author: LAMM, J.

text:
    WOMACH, Plaintiff in Error, v. CITY OF ST. JOSEPH.
    Division One,
    February 22, 1907.
    1. RES ADJUDICATA: Negligence: Unsuccessful Suit By Wife: Suit By Husband. If a wife sue to recover for injuries done by negligence to her body and for the pain and anguish of mind flowing therefrom, and lose, the judgment in her suit does not, as a matter of law, bar the husband’s recovery in his suit against the same defendant for the damages personal to himself arising out of the same accident — even though the issues in regard to defendant’s liability and negligence are common to both suits, and even though the issue of the wife’s contributory negligence is a factor common to both.
    2. -: Distinctions: Suits in Tort. The line of demarkation between what is res adjudicata and what is not, does not always run true in case-made law. Suits for damages sounding in tort are not proceedings in rem, or proceedings quasi In rem, wherein the status of the thing may be fixed once for all and made binding on all the world; and in solving the issue of res adjtidicata in a negligence suit, the same spacious application of the doctrine made in those, proceedings should not be made, but a narrower application.
    -: Tort: Identities. A suit by the husband for damages for negligent personal injuries to his wife, is strictly in personam; and the general rule of res adjudieata is, that, given the same subject-matter, all parties and privies are bound by the judgment entered against one of them. This means that the essential conditions under which the plea of res adjudicada becomes applicable are the identity of the thing demanded, the identity of the cause of demand, and the identity of the parties in the character in which they áre litigants.
    4. -: Estoppel: Reasons For: Merger. Res juddeata is estoppel by record, and the conclusiveness of the rule is an inflexible principle of law having its foundation in the maxim that it is to the interest of the State that there be an end to litigation. But the plea, to be availing, must show either an actual merger or that the same point has already been decided between the same parties or their privies — that the plaintiff or his privies had an opportunity of recovering, and but for his own fault might have recovered in the original suit that which he seeks to recover in the second suit.
    5. -: Torts: Who are Privies? The term privity means mutual or successive relationship to the same rights of property. To make a man a privy to an action he must have acquired an interest in the subject-matter of the action, either by inheritance, succession or purchase, from a party subsequently to the action, or he must hold property subordinately. Privies may be privies of blood (such as an heir to his ancestor), privies in representation (as executor or administrator to his deceased testator or intestate), privies in estate (as grantor and grantee, lessor and lessee), or privies in law (as tenant by the curtesy or in dower). But it should be noticed that the ground of privity is property, not personal relation.
    6. -: -: Who Are Parties? Under the term parties, in considering the scope of the rule of res adjudieata, the law includes all who were directly interested in the subject-matter of the litigation, and had a right to make defense, or to control the proceedings, and to appeal from the judgment, which right included the further right to adduce testimony and cross-examine witnesses. Persons not having these rights are regarded as strangers to the case.
    7. -: -: Privies: Husband and Wife, A husband who sues for damages to himself, due to the negligent personal injury of his wife, for instance, for the money he paid out and will have to pay out for medical attendance upon her and for loss of her companionship, in that her eyesight was destroyed and she had remained a helpless invalid, does not stand in priv-' ity to the wife, and his suit is not barred because of the fact that her suit for the same injuries resulted in a judgment against her. He sues in his own. right, and does not hold title to the damages to him in subordination to her title. There is no identity or privity of parties, and he did not succeed to her position as regards the subject of the estoppel. Besides, he had no opportunity of recovering his damages in her suit; he had no control over the proceedings in her suit, he could not have appealed from the judgment therein, nor could he have cross-examined defendant’s witnesses. And the rule is the same whether the wife sued alone for her damages, or was joined therein by her husband as a nominal plaintiff. [Disapproving Brown v. Railroad, 96 Mo. App. 164, and Morris v. Kansas City, 117 Mo. App. 298.]
    8. -: -: Husband and Wife: Separate Actions: Judgments. Two independent rights of action — the one to the wife, for injuries to the body -of the wife, for the incident pain and anguish, together with expenses paid from her own estate, and loss of earning capacity; the other to the husband, for consequential injuries suffered by him in the loss of her society, services, expenses, etc., known in the old law as an action per quod consortium amisit — arise for the negligent injury to the wife. The suits result from the same injury to the wife, but the causes of action are separate, and each is an entirety unto itself. At common law the ownership of the judgment in the wife’s favor belonged to the husband, when he joined as plaintiff; but under our statute that is no longer true, the judgment-now belonging to her.
    '9. -: Matters Necessarily Determined: Privies and Parties. The rule that the conclusiveness of judgments is not confined to the entire matter litigated, but includes the finding of any facts which were in issue and necessarily decided, can be applied only when the one to be bound was either a party or in privity with a party.
    10. -: Torts: Husband’s Suit: Evidence. In the husband’s suit for damages for negligent injuries to the wife, the judgment roll in the wife’s suit should not be admitted in evidence.
    Error to Buchanan Circuit Court. — Row. A. M. Wood-son, Judge.
    Reversed and bemanded.

      Brewster, Ferrell & Mayer and Vinton Pike for plaintiff in error.
    (1) The circuit court was of the opinion that Brown v. Railroad, 96 Mo. App. 164, controlled this case, and on its authority directed the nonsuit. In the Brown case the husband had joined his wife in the former action and was an aotual and proper party. The judgment was in form in his favor upon the same issue raised in the second case. He had the right to adopt the judgment in favor of himself and wife against the same defendant, which could not be allowed to say it had not contested the same issue with him. Harmon v. Auditor, 123 111. 122, is cited by the Court of Appeals, and the following paragraph from the opinion in that case suggests the true ground upon which the Brown case may be sustained: “Moreover, the Pinckney suit was adopted by the town as its own litigation when the town paid the expenses of it, and compromised it through the town officers, and by resolutions of the town meetings.” In the case at bar, the husband was not a party to the former judgment, nor privy to the cause of action. The accident founded two causes of action, one in favor of the wife, and the other in favor of the husband. The right and compensation of each were distinct and independent. Smith v. City, 55 Mo. 456. The only case cited by the Court of Appeals nearly paralleling this is Anderson v. Railroad, 9 Daly 488. Of that case decided by an inferior court, Van Vleet says: £ £ This case seems to me to be wrong. ’ ’ 2 Form. Adj., 1130. But in that case the parent adopted the adjudication in favor of his son, for the loss of whose services he was suing. He could take advantage of the judgment or not; and if he could decline the advantage, he could refuse to be bound by a judgment adverse. As between the son and the defendant the former record established the facts which made defendant liable, and as the father was suing on a transaction between the son and defendant, he was privileged to rely on what had been established between them. A guarantor may plead in bar a judgment in favor of principal obligor, although an adverse judgment would not be binding upon him. A judgment conditional in effect will not be binding until accepted. In re Railroad, 58 Hun 563; Railroad v. Newton, 94 Ala. 443. Where two have an action and one sues and is defeated, the other is not barred. Railroad v. Kutac, 72 Tex. 643. The action in the Brown case was for a tort. If it had been a case of passenger against carrier, assumpsit on a contract to carry safely, as in Pollard v. Railroad, 101 U. S. 223, the judgment in the former action, either way, would have been binding. But says the opinion in the Pollard case, “the rule does not prevail when, the action is in tort against the carrier for a breach of public duty.” This distinction is overlooked in the Brown case. It is recognized by this court in Blair v. Railroad, 89 Mo. 338. (2) At common law the husband was a necessary party to the wife’s suit for personal injuries, for he was the beneficiary of the recovery, being entitled, upon reduction to possession, to her actions for torts to the person causing pain and anguish, as well as to those growing out of contract. He was' concluded by the judgment at the common law against himself and wife, for he was a necessary party and had a real interest. But our statute has made a radical change. Section 4340, Revised Statutes 1899, provides that the damages sued for - by plaintiff’s wife shall be and remain her separate property and under her sole control. Section 4335 provides that she shall be deemed a femme sole and may sue and be sued at-law or in equity with or without her husband being joined. Section 4340 provides that damages for the violation of any of her personal rights shall be and remain her separate property and under her sole control, and that she may sue without joining her husband, by any necessary action. The release by one is not a bar to the action of the other. Blair v.'Railroad, 89 Mo. 338; Smith v. Warden, 86 Mo. 382; Brown v. Kennard, 13 Mo. App. 175. The husband, at common law, could release the claim of the wife for damages, and still sue for his own damages for loss of service, etc. Schouler, Dom. Rel., 77, p. 129'. The action in this case was founded on defendant’s breach of a public duty. The damages are independent and under our law must be recovered in separate and independent actions.

      W. B. Norris and E. ili. Spencer for defendant in error.
    (1) At common law the wife had a cause of action against another by whose negligence she was injured, and also the husband had a cause of action against the same party for the same negligence. It was necessary in the suit by the wife that the husband should be joined. He stood as a sponsor for the wife and was a party to the cause of action. A judgment rendered in such a case against the wife was binding and conclusive as against him, he being a necessary party to the cause of action. This seems to be conceded by the brief of appellant, but, as under our present system of procedure, the husband is not a necessary party to the suit, and the contention is that the law .of procedure as modified by Missouri practice has changed the substantive law in its principle that has existed heretofore. It is true that in Brown v. Railroad, 96 Mo. App. 164, the husband was a party to the suit, but the law of procedure ought not to and cannot change the substantive law until a statute has been passed changing such law. The husband is in privy with the cause of action of the wife. His rights arise out of the same facts and the same conditions. He cannot have greater rights than the wife by reason of the act of the defendant. The only difference is his measure of damages. (2) The cases relied upon by appellant are not in point. In Blair v. Railroad, 89 Mo. 338, it was decided that a husband has cause of action for the loss of the services of the wife, due to the negligence of another. This cause of action is not joint with the wife, and this is as far as the case holds. It does not hold that the husband’s cause of action is not in privity with the wife’s cause of action and arises out of the same facts. In Smith v. Warden, 86 Mo. 382, cited by appellant, the court held that the receipt given by the husband did not purport to cover his wife’s cause of action, and if it could be so construed, there was no consideration for it, and no authority given by the wife for the husband to release her cause of action. In Brown v. Kennard, 13 Mo. App. 175, the court decided that when the cause of action was settled by the wife, the husband, even though a party to the suit; was not a necessary party in the settlement. The case of Brown v. Railroad, supra, is cited with approval in 106 Mo. App. 517. We respectfully submit that the Court of Appeals, in Brown v. Railroad, supra, was correct in its decision, and ask that the judgment of the lower court be affirmed.
   LAMM, J.

Plaintiff sued the city of St. Joseph for $10,000 damages, in that he had been and would be deprived of the society, companionship and services of his wife, Louisa Womach, was compelled to lay out large sums of money in taking care of and nursing his said wife>, and for medical attendance made necessary by injuries suffered by her through the negligence of defendant city, whereby her right arm was broken at the wrist and the optic nerve of her right eye was so injured that she became totally blind in that eye and the sight of her left eye was sympathetically injured and she had been rendered a constant sufferer and invalid cripple for the remainder of her life. These injuries were alleged to have been caused to Mrs. Womach through the negligence of defendant city in the construction of a certain sidewalk, with a negligent grade, at the base of a stone wall, negligently permitted to be erected and maintained. Further, that said sidewalk lay in a sunken condition whereby, in times of snowfall, large quantities of snow were drifted and piled upon said walk and retained there, so that (given alternate freezing and thawing) said snow, by reason of the shade of the wall and the steep construction ,of said sidewalk, did not melt off, but became transformed into ice and ice ridges of irregular shape. Further, that said city negligently permitted a certain portion of said walk to become and remain out of repair and dangerous in that snow and ice had been allowed to accumulate and remain in uneven, irregular, rounded and slippery masses and ridges, etc., for many weeks prior to Mrs. Womach’s injuries — all of which was well known to the authorities of said city. That the duty of defendant was to remove the snow and ice from said sidewalk so that it would be reasonably safe for persons traveling thereon, etc.

Hurt on the 28th day of December, 1898, Mrs. Womach in her own right brought suit against the city for her injuries received in that accident and the pain of body and anguish of mind caused thereby. She was worsted at a jury trial and appealed to this court where the judgment against her was affirmed. [Womach v. City of St. Joseph, 168 Mo. 236.]

By its answer in the case at bar, defendant city tendered the general issue, except admitting it was a city of the second class, pleaded the contributory negligence of Louisa Womach, and followed that with a plea to the effect that the judgment in its favor in the wife’s suit was res adjudicate/.

Plaintiff attacked the latter plea by a motion to strike out, which being overruled, plaintiff excepted.

At the trial following on the heels of said ruling (a jury being waived), defendant city was allowed to introduce the record of the proceedings in the wife’s suit. To this offer of proof plaintiff objected on the following grounds: (1) Because the plaintiff herein was not a party to the suit in which said record was made; (2) Because the injuries for which he .brings suit were injuries done to himself and in which the plaintiff in the former suit had no interest, right or claim; (3) Because the parties are not the same; (4) Because the subject-matter is not the same; (5) Because the issues in the two cases are not the same; (6) Because the judgment in the former case is not res judicata or a bar to this suit by this plaintiff.

These objections being overruled, plaintiff excepted and the record was admitted against plaintiff. Whereupon the court gave an instruction for defendant to the effect that the judgment in favor of the city in the case of Louisa Womach was binding and controlling upon Womach, was a bar to his action, and he could not recover. Having objected to this declaration and saved his exception, plaintiff took a nonsuit with leave. Piling and submitting an unsuccessful motion to set that nonsuit aside, plaintiff was allowed his bill of exceptions and brings the case here by writ of error.

The case at bar is stripped of all extraneous issues. The bone of contention is sharp and narrow. Plaintiff admits “the .petitions in both cases were founded upon the same accident and the same issues in regard to defendant’s liability and negligence were common to both.” So, too, the issue of the wife’s contributory negligence is a factor common to both. Therefore, on this record the sole question is this: If a wife sue to recover damages for injuries done by negligence to her body and for the pain of body and anguish of mind flowing therefrom, and if she be cast on trial, does the judgment in her suit, as a matter of law, bar the husband’s recovery in his suit against the same defendant for the damages personal to himself and arising out of the same event?

I. The line of demarkation between what is res judicata and what is not does not always run true in case-made law. Moreover, it is manifest that when a case lies hard by the line of cleavage between what is and what is not res judicata it may be a nice question to determine on which' side of the line the case falls.

The question presented is one of first impression in this court. In its consideration it will be well enough to recur to first principles, and at the threshhold point out (and assume) the rudimentary proposition that suits for damages sounding in tort are not proceedings in rem, or proceedings quasi in rem, wherein the status of a thing may be fixed once for all and made binding on all the world. [2 Black on Judgments (2 Ed.), sec. 795, and supra.] It follows, therefore-, that in solving the problem in hand it will not do to use the same spacious application of the doctrine of res judicata made in proceedings in rem or quasi in rem, but a narrower compass must be fetched to set bounds to the field of legitimate discussion.

II. As postulates to reason from, it may not be amiss to remind ourselves of the basic principles upon which estoppel by record is built and marshal those rules, definitions and legal principles to which we must refer the problem to be solved. Thus:

This being an action strictly in personam, the rule is, that, given the same subject-matter, then all parties and privies are bound by the judgment entered. The general rule deduced from the decided cases is thus announced by Mr. Herman (1 Herman on Estop. & Res. Jud., sec. 102): “The essential conditions under which the plea of res judicata becomes applicable are the identity of the thing demanded, the identity of the cause of demand, and of the parties in the character in which they are litigants.”

The philosophy of the matter may be put in this way: It concerns the State that there- be an end of law suits. Interest ReApublicae ut sit finis litium. [Coke Litt., 303.]. Or as put by Broom: It is for the general welfare that a period be put to litigation. [Broom, Max., 331-343.] Res judicata is estoppel by record; and this rule of conclusiveness is an inflexible principle of law having its foundation in the foregoing maxim. [1 Herm. Estop. & Jud., sec. 100.] Says Broom: (Broom Leg. Max. [8 Ed.], *331): “It is for the public good that there be an end to litigation; and if there be any one principle of law settled beyond all question it is this, that whenever a cause of action, in the language of the law, trcmsit in rem judicatam, and the judgement thereupon remains in full force and unreversed, the original cause of action is merged, and gone forever. A plea of res judicata must show either an actual merger or that the same point has already been decided between the same parties — that the plaintiff had an opportunity of recovering, and but for his own fault might have recovered in the original suit that which he seeks to recover in the second action.” And again (*343): “This latter maxim has” (i. e., the maxim interest reipublicae, etc.) “as may readily be supposed, a wide application; it in fact embraces the whole doctrine of estoppels, which is obviously founded in common sense and sound policy, since, if facts once solemnly affirmed to be true were to be again denied whenever the affirmant saw his opportunity, there would never be an end to litigation and confusion.”

So that, it is hornbook law that as the State may not put the same defendant twice in jeopardy for the same crime, no more may the individual A vex B twice in court on a cause of action once adjudicated. (Nemo debet bis vecca-ri pro eadem causa.) Not only so, but if A sue B and the cause proceeds to final judgment, then not only are A and B bound by the judgment, but, for like and obvious reasons, all persons in privity with either A or B are bound also. It is said that: “In the law of estoppel one person becomes privy of another, first, by succeeding to the position of that other as regards the subject of the estoppel, and, second, by holding in subordination to that other.” [Bigelow on Estoppel (5 Ed.), p. 142.] The same, careful writer lays down another general proposition of appreciable value in the consideration of the matter in hand, and that is: “But it should he noticed that the ground of privity is property and not personal relation. To make a man a privy to an action he must have acquired an interest in the subject matter of the action either hy inheritance, succession, or purchase from a party subsequently to the action, or he must hold property subordinately.” [lb. p. 142.] Says Day, J., in McDonald v. Gregory, 41 Ia. l. c. 516: “The term privity means mutual or successive relationship to the same rights of property. The executor is in privity with' the testator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor. ’ ’

One general question, then, seeking the very root of the controversy, is: Who are privies ? The answer is: Privies may be privies of blood (such as the heir to his ancestor), privies in representation (as executor or administrator to their deceased testator or intestate), privies in estate (as grantor and grantee, lessor and lessee, assignor and assignee) or privies in law (as tenant by the curtesy or in dower). [See 1 Greenleaf (16 Ed.), sec. 189, and cases from this'court, cited infra.]

Another general question seeking the root of the controversy is: Who are parties ? Says Professor Greenleaf in an oft-quoted passage (1 Greenl. on Ev. (16 Ed.), sec. 523): “It is also a most obvious principle of justice, that no man ought to be bound by proceedings to which he was a stranger; but the converse of this rule is equally true, that by proceedings to which he was not a stranger he may well be held bound. Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment. This right involves also the right to adduce testimony, and to cross-examine- the witnesses adduced on the other side. Persons not having" these rights are regarded as strangers to the cause.” [See Henry v. Woods, 77 Mo. l. c. 281; State ex rel. v. Johnson, 123 Mo. l. c. 54-5; State ex rel. v. St. Louis, 145 Mo. l. c. 567; Williams v. Husky, 192 Mo. l. c. 551.]

Before applying the foregoing rules, definitions and doctrines to the case at bar, it will be well enough to give ear to the voice of a very high court in a great case. Thus: In the case of Duchess of Kingston (2 Smith’s Leading Cases [pt. 2, 8 Ed.], 734, *784), the Lords Spiritual and Temporal in parliament assembled put to the judges, inter alia, the following question: “Whether a sentence of the Spiritual Court against a marriage in a suit for jactitation of marriage is conclusive evidence in an indictment for polygamy?” In disposing of the case, Sir William de Grey, after-wards Lord Walsingham, then the Lord Chief Justice of the Court of Common Pleas, in delivering the unanimous opinion of all the judges, laid down the following principles, arguendo:

“What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defense, or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers. There are some exceptions to this general rule, founded upon particular reasons, but not being applicable to the present subject, it is unnecessary to state them.
“Prom the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; secondly that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, fop a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”

III. Bid the trial court err in applying the law, as hereinbefore expounded, to the case at bar? We think so. It is self-evident the parties are not the same. Neither does Womach stand in the relation of being in privity with his wife — that is, in privity in a precise legal sense such as will meet the ends of the law. He sues, as will presently be seen, in his own right; and he does not hold any title to the damages in suit in subordination to the title of Mrs. Womach. He did not succeed to the position of Mrs. Womach, “as regards the subject of the estoppel;” for the estoppel worked as to her personal damages in her own case, was applied to his damages in his case.. He is not in privity with her in blood (as an heir), i. e., his right of action Avas not cast upon him by descent. He is not in privity with her in representation (as executor or administrator). He is not in privity with her in estate (that is, as regards his right of action, he is not her grantee, lessee, donee, assignee, nor does he stand in any other like capacity). Nor is he in privity with her in law, as such privity is defined in the books.

Take other tests — that is, look to the natural justice of the thing — to those natural equities having their seat in the human breast — and see if he was not a stranger? Did lie have an opportunity of recovering his damages in her suit? No. Could he appeal in that case? No. Did he have his day in court in that case? No. Was he entitled to he heard in that cause, or could he control the proceedings? No. Could he adduce testimony? No. Could he cross-examine witnesses produced by defendant? No. Was he not denied by the law the right (had he invoked the right) to testify in his wife’s cause? Certainly so. [Joice v. Branson, 73 Mo. 28; Harrington v. Sedalia, 98 Mo. 583.] By what recognized test of reason or authority, then, and under what principle of law is it, that he is held bound-by that judgment, or becomes anything but a stranger to that proceeding? How comes it that Womach loses his own right of action, his own damages, by a judgment in another cause in which he could not lift a finger to protect that right, or secure those damages? It seems to me that the proposition that Womach is bound by the judgment against his wife is more than a paradox — it rises to the bad eminence of a solecism in the law.

The formulation of legal principles is not for a day or for one case; such principles are for general use in like cases until overthrown. It is obvious, then, that if Mrs. Womach’s case is res judicata as to her husband, by the same token, if the husband’s suit had come on first, the judgment in his case ought to be res judicata in the wife’s case. Nay more, if Mrs. Womach had been driving a team belonging to- John Doe,' and one of Doe’s horses had broken its leg in the same accident, through the same cause, and John Doe had sued the city, he would be precluded by a judgment against her in her case, or against the husband in his — there being factors in common in all these suits. So, too', the same principle once established would allow a judgment, casting' a parent suing for expenses and loss of services, to operate against a minor child, in its suit for injuries, and vice versa — results visibly pregnant with, mischievous injustice.

Indeed, since no man loses his property except by his own deed, transgression or neglect, to condemn a man in his own independent right of action, unheard, is to violate our Bill of Rights; because section 30 of that Bill provides that “no person shall be deprived of life, liberty or property without due process of law.” Now, property, in one sense, may mean a chose in action.' A chose in action, in one sense, may be any right to damages, whether arising from the commission of a tort, the omission of a duty, or the breach of a contract. [See Tit. “Property” and “Chose in Action,” Black’s L. Diet.] “Due process of law” means law in the regular course of administration through the courts. [Jones v. Yore, 142 Mo. l. c. 44.] The term “due process of law” is equivalent to the term “the law of the land” — a term as old as Magna Charta. And', as said by Webster in a brief sparkling forever as a jewel in the crown of the American Bar in the Dartmouth College Case (See 4 Wheat. kl. c. 581), “By the law of the land is most clearly intended the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society.” [Barber Asphalt Co. v. Ridge, 169 Mo. l. c. 384.] “In judicial proceedings,” says Andrews, J., in Bertholf v. O’Reilly, 74 N. Y. 509, “due process of law requires notice, hearing and judgment . . .” In this case the cause of action of Womach was taken from him without notice, without a hearing, and without a judgment against him. Hence, it seems to me, he was denied due process of law to all vital intents and purposes.

It is manifest there was no' such “identity of the thing demanded;” there was no such “identity of the cause of demand;” and there was no such identity of the “parties in the character in which they are litigants,” as meets the essential conditions upon which the plea of res judicata proceeds under the sensible rule announced by Mr. Herman, heretofore quoted; and this opinion might conclude at this point were it not for two cases decided by the Court of Appeals of Kansas City, Brown v. Railroad, 96 Mo. App. 164, and Morris v. Kansas City, 117 Mo. App. 298, in which another view was entertained and a contrary conclusion reasoned out. The dignity imparted to the contention of defendant in the case at bar by the opinions of that learned court justifies a further and closer consideration-certainty in the law, as a rule of right, being an essential condition of judicial wisdom; and no change in such rule can justify itself except it proceeds on the fullest examination and solidest grounds.

IY. The Morris case follows the Brown case. As we gather it there was no vital difference in principle between the two: There was an incidental difference, however, which it may be well to point out in passing. Brown’s wife was injured by the alleged negligence of the Missouri Pacific Railway Company. Thereupon two suits were instituted: In one it was sought to recover for injuries to the wife; and in that suit husband and wife joined as parties plaintiff. Her case proceeded to final judgment; and, when the husband’s case came on, the judgment in the wife’s ease, to which he was a nominal party, was offered and allowed below as an adjudication concluding the railway company on the issues of negligence and contributory negligence raised in the wife’s case, leaving nothing open except the quantum of his damages. On appeal, the ruling, nisi, was approved. In the Morris case two suits were instituted — one by the husband and one by the wife, the wife suing alone. When the husband’s case came to trial a former adjudication in favor of the wife was pleaded and allowed as res judicata. On appeal, that ruling was approved.

While a superficial view might draw a distinction between the Brown and the Morris cases, in that in the Brown case the husband was a party to the wife’s suit (thus meeting, at least, one technical requirement of res judicata),' yet it must be apparent that he was not a real party. His rights were not in litigation, he was a mere figurehead — a nominal party, joined at the- option of the wife under Revised Statutes 1899, section 546, which provides that: “A married woman may, in her own name, with or without joining her husband as a party, sue and' be sued in any of the courts of this State having jurisdiction, with the same force and effect as if she was a femme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried.” In this condition of the record in those two' cases the principle involved is the same; and if the Brown case is good law, the Morris case is good law. So that, our consideration may be confined to the Brown ease alone.

We may approach that case -with a preliminary examination of the origin and nature of a husband’s right to damages for an injury to his wife. Such ground of action is an old one, coming to us from the common law of England. In the old law (as now) the husband might sue for damages for taking his wife away. ‘ ‘ The old law was so strict in this point,” says Blackstone (3 Blk. Com. #139), “that if one’s wife missed her way upon the road, it was not lawful for another man. to take her into his house, unless she was benighted and in danger of being lost or drowned; but a stranger might carry her behind him on horseback to market to a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce.” Drawing from the same well of the common law, it is pointed out (*140') that three kinds of actions are entertained for injuries offered to any person, considered as a husband, the third ldnd relating to the beating of a man’s wife, or other ill use of her; “for which,” says our author, “if it he a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the name of the husband and wife jointly; but if the beating or other mal-' treatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill usage, per quod consortium amisit; in which he shall recover a satisfaction in damages.”

Says Cooley (1 Cooley on Torts (3 Ed.), p. 470): “A personal injury to the wife gives rise to two causes of action, one in favor of the wife to recover for the physical injury, the pain and suffering, expense, if any, paid from her own estate and loss of earning capacity, where she has a right to her earnings and is engaged in business or labor on her own account, and one in favor of the husband to recover for loss of his wife’s services, society, etc., and for any expense incurred. . . . The term services, when employed to indicate the ground on which the husband is allowed to maintain an action, is used in a’peculiar sense, and fails to express to the common mind the exact legal idea intended by it. Whatever may have been the case formerly, or may now be the case in some states of society, service, in the sense of labor or assistance, such as a servant might perform or render, is not always given by or expected from the wife; and if an action were to put distinctly in issue the loss of such services, it might, perhaps, be shown in the most serious cases that there was really no loss at all. But it could not be reasonable that the wrong-doer should escape responsibility because the family he has wronged were in such circumstances, moved in such circles, and were subject to such claims, by reason of public position or otherwise, that physical labor by the wife was neither expected nor desired. The word service has come to us in this connection from the times in which the action originated, and it implies whatever of aid, assistance, comfort and society the wife would he expected to render to or bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be.”

The two independent rights of action — the one for injuries to the body of the wife, for the incident pain and anguish, together with expenses and loss of earning capacity (the latter in certain cases pointed out by the boohs) — the other for consequential injuries suffered -by the husband in loss of society, services, expenses, etc., known in the old law as an action per quod 'consortium, amisit, have come down to us hand in hand as distinct causes of action. Both suits result from the same injury to the wife, it is true, but the causes of action are separate and each an entirety unto itself. Both spring into independent existence at once upon such injury — the one seeking recompense for injuries to the person of the wife; the other recompense for injury to the husband as husband and touches the marital relation. [Smith v. St. Joseph, 55 Mo. 456; Furnish v. Railroad, 102 Mo. 669; Thompson v. Railroad, 135 Mo. 217. See also, Railroad v. Jones, 40 Pac. 891.]

In the present condition of our statutory law, the ownership of the proceeds of a judgment in favor of the wife no longer remains as at common law. There, such damages belonged to the husband when recovered by judgment in a joint action with his wife. [Reeve’s Dom. Rel. (4 Ed.), pp. 87-8; Schouler’s Dom. Rel. (5 Ed.) sec. 77.] But in our day,-they belong to the wife alone. So runs the written law, Revised Statutes 1899, section 4340, which provides that: “. . . any personal property, including rights in action, belonging to any woman ... or has grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not he liable to be taken by any process of law for the debts of her husband.” That section also provides that she may sue in her own name without joining her husband.

In Smith v. St. Joseph, supra, it was contended that a recovery in a suit by husband and wife for injuries to the wife was a bar to the prosecution of a suit on behalf of the husband. But it was pointed out in that case that the two causes of action, the one for the wife and the other for the husband, could not be joined, and, hence, there was no bar in consequence of the previous recovery in the wife’s case. Further, as indicating the distinctness of the two causes of action, we may profitably consider Smith v. Warden, 86 Mo. 382. In that ease in the wife’s suit there was an offer to show that the husband had executed a release for his own damages and the damages in suit (p. 394). The court instructed the jury that such release did not constitute a defense to the action (p. 396); and it was held that the instruction was right and the release was no bar in the absence of proof that the husband was agent of the wife and had authority to settle her damages.

To further the argument, regard may be had to Thompson v. Railroad, supra. In tha,t case the husband’s suit was on trial and the court gave the following instruction:

“When a married woman, without fault on her part, is personally injured by the negligence of another, two causes of action arise: one for the wife for the pain and suffering and the expenses she has herself paid, and the other by the husband, in his own favor for what he has actually lost. Now, this is the husband’s suit and not the wife’s, and a decision of this case on its merits in no wise affects or has anything to do with the wife’s case. That case must be independently tried, upon its own merits, and this case must be tried upon its merits alone, on the testimony introduced here, and none of the things mentioned above for whieh the wife can sue can be considered in this case.”

There was a verdict for defendant which was set aside, and from that order defendant appealed. It was contended there was error in the foregoing instruction, but this court said there was no error; that it was proper to inform a jury that the wife had her own action for injuries like this, and what elements enter in her case, and the grounds of her husband’s action, and “that each is distinct” (p. 222). [See, also, Blair v. Railroad, 89 Mo. 334.]

It seems to us the reasoning underlying the foregoing authorities applies with equal force to the case at bar, and is against defendant’s position, its tendency being to show that the two causes of action are so distinct that they cannot be joined, that the damages to each constitute a different subject-matter of litigation, that the title to the damages rests in different parties and that one party may not release the damages due the other.

Attending to persuasive authority, we find the precise question in hand has been passed on elsewhere, and the conclusion in the great majority of instances is also against defendant’s position. Thus:

In Neeson v. City of Troy, 29 Hun 173, the husband sued. At the trial he was allowed to introduce the judgment roll in his wife’s case in which she recovered damages for the same injury. On appeal this was held error. It was held that the husband was not in privity with the wife in her suit and that “the fact that the same evidence, to a great extent, may be applicable in this case as was given in the action of the wife, such as proof of defendant’s negligence, etc., does not make the former judgment conclusive in this action. ’ ’

In Groth v. Washburn, 39 Hun 324, the same point arose. There the defendant offered evidence, as we take it, to disprove his negligence. This evidence was rejected, and its rejection was predicated of the conclusion that the judgment in the wife’s case was conclusive upon the subject of defendant’s negligence. This was held error. It was ruled (Per Curiam) that “the action was not between the same parties or those in privity with them. It was not in reference to the same subject-matter. It involved it only incidentally, and it was not an adjudication of the rights of the plaintiff. His action was entirely different from that of the wife. The judgment record was neither an estoppel in favor of the plaintiff, nor was it conclusive evidence on the subject of negligence.” To the same effect is the reasoning in Chapman v. Frank, 15 Daly 282, and in Stamp v. Franklin, 144 N. Y. 607.

In Walker v. Philadelphia, 195 Pa. St. 168, it was sought to bind the defendant in the husband’s suit by the verdict and judgment in the wife’s suit so as to conclude the defendant city on the issue of its negligence. This was held error because the record of the wife’s action is res inter alios acta} and so far from being conclusive of the city’s negligence, is not admissible at all.

In Selleck v. Janesville, 104 Wis. 570, it was held that in an action to recover damages resulting to a husband from personal injuries to his wife, defendant’s liability is not rendered res judicata by reason of a previous recovery by the wife for her own injuries, the husband not being a party to the former action and there being no privity between him and his wife as to the claim in the latter suit.

The reasoning employed by the Supreme Court of Texas in Railroad v. Kutac, 72 Tex. 643, fits the case at bar and is against defendant’s position.

Somewhat applicable, too, is Sorensen v. Sorensen (Neb.), 98 N. W. 837. See, also, Perkins v. Groddin, 111 Mo. App. l. c. 442, and the cases and authorities cited, and Black on Judgments (2 Ed.), sec. 556.

Cases may be found to the contrary effect. For example: Anderson v. Railroad, 9 Daly 487; Pettengill v. City of Yonkers, 1 N. Y. Supp. 805; Lindsey v. Dan-ville, 46 Vt. 144. Bnt we think the doctrine of those cases is'unsound. Brown v. Railroad leans on the Lindsey case — a stout staff, for it was written by a great Judge (Redfield), but “even the worthy Homer sometimes nods” — Quandoque bonus dormitat Homerus.

In deciding the Brown case the Kansas City Court of Appeals relied upon the proposition that the conclusiveness of judgments is not confined to the entire matter litigated;- but includes the finding of any facts which were in issue and necessarily decided. This proposition is sustained by the authorities cited, but it must go with the condition that the one to be bound is either a party or in privity with a party. Furthermore, that case proceeds upon the theory that in order to allow the application of the doctrine of res judicata all the parties may not be identical. The authorities cited sustain that proposition also. But care must be taken not to introduce confusion. It will be found, we think, in all cases where the point was made, or adjudicated, that the party to be bound had his day in court— that he was either a party or in privity and had once the chance to meet his adversary face to face on the issue, in fact or constructively. Many cases have been adjudicated showing the nicest discrimination in the application of estoppel by judgment, and in none of them will a rigid analysis show a deviation in principle from the rules laid down and principles announced hereinbefore as -governing the application of res judicata. See, for example, Spratt v. Early, 199 Mo. 491; Donnell v. Wright, 199 Mo. 304; Edgell v. Sigerson, 26 Mo. 583; State ex rel. v. Railroad, 99 Mo. 30; Nave v. Adams, 107 Mo. 414; Young v. Byrd, 124 Mo. 590; State ex rel. v. Branch, 134 Mo. l. c. 604; Wiggin v. St. Louis, 135 Mo. l. c. 569; Exposition Driving Park v. Kansas City, 174 Mo. 425; Donnell v. Wright, 147 Mo. 639; Watson v. Walther, 23 Mo. App. 263; City of Springfield v. Plummer, 89 Mo. App. 515; Matousek v. Catholic Union, 192 Mo. 588.

It is our conclusion that Brown v. Railroad, and Morris v. Kansas City, should not he followed; that the trial court should have sustained the motion to strike from defendant’s answer the plea of res judicata; that, failing in this, the court should have excluded the judgment roll in the wife’s case; and that, finally, the court erred in giving defendant’s mandatory instruction.

It will do to say that our Brother Woodson, who does not sit in the case, hut who presided nisi, informs us he felt constrained hy Brown v. Railroad, and that if left to his own judgment on the law he would have refused the peremptory instruction, refused to admit the judgment roll in the wife’s case, and would have sustained plaintiff’s motion to strike out the plea of res judicata.

The cause is reversed and remanded to he tried in accordance with this opinion.

All concur, except Woodson, J., not sitting.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant, v. WILLIAM M. STEWART.
    Division Two,
    March 5, 1907.
    1. CONDEMNATION: Special Benefits: Depot on Adjoining Land. The railroad should not be permitted to prove special benefits to defendant's lands arising from the construction of the railroad and the location of a station a quarter of a mile distant from defendant’s lands, where there is no evidence showing that the station can be reached by any road from defendant’s farm or that defendant will derive any direct or peculiar benefits therefrom that are not shared by the rest of the neighborhood. The railroad should be permitted to prove that the erection of the station would be a special benefit to defendant, but evidence that said special benefits amount to five dollars per acre should be excluded, since the amount of the damage is for the determination of the jury.

      2. -: Instruction: Vglue at Date of Taking. Whether or not the damages should he estimated upon the value of the land at the date of the taking or at the date the commissioners’ report, where their assessment is paid into court for defendant, is immaterial, if the evidence shows that the value of the land was the same at both dates. And so it is held in this case that an instruction from which the court erased the words “the value of the land as of the date of the commissioners’ report” and inserted the words “the value of the land at the time of the taking,” was non-prejudicial, even though it be admitted that the modification was not proper.
    3. -: -: Crossings. Where the evidence is conflicting as to whether the railroad offered defendant convenient farm crossings, or where it shows that the railroad did offer to construct crossings for defendant’s use but at places undesirable and where he could not use them, the court should refuse to instruct the jury that “if they believe defendant refused to accept such farm crossings as would be necessary for the convenient use of the two tracts of land, he cannot recover damages resulting from the absence of such crossings,” because there is no evidence on which to base the instruction.
    4. -: -: Incompleteness: Damages. The court gave this instruction: “You will allow, the defendant as damages such sum as you may believe from the evidence to be the difference, if any, between what was the fair market value of the whole tract of land before, and its fair market value after, the appropriation by the railroad company of the 3.1-acre strip for the right of way purposes.” Held, that the instruction, by itself, is erroneous, because of incompleteness; but when all the instructions are considered together, they cover all the issues of the case, present the issues fairly, and are not misleading.
    Appeal from Barton Circuit Court — Hon. H. G. Tww monds, Judges
    Aeeirmeo.

      E. O. Brown and Thomas & Hackney for appellant.
    (1) The court erred in refusing to permit plaintiff to prove special benefits to defendant’s farm, arising from the construction of the railroad, and the location of a station on the adjoining forty. Any benefits the location of a station on defendant’s land, or the adjoining forty, would add to the property by way of increased facilities for marketing his farm products and shipping stock, should have been deducted from the damage. The court, therefore, erred in excluding the evidence offered by plaintiff to show that the location of a depot on the adjoining land was a peculiar benefit to defendant’s farm, enhancing the value thereof at least two dollars per acre. Such benefits would be peculiar to this farm on account of the use made of it. Railroad v. McG-rew, 104 Mo. 282; McElroy v. Railroad, 172 Mo. 546; Boókman v. Railroad, 137 N. Y. 302;, Shattuckv. Railroad, 6 Allen (Mass.) 115. (2) It was error to fix the time at which the value of the land was to be determined as of the time plaintiff took possession and commenced work thereon, instead of April 16th, the date when the commissioners made their report, as was done by the modification of plaintiff’s instruction 1, and the giving of it as modified, especially in the absence of evidence showing when plaintiff took possession and proceeded with the work of constructing the road over this land. Railroad v. Fowler, 113 Mo. 458; Railroad v. Town-Site Co., 108 Mo. 451. (3) While defendant was entitled to such farm crossings as would be necessary for the convenient use of the two tracts in connection with each other, and it was incumbent on plaintiff to construct such crossing so as to enable him to use the two parcels of land in connection with each other in conducting his farming operations, yet, if he refused to accept them or designate the location thereof, then he should not be allowed to recover, damages resulting from the absence of such crossing. Railroad v. Clark, 121 Mo. 170. (4) Instruction “A” given of the court’s own motion was erroneous and should not have been given. The vice of this instruction is that it authorized a verdict for defendant, ignoring any evidence of special benefits to his land arising from the construction and operation of the railroad. Nor does that instruction predicate a right of recovery on any depreciation of the value of this land caused by the construction of the railroad through defendant’s farm. Besides, it assumes that the land is worth less after the construction of the railroad than before, regardless whether such depreciation was occasioned by the construction and operation of the railroad.

      Thos. Dolan and John Dolan for respondent.
    (1) Appellant does not contend that defendant was not damaged to the extent of $500, but claimed in the court below that defendant had received special, peculiar and direct benefits from the construction of the railroad and the location of a depot admitted by plaintiff’s witness to be a quarter of a mile from any part of defendant’s farm. There was no showing that it could be reached by any road from defendant’s farm, nor was it shown that defendant received any direct or peculiar benefits therefrom that were not shared by the rest of the neighborhood. Railroad v. Fowler, 113 Mo. 458; Hasher v. Railroad, 60 Mo. 303; Bridge Co. v. Ring, 58 Mo. 491; Railroad v. Richardson, 45 Mo. 466; Newby v. Platte Co., 25 Mo. 258; Plank Road Co. v. Pickett, 25 Mo. 535. Appellant fails to point out in the record a single instance where it offered, and the court excluded, evidence of any fact from which the jury would have a right to infer any special or peculiar benefit accruing to defendant’s farm. The contrary appears in the record at the very outset of plaintiff’s case. Spencer v. Railroad, 120 Mo. 154; Union Elevator Co. v. Railroad, 135 Mo. 353. After having introduced evidence of special benefits, appellant prayed for, and the court gave instruction 3, instructing the jury to “estimate the amount of special benefits, if any, to defendant’s land as elsewhere explained, and ascertain the difference, if any, between such damages and such special benefits.” This instruction could only be properly based upon evidence showing direct, special and peculiar benefits to defendant’s farm. Railroad v. Fowler, supra. Counsel cites authorities to the effect that special benefits should be considered. But they are all cases wherein the court not only refused to admit the testimony, but refused also to so instruct the jury. They are not in point here, for the testimony was admitted, and that issue was presented to' the jury in the instructions prayed for by appellant. (2) From the evidence it appears that the value of the land at both dates was the same, in fact, it so appears from the testimony of plaintiff, and if there was a technical error committed in modifying the instruction, the error was in favor of appellant and certainly not to its prejudice. (3) Appellant also complains of a refusal to give instruction 4 as prayed for by it. This instruction was not predicated upon any testimony in the case. And the court would have erred in giving it if it had been, because it assumes that appellant offered to construct grade-crossings necessary for the convenient use of the two parts of the defendant’s farm in conjunction with each other. There is some evidence that grade-crossings were offered to be constructed for defendant, but at a place where defendant could not conveniently use them. (4) It is objected by appellant that instruction A, given by the court of its own motion, did not cover the whole case. But all the issues in the case were covered by all the instructions, and when “the instructions, taken as a whole, present the issues fairly, and are not calculated to mislead the jury, this is all that is required.” Minter v. Brádstreet Co., 174 Mo. 444; Muehlhausen v. Railroad, 91 Mo. 332.
   BURGESS, J.

This is an appeal from a judgment in favor of the defendant upon a verdict assessing his damages at the súm of five hundred dollars in a condemnation proceeding instituted by plaintiff in the circuit court of Jasper county for the purpose of condemning a right of way through defendant’s farm upon which to construct a railroad. The said farm contained one hundred and sixty acrés.

Commissioners to assess the damages were duly appointed and qualified and upon the 16th day of April, 1903, made their report, in which they assessed defendant’s damages at $300. Thereafter the plaintiff deposited said sum with the clerk, and afterwards on the 25th day of April, 1903, the defendant filed his exceptions to the report of the commissioners, and prayed that the same he set aside and that the damages be assessed by a jury.

Thereafter, on the 2d day of June, 1903, on application of the- defendant, the venue of said cause was changed to the circuit court of Barton county, and on the 17th day of September, 1903, trial was had before the court and jury, resulting in a judgment in favor of defendant for the sum of $500'. In due time plaintiff filed its motion for a new trial, which was upon the. same day overruled. Plaintiff appeals.

The first assignment of error is that the court erred in refusing to' permit plaintiff to prove special benefits to defendant’s farm arising from the construction of the railroad and the location of a station on an adjoining forty-acre tract of land. The evidence shows that the depot in question was located a quarter of a mile distant from defendant’s land, and there was no evidence showing that it could be reached by any road from defendant’s farm or that defendant derived any direct or peculiar benefits therefrom that were not shared by the rest of the neighborhood. The record shows that the court announced to counsel for plaintiff that they would be permitted to show any fact tending to prove that the erection of said depot was a special benefit to defendant, but did exclude evidence offered by plaintiff for the purpose of showing that said special benefits amounted to five dollars per acre of defendant’s said land. This ruling was evidently based upon the theory that the amount of damages was for the determination of the jury, which is in accordance with repeated rulings of this court. [Hurt v. Railroad, 94 Mo. 255; Belch v. Railroad, 18 Mo. App. 80; White v. Stoner, 18 Mo. App. 540; Spencer v. Railroad, 120 Mo. 154; Union Elevator Co. v. Railroad, 135 Mo. 353.] Moreover, the court told the jury that, in estimating the damages sustained by defendant by reason of the location of the road upon his land, they should consider the amount of special benefits, if any, to defendant’s land by reason of the construction of the railroad, and deduct it from the amount of damages sustained by him as aforesaid. So that, even if the erection of the said-depot was of any special benefit to defendant’s land, the jury were permitted by this instruction to consider the same in making their estimate of damages.

Plaintiff insists that the court committed error in modifying its first instruction, by striking out the direction to the jury to assess the damages from the standpoint of-the value of the land “as of the date of the commissioners’ report,” and inserting in lieu thereof the words “value of the land at the time of the taking, ’ ’ and giving the instruction as thus modified.

In Hosher v. Railroad, 60 Mo. 304, it was said: “The instructions of the defendant confined the assessment to the value at the time the land was taken, and that was entirely proper.” However, in the later case of Railroad v. Fowler, 113 Mo. 458, it is held that where the amount of the award, as in the case at bar, is paid in upon the return of the commissioner’s report, the date of the making of their assessment is the date of the appropriation, and that any subsequent assessment relates back and takes effect as of that date; that where the company pays to the landowner, or into court for him, the amount of the commissioners’ award, any reassessment of the damages must be on the basis of the value of the land at the date of said report. Conceding that the case last cited must control upon this question, should the judgment he reversed upon the ground of error in the instruction? We think not. Defendant’s counsel in questioning the witnesses as to the value of the land, fixed the date as of April 16, 1904, the date of the commissioners ’ report, which value was placed by at least one witness at fifty dollars per acre. Another witness estimated the value of the land at the same figure a short time before the construction of the railroad across it. So that, it appears from the evidence that the value of the land was the same at both dates. The error, therefore, was non-prejudicial, and the judgment should not be reversed upon that ground.

Complaint is made of the action of the court in refusing instruction numbered four asked by plaintiff. The instruction is as follows: “The court instructs the jury that the defendant, Stewart, is. entitled to such farm crossings as would be necessary for the convenient use of the two tracts of land in connection with each other. Therefore, in this case', if the jury believe from the evidence that he refused to accept them, he cannot recover damages, if any, resulting from the absence of such crossings.”

This instruction was properly refused because of the want of testimony upon which to predicate it. It is true, there was evidence tending to show that plaintiff offered to construct crossings for defendant’s use, but at places undesirable, and where defendant could not conveniently use them. The instruction is also vicious, in that, while it concedes that defendant was entitled to such farm crossings as would be necessary for the convenient use of the two tracts of land in connection with each other, it assumes that defendant was offered such crossings, when the evidence in respect thereto was conflicting. [Shoe Co. v. Hilig, 70 Mo. App. 301.]

It is finally contended that the court erred in giving, of its own motion, instruction “A,” with, respect to the measure of damages. It is as follows:

“You will allow the defendant as damages such sum as you may believe from the evidence to be the difference, if any, between what was the fair market value of the whole tract of land before, and its fair market value after the appropriation by the railroad company of the 3.1-acre strip for the right of way purposes.”

It is argued that this instruction is erroneous in that it authorized a finding of the difference between the value of the defendant’s farm before the road was constructed through it and its value afterwards, regardless of whether such difference was occasioned by the construction of the road; that if such depreciation arose from a cause other than the construction of the railroad across defendant’s farm, then plaintiff would not be liable therefor. The instruction, taken by itself, is erroneous because of incompleteness, but when all the instructions are considered together, they cover all the issues in the case, present the issues fairly, and are not misleading. “The failure to embrace all the issues of the case in one instruction is not error, if they are included in the series of instructions given, and the latter, as a whole, are correct, not contradictory, nor calculated to mislead.” [Muehlhausen v. Railroad, 91 Mo. l. c. 346; Minter v. Bradstreet Co., 174 Mo. 444.]

Finding no reversible error in the record, the judgment is affirmed.

All concur.


author: BURGESS, J.-

text:
    SARAH A. McGAHAN, Appellant, v. ST. LOUIS TRANSIT COMPANY.
    Division Two,
    March 5, 1907.
    1. CONTRIBUTORY NEGLIGENCE: Collision: Presumption: Overcome by Evidence. In the absence of evidence to the contary, it may be conceded that the deceased motorman, running his car on a single-track road, saw the car coming from the other direction, with which his collided; yet when it is conclusively shown by plaintiff’s evidence that, by the exercise of due diligence, he could have seen the approaching car, or that he did see it but failed to stop his car in time to avoid the collision, the presumption that he was in the exercise of due care is overcome.
    2. -: -: Negligent Order. Whatever order the motorman may have been given by defendant’s foreman respecting the time in which he should make a certain run, and however negligent that order, that would not release him from the duty of exercising due care in handling or operating his car and in avoiding collisions with cars or other obstructions which might be on the track.
    Appeal from St. Louis City Circuit Court. — Hon. James B. Kinealy, Judge.
    Affirmed.

      A. B. Taylor for appellant.
    The evidence tends to prove that a car, standing at either the Cast or west intersection of the Y track With Clayton track, would not he visible at any or a few places along the branch track, as it wound down the hollow in the shape of an S, or indeed at the West End Heights; so that it would be straining credibility to declare as a certainty that McCahan must have seen the car ahead of him. His lips are sealed. His conductor didn’t see the car, aye, didn’t expect a car there. The law presumes that McGahan was in the exercise of due care. Buesching v. Gas Co., 73 Mo. 233; Crump-ley v. Railroad, 111 Mo. 158; Weller v. Railroad, 164 Mo. 199; Stone v. Hunt, 94 Mo. 475; Warren v. St. L. Mer. Exchange, 52 Mo. App. 157. We respectfully submit that there is no evidence in the record either that he saw, or could see, the car ahead of him from the West End Heights, or at any point on the journey down the branch road. One of the witnesses testifies that he might or might not. The court, upon contemplation of the situation, will see that it is doubtful whether a car could be seen at either end of the Y switch by reason of the rough, uneven surface of the country south of the Clayton track. At the mouth of the hollow the Y track branched' on track going east a hundred feet to a connection with the Clayton Road, and the other the same distance westward to the connection, so that the car at either connection would not be visible through the hollow. We submit that in this state of the record it would be a reckless guess to declare that the deceased, in the exercise of. ordinary care, must have seen the car down at the Clayton connection., Eckhard v. Railroad, 190 Mo. 611.

      Glendy B. Arnold for respondent-; Boyle & Priest of counsel.
    Both of plaintiff’s witnesses swore that a person at the Clayton connection could see up the track more than seven hundred feet. Silvey, the conductor, says the accident occurred about from one hundred and fifty to two hundred feet from the Clayton connection; so, if their testimony is true, and we must assume that it is true, we do not believe it “would be straining credibility to declare as a matter of certainty that Mc-Gahan must have seen the car ahead of him, ’ ’ and that the motorman on the other car must have seen Mc-Gahan’s car. McGahan could have seen the other car when he was at a point five hundred and fifty feet south of the place of the collision. Under these facts it was the duty of the court to declare, as a matter of law, that plaintiff was not entitled to recover, because all men would agree upon this showing that McGahan was not in the exercise of ordinary care at and just before the time he received his fatal injuries.
   BURGESS, J.-

Plaintiff, the widow of James Mc-Gahan, deceased, sues to recover of the defendant damages in the sum of $5,000, under sections 2865 and 2866, Revised Statutes 1899, for the killing of her husband by reason of the negligence of the servants and employees of the defendant.

The petition, after alleging that plaintiff was the lawful wife of James McGahan at the time of his death, and that defendant was a corporation and a common carrier of passengers, and that her husband was, on the 10th day of November, 1901, a motorman on defendant’s extra car running from Third street and Washington avenue in the city of St. Louis to the connection of the branch of said railway with another line running west from Forsythe Junction into St. Louis county, and that that part of defendant’s line from the city limits to its western terminus and connection with the line of railway running from Forsythe Junction into the county was a single track, and that her husband and defendant’s conductor in charge of said extra car were ordered by defendant’s officers to run said car from Third street and Washington avenue to the western terminus of said line in forty-five minutes, charges:

(1) . That defendant’s officers and agents negligently commanded plaintiff’s husband, the motorman, and the said conductor in charge of said extra car, to make said run in forty-five minutes;

(2) . And negligently failed to give them any notice or -warning that another of defendant’s cars was then on said single track branch of said road; and,

(3). Negligently failed to provide any rule or warning by which plaintiff’s husband and said conductor would know of the presence of said other car on said single track branch of said road, and that in consequence of such negligence the car on which plaintiff’s husband was motorman was caused to collide, on said branch track, of said railway, about two hundred and fifty feet from the terminus thereof, with another of defendant’s cars running in an opposite direction thereon, whereby plaintiff’s husband was so injured as the result of said collision that he died on the 13th day of November, 1901.

Defendant’s answer, after the general denial, charged the following matter as a defense to plaintiff’s petition:

“Further answering defendant states that the injuries, if any, alleged in plaintiff’s petition to have caused the death of James McGahan, were caused: (1) By the negligence of James McGahan in this, (a) That in violation of his instructions and in violation of his duty to use ordinary care, he failed and neglected to wait on a switch constructed and provided for that purpose, for the southbound car, with which the car operated by said McGahan collided; (b) That he so carelessly and negligently operated his car as to bring it- into collision with a car proceeding in the opposite direction on the same track; (2) By the negligence of the fellow-servants of said McGahan, to-wit, the motorman and conductor of the car with which the car operated by McGahan collided, and the conductor of McGahan’s car, who so carelessly and negligently operated the cars in their general control as to bring them into a collision. ’ ’

At the close of plaintiff’s evidence the defendant interposed a demurrer thereto, which was sustained, whereupon plaintiff took a nonsuit with leave to move to set the same aside, and within four days next thereafter filed her motion to set aside the nonsuit, which was overruled by the court, to which plaintiff duly excepted. Judgment was then rendered for defendant and against the plaintiff for costs.

The.salient facts are about as follows:

The plaintiff’s husband was, on the 10th day of November, 1901, in the service of the St. Louis Transit Company, a street railway company, engaged in carryr ing passengers in the city of St. Louis, as an extra motorman. On Sunday, November 10,1901, the plaintiff’s husband and the conductor of one of said company’s cars, were ordered to take out a car to be run oh the tracks of the company between the terminus, Third and Washington avenue, and the junction or intersection of respondent’s track with a street railway running from Forsythe Junction to Clayton, in St. Louis county. The respondent had a double track from Third and Washington avenue, the eastern terminus, to West End Heights, and from that point to the junction with the Clayton railway, a distance of five-eighths of a mile, there was a single track. From West End Heights to the Clayton Road, there was a descent, according to the evidence, of about 400 feet, and the single tracks by meandering curves through a hollow or gorge, reached the level of the Clayton track at the point of intersection, and there the car turned to return to the east terminus.

In order to make the turn at the Clayton connection, respondent had constructed a Y track or tracks, and the turn of the car for its east voyage was effected by getting on the Clayton track at the east intersection of the Y track — backing west on that a hundred feet or more until the west intersection of the Y track was reached, when the car would start on its east journey.

Upon getting the order to take out the car in question the deceased, husband of the plaintiff, and S. S. Silvey, the conductor of said car, went to the car sheds of respondent near Manchester and Compton avenues, St. Louis, and took the car out of thé sheds at 12:47 p. m., November 10th, 1901, the day being Sunday. They were ordered to take the car to Third street and Washington avenue and from there start on the trip west at 1:19 o’clock p. m.

The time order was to run from Third and Washington avenue to the Clayton Road connection in 45 minutes, and leave that connection, on the return trip, at 2:04 o ’clock p. m. It appears from the evidence that this was the first trip made by the motorman to the connection at Clayton Road, and that McGahan was an extra motorman, and did' not have a regular car. It appears that this car got its time schedule at the car shed, the conductor taking the same from a bulletin board placed there by the foreman. The evidence showed that at the West End Heights connection with the single track there was a switch, and that the position or appearance of the switch would indicate whether there was a car on the single track; that when a car going west arrived at said switch, and it indicated that there was another car ahead, it was supposed1 to wait there till said other car came back, although it would appear that at times the cars arriving at the switch went forward- and onto the single track even when there was another car ahead; that it took from eight to ten minutes for a ear to leave the West End Heights connection, and go to and return from the Clayton Road connection, so that a car spaced four minutes behind the front car must, if it did not wait at said West End Heights switch till the front car returned, either find the front car at the Olayton Road connection or meet it on the track. It appears that the car on which McGahan was motorman was on time at the West Eind Heights connection, as also on time when the collision occurred, and that prior to and at "the time of the collision the car was going at the ordinary speed of five or six miles an hour. There would appear to have been no instructions given the crew of the car as to what to do or how to act on the single track, the order being simply to make the run from "Washington avenue and Third street to the connection in question in 45 minutes. When within three or four hundred feet of the Clayton Road connection, the car ahead, on its return, collided with McGahan’s car, and he was so injured thereby that he died from the effects of the injuries on the 13th day of November, 1901. The conductor of McGahan’s car was, at the time of the collision, on the back platform talking to a passenger. He heard no bell sound or other noise made to indicate that there was a car approaching.

Plaintiff contends that the evidence tends to prove that a car standing at either the east or west intersection of the Y track with the Clayton track would not be visible at any or but a few places along the branch, as it wound down the hollow in the shape of an S, or indeed at the West End Heights, and that it would' be straining credibility to declare as a certainty that Mc-Gahan must have seen the car ahead of him; that his conductor did not see nor expect a car there. That under such circumstances the law presumes that McGahan was in the exercise of due care.

It is, doubtless, true that neither McGahan nor Silvey, his conductor, saw the colliding car in time to have avoided the accident, for, had either of them so seen it, it is natural to presume that the collision would not have occurred; but if McGahan’s failure to see said car was his own fault or the result of his own negligence, and the collision occurred as the consequence of such negligence, he was just as culpable as if he had seen it. And while, in the absence of evidence to the contrary, it may be "conceded that McGahan was at the time of the accident in the exercise of due care (Buesching v. Gaslight Co., 73 Mo. 219; Crumpley v. Railroad, 111 Mo. 152); yet, when it is conclusively shown by the evidence of plaintiff’s witnesses, upon their direct aswell as their cross-examination, that McGahan could, by the exercise of due diligence, have seen the approaching car or.that he did see it, but failed to stop his car in time to avoid the collision, the presumption of due care is overcome (Weller v. Railroad, 164 Mo. 180), and contributory negligence upon his part fully established. While it may be true that there is no evidence in the record that McGahan either saw or could see the ear ahead of him from the West End Heights, the evidence shows that the motormen and conductors in charge of both cars had ample opportunity to discover each other in time to avoid the collision. Both of plaintiff’s witnesses testified that a person at the Clayton connection could see up the tracks more than seven hundred feet. Silvey, the conductor, testified that the accident occurred from about one hundred and fifty to two hundred feet from the Clayton connection; so that, if this evidence be true, the conclusion is inevitable that McG-ahan, if looking, must have seen the car ahead of him, and the motorman on that car have seen McGahan’s car, when the latter was at a point five hundred feet south of the point of collision.

The first charge of negligence, which is based upen the ground, as alleged, that defendant’s employees negligently commanded McGahan to make the run from Third Street and Washington avenue to the Clayton connection in forty-five minutes, is not sustained, for the evidence shows, and plaintiff concedes, that the car was exactly on time when the collision occurred, and was at the time running at the usual and ordinary rate of speed from five to six ipiles an hour. So that, whatever fault, if any, there may have been in fixing the schedule from Third street and Washington avenue to Clayton coxmection at forty-five minutes, that was in no way the cause of the accident. Besides, whatever order the deceased might have been given respecting the running time of the car, that wonld in no way release him from the duty of exercising due care in the handling or operation of the car, and avoiding the danger of collisions with cars or other obstructions which might be on the track.

As to the second and third allegations of negligence, to the effect that defendant negligently failed to give McGrahan any notice or warning that another car was on the connecting branch, and that it failed to provide any rule by which McGahan could have known of the presence of another car on the single track, the evidence showed that the switch at the West End Heights connection always indicated to the motorman whether or not a car had gone down on the Clayton branch. On this point conductor Silvey testified as follows:

“Q. Was there any place there for cars to wait — where these cars entered that switch — or about that place — so that if a car was down in there it would come on back out? A. If they said, ‘Wait’ — I didn’t know there was another car down there.
“ Q. I want to know what sort of a place there was to wait? A. A double track.
‘ ‘ Q. Then a switch from that double track into a single track? A. Yes, sir.
“Q. Did all the cars always run on schedule time on down to the single track without ever stopping there, or not ? A. I have seen them go down there when cars were down there.
“Q. I say, was that uniformly the custom to run down there without any stop? A. If the switch is thrown they generally went on down.
“ Q. If the switch was thrown? A. If the switch was thrown.
“Q. What do you mean by that? A. Shows whether the ear came out.
Q. If a car had gone in there and come out the switch would show it? A. I don’t know how that was.
“Q. Are you testifying to something you don’t know anything about? A. I don’t know anything about the switch.
“Q. Didn’t you just tell the jury you knew that by that switch? A. If I would have been there myself and known it.
“Q. If you had been there you could have told by the switch.. A. I think so—
“Q. Don’t you know that switch indicated to every motorman whether or not any car was in there ahead of them, and that was a signal for them to wait? A. If it was open, I don’t know whether it was—
“Q. Don’t you know that was the custom for the motorman to be governed' by the position of that switch there? A. Yes, sir.
“Q. And to look for it? A. According to whether another car — how long a car had been down there.
“Q. Now, if you waited there some little time— whether the switch indicated a car ahead — then this car could go ahead without waiting longer; is that the rule ? A. That.is the rule.
“Q. The rule was when they waited down there, when the switch indicated a car ahead, the rule was to run slow and keep a lookout? A. Yes, sir.
“Q. Because if a car had been down there and happened with an accident, and you waited up there a long time, or for some time, and the ear didn’t come, and the switch was open, that indicated there was a delay down there, then you were authorized to run down in there slow and look ahead to see what was the matter? A. Yes, sir.
“Q. Now this car ran into that switch — there, is a tongue there at that switch? A. Yes, sir.
“Q. Assuming that this pencil represents the tongue of that switch, the effect of that car going down would push this tongue around straight against the rail? A. How is that,?
“Q. I say the tongue of the switch would be pushed around by that going down ón the branch track, would it not? A. It generally is, I think.
“Q. Now that indicated, when the tongue was lying up parallel to the rail, that the car was down ahead, didn’t it? A. Went down' in there?
“Q. Yes. A. Most generally that would.”

It would, therefore, seem that McGahan must have known, from the condition of the switch at West End Heights, that there was another ca,r at the Clayton connection. The evidence also showed that it was safe and customary for motormen not to wait any great length of time for cars to come from the Clayton connection, and that cars frequently went down there with the knowledge of those in charge thereof that a car was at the Clayton connection.

While it appears from the evidence that McGahan had never taken an extra car before over the single track between the West End Heights and Clayton connections, it also appears that he was an experienced motorman, and familiar with the operation of cars upon this division, having been engaged there as an extra motorman for nearly six months.

Plaintiff’s petition is bottomed upon three specific acts of negligence, neither of which would authorize a recovery upon the ground that the defendant had negligently spaced the two cars that collided on the branch track. Besides, no such thing as a uniform spacing of cars is practicable on a street railway, as it is matter of common knowledge that blockades frequently occur on the streets which the operators of the lines are powerless to prevent.

Our conclusion is that the demurrer to the evidence was properly sustained. The judgment is affirmed.

All concur.