facts in the ■case, on the following grounds: (a) It was admitted that plaintiff was a party to the suit of Naylor v. Harrisonville, 207 Mo. 341, in which the plat of said city was the same as the one in this case, in which plaintiff recognized the plat as valid and which plat showed she claimed block 223, and which plat showed a dedication of the streets, including the one involved in this suit, and that she is bound by the adjudication and construction of said plat by said court. Said last case decided the streets were as dedicated fifteen feet wide. When said plat was once offered and relied on by plaintiff in said suit it was vouched for as showing a dedication of all the streets as shown by said plat. Parties are always bound by admissions in other cases made in pleadings against their interest. Merriwether v. Knapp & Co., 224 Mo. 627. The plat being offered in Naylor case, there being no limitation in the offer, was evidence for all purposes and showed a dedication of what purported to be streets. Sobier v. Transit Co., 203 Mo. 702. (b) The judgment and finding of facts in case of Naylor v. Harrisonville, 207 Mo. 341, defendant Poster being a party thereto, were admissible as evidence and binding on defendant in this case. Offut v. John, 8 Mo. 120; McNair v. Ofallon, 8 Mo. 205; 1 Greenleaf, Ev. (15 Ed.), secs. 531 and 534; Tyler v. Hall,' 106 Mo. 313. “Where the effect of a judgment is to settle a particular fact that issue must be held res adjudicate/, as to the adversary parties.” Dodge v. Knapp, 112 Mo. App. 527; Pond v. Huling, 125 Mo. App. 182; Brown v. Railroad, 96 Mo. App. 164; Nave v. Adams, 107 Mo. 414; Chotean v. Gibson, 75 Mo. 38. Besides all matters which belong to the subject of litigation which parties might have raised are as binding as if specifically put in issue. Young v. Byrd, 124 Mo. 590; Summit v. Realty Co., 208 Mo. 511; Donnell v. Wright, 147 Mo. 647; Trust Co. v. Nathan, 122 Mo. App. 328; Spratt v. Early, 199 Mo. 501. (c) The defendant having only filed a general denial and not disclosing the nature of her defense, plaintiff was not bound to plead estoppel. Tyler v. Hall, 106 Mo. 319; Powell v. Tinsley, 137 Mo. App. 559; Ess v. Griffith, 139 Mo. 332; Long v. Coal & Iron Co., 233 Mo. 738. (d) The plat showed sufficiently a dedication of the street or alley in controversy. Naylor v. Harrison-ville, 207 Mo. 341; Buschmann v. St. Louis, 121 Mo. 536; State ex rel. v. Road Co., 207 Mo. 106. Acceptance by public is not even necessary to constitute dedication. Reid v. Board of Education, 73 Mo. 295. (3) There was absolutely no evidence to support the finding of facts and judgment based on the defense of the Statute of Limitations, (a) Since August 1, 1866, no one can acquire title by adverse possesison to any street or alley in any town or city. Sec. 4270, R. S. 1909; Brown v. Carthage, 128 Mo. 17; Hendrickson v. Gradble, 157 Mo. 42; Dice v. Hamilton, 178 Mo. 81;. McGrath v. Nevada, 188 Mo. 102; Railroad v. Baker,. 183 Mo. 323. (b) The burden rested on defendant to show adverse possession and to fix the time when she- and those under whom she claims “began to hold adverse to the true title.” Lumber & Mining Co. v., Jewell, 200 Mo. 716; Hunnewell v. Adams, 153 Mo. 440; Hunnewell v. Burchett, 152 Mo. 611. (c) The-burden also devolved on defendant to show that the adverse possession of defendant and those under-whom she claims had begun prior to August 1, 1866,. and has continued unbroken. Railroad v. Baker, 183. Mo. 312; Hendrickson v. Gradble, 157 Mo. 48. And this adverse possession must be under claim of title without, a break. Lynde v. Williams, 68 Mo. 365; Wilkerson v.. Eilers, 114 Mo. 254.

      D. G. Barnett for respondent.
    (1) “A presumption in favor of the correctness, of the finding of the court sitting as a jury in a law-case [ejectment] is to be indulged, just as it is indulged in favor of the correctness of a verdict of a jury in a like case; that is, it will not be disturbed by-the Supreme Court unless there is an absence of substantial evidence to sustain it.” Yincent v. Means, 207 Mo. 709; Irwin v. Woodmansee, 104 Mo. 403; Blandían v. McManus, 100 Mo. 129; Skinker v. Haagsman, 99 Mo. 209; Hamilton v. Boggess, 63 Mo. 243. ( 2) If plaintiff ever had title, the Statutes of Limitations have run against it; for plaintiff is not shqwn ever to have had possession, and the actual, open, adverse possession of Coleman Parmer began in 1857, by inclosing the tract now held by defendant and building a house thereon and moving into and occupying the property. This started the running of the statute against plaintiff, if plaintiff ever had the legal title, which is denied by defendant. And the statute once started to run is presumed to continue uninterruptedly. And as the statute ran against the public before August 1, 1864 if it was started before that period, the passage of that statute did not stop it. Evidence is ample to support such possession of defendant and her predecessors in title and possession. And any temporary absence, if any, does not break the continuity of the possession. Hubbard v. Dry Goods Co., 209 Mo. 504; Hunter v. Pinnell, 193 Mo. 146; Crispen v. Hannavan, 50 Mo. •550. (3) The adjudication in the Naylor case does not work an estoppel on defendant here, nor prevent her from objecting to any evidence offered by plaintiff. The fact that in the former suit (companion of Naylor suit, 207 Mo.), the plaintiff there, defendant here, offered the plat in evidence in the trial court, and the plaintiff here, the defendant city there, objected to its admission in the trial court, but did not urge its objection in this court, and the admissibility •of said plat was not passed on, but treated by this court and both parties in this court as properly admitted, does not so consecrate said piece of evidence used in that case that either plaintiff or defendant may not object in another suit in regard to another matter in another and subsequent case. As to the principle of estoppel, it is sufficient to say that in order for one to be estopped by a former adjudication, the parties, must be the same or privies, the subject-matter must be the same (or such as could have been in contemplation of the parties and adjudicated therein), and the issues in the latter suit must have been directly adjudicated in the former. While there was a former suit between the parties, it was over the question as to whether the city had a right to compel defendant here? to build a sidewalk, along the much-traveled street west of her property; in the case at bar, it is whether the plaintiff has the legal title and is entitled to the possession of an alleged strip of ground along the east side of her property, with damages for withholding possession. Clemens v. Murphy, 40 Mo. 121; Spurlock v. Railroad, 76 Mo. 67; Tutt v. Price, 7 Mo. App. 194 Hickerson v. Mexico, 58 Mo.'65; State ex rel. v. J ames,. 82 Mo. App. 373; Barkhofer v. Barkhofer, 93 Mo. App. 373; G-arland v. Smith, 164 Mo. 1; Comstock v. Eastwood, 168 Mo. 42. •
   WOODSON, J.

This is an ordinary action in ejectment brought by the plaintiff against the defendant to recover a strip of ground fifteen feet wide, running north and south between blocks 222 and 223, in the city of Harrisonville, Cass county, Missouri, called a street or alley.

The petition was in the usual form, and the answer was the Statute of Limitations and a plea of an estoppel.

The trial was had before the court, a jury having been waived.

No instructions were asked or given. The court at the request of the parities made the following finding of facts:

“The court finds that the plat introduced in evidence is valid, and the same is by the court received and considered as evidence in this case.

“The court further finds that the defendant, her grantors and those under -whom she claims, have held open, adverse and notorious possession of the land, or all that part thereof contained within the fence now erected and standing and used to enclose her possessions, as shown by the evidence, and that same has been, continued since its beginning which was in the year-1857, and that claim has been made to title thereto,, since said date and that defendant still holds the same,, claiming title thereto, and that the statutes have run in favor of defendant and against plaintiff as to all that part within the inclosure aforesaid.

“That the owners of property in said block so occupied by defendant have purchased the same and made improvements thereon in said block, with the-knowledge of the possession of defendant and the claims of defendant.

“That defendant purchased the property and made improvements thereon in said block with the-knowledge of the fact of such occupancy, and the long continued occupancy prior to her acquiring the same, and should be protected in her purchase and claim and possession.

“That plaintiff, the city of Harrisonville, has by and through its officers, failed to take any steps or make any claim as to the same up to the time of the-bringing of this suit, which was over fifty years since the first fence was erected and possession taken, and that the present fence is located on or at the place where the fence stood or was. first erected about the year 1857, and before August 1, 1866.”

I. This cause having been tried by the court without a jury, and there having been no instructions asked or §’^ve:a> there is nothing for the court to-do except to determine whether or not there was sufficient evidence introduced to support the findings of the court.

The plat mentioned in the findings of the court is the same plat that was introduced and passed upon by this court in the case of Naylor v. Harrisonville, 207 Mo. 341.

Mattie Farmer, Lizzie Cummings, - Jones, Rilda G-idean, R. L. Foster, J. W. Graham, Nora Foster, E. 0. Deacon, U. L. Ragan and Frank Chilton all testified in substance that they had known the property in controversy ever since the early fifties; that there was then a brick house standing on a part of the ground, and that it was occupied and fenced in all the time except during a period of about one year during the war, when the fence was burned for wood, by people going there to escape “General E;wing’s Order No. 11,” in October, 1863.

A number of these witnesses testified that they •occupied the house during different years; and that when the old house was torn down a new one was •erected in place thereof, which is still standing.

There is no question but what this evidence made out a case for the defendant, and fully warranted the findings of the court.

II. Plaintiff insists that the judgment should be reversed because the matters involved in this case were adjudicated in the case of Naylor v. Harrisonville, supra, and eases which upon stipulation abided the result of that case.

It is a sufficient answer to that contention to state that no such question was presented by the pleadings, and is therefore not properly before this court; and 'besides the matters there adjudicated were collateral to the things here presented.

Finding no error in the record the judgment is affirmed.

All concur.


author: BOND, J.

text:
    A. W. FOSTER v. FIDELITY SAFE DEPOSIT COMPANY, Appellant.
    Division One,
    March 2, 1915.
    1. MISLAID MONEY: Rightful Custodian: Ownership. Where money has been intentionally placed on a desk in a safety deposit vault, and carelessly or forgetfully left there, and has been, picked up there by a customer who has a lock box in the vault, and in examining his own papers discovers it, and leaves it with the company owning the vault to be delivered to the true-owner when found, in a subsequent suit by him against the-company for the money, the question of who owns the money is not in the case, but the question for adjudication is, who-is the rightful custodian, and who was in possession when it was. picked up by plaintiff?
    FINDING LOST MONEY: Possession. Money in the possession of another cannot be found, in the sense of the law of lost property, for the reason that it is not lost.
    3. MISLAID MONEY: Placed on Desk. Money discovered in a drawer, or on a table, or on a desk where money and valuable papers are customarily handled, will be considered as having been placed there purposely by the owner, and is not classed by the law as lost property. The circumstance of its being after-wards forgotten does not relate back and characterize the original act. But having been purposely placed on the desk, and then through forgetfulness or inattention left there, it was left in the possession or (better) the protection of the house.
    4. -: -: Right to Possession. Plaintiff had a compartment rented in defendant’s safety deposit vault, and took therefrom his box in the usual way, and was admitted by defendant’s attendant through an automatically locking door into a private room reserved for the use of customers while examining their papers. On the corner of the desk in that room he noticed an envelope which “seemed a little puffy.” He looked into it, and saw it contained $180 in paper money. Neither the envelope nor the money bore any name or identifying mark. He took his box back to the vault, and supposing the money belonged to some of defendant’s customers handed it over to one of its officers to find the owner, but after several years of endeavor defendant has not found the owner, and plaintiff sues for the money. Held, first, that the provisions of the statute relating to the specific duties of the finder of lost personal property (Sec. 8268ff, E. S. 1909) are inapplicable because the money, was not lost, but haying been intentionally placed on the desk, was merely left in the constructive possession of 'the defendant, seemingly by inattention and forgetfulness; and, second, the money, both before it was discovered by plaintiff and after it was handed by him to defendant’s officer, was in possession of defendant, who is its rightful custodian until the true owner is found, and plaintiff has no right to recover possession of it.
    Appeal from Jackson Circuit Court. — Hon. John I. Williamson, Judge.
    Reversed.

      Rowersock, Hall & Hook and Robert B. Fizz ell for • appellant.
    (1) The envelope containing the money in question could not have been lost so as to constitute the plaintiff the finder thereof, because it was discovered upon a desk in defendant’s coupon room where it had been placed by a preceding occupant. Hoagland v. Amusement Co., 170 Mo. 342; Loucks v. G-allogly, 23 N. T. Supp. 126; McAvoy v. Medina, 93 Mass. 548; Lawrence v. State, 1 Humph. (Tenn.) 228; Kincaid v. Eaton, 98 Mass. 139; Haymaker v. Blanchard, 90 Pa. St. 377, 35 Am. Rep. 664; Deadrick v. Oulds, 86 Tenn. 14; Bank v. Pleasants, 6 Wharton (Pa.), 375; 19 Cyc. 539; 19 Am. & Eng. Ency. Law (2 Ed.), p. 597. (2) A safe deposit company is entitled to the custody of all valuables left on its premises by a customer regardless of whether such goods are discovered by an employee of such company or by a third party. The nature of the business of a safe deposit company, the supervision it exercises over its premises, its intent to exercise possession and control of all valuables left thereon, and the interest of the company’s depositors make it imperative that the company be made the custodian of such valuables. If it be held that property left on the premises of a safe deposit company is lost, then the finder is entitled thereto as against the company, even though such finder he an employee. Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172; Hay-maker v. Blanchard, 90 Pa. St. 377, 35 Am. Rep. 664; 'Tatum v. Sharpless, 6 Phila. (Pa.) 18. Accordingly, such finder could not turn over the property to the company to hold for the true owner, but must at once begin to advertise said property as a step toward making his title complete and divesting entirely the ownership of the loser. R. S. 1909, secs. 8268-8273.

      Garnett & Garnett for respondent.
    (1) The law is well settled and the rule is universal that the finder of an article of which the owner is unknown has a valid title to it against all the world except the true owner, and that the place where, or the premises upon which, the article is found constitutes no exception to the rule. The defendant does not and cannot controvert this proposition. 19 Am. & Eng. Ency. Law (2 Ed.), 581; Danielson v. Roberts, 44 Ore. 108; Weeks v. Hackett, 104 Me. 264; Kuykendall v. Eisher, 61 W. Va. 87; Bowen v. Sullivan, 62 Ind. 281; Hamaker v. Blanchard, 90 Pa. St. 377; Durfee v. Jones, 11R. I. 588; Tancil v. Seaton, 28 Gratt. 601. (2) While conceding the foregoing proposition, defendant contends that the “money was not lost so as to constitute plaintiff the finder thereof” and cites cases attempting to define the word “lost,” wherein a different question was before the court, than the one at bar. Now “lost” is a relative term. An article may be lost in one sense and not in another. In a controversy between the finder and a third party, if a definition should be attempted it would be that “an article is lost when the owner thereof is unknown.” We all .know where the money is in this case. It is the owner who can’t be found. He is lost. Note the distinction in the cases cited by appellant and in the following cases: Tatum v. Sharpless, 6 Phil. 18; Bridges v. Hawkesworth, T Eng. Law & Eq. 424; and the cases supra. The controlling element in cases like the one at bar is the-fact that the owner is unknown. An obligation rests, upon the person coming into possession of property when the owner is unknown. He is in duty bound to-keep possession and make every effort to find the-owner. This duty is recognized not only by the rules, of common law, but enforced by the statutes of this. State, which provides that the person finding any money, etc., “of the value of ten dollars or more the owner of which is unknown,” shall make affidavit “that the owner is unknown to him. ” If in compliance with the statutes -he advertises the property “and if no-owner prove the property within one year after such publication, the same shall vest in the finder.” “Lost, and Unclaimed Property.” Chap. 75, R. S. 1909;. Bridges v. Hawkesworth, 7 Eng. Law & Eq. 424; Tatum v. Sharpless, 6 Phil. 18; Danielson v. Roberts, 44 Ore. 108; 2 Schouler Per. Prop., secs. 5 and 8 (4) The place in which an article is found may or may not. be a material fact to be considered in determining-whether or not the article was lost. Simply a question of evidence. 19 Am. & Eng. Ency. Law, 581. The-place of finding is simply to be considered "with all the-other facts and circumstances in determining whether the article was lost or not. (5) No declarations of law were asked or given and no special finding of facts requested or made. The court after considering the probative force of the place where the money was found' together with the other facts and circumstances in evidence, found the issues in favor of the plaintiff. “The court in trying issues of fact sits as a jury and gives a general verdict; and the only way in which its errors can be corrected, if it decides the law wrongfully, or makes a misapplication of the law to the facts, is to ask declarations of law or instructions, in order that we may see on what theory the court proceeded. To attemtp to review this case would be simply giving our opinion upon the weight of evidence, when no point of law was raised or saved in the trial court. This we ■cannot do.” Weitandy v. Lemuel, 43 Mo. 322; Miller v. Bremke, 83 Mo. 163; Bank v. Tract. Co., 179 Mo. 648; Bethune v. Eailroad, 139 Mo. 574; Wischmeyer. v. Eichardson, 153 Mo. 556. (6) “When the finder of •a lost article has delivered it to a third person, to be kept for the owner, or for the finder in case the owner ■does not claim it, the finder, on refusal of the bailee to return the article, may recover it, if no claim has in the meantime been made by the true owner.” 19 Am. & Eng. Ency. Law (2 Ed.), 580; Bridges v. Hawkesworth, 7 Ene. L. & Eq. 424; Bowen v. Sullivan, ■62 Ind. 281; Tancil v. Seaton, 28 Gratt. 607.
   BOND, J.

This case comes to this court on the ■dissent of one of the Judges of the Kansas City Court of Appeals to the decision of the majority of said court, and a request that it be certified here as being in conflict with two of our decisions. The facts and conclusions of law applicable to them are ■clearly and accurately stated in the following extracts from the decision of Judge Ellison, speaking for the Kansas City Court of Appeals:

“Defendant is a safe deposit company. It maintains individual safes or compartments which it rents to customers for the safe-keeping of money and other valuable articles. Each of these contains a box- which may be withdrawn and in which the- customer places his money, papers or other valuable articles. It requires two keys to open one of these safes, one carried by the customer and the other by the attendant in charge. Its place of business is on the same floor and in practically the same room occupied by a banking institution known as the Fidelity Trust Company; it being separated therefrom by a steel fence. A customer enters from the street through the bank, thence through a steel gate operated by an attendant, thence into a vault through another gate opened by an attendant. Here he and the attendant open his compartment^ and he takes out his box and goes to a small private room containing a desk and- chair. ' On the desk are some envelopes, blotters and a pair of scissors. He is admitted into this by an attendant, and when he leaves,, the door closes and locks automatically; whereupon the attendant unlocks it and makes the room ready for the next occupant. .

“Plaintiff had a compartment rented of defendant, and on the afternoon of April 13,1906, he took his-box therefrom in the usual way, was admitted into-one of these private rooms by the attendant, where he examined some papers in his box, and as he was-about to leave the room he noticed an envelope lying on the corner of the desk ‘that seemed to be a little puffy.’ He looked into it and found it contained $18fi in bills. Neither the envelope nor the money had any name or mark of identification. He took his box back to the vault, and supposing the money belonged to-some of defendant’s customers, handed it over to one of its officers to find the owner.

“Uefendant keeps a record of the name of each-customer and the day he takes his box from the vault,, and it has written to each customer who took out his-box on the day plaintiff discovered the money, and it has made diligent search for the rightful owner, but. up to the time of the trial (30th November, 1910) had. not found him. After a time plaintiff demanded a return of the money, and defendant refusing to deliver-it, this action followed, in which plaintiff had judgment.

“Neither plaintiff nor defendant claims to be the-owner of the money. Plaintiff makes no pretence that, the money was intentionally abandoned by the owner, and if he should be successful in this action, he must-institute certain - proceedings prescribed by ■ sections. 8268-8273, Eevised Statutes 1909, concerning lost property, whereupon, if no owner appears by the end of a year, he would become the owner by force of the law. The question for decision, therefore, is not who owns the money, but which of the parties is entitled to the possession of it; or, better stated, which is the proper custodian. Plaintiff, to sustain himself, must show that he found money which was lost. Property in the possession of another cannot be found, in the sense of the law of lost property, for the reason that it is not lost. Even if discovered in possession of the thief who stole it, the discoverer has not found it, for the reason that being in the thief’s possession, it is not lost. If, therefore, the money in controversy was in the possession of defendant when discovered by plaintiff, plaintiff could not have found it, as that word is understood in the law of lost property. . . .

“Now in whose possession was the money when discovered by plaintiff? It could scarcely have been more in defendant’s possesison, unless it had been in the pocket of one of its officers. It was not only in defendant’s place of business, but was in a separate apartment, from which the public was excluded; and, more than that, it was on a desk in a little private compartment kept under the immediate and constant guard and supervision of one of defendant’s attendants. A roguish street urchin, if by possibility he had gained access to this place and discovered the envelope on the desk, would have had the same right to it that plaintiff had. Suppose the attendant had observed the boy as he found it; would he have been justified in letting him carry it off? Would it not have been his duty to assert defendant’s right of possession and to take it from the boy? Would not the real owner, had he after-wards appeared, have had legal grounds of complaint against defendant, as his bailee, for gross neglect in allowing the money to be carried off in full view? It is no answer to this suggestion nor does it show any distinction between the supposed case and the real one, to say that in the former the owner appeared and in the latter he had not. For, whatever legal right there was to possession of the money, came into existence the moment plaintiff discovered it. If it was in defendant’s possession then, it remained in its possession, and it should hold it for the owner, subject to :such rights and duties as arise under the law of bailment or trusteeship. If plaintiff found the money, in the leg’al sense, then he was entitled to the possession, no matter whether the owner was afterwards ascertained or not. He was entitled to the possession as a step in his ultimate ownership, if no owner appeared .after he had gone through with the statutory process ■as to lost property. If plaintiff was the finder of lost property, in the legal sense, he was under no duty nor •obligation to leave it with defendant to ascertain the •owner, or to say anything about it. . . .

“So, therefore, we repeat that the rights of each •of the parties to this controversy were full grown the moment plaintiff discovered the money. The subsequently developed fact of no owner being found up to the date of this action, does not affect the status of ■either party as to the right of possession at that time. And the question on the supposed case recurs: Would 'it have been the duty of the attendant to have asserted ■a right in defendant' to possession as against the urchin’s claim of finding it? The answer is plain. If the money was lost, in a legal sense, defendant had no sort of possession of it and owed no duty towards it and had no right to question the honesty of the finder. But if defendant did owe a duty to it, then it was in its ■custody and plaintiff could have no claim as a finder; for it is not within the bounds of reason or good understanding to say that a thing is lost which is in the possession of another and under that other’s protection.

“Authority is abundant and uniform in support of defendant’s possession and right of custody. Beginning first with our own State, we have the case of Hoagland v. Amusement Co., 170 Mo. 335, an action for unlawful arrest and assault and battery. Defendant operated a summer place of amusement and refreshment in the open air, all parts of which were free and open to the public except a theatre which was fenced off from other parts. Plaintiff attended the theatre and then took a seat at one of the many tables scattered about the premises, where he found a pocketbook lying on the ground. In attempting to leave the pocketbook at the ticket office, which he found closed, he got into a dispute with some of the defendant’s employees, who claimed to be the proper custodians of the pocketbook, and the assault he complained of was made. In the course of the opinion, the Supreme Court stated the law as to lost property in these words (italics ours): “ ‘Now, the authorities as a general rule hold that money or other property voluntarily laid down and forgotten is not, in legal contemplation, lost, and that the owner of the shop, bank or other place where it is left is the proper custodian rather than the person who happens to discover it, as well also as to all other persons except the owner.’

“But plaintiff insists that this statement of the law is a mere dictum, made without careful consideration of the cases cited in support of it. Passing by any discussion with plaintiff as to whether the proposition is dictum, and passing by any question that, dictum or not, it is our duty to follow it, an examination of the authorities on the question leaves no doubt that what the court stated in Hoagland v. Amusement Co. has been recognized as the law wherever a like question has arisen. It seems to us that counsel treats too lightly the distinction made between conditions in which money or other valuables may be discovered by an alleged finder. Property may be separated from the owner by being abandoned, or lost, or mislaid. In the first instance, it goes back into a state of nature, or, as is most commonly expressed, it returns to the common mass and belongs to the first finder, occupier or taker. In the second instance, to be lost, it must have been unintentionally or involuntarily parted with, in which case it is also an object which may be found and the finder is entitled to the possession against every one but the true owner. But, if it is intentionally put down, it is not lost in a legal sense, though the owner may not remember where he left it, and cannot find it. For ‘the loss of goods, in legal and common intendment, depends upon something more than the knowledge or ignorance, the memory or want of memory, of the owner, as to their locality at any given moment.’ [Lawrence v. State, 1 Humph. 228.] From these uniformly recognized rules of law on the subject of lost property has naturally sprung the importance of the condition or situation in which property is alleged to have been found. And the law in this instance, as in so many others, founds its rule upon the natural action of men and not upon a possibility. Thus, articles of property may be such and circumstances may be such as to make clear they have been voluntarily abandoned by the owner. But normally, men do not voluntarily abandon their money. Therefore, if money be discovered in the highway, or on the ground, or on the floor,, ■ it will not be considered as abandoned, nor will it be considered as placed there voluntarily, for that wuuld be unnatural, but as having been lost — that is, casually and unknowingly dropped. But if it be discovered in a drawer, or on a table, it will be considered as having been placed there purposely by the owner, and it is. not classed by the law as lost property. The circumstance of it being afterwards forgotten does not go-back and characterize the, original act.

“Therefore if a person goes into another’s public place to transact business with him and places his money on .a table or desk and. comes away forgetting he had done so, he has left it in the possession of the owner, or, as is expressed, he has left it within the protection of the house. This rule has been stated and conceded to be established law, in a number of cases where the situation of the property was such as to make it lost property. We will first refer to these. A case referred to with much frequency is that of Bridges v. Hawkesworth, 7 Eng. L. & Eq. 424. There the plaintiff, being in the defendant’s public shop, found money on the floor, and it was held he was entitled to the possession as finder. The court saying that ‘the notes never were in the custody of the defendant, nor within the protection of his house, before they were found, as they would have been had they been intentionally deposited there. ’ All the cases (we have not found an exception) which recognize the right of the finder of property in a public house or place of business, recognize the rule that if the money is discovered on a table, or desk, or in a drawer, it is not lost in a legal sense, but is within the possession and protection of the owner of the house.

“Thus in Hamaker v. Blanchard, 90 Pa. St. 377, a servant found money on the floor of one of the public parlors of a hotel, and it was held that she was entitled to it against every one but the true owner, the court, however, stating: ‘But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter or other place, by the owner who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surroundings evidence that the article was deposited in its place, the finder has no right of possession against the owner of the building.’ The same distinction is made in the instance of money having been left in an old safe and thence had slipped or been aceidently shoved in a crevice in the safe and thns become hidden. [Durfee v. Jones, 11 R. I. 588.] And where money was found in an envelope on the floor of a paper mill, which manufactured paper from old paper, the owner of the mill claiming that he had bought the money with the envelope. [Bowen v. Sullivan, 62 Ind. 281.]

“But the rule stated by the Supreme Court in the Hoagland case does not depend for support alone on mere recognition, as in the foregoing cases. It has been applied uniformly in cases which are like the one at bar. Thus in McAvoy v. Medina, 11 Allen, 548, the court said: ‘But this property is not, under the circumstances, to be treated as lost property in that sense in which a finder has a valid claim to hold the same until called for by the true owner. This property was voluntarily placed upon a table in the defendant’s shop by a customer of his who accidently left the same there and has never called for it. The plaintiff also came there as a customer, and first saw the same and took it up from the table. The plaintiff did not by this acquire the right to take the property from the shop-, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe-keeping of the same until the owner should call for it.’ And in Kincaid v. Eaton, 98 Mass. 139, the' court went the iength of holding that even where the owner left his pocket-book on a desk in a bank, and, supposing- he had lost it, advertised a reward to anyone who found it, he who discovered it on the desk was not entitled to the reward as it had not been lost and was not found. The court said that: ‘To discover an article voluntarily laid down by the owner within a banking house, and upon a desk provided for the use of such persons having business there, is not the finding of a lost article. The occupants of the banking house, and not the plaintiff, were the proper depositaries of an article so left. The plaintiff has not established a legal right to the reward according to the terms by which it was offered, and therefore cannot retain his verdict. ’

“The case of Loucks v. Gallogly, 23 N. Y. Supp. 126, bears great likeness to the one before us. There the plaintiff discovered fifty dollars in bills on a desk in the National Exchange Bank of Albany, and handed it to the bank teller to hold for the owner, and none made claim. Two years passed and plaintiff sued the teller. The court said that: ‘It has been held that in order to constitute legal losing the thing must have been actually lost by the owner, and not merely mislaid; that is, he must not voluntarily and purposely have laid it away in a certain place for a time, with the intention of retaking it, and then have forgotten where he had placed it; but it must have involuntarily and accidentally, as respects the owner, gotten out of his possession.’

“The case of Deaderick v. Oulds, 86 Tenn. 14, concerned the right to possession of a lost log. It seems that defendant found it stranded upon rocks in a stream, and that he turned it loose into the stream to float down to his boom below; but before it reached there the boom broke and the log floated onto and lodged upon an island belonging to plaintiff. Plaintiff claimed it as a lost log and as owner of the land upon which it lodged. Defendant claimed it as the original finder and took it from the island; whereupon plaintiff brought replevin. The court, in the course of an opinion by Justice Lukton, now of the "United States Supreme Court, said, in cases of alleged lost property, that: ‘It is essential, however, in such cases that the property must be found; that is, it must, at the time when the finder came upon it, have been in such a situation as to clearly indicate that it was lost, and not voluntarily placed by the owner where it was found, by carelessness or forgetfulness. If it was evidently laid where it was found, it then becomes the duty of the owner of the premises, to keep the property for the owner, as in snoh cases he is treated as a quasi-bailee, and he may maintain trover therefor against the finder; as if a pocketbook is found upon a desk or counter in a store or bank, the presumption is that the owner placed it there and forgot it.’

“A case to which we have already referred (Lawrence v. State, 1 Humph. 228) is a leading one on this subject. At the common law, lost property could not be the subject of larceny and in that case Lawrence insisted the money he was accused of stealing was lost. The circumstances were that he was a barber and found a-pocketbook containing $480 in money, on a table in his shop. The court denied his defense, and among other things, said that: ‘To place a pocketbook upon • a table, and to omit or forget to take it away, is not to lose it in the sense in which the authorities speak of lost property. ’

“The mind refuses consent to the proposition that one may go into another’s house, whether business or residence, and take away anything he discovers there which does not belong to the owner. If one visits an acquaintance socially at his home, and comes away leaving some article on a table, he has left it in the possession of such acquaintance, and it seems absurd to say that another visitor would have a right to take the property from the house under the claim that he had found it.”

We' approve and adopt the foregoing opinion of the Kansas City Court of Appeals, only adding thereto a word as to the statutes of this State referring to finders of lost property. [R. S. 1909, sec. 8268 et seq.] These provisions of the statute relate to the specific duties of the finder of lost personal property who does not know the true owner and provide a statutory method for the acquisition of title. They are inapplicable to the facts in this case, because the property here was not lost. It was merely left in the construetive possession of the defendant — seemingly placed by the owner on the desk provided by the Safety Deposit Company for the uses of its customers, and by inattention or forgetfulness not replaced in the box from which it had been taken when it was laid on the desk. This is the fair, natural and logical inference afforded by the admitted facts and testimony in this case, and demonstrates that the money left, was legally as much in the possession of the defendant thereafter as it was before being removed from the safe deposit box. Hence, the plaintiff only did his duty when he placed it in the actual possession of defendant. The attitude of the defendant is therefore that of a lawful custodian of the money for the benefit of the true owner. This trust it cannot repudiate, and it should exercise due care to discover the real owner and deliver the property to him. We do not understand that appellant claims any other rights in the matter, and what we have said is simply to impress the duty cast on it by law to adopt every means suggested by prudence, intelligence and good faith to restore this money to its rightful owner.

The judgment of the circuit court is reversed.

All concur.