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    JAMES M. MORRISON et al., Appellants, v. TURNBAUGH.
    Division One,
    December 21, 1905.
    1. PRACTICE: Equity: Ruling on Evidence. Even in equity cases the ruling of the chancellor on objections to evidence should be more definite than “Proceed,” “Subject to Objec- ' tion,” etc.
    2. -: Summons by Publication: Residence Not Known. It is not necessary, as a preliminary step to bringing suit by publication in a tax suit, that a summons issue and a non est return be made, in order to determine whether or not the defendant is a non-resident. The affidavit of non-residence is one of the statutory conditions precedent for the order of publication.
    3. -: -: -: Status. Besides, it is not necessary, in a subsequent suit in which the sufficiency of the tax deed to carry the title is brought in question, to decide whether the order of publication operated to bring a resident defendant into court, if the evidence does not show that he was at that time a resident.
    4. TAXATION: Description in Assessment: Division of Tracts Into Lots. Irregularity in assessing property for taxation by describing the tract by the lots into which it is divided, such as lots. 1 and 2 of a certain quarter section, does not render void the suit for taxes and the deed made in pursuance thereto. At most, it only renders them voidable, and in a collateral proceeding, such as a suit to quiet title, brought against the purchaser at the tax sale, such irregularity is not available. Besides, the tax proceeding being evidently aimed at the quarter section, the words “lots 1 and 2” may be treated as descriptive only.
    5. -: Judgment and Deed: Wrong Middle Letter of Name: Equity. The petition, the order and proof of publication, and the publication itself properly described the record owner as George M. Johnson, and the judgment was against G. W. Johnson, and the deed recites such judgment and adopts the error. Held, that this misprision of the clerk did not render'the judgment void, for it could have been corrected by a mmo pro tunc order on the data in the clerk’s office, and equity considers that as done which should have been done.

      6. -: -: - — : Statute of Jeofails. In view of the Statute of Jeofails, which provides that no judgment upon failure to answer shall be reversed, impaired or in any way affected by reason of any mistake in the name of any party when the correct name “shall have been once rightly alleged in the pleadings or proceedings,” a tax judgment against G. W. Johnson, in a suit wherein the record owner’s name of George M. Johnson was correctly stated, in the petition, order and proof of publication and the publication itself, to be George M. Johnson, cannot be set aside even in a direct proceeding.
    7. -: Middle Initial. The middle initial of a name is not considered important in identifying the person sued for taxes.
    8. -- — : Payment of Taxes: Diligence. The payment of taxes for twenty-five years by the purchaser at a tax sale, while not sufficient to entitle him to invoke the thirty-year statute, yet is significant if acquiesced in by the record owner. The law rewards the diligent.
    Appeal from Stoddard Circuit Court. — Row. J. L. Fort, Judge.
    Affirmed.

      Robert L. Wilson for appellants.
    (1) Appellants insist that at the date of the institution of the suit, judgment, execution and delivery of the tax deed by sheriff to respondent, George M. Johnson was a citizen of the State of Missouri. If so, he should have been proceeded against by summons and not by publication until a return of non est was had, or an affidavit that said George M. Johnson so concealed himself that the ordinary process of law could not be served upon him. In addition, the affidavit does not comply with section 575 or section 2022, Revised Statutes 1899. Murdock v. Hillyer, 45 Mo. App.. 278. Morrison’s testimony fully establishes that in 1866 George M. Johnson was a resident of Iron county, Missouri, and did not remove to the State of Illinois until about 1896. It is a well-established principle of law that the original domicile continues until it is fairly changed for another. Walker v. Walker, 1 Mo. App. 104; 14 ■Cyc. Law and Proc., 851; State v. Finn, 4 Mo. App. 356; State v. Sanders, 106 Mo. 188. (2) Appellants insist further that respondent acquired no title by said sale. .The judgment and deéd did not follow the petition. The petition was a suit against George M. Johnson. The judgment was against G. W. Johnson. The execution was against G. W. Johnson, and the deed conveyed away the property of G. W. Johnson. The middle initial letter has frequently been held by our courts as no part of a person’s name but the common law held that every person had a Christian name and a surname. It is held in this State, following the common law, that but one Christian or baptismal name is recognized. An initial letter before the name or after the name may be omitted, but there must be the baptismal name as well as the surname. Nolan v. Taylor, 131 Mo. 224; Corrigan v. Schmidt, 126 Mo. 304; Chamberlain v. Blodgett, 96 Mo. 478; Skelton v. Sackett, 91 Mo. 377. If the baptismal and surname are not set out in full the tax deed will be void. Sweazy v. Nettles, 2 Mo. 6.

      Mozley & Wammack for respondent.
    (1) The petition in the tax suit was filed in the circuit court in 1878, and was against George M. Johnson, and properly described the land sought to be impressed' with the State’s lien, and certainly was sufficient to confer jurisdiction on the court of the subject-matter. The affidavit for publication alleges “that George M. Johnson, the defendant, is a non-resident of this State.” At the time of the institution of this suit for back taxes, to entitle the plaintiff to a publication, the'law required “the plaintiff or other person for him, to allege in his petition or file an affidavit, stating that part of all of the defendants are non-residents of the State.” 2 Wagner’s Statutes 1870, p. 1008. The statute of 1879 makes exactly the same provision for publication. R. S. 1879, p. 597. The affidavit in this case was a full compliance with the law. Allen v. Ray, 96 Mo. 542; Tufts v. Valkening, 51 Mo. App. 8. The order of publication was published for four successive weeks in the Enterprise Messenger, the last insertion being more than fifteen days before the term of court to which defendant was cited to appear, and was directed to George M. Johnson, and described the land and the general nature and object of the suit. The order of publication in this case was sufficient and it makes no difference whether defendant was a resident or a non-resident, the plaintiff having elected to proceed against him as a non-resident, and having filed an affidavit with his petition alleging that George M. Johnson was a non-resident of the State. Tooker v. Leake, 146 Mo. 419; Russell v. Croy, 164 Mo. 69; Ratliff v. McGee, 165 Mo. 461. The publication being regular in all things, brought defendant, George M. Johnson, into court, and gave the court complete jurisdiction in the premises. The defendant, and the property sought to be impressed with the lien of the State, being properly before the court, it rendered judgment in the premises, which by an error was recorded as against G. W. Johnson, but was in all other respects regular, so far as we are able to observe. The error having crept into the judgment, it was but the sequence of events that it should follow in the subsequent proceedings, and we find Dr. Turnbaugh buying the land described in the petition, and the order of publication, as the land of G. W. Johnson. (2) Proceedings to enforce tax liens are not strictly in rent, but are to be proceeded with as ordinary actions against real estate. Gitchell v. Kreider, 84 Mo. 472. The petition, the order of publication, the judgment, the execution and the sheriff’s deed in the case at bar all properly describe the land and meet the requirements of the law. The middle letter or initial does not constitute any part of a person’s name, and hence the letter “"W” in the judgment and subsequent proceedings instead of the letter “M” does not tend to show that it did not have reference to the identical George Johnson who was sued and brought into court by publication. Corrigan v. Schmidt, 126 Mo. 304. (3) Judgments of circuit courts in tax suits are entitled to the same presumptions indulged as to all other judgments, and are not open to collateral attack. Brown v. Walker, 11 Mo. App. 226; Railroad v. Yiew, 156 Mo. 618; Stevenson v. Black, 168 Mo. 558. The land in suit constituted but one tract and was so assessed. Even if there were more than one tract described in the proceedings, appellants cannot reach such a defect in a collateral proceeding, such as they have here. Jones v. Driskill, 94 Mo. 199. And so it has been held that the neglect of the sheriff to sell the land by its smallest legal subdivisions does not invalidate the sale. Wellshear v. Kelley, 69 Mo. 355; Brown v. Walker, 11 Mo. App. 226, 85 Mo. 262. (4) Our statute (R. S. 1899, sec. 672) provides “that no judgment shall be reversed, impaired, or in any way affected for any mistake in the name of any party or person, etc., when the correct name, etc., shall have been once rightly alleged in any of the pleadings or proceedings.”
   LAMM, J.

This is a suit to quiet title to the northwest quarter of section 6, township 28, range 12, in Stoddard county, and was treated as an equity case.

The petition sets forth that James M. Morrison has a curtesy interest in the land, that his co-plaintiffs are his children and have interests in remainder, subject to said curtesy, and claim title; that he is their trustee; that plaintiffs have been in open, notorious, adverse, exclusive and continuous possession of the land under claim and color of title for more than ten years last past; and that defendant claims some title, estate or interest, the nature of which is unknown to plaintiffs and cannot be described except that it is adverse and prejudicial to plaintiffs.

The answer is in form of a general denial, coupled with, a claim of ownership by defendant, and, further, alleging that plaintiffs’ claim is based on a deed from one G. M. Johnson of Jackson county, Illinois, but that “the witness thereto” and the notary acknowledging said deed were unacquainted with him; did not know the grantor to be Gr. M. Johnson; that he was not the Gr. M. Johnson who at one time owned the land and “had no connection with” him; and that the said deed was void and ineffective for the purpose of conveying any title to the premises.

The replication put in issue the new matter in the answer.

On pleadings thus outlined the trial was had and a decree entered in favor of defendant in October, 1902, from which plaintiffs duly appeal.

It appeared at the trial that George M. Johnson held a patent to the land from the government, date undisclosed, and it was admitted he was the common source of title.

It stands admitted likewise that James M. Morrison is the husband of Ida A. Morrison, deceased, and that his co-appellants are their children. Mrs. Morrison’s will, probated in Cape Girardeau county in 1899, was introduced in evidence and established the fact that James M. Morrison was testamentary trustee of his co-appellants, and that they were remaindermen in all real estate of which testatrix died seized.

No proof was introduced sustaining the allegation in the petition of appellants’ possession for the statutory period of ten years. To the contrary, their title, as alleged in the answer, was shown by the proofs to be solely based on a purported deed from George M. Johnson to said Ida A. Morrison in October, 1897, presently to be considered. Possession was straightway taken by Mr. Morrison under this deed on behalf of his wife, then alive, and he deadened some timber, cleared some ground and built two houses, afterward destroyed by fire. So, that the Statute of Limitations is not in the case; because there was no possession prior to 1897 in appellants or their testamentary ancestor under color of title, and no such possession as disseizors that could have ripened into title by limitation.

On the other hand, the Statute of Limitations is not in the case on respondent’s side; for while respondent claims ownership, yet he does not claim the Statute of Limitations as creating title in him. In fact, the land up to 1897, at least, was wild, uninclosed timber. Eespondent had cut and sold some timber therefrom, since 1880, but his claim of title is based exclusively on tax proceedings begun in the circuit court of Stoddard county against George M. Johnson, ripening into a judgment, a sale, and a sheriff’s deed to him in 1880, presently to be considered.

Not losing sight of the foregoing admissions and uncontroverted facts, the case made on the residue of the evidence is as follows:

Appellants produced in evidence a warranty deed from George M. Johnson to Ida A. Morrison, consideration $200, dated October 2, 1897, and recorded December 13th, 1897 (wherein the grantor is described as “of the county of Jackson, State of Illinois, a widower, party of the first part”), conveying the real estate in question.

his

This deed is signed thus: “George M. Johnson,” and mark

bears the following earmark: ‘' signed, sealed and delivered in the presence of Eobert L. Wilson. ’ ’ It was acknowledged onffhe day of its date by John F. Woody, a notary public of Cape Girardeau county, who certified, inter alia, as follows: “on this second day of October, 1897, before me personally appeared George M. Johnson, a widower, to me known to be the person described in and who executed the foregoing instrument,” etc.

This deed was objected to by respondent “because not executed by George M. Johnson who at one time owned this land and because there was no witness to his mark.” On which objection the court ruled thus: “Subject to objection.”

Appellants next offered the will of Ida A. Morrison and the probate thereof in the common pleas court of Cape Girardeau county. To the introduction of this will, respondent objected that she had no title and therefore conveyed none and because “the will had not been recorded in this county” (Stoddard) “where the lands are situate.” On this .objection the court ruled thus: “Proceed.”

The will is lengthy. Its terms are immaterial, further than that it shows, as said, that James M. Morrison is the trustee for testatrix’s and his own children, his co-appellants, of all testatrix’s real estate.

James M. Morrison, being produced and sworn as a witness, testified, in chief, that he .knew defendant Turnbaugh; that he knew the property in controversy On being asked whether at the commencement of the suit defendant claims any interest in the premises, he answered, “He claimed it, but I didn’t recognize it.” On being asked what information he got of respondent’s claim, he answered, “I looked in the records,” and continued, “Yes, sir, he claimed to own the land; he claimed under a sheriff’s deed; tax title.”

On cross-examination he said that he saw on the records that respondent had no title; that the sheriff’s deed was on record at the time; that he didn’t think the sheriff’s deed was worth anything; that he knew George M. Johnson since 1866; first saw him in Jackson, Missouri; afterwards saw him in Stoddard county. Witness here described his looks as a medium-sized man about thirty or thirty-one years old, dark-haired when he first knew him; when he saw him la.st he was aged sixty-six or sixty-seven and his hair was tinged with gray; that he weighed about 155 pounds; had gray eyes and a brunette complexion. On being asked, “After you became acquainted with him in 1866, how long was you acquainted?” lie answered that he stayed around —lived in Iron county; that he came down and said that he owned this land in 1868; he lost sight of him in 1870; last saw him in 1897; had not seen him from 1870 to 1897, nor heard of him nor known of his whereabouts ; knew nothing of him for twenty-seven years. Then this happened: “Q. You formed the acquaintance of a man who said his name was George M. Johnson, in 1897, didn’t you?” To this question the witness vouchsafed no answer. On being pressed, his answer was, “Yes, sir, I knew it was him. Q. Did you recognize him when he met you? A. Not until he told me. Q. You met a man who told you his name was George M. Johnson, did you? A. Yes, sir, and I recognized him afterwards.” The witness, continuing, said he met him at Big Springs at the city of Cape Girardeau about the 27th of September, 1897, and that was the first time and place he had met him for twenty-seven years or had heard anything about him; that in four or five days thereafter he got the deed in question; that at that time Johnson was not as fleshy as he had been; had been sick and was sick then. Being inquired of about the $200 consideration in the deed, he testified he gave Johnson a horse and the balance in money— $140 in cash' and $60 “worth of horse.” That before that, in 1884, he had found out that George M. Johnson had never sold this land, and that he got this fact from the records. On being asked the following question: “Q. And you were endeavoring to acquire a conveyance of these lands, weren’t you?” he replied, “No, sir, not particular.” That he had merely written to the land office at Ironton to find out if there were any vacant lands in southeast Missouri; that he was engaged in picking up lands here and there when he could get them cheap and that he had followed that as a business for twenty years. On being inquired of whether the witness to the deed or the notary was acquainted with the party who executed the deed as grantor, he answered, “They were only acquainted with him by what he told them — he was talking to them about the country.” On being further inquired of, he answered that the notary and such witness were not acquainted with the person that he knew of; that they were in the presence of the notary and said witness a half hour; that the horse belonged to the witness and the money belonged to Mrs. Morrison; that Johnson said he had been living in Jackson county, Illinois; that he had been there only a year and was on his way to Oklahoma, and added, ‘ ‘ Then he went right on west; ’ ’ that he claimed that he had been a resident of Jackson county during the year 1896 and part of the year 1897; that he (witness) had never paid any taxes on the land but went to pay them after he got the deed and always found them paid; that he knew some person was paying them; that a.t one time when in Bloomfield he was subpoenaed (to have his deposition taken) and on his returning to Cape Girardeau and informing his counsel, he was asked if he had any money tendered him to pay his way back and forth and, on his saying no, his counsel told him he didn’t have to go; that Johnson told him during his acquaintance with him in 1866 to 1870 that he lived in Iron county, Missouri. On being inquired of as to the extent of his acquaintance with Mr. Johnson during that period, he answered that he saw him ‘ ‘ two or three or four times; ’ ’ that he did not go to Iron county to see him but that Johnson came in 1868 to Jackson, Missouri, and stayed all night at the house of witness’s father: that the witness and a colored man had gotten over the line on his land (making rails) and Johnson came there with another man; that the way he came to recognize Johnson in 1897 was that Johnson asked him (witness) if he didn’t remember the time he went into the woods and showed him he was making rails over the line. Thereupon witness replied to Johnson, “Yes, I remember it.” It was after this that witness recognized Johnson in 1897 and he testified that the only way he had of knowing him at that, time was by Johnson’s telling him said circumstances.

On re-examination, the witness said he brought: Johnson to Judge Wilson’s office (where the notary was), introducing him to Mr. Wilson and the notary as; G. M. Johnson and on the strength of such introduction Woody took the acknowledgment; that at that time there was a personal resemblance in the man to the Johnson he had known before; that witness lived at Cape Girardeau thirty years; was a member of the city council for seven years; that the land was all woods in 1897; and that the betterments now on the land were a clearing and seventy acres of timber deadened.

Such, substantially, is appellants’ case.

On respondent’s offering the deposition of one Hughes, appellants’ counsel interposed an objection directed.to the competency and relevancy of the questions and answers. On this objection the court ruled, thus: “ Proceed.”

By Hughes it was shown that he lived in Jackson county, Illinois; had been county- surveyor of that county continually since 1894; was as well acquainted as any man in that county; that he knew no man named George M. Johnson and never knew such a man in that county; that he would have known if such a man lived in that county in 1897; that witness was in all parts of the county and had made it a point to see every citizen over twenty-one years of age; that he did this in the fall of 1896 and gave it as his opinion that- had such a man lived in the county, he could not have escaped witness’s knowledge, and referred his exact information to polling the entire vote and making it a point to know every man in the county of voting age.

The deposition of one Wells was then read. Wells testified he lived in Jackson county, Illinois, for thirty years and was sheriff there in 1897; was and is now one of the best acquainted men in that county; that no such man as G. M. Johnson lived there in. 1896 to his knowledge; that if he had lived there he was sure that he would have known him; that he had never known such a man but had known several men by the name of Johnson, but none of the initials of “G. M.” He also referred to the practice of polling voters as the occasion of his accuracy of information and the precision with which he spoke. He testified, furthermore, that he had made inquiries for this man G-. M. Johnson and had been unable to find any trace of him.

Respondent produced Mr. Young as a witness and by him showed that he (Young) had visited Jackson county with the view of locating the residence of G..M. Johnson; had made two visits there; had inquired from all sources from which he thought he could get any information; asked county-officers and ex-county officers; went to the tax list and examined it to see if he had been taxed and inquired from every person he saw who would have known if he had lived there. He testified to having found two George Johnsons, but they were both young men and they were no such men as the grantor in the Morrison deed, and that he had used every effort he could in other ways to hear of George M. Johnson.

Upon cross-examination, Mr. Young (who, we assume, is one of respondent’s counsel) said that he had not made inquiries in Iron county; that he was unable to find there was any claim by Morrison that Johnson lived in Iron county; that he tried to take Morrison’s deposition to find out where he claimed this person lived; that he did not ask Morrison but tried to take his deposition; that his effort to find out from Morrison was spent upon subpoenaing him to take his deposition; that when he was in Jackson county, Illinois, he met the George Johnsons referred to above; one of them lived on a mail route; and the other lived elsewhere in the country; did not'know the population of Jackson county; supposed it was more than 5,000; had discussed the taking of Morrison’s deposition at Cape Girardeau; never gave notice to take deposition there; and, the witness added, * I knew he was inclined to dodge me. ’ ’

Respondent next offered in evidence a duly acknowledged sheriff’s deed, executed by the sheriff of Stoddard county on the 18th day of March, 1880, conveying the land in controversy, sale made on a judgment for taxes, recorded on the 5th day of July, 1880.

To the introduction of this deed appellants ’ counsel interposed an objection to the effect that it showed that the taxes were assessed against two lots together and the sale was so had; that under the statutes taxes must be assessed against each parcel of land separately and land must be so conveyed. Further, because it showed on its face it appeared to convey the title of “G, W. Johnson,” when the title appeared in Gf. M. Johnson.

On this objection the court ruled thus: “Subject to objection.”

The sheriff’s deed, being introduced, showed by its narrations it was bottomed on a judgment rendered against “Gf. W. Johnson” for delinquent taxes upon “lots one and two, N. W. 1-4 Sec. 6, Twp. 28, R. 12,” for the years of 1869 to 1876, inclusive, etc. That a special execution was issued in favor of the State of Missouri to the use of the county collector against the said “Gf. W. Johnson,” etc., due advertisement made, etc.; that on the 5th day of March, 1880, sale was made, and that T. B. Tumbaugh was the highest and best bidder for the said real estate at the sum of $30.50 and the same was stricken off and sold to him.

Respondent next introduced the petition in the tax suit and the back taxbill. The petition was entitled, “State of Missouri, at the relation and to the use of William C. Harty, collector of the revenue of Stoddard county in the State of Missouri, v. George M. Johnson, defendant. ’ ’ It described the land as lots 1 and 2 of the northwest quarter of section 6, etc., as in the deed. It alleges that the tax was levied against lots 1 and 2 of the northwest quarter and shows' it is otherwise in approved form. The back taxbill referred to and filed with the petition shows the land described as aforesaid and gives the name of the owner as G. M. Johnson.

This proof was followed by an affidavit of non-residence made by the collector’s attorney, which, among other things, states as follows: “That George M. Johnson, the defendant in the above-entitled cause, is a nonresident of this State.” No objection was made to the petition or the affidavit at the trial, but the affidavit is now assailed in appellants’ brief as irregular.

The foregoing proof was supplemented by an order of publication, made by the clerk of the circuit court in vacation, in which defendant’s name is given as George M. Johnson, and the land described as heretofore. No objection was made to this order of publication and the same was followed by proof of publication showing that, it was published in accordance with law.

At this stage, appellants interposed an objection to< the effect “that the order of publication and deed show that there was no separation of the amounts due on each lot,” etc. Upon this objection the court ruled thus: ‘ ‘ Subject to objection. ’ ’

Following this, the judgment was introduced, and in it the name of defendant appears written as “ G. W. Johnson” and the land is described as heretofore. To the introduction of this judgment appellants’ attorney objects as follows: “We make the same objection.” N> ruling whatever is shown thereon.

Respondent was sworn as a witness and testified, in chief, that he had been paying the taxes on the property since 1880, the date of his deed, and had paid two or three years’ back taxes; that he did not know George M. Johnson; that he claimed to own the land as against the world.

On cross-examination, he said his possession was that he had sold some timber off the land, and referred his possession to the sheriff’s sale and his payment of taxes.

Such, is substantially respondent’s case.

In briefs here it is claimed by appellants, in substance, that (1) tbe tax judgment, execution, sale and deed are void by reason of irregularity; (2) that under the record George M. Johnson was a citizen of the State of Missouri at the time of the tax suit and, hence, should have been proceeded against by summons and a return of non est before an order of publication could be made; (3) that the affidavit does not comply with section 1575; (4) that the court erred in admitting in evidence the tax deed, the petition and back taxbill, the affidavit of non-residence, the order of publication and the judgment for taxes; and (5) erred in not giving appellants’ peremptory instruction.

Do any of these assignments point us to reversible error? We think not. Because:

I. There is some embarrassment in considering the rulings, nisi, in so far as they relate merely to the admissibility of evidence as such; for such rulings, if rulings they be, are vague in legal intendment and shorn of all precision. To say in response to objections lodged, as the learned trial judge does, “Proceed,” or to say, as he also does, “Subject to objection,” may mean sundry things. For instance, “proceed” might mean go on, stop objecting, or that the objection is frivolous, or I don’t choose to consider it at this time, if at all. “Subject to objection” might mean, in a literal sense, that the evidence is subject to, i. e., controlled by, the objection, or that it was admitted temporarily and the objection held in the breast of the court, sub judice, to be afterwards disposed of during the trial, or it might mean that the court noted the objection and considered it unnecessary, or declined, to rule on it.

To leave a ruling in such form that the intendment of the court below must be only guessed on appeal, or to leave it so that it may be delivered of different or contradictory meanings at the whim of erudite and versatile counsel, is to leave it in affliction as human affairs come and go. For instance, witness the impassioned insistence of Serjeant Buzfuz, ore tenue, in the cause celebre of Bardell v. Pickwick, before Stareleigh, J., at Guildhall, wherein he, Buzfuz, as the reported case shows, construed Samuel Pickwick’s homely message to Mrs. Bardell, viz.: “Garraways, twelve o’clock. Dear Mrs. B. — Chops and tomato sauce. Tours, Pickwick,” and another, viz.: “Dear Mrs. B. — I shall be home to-morrow. Slow coach. Don’t trouble yourself about the warming pan” (we may be allowed to quote from memory), as ardent and inflammatory love-letters, or as trifling with the tender sensibilities of widow Bardell. It is needless to say that if the Bardell case had been appealed here, on the same facts, we would have inclined to the holding that Buzfuz’s construction of Mr. Pickwick’s oracular and somewhat incoherent language, whether considered in the light of the- maxim contra proferentem, or in mitiori sensu, was far-fetched and quite missed (by overshooting) the mark.

Nevertheless, coming back to our case, as all the evidence is before us, our duty is to consider the decree from the standpoint of whether or not it is right and founded on the competent proof, regardless of questions relating to mere admissibility of evidence. [Rice v. Shipley, 159 Mo. l. c. 405.] For in an equity case, such as we consider this, it is not necessary here to pass on rulings, nisi, on the admission or rejection of evidence. [Sheridan v. Nation, ibid, 27.] But this does not mean that the chancellor should not rule on evidence when its admission is challenged, nor does it mean that if the case required it, we would not reverse and remand because of reversible error in allowing proof.

II. The affidavit of non-residence is assailed. The theory of appellants’ counsel seems to be that, before an order of publication should have issued in the tax suit, a preliminary investigation should have been had and the question decided whether or not the defendant was a resident or a non-resident, and that if an erroneous conclusion was arrived at on this preliminary matter, then the order of publication was ineffective — that to determine such question in this case a summons should have been issued, a non est return made and, predicated upon such return, an order of publication might be issued by the court (E. S. 1899, see. 577). But to avoid the force of this contention, it may be said that, in establishing a working theory or rule for the administration of the statutes relating to service of process, it has been held that an affidavit of non-residence is one of the conditions precedent for an order of publication by the clerk. [See authorities infra.]

Our present statute was practically the statute then existing. As it then stood it provided (E. S. 1879, see. 3494) that “in suits . . . for the enforcement of . . . liens against . . . real . . . property, and in all actions, at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real . . . property within the jurisdiction of the court, if the plaintiff, or other person for him, shall allege in his petition, or file an affidavit, stating that part or all of the defendants are non-residents of the State . . . the court in which said suit is brought, or in vacation, the clerk thereof, shall make an order, ’ ’ etc.

The affidavit filed in this case was in strict compliance with the law and its vigor as a basis for jurisdiction in a proceeding in rem is sustained by many cases —for example, Allen v. Ray, 96 Mo. 542; Tooker v. Leake, 146 Mo. 419; Coombs v. Crabtree, 105 Mo. 295.

In the ease at bar, we need not consider the proposition whether the order of publication operated to bring a resident defendant into court, because the facts of this record do not sustain appellants’ contention that Johnson was a resident of the State of Missouri at that time. The most that can be said of the proof is that many years before, from 1866 to 1870, he floated into Cape Girardeau and Stoddard counties, sporadically and by way of parenthesis, for two, three or four times, and claimed to live in Iron county. "Whether he then resided in and was a citizen of Iron county is left a somewhat open question and, therefore, there is no room for the presumption that he continued to reside there. Before a status is presumed to continue the existence of the status itself must be first established.

The contention in hand must, therefore, be ruled against appellants.

III. The order of publication and the proof thereof, as well as the petition, are all in proper form, against the right party, and, barring from present consideration all question in regard to the assessment and levy of the tax against lots 1 and 2, northwest quarter, instead of against each lot separately, they are not subject to just criticism.

IV. It is next contended that for taxation purposes and for the purposes of sale under special execution issued on a tax judgment, the tax appropriate to each should have been levied against each of lots 1 and 2 of the northwest quarter, so that each lot would bear its own tax, and that the sale should have been made accordingly, and that in this case the order of publication, the judgment, the sale and the deed all show that thé tax was levied against the lots together, and the whole northwest quarter, both lots, sold for the aggregate tax. The tract of land aimed at was evidently the northwest quarter, in solido, and the preceding words, “lots 1 and 2,” indicating its division into lots, may be treated as somewhat descriptive only. But, waiving that, we are not called upon to decidewhether the proceedings in this respect were regular, because the matter is disposed of by the settled doctrine that such irregularity, if any, does not render the proceedings void; that it, at best, renders them voidable, and might have been considered on appeal or writ of error, in the principal case, but is not the subject of collateral attack, such as that delivered here. The precise question has been up before, and has been uniformly determined against appellants ’ insistence. [Wellshear v. Kelly, 69 Mo. 343; Gray v. Bowles, 74 Mo. 419; Brown v. Walker, 85 Mo. 262; Jones v. Driskill, 94 Mo. 190; Coombs v. Crabtree, 105 Mo. l. c. 298.] See, also, on the general doctrine that tax proceedings are not to be overthrown on mere irregularities when assailed collaterally, Schmidt v. Niemeyer, 100 Mo. 207; Boyd v. Ellis, 107 Mo. 394; Gibbs v. Southern, 116 Mo. 204; Warren v. Manwarring, 173 Mo. l. c. 32-3, and cases cited.

In Lovitt v. Russell, 138 Mo. l. c. 482, a general, proposition applicable to the point being considered, is formulated thus: “No principle of law is more univerally accepted in this country than that the judgment of a court of competent jurisdiction, so long as it stands unreversed, cannot^ be impeached in a collateral proceeding on account of mere errors or irregularities not going to the jurisdiction

The assignment of error under discussion, for the foregoing reasons, is ruled against appellants.

V. It is next contended that the tax judgment and deed are void and ineffective and do not operate upon the title of George M. Johnson because the judgment is against G. W. Johnson and the tax deed recites such judgment and adopts the error. It will be seen that the petition has the proper defendant by name, George M. Johnson, the order of publication has the proper defendant by name, the proof of publication has the proper defendant and the order of publication was actually published against the proper defendant by name, but that, presumably by the misprision of the clerk, the middle initial “M”was pretermitted in the judgment and “W” inserted in lieu thereof. Does this render the judgment void under the foregoing facts? We think not. This judgment could have been corrected by a nunc pro tunc entry on the data existing in the clerk’s office. [Stevenson v. Black, 168 Mo. l. c. 561; R. S. 1899, sec. 660.] And equity considers that done which should have been done.

Not only so, but by the Statute of Jeofails, existing at the time this suit was brought, and now appearing in Revised Statutes 1899, as section 672, it was and is provided that no “judgment after trial or submission,” no “judgment upon confession, nihil (Licit or upon failure to answer,” should “be reversed, impaired or in any way affected by reason of . . any mistake in the name of any party or person . . . when the correct name . . . shall have been once rightly alleged in the pleadings or proceedings.” If, therefore, the tax judgment had been appealed from, this court, even in such direct proceeding, could not have stayed, reversed or impaired it by reason of the misprision of the clerk in changing the true name once appearing in the records, George M. Johnson, to G. W. Johnson.

We are cited to cases holding that a tax judgment is void where it is based upon an order of publication not directed to the true owner of the land by his record name, but directed to a person whose Christian name appears therein by initials only. Samples of this line of cases are: Gillingham v. Brown, 187 Mo. 181; Spore v. Ozark Land Co., 186 Mo. 656; Vincent v. Means, 184 Mo. 327; Turner v. Gregory, 151 Mo. 100; Elting v. Gould, 96 Mo. 535. But all those cases on investigation will be shown to be based on the principle that constructive service must be viewed critically in order to prevent, so far as can be, irreparable injury, and that a publication against a defendant by the initials of his Christian name was not precise enough for constructive service, giving jurisdiction, and did not come within the purview of the statute requiring such suit to be. brought in the name of the owner. [See R. S. 1879, sec. 6837, now appearing as R. S. 1899, sec. 9303.] The matter lying at the root of those cases and in judgment was jurisdiction and due process of law, and it was held, in effect, that by that character of publication jurisdiction was not acquired. But the ease at bar is not within the rationale of those cases, for here, the defendant was brought into court by a proper order of publication directed to him by his true name.

Furthermore, the judgment in question was concededly rendered in a cause wherein George M. Johnson was the record defendant, the execution is shown to.have issued in that identical cause and the sale and deed followed. If under these circumstances the grantee in the Morrison deed had been an innocent purchaser, one with no knowledge of this tax title or these defects, a different question might arise, but appellant, James M. Morrison, who made the purchase on behalf of himself and his wife, knew the whole history of the title to this land from his search of the records, and, as a matter of deliberate and cool judgment, determined to defeat or avoid the tax proceedings on the theory that they were void, and thereby placed himself in a position not entitled to broad judicial sympathy. When an error of the character under consideration shows a lack of jurisdiction, the result is one thing; but where jurisdiction has been fairly acquired, then errors of such character are mere irregularities not going to the root of the matter and, as said, not amenable to collateral attack. [Lovitt v. Russell, 138 Mo. supra; Rorer on Judicial Sales (2 Ed.), sec. 171.]

Moreover, in the law, under the doctrine of Missouri courts, the middle initial is not considered important in identifying the person. [21 Am. and Eng. Ency. of Law (2 Ed.), p. 307; Lucas v. Current River Land & Cattle Co., 186 Mo. 448.]

Respondent has been paying taxes on this land for practically twenty-five years and thereby passed under the yoke of good citizenship as the claimant of the land. It is true he may not be in condition to invoke Revised Statutes 1899, section 4268, against appellants whereby their failure and the failure of their grantor to pay taxes for thirty years, in certain contingencies, would have been a bar to their claim. But, notwithstanding this is so, yet the acquiescence shown here in the tax judgment, sale and deed for so long a period of time is not entirely without significance. The law rewards the diligent and appellants stand in Johnson’s shoes, pressing a stale claim.

We think it fairly results from the foregoing that we should not hold the tax judgment and deed, under which respondent claims title, void, and we accordingly disallow, the assignment of error under consideration.

VI. From what has been said it would seem unnecessary to consider the question presented by respondent wherein it is denied by him, and contended by appellants, that the George M. Johnson, grantor in appellants ’ deed, is the identical Geo. M. Johnson, patentee of the land in controversy.

It is proper to say, however, that the evidence indicates that appellant, James M. Morrison, had an eye on this land since 1884, knew of respondent’s claim, his deed and his payment of taxes, and relying on his own faulty conclusion to the effect that the tax proceedings were void, contemplated, possibly as early as said year, the acquisition of George M. Johnson’s title, hoping, per-adventure, thereby to cut away the title of respondent. Fortunately (or unfortunately) for him, in 1897 a man claiming to be George M. Johnson came out of the fog, unpenetrable it seems, and wherein he was lost for many lustrums, remained in sight long enough to make a deed and straightway disappeared into the same fog again — “a mysterious stranger” indeed. Under the evidence before us the issue of identity became one of fact for the court. [Flournoy v. Warden, 17 Mo. 435.] And we see no reason why we should not defer to the finding of the lower court on that issue as on the others.

If, however, George M. Johnson lost his title by the tax proceeding, as we hold, then the issue as to whether or not the grantor in appellants ’ deed was the true former owner or was an imposter masquerading as such, is an immaterial one, since if he lost his title under the tax proceeding, a subsequent deed from him would convey nothing.

The judgment is affirmed.

All concur, except Brace, P. J., absent.


source: Caselaw Access Project

author: MARSHALL, J.

license: Public Domain

text:
    LATSON v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    December 21, 1905.
    1. NEGLIGENCE: Vehicle on Track. A vehicle has a right to drive on a street car track, where there is no car nearer than 469 feet, and the driveway along the track is occupied by other vehicles.
    2. -: -: Rear-End Collision: Contributory Negligence. Plaintiff and her friend, riding in a stanhope, entered upon the street car track of defendant, because another vehicle occupied the driveway between the track and curbstone on their side of the track. At that time no car was coming in their rear nearer than 469 feet. The stanhope kept the track for 82 feet before the collision. It did not turn off of the track onto the driveway, because, first, sufficient time had to elapse to permit a vehicle going in the opposite direction on the driveway to pass, and, second, because another vehicle was coming on the track facing theirs so close to the one on the driveway that they could not turn off, and, third, because when the other vehicle on the track turned onto the driveway its wheels caught or slipped on the car rails and necessitated the driver of plaintiff’s vehicle momentarily checking the horse. Immediately after “that vehicle was out of the way, the driver of the stanhope commenced to pull off from the track, and had succeeded in getting it entirely off of the track except the hind wheel when the car struck it, throwing plaintiff out and injuring her. There was nothing to obstruct the motorman’s view, and he could have seen the vehicle 500 feet away. Held, that if his testimony is true that he did not see it until within forty feet of it, he was negligent in not discovering it sooner. Held, second, if his testimony is true that* the car was running only 6 or 7 miles an hour, he was guilty of negligence in not stopping the car within that distance, even though his testimony is true that plaintiff’s vehicle suddenly turned upon the track when his car was forty feet distant. Held, third, that if the facts were as shown by plaintiff’s testi192 sup — 29 mony, the motorman could have seen the vehicle 500 feet away, and his negligence was the proximate cause of the injury. Held, fourth, that neither the plaintiff nor the driver was guilty of contributory negligence, whether the facts were as plaintiff’s testimony shows, or as the motorman testified, that the stanhope, when the car was forty feet away, suddenly turned onto the track, for even then by the exercise of ordinary care he could have avoided the accident by .stopping the car.
    3. -: Common Law Care: Vigilant Watch and Speed Ordinance. Where the action is based on a violation of the vigilant watch ordinance and speed ordinance, the defendant cannot complain because plaintiff’s instructions simply required the motorman to exercise common law care.
    4. -: Speed of Car. No expert testimony is needed to show that a street car running six or seven miles an hour on a straight level track can be stopped within forty feet.
    5. INSTRUCTION: Modification. An appellant cannot complain . at the modification of an instruction which was predicated upon a condition that was not pleaded and which was wholly inconsistent with the special defenses interposed by it, and which should never have been given.
    6. NEGLIGENCE: Seeing Vehicle on Track. A motorman in charge of a street ear, seeing a vehicle on the track ahead of him, cannot proceed without checking the speed of his car, on the assumption that the driver of the vehicle will get off of the track in time to avoid a collision, even though he might see that the driver was not attempting to so do.
    7. -: Concurring Negligence. Where there was no negligence on the part of the plaintiff, the court should refuse an instruction on concurring negligence.
    8. -: Refusing Instruction: No Basis in Evidence. The court cannot be convicted of error in refusing to put to the jury a theory of the case which would cut off plaintiff’s recovery, which rests only upon testimony that is contrary to the physical facts and the common knowledge of men. So that the court did not err in refusing to instruct the jury that plaintiff could not recover if the vehicle in which plaintiff was riding was suddenly turned upon the track in front of the car, and the motorman as soon as he saw it used all the appliances at hand to stop the car, but was unable thereby to avoid the collision, if the physical facts and all the testimony show that the car at that time was at least 40 or 82 feet distant.
    Appeal from St. Louis City Circuit Court. — Hon. H. D. Wood, Judge.

      Affirmed.

      Boyle, Priest & Lehmann, J. W. Jamison, John T. Gose, George W. Easley and Edward T. Miller for appellant.
    (1) Defendant’s answer set np contributory negligence of plaintiff and it was error to give an instruction excluding this defense. Foster v. Guggemos, 98 Mo. 391; Holiday-Klotz v. Tie Co., 87 Mo. App. 167; Schmidt v. Railroad, 149 Mo. 269; Cameron v. Hart, 57 Mo. App. 142; Standfield v. Loan Assn., 53 Mo. App. 595. (2) In plaintiff’s petition there is no allegation that after defendant’s motorman saw plaintiff’s position- of peril he failed to stop the car when he could have done so by the exercise of ordinary care, nor is there any allegation of intent to injure or willfulness or wantonness on the part of the defendant. This, issue not being raised by the pleadings directly or indirectly, should not have been submitted in this instruction. Holwerson v. Railroad, 157 Mo. 216; De Donato v. Morrison, 160 Mo. 581; Wolf v. Lodge, 160 Mo. 675; Kenney v. Railroad, 70 Mo. 255; Storms v. White, 23 Mo. App. 31; Melvin v. Railroad, 89 Mo. 106; Scott v. Allendaugh, 50 Mo. App. 130; Sedalia Gas Light Co. v. Mercer, 48 Mo. App. 644. (3) There is not a word, of evidence to show that after defendant’s motorman saw the car he could, either by the use of ordinary or extraordinary care, have stopped the same in time to have prevented the collision. It is error to instruct a jury on a matter as to which there is no evidence. Brayhill v. Norton, 74 S. W. 1024; Center Creek, etc., v. Frankenstein, 78 S. W. 785; Kimball v. Railroad, 87 S. W. 1099; Chambers v. Railroad, 86 S. W. 501; Stephens v. Metzger, 95 Mo. App. 610. (4) We are unable to even guess at the reason for the refusal of instruction 5 unless we assume that the court refused to permit the jury to consider defendant’s evidence at all. Defendant introduced evidence to show that the vehicle was turned upon the track suddenly in front of defendant’s car, and that immediately upon observing that plaintiff was coming upon the track, the motorman attempted to stop the car but was unable to do so. There was evidence to support this instruction and it is based upon the law. Watson v. Railroad, 133 Mo. 251; Ries v. Railroad, 179 Mo. 1; Sinclair v. Railroad, 133 Mo. 245; Hook v. Railroad, 162 Mo. 569; Culbertson v. Railroad, 140 Mo. 33; Boyd v. Railroad, 105 Mo. 371; Huggert v. Railroad. 134 Mo. 673. (5) Defendant’s instruction numbered 8 is a clear statement of the law and its refusal by the court was error. Sinclair v. Railroad, 133 Mo. 245; Culbertson v. Railroad, 140 Mo. 35; Vogg v. Railroad, 138 Mo. 172; Holwerson v. Railroad, 157 Mo. 227; Moore v. Railroad, 176 Mo. 497; Tanner v. Railroad, 161 Mo. 497; Reno v. Railroad, 79 S. W. 464; Ries v. Railroad, 179 Mo. 1. (6) Where one is placed in a position of peril through the negligence of another, if, after discovering that peril, he could by the exercise of ordinary care avoid the consequences of that other’s negligence, but fails to do so, then he cannot recover for resulting injuries. Cooley on Torts (2 Ed.), p. 812; Nellis St. Ry., pp. 383-4; 7 Am. and Eng. Eney. Law (2 Ed.), 385-6; Tanner v. Railroad, 161 Mo. 497; Moore v. Railroad, 176 Mo. 528; Gettys v. Railroad, 78 S. W. 82; Sinclair v. Railroad, 133 Mo. 245; Murphy v. Railroad, 153 Mo. 261; Fanning v. St. L. T. Co., 78 S. W. 62; Reno v. Railroad, 79 S. W. 464; Killian v. Railroad, 86 Mo. App. 473; Peterson v. Railroad, 156 Mo, 52; Klockenbrink v. Railroad, 81 Mo. App. 351; Zamault v. Railroad, 73 S. W. 1015. One cannot, as this plaintiff did, close his eyes and remain in what he knows to be a perilous position and blindly trust to another to avoid the consequences or to take more care for his safety than he himself takes. Davies v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Maxey v. Railroad, 113 Mo. 1; Jones v. Barnard, 63 Mo. App. 501; Evans v. Railroad, 178. Mo. 517. If it be admitted that defendant violated both the vigilant watch and speed ordinances (and the violation of these two ordinances is the only negligence alleged in the petition), it is still clear that plaintiff could not recover because her own evidence shows that neither the violation of the vigilant watch ordinance nor the violation of the speed ordinance was the proximate cause of the accident. Tanner v. Railroad, 161 Mo. 497; Holwerson v. Railroad, 157 Mo. 216; Moore v. Railroad, 176 Mo. 528; Yogg v. Railroad, 138 Mo. 172; Yan Bach v. Railroad, 171 Mo. 338. (7) The verdict of the jury was grossly excessive. Stolze v. Railroad, 87 S. W. 517; Ohitty v. Railroad, 166 Mo. 442.

      Chester H. Krum and William Zaehntz for respondent.
   MARSHALL, J.

This is an action to recover $20,000 damages for personal injuries received by the plaintiff on the 25th of May, 1901, in consequence of one of defendant’s cars colliding with the rear of a stanhope in which the plaintiff was riding, on Olive street, between Tenth and Eleventh streets, in the city of St. Louis — the accident occurring about 9:25 a. m. The plaintiff recovered a judgment for $9,000, and the defendant, after proper steps, appealed.

THE ISSUES.

The negligence charged in the petition is a violation by the defendant of the vigilant watch ordinance, and of the speed ordinance, of the city of St. Louis. The answer is a general denial, with a special plea, that whatever injuries the plaintiff received were caused by the vehicle in which she was riding being driven in front of the car “so close thereto as to render a collision therewith unavoidable.”

The reply is a general denial.

The plaintiff introduced evidence tending to show that on the morning of the day on which the accident occurred, she was riding in a stanhope with Mrs. Ramm; that they stopped on the east side of Eleventh street, just south of Olive street, for a few moments, where plaintiff left the vehicle to transact some business in a store at that point; that Mrs. Ramm then turned, and by reason of vehicles being on the east side of Eleventh street, she had to go to the west side of that street, and thence to Olive street, where she turned east; that there was a vehicle coming west on the south side of Olive street between the car track and the curbstone, in consequence of which she drove onto the east-bound track; that before so doing she looked westwardly and saw a car coming, which was, at that time, west of the west line of Twelfth street. The width of Twelfth street is not given in the record, but the block from Twelfth to Eleventh is shown to be 469 feet; that the reason she turned onto the street car track was to avoid collision with the vehicle that was coming west on the south side of Olive street; that, in the language of Mrs. Ramm, “I had the right of way, but this rig had possession of the driveway; it was necessary for me to drive in the car track;” that after getting onto the car track, she again looked back and saw the car on the east side of Twelfth street; that afterwards she left the plaintiff to watch the car, while she directed her attention to the front; that the plaintiff then looked a third time, and the car was at the east side of Eleventh street; that the plaintiff then looked a fourth time, and the ear was about to strike them, and she told Mrs. Ramm to get off of the track as quickly as possible; that Mrs. Ramm did not leave the track immediately after encountering the first vehicle coming west, because there was a second vehicle also coming west, on the car track, and-so close to the first that it was impossible for her to leave the track, until the second vehicle had pulled off of the track onto the driveway, and in doing it the wheels of that vehicle caught or slid on the track, which made it necessary for her to check her horse momentarily; that they were driving at a walk; that as soon as the second vehicle got out of the way, Mrs. Ramm immediately commenced to turn off of the track onto the driveway south thereof, hut before she had succeeded in clearing the track, the car struck the hind wheel of the stanhope, lifted it about two or more feel above the ground, and the occupants were thrown out, and the plaintiff injured. The vehicle in which the plaintiff was riding went eastwardly eighty-two- feet on the track on Olive street before the car collided with it. Mrs. Ramm testified that the reason she did not turn to the left was because there was a west-bound track on that side of the street, and also because there were other vehicles on that side of the street, and that to turn to the left would have been an illegal act.

The evidence for the plaintiff further showed that the car was traveling at a speed of fifteen miles an hour. Prior to the accident the plaintiff was in good health and weighed about 180 pounds. In consequence of the accident she received injuries to her side, ankle, uterus, spine and nerves, and, as one of the medical experts said, is now suffering from traumatic neurosis, and as the other medical expert said, “ Her condition is one, now, of nervous debility and exhaustion, irritability of the spinal cord, pain, and that kind of disturbance which comes to the mind from the brain being disordered by a shock, the brain and spinal cord. She had a displacement of the uterine organs.” Her physician advised leisure and rest as the best means of effecting a cure; in consequence of which she visited New Mexico, Alabama and Cape Girardeau, Missouri, but at the time of the trial was still suffering’, and the medical experts said the probabilities were she would not fully recover.

The plaintiff read in evidence the vigilant watch ordinance of the city, which required the motorman to keep a vigilant watch for vehicles and persons either on the track or moving toward it and on the first appearance of danger to such persons to' stop the car in the shortest time and space possible. The plaintiff also read in evidence the speed ordinance of the city, which prohibited the running of street cars, at the point of the accident, at a greater rate of speed than eight miles an hour.

The defendant’s testimony tended to prove that the motorman saw the plaintiff and Mrs. Ramm when the car was not more than forty feet from them; that the car was then running at about six and one-half or, may be, seven miles an hour; that at the time the motorman first saw them, they were driving on the driveway, on the south side of Olive street, between the track and the curb; that when the car was right upon them, they turned and drove suddenly onto the track immediately in front of the car, and so close thereto that the motorman could not stop the car in time to avoid the accident, although he applied the brakes and reversed the power; that the car struck the rear wheel of the stanhope, and the fender raised the wheel three or four feet from the ground; that the car then stopped, and some persons held the stanhope to keep it from turning over, and the car backed away from it; that the stanhope was not seriously injured; that the ear was running not more than six miles or eight miles an hour, and that the gong on the car was sounded; that just before the collision, the driver of the stanhope, Mrs. Ramm, checked the vehicle momentarily, which she says was caused by the fact that the wheels of the vehicle ahead of her, which was turning out of the car track, clung to or slid on the rails.

At the close .of the plaintiff’s case, and again at the close of the whole case, the defendant demurred to the evidence; the court overruled the demurrers, and the defendant excepted.

The instructions given and refused, concerning which error is assigned, will he noted in the course of the opinion.

I.

This action is predicated upon a violation of the vigilant watch ordinance and the speed ordinance of the city of St. Louis, and therefore falls within the rule laid down in Sluder v. Transit Company, 189 Mo. 447. The writer hereof dissented from the opinion of the court in that case, and has not changed his views in regard thereto, but so long as that opinion stands, it is the rule of law in this State, and what is hereinafter said in this case rests upon the rule announced in that case, and is in no sense the views of the writer, so far as the right to maintain the action is concerned. In the judgment of the writer the same conclusion would necessarily be reached if this had been an action for common-law negligence, but for this reason, as well as because the orderly administration of justice requires that the will of the majority shall rule, the writer has no difficulty in reaching the conclusion hereinafter announced.

The principle of law relating to the running of street cars, and of the respective rights of such cars and of pedestrians, and of persons traveling in other vehicles, on the street of a city, have recently undergone adjudication by this, court in the cases of Oates v. Railroad, 168 Mo. 535, and Schafstette v. Railroad, 175 Mo. 142.

In the first case cited it was said (l. c. 544): “The sum of the adjudicated cases bearing upon the relative rights and duties of street cars and citizens traveling in vehicles drawn by horses or other animals is, that both have a right to use the street, but that neither has an exclusive right. The operator of a street car is not necessarily obliged to stop the ear every time a horse shies or scares at the approaching car, but when the operator of the car sees that a horse is frightened at the car, it is liis duty to manage his car in such manner as a man of ordinary prudence would do under the same circumstances, and it is always a question of fact for the jury whether such care in the running of the ear has been observed. This duty may or may not lead to the necessity for bringing a car to a full stop. The duty of the company in this regard is just the same as the duty of one individual or citizen to another when they meet on the highway and the horse of the one becomes frightened at the vehicle of the other, or at anything upon the vehicle of another. Because a street car carries more people than any other kind of a conveyance, or because it is authorized to run more rapidly than a vehicle can ordinarily be legally driven, or because the rush and restlessness of the age make unreasonable demands for more and more rapid transit along the crowded thoroughfares of populous cities, it does not follow that a street car can be run in disregard of the rights .of persons traveling by other means, nor that a street car company is exempt from the common-law duty of every one to exercise ordinary care, nor that it is only liable where the agents act wantonly, maliciously and heedlessly.” That was a case of a head-on collision.

The second case cited was a case of a rear-end collision, between a street car and a vehicle. It was said: “It is argued, however, that if street cars are required to check up every time a person approaches the track, no time can be made, and that the traveling public demands rapid transit. It is true that street cars are not compelled to check up every time a person approaches a track, but it is equally true that if a person is on or so near a track that a car cannot pass without a collision, and the operator of the car sees, or by the exercise of ordinary care can see, the condition of danger of such person, it is his duty to check the speed of the car, or even stop the car entirely, to prevent injury to the person. This duty is just the same between street cars and a citizen as it is between any two citizens when using a street. The traveling public has no right to demand such rapid transit on streets of a city as to amount to negligence in the ruiming of the car. The citizen who is not in such a hurry, but is exercising ordinary care while upon the street, has rights that are just as sacred in the eye of the law as those of the hurrying crowds who demand such rapid transit; and if a street car company heeds the demands of the latter class and thereby negligently injures the former, it must stand the consequences.”

The application of these principles to the facts in judgment renders the conclusion very easy. The plaintiff and her friend entered upon the track of the defendant at Eleventh and Olive streets, because another vehicle occupied the space between the track and the curbstone on the south side of the street. The plaintiff and her friend had a perfect right to so drive on the portion of the street on which the car track was laid, for at that time there was no car coming eastwardly nearer than the distance of the length of the block between Eleventh and Twelfth streets, which is shown by the evidence to be 469 feet, and also the distance of the width of Twelfth street, which is not disclosed by the evidence. The vehicle in which the plaintiff was riding progressed on the track eastwardly for a distance of only eighty-two feet before the collision. The plaintiff’s vehicle was not sooner turned off of the track onto the driveway south thereof, because, first, sufficient time had to elapse to permit the vehicle going westwardly on the driveway to pass, and, second, because another vehicle was coming westwardly on the same track on which the plaintiff’s vehicle was going eastwardly, and so close to the first vehicle that the plaintiff’s vehicle could not turn off from the track. The second vehicle turned off from the track onto the south side of the street, but in so doing the wheel caught or slipped on the car rails, and necessitated the driver of the plaintiff’s rig momentarily checking the horse. Immediately upon the second vehicle moving out of the way, the driver of the plaintiff’s fig commenced to pull off from the track, and had succeeded in getting entirely off of the track except the hind wheel, when the car struck the rear wheel of the rig, the fender thereof raised the wheel three or four feet and threw the occupants out on to the street, and injured the plaintiff. The accident occurred shortly after rune o’clock in the morning. The street was straight. There was nothing to obstruct the view of the motorman on the car. He could have seen the plaintiff’s rig on the track more than five hundred feet before the collision occurred. Yet he says he did not see it until he was within forty feet of it. If so, he was negligent in not sooner discovering it. But conceding that he did not see it until he was within forty feet of it, and conceding that the car was running at the rate of six and one-half or seven miles an hour, there is nothing in the record to show that it was even then too late for him to have stopped the car in time to have avoided the injury; for it needs no expert testimony to show that a car traveling at that rate of speed could have been stopped in a distance of forty feet. This is true whether the plaintiff’s rig was,on the track at the time the motorman first discovered it, or whether it turned suddenly onto the track when the car was forty feet distant from it, as the motorman says was the case. In either event it admits of no question that if the motorman had exercised ordinary care he could have stopped the car in time to have avoided the injury. If, however, the facts were, as shown by the plaintiff’s testimony, the motorman saw, or could have seen, the plaintiff’s rig on the track for a distance of over five hundred feet before he permitted his car to collide with the rear thereof. And in this view of the case there is no possible room for doubt that the negligence of the motorman was the direct and proximate cause of the injury, and that neither the plaintiff nor the driver of the stanhope were guilty of contributory negligence. The only room for the application of the doctrine of contributory negligence in this case, if indeed there is any such room, rests upon the testimony of the motorman, that when the car was within forty feet of the stanhope, the driver thereof suddenly turned it off from the driveway on the south side of the street onto the street car track, and that there was not then sufficient time to have avoided the accident. But as hereinbefore pointed out, even if the driver of the stanhope did as charged, there was" still abundant time to have stopped the car in a space of forty feet, and have avoided_the accident, by exercising the most ordinary degree of ordinary care. The fact that the driver of the stanhope saw the car coming when she drove onto the track, and the fact that she continued on the track until the collision occurred, did not authorize or justify the motorman colliding with the rear of the vehicle.

No amount of amplification or illustration could make the case plainer than the simple facts, whether they be the facts as detailed by the plaintiff and her witnesses, or as detailed by the defendant’s motorman and the defendant’s other witnesses. The collision was absolutely without excuse, and the judgment must be affirmed unless some error of procedure be found in the record.

II.

The first instruction given for the plaintiff proceeds strictly according to the rules of law heretofore announced, and upon the facts as developed by the plaintiff’s case, but it is criticised because it is said it fails to take into account the contributory negligence of the plaintiff. This objection is untenable for two. reasons: first, because there was no contributory negligence of the plaintiff or the driver of the vehicle, shown; and, second, because the instruction given for the plaintiff only authorized a verdict for the plaintiff, ‘ ‘ if the plaintiff and the driver of said vehicle were exercising ordinary care at the time of and before said injury, in averting injury from a collision with said car,” and the fifth instruction given for the plaintiff likewise required the jury to find that the plaintiff and the driver of the vehicle “were exercising ordinary care at the time of and before said injury, to avoid a collision. ’ ’

The first instruction is further criticised because it is said it limits the care of the plaintiff and the driver of the stanhope to the period just prior to driving onto the track; and further because the negligence complained of in the petition is a violation of the vigilant watch and speed ordinances, and that the instruction authorized a recovery if the motorman saw the vehicle on the track, and in danger of injury, and did not use ordinary care to avoid the collision. The second criticism is answerable in the same manner above indicated as to the first criticism.

The second and fifth instructions given for the plaintiff required the jury to find that the plaintiff and driver of the vehicle were exercising ordinary care at the time of and before the collision. The third criticism .of the instruction is without merit, for the instruction complained of simply required the motorman and operatives of the car to use common-law care, and the defendant was not injured because the plaintiff did not ask that the defendant be held to that degree of care which is required by the vigilant watch and speed ordinances.

III.

Instruction number five is assigned as error. That instruction authorized a recovery by the plaintiff if the defendant’s car was operated at a speed in excess of that permitted by the ordinance, and if, by reason of the excess of speed, the motorman was unable, by the exercise of ordinary care, to avert the collision, and if the plaintiff and the driver of the vehicle were exercising ordinary care at the time of and before the collision. The objection to this instruction is that there is no evidence showing within what space a car, running at eight miles an hour, could have been stopped; nor anything to show that, even conceding that the car was running in excess of eight miles an hour, the excessive-rate of speed caused the accident.

The plaintiff’s evidence tends to show that the car was running at the rate of fifteen miles an hour, whereas the' defendant’s evidence tended to show that it was running only six and one-half or seven miles an hour. The plaintiff’s evidence tends to show that the motorman could have seen the vehicle on the track when he was more than five hundred feet away from it, and during all the time he was traveling that distance; and the defendant’s testimony tends to show that the motorman actually did see the vehicle on the track forty feet before the collision occurred.

If the plaintiff’s testimony is true, there can be no question that the car could have been stopped within five hundred feet, or its speed have been reduced while it was covering that distance, in time to have averted, the injury. On the other hand, if the car was traveling only six or seven miles an hour, as the defendant’s motorman says was the case, and he saw the vehicle on the track, forty feet ahead of him, there can be- no doubt that the car could have been stopped in time to have averted the injury. It needed no expert testimony for the jury to draw a proper conclusion from either phase of the case.

IV.

The modification of defendant’s instruction number eight is assigned as error. That instruction told the jury that if the motorman saw the stanhope on the track and immediately reversed his power'and applied the brakes, and thus would have averted the accident but for the fact that the driver of the vehicle was prevented from getting off of the track by reason of another vehicle in front of it, and that the collision was dne to snch failure, then the plaintiff was not entitled to recover, unless the motorman knew, or by the exercise of ordinary care, could have known, that the plaintiff’s vehicle was so obstructed, in time to have stopped the car. The court modified this instruction by adding, “ unless you find the facts to be as stated in instruction number five,” which were that the car was being run at an excessive rate of speed, and that the excess of speed prevented the stopping of the car in time to avoid the collision.

The instruction as' asked was broader than the defendant was entitled to, for there is no foundation in fact for the instruction to rest upon. There is no room for doubt upon the facts disclosed by the record that if the motorman had applied his brakes as soon as he saw the danger to the plaintiff had become imminent, the accident could have been avoided. The modification, of the instruction, therefore, did not prejudice the defendant. But the modification was proper because the instruction as asked did not cover the phase of the case presented by the fifth instruction asked by the plaintiff, to-wit, -that the car was being run at such an excessive rate of speed that it could not have been stopped, by the exercise of ordinary care, in time to have averted the injury. Moreover, the instruction was predicated upon a condition that wa§. not pleaded and which was wholly inconsistent with the special defense interposed by the defendant.

V.

The refusal to give defendant’s instructions 1, 2, 5, 6 and 7 is assigned as error. The first instruction asked by the defendant and refused by the court told the jury that the motorman had a right to assume that the driver of the vehicle, in which the plaintiff was riding, would use reasonable diligence, and get off the track, and out of the way of the car, unless the motorman knew, or hy the exercise of reasonable care and prudence, in looking and listening, might have seen or known, that said vehicle was hindered or impaired in its progress by a vehicle in front of it.

Such an instruction under the facts in this case would have been misleading. For it would have been calculated to make the jury believe that a motorman, seeing a vehicle on the track ahead of him, may proceed without checking the speed of the car, on the assumption that the driver of the vehicle would get off of the track in time to avoid the injury, even though he might see that the driver was not attempting so to do, and in addition the instruction was based upon matters which were wholly outside of and inconsistent with the issues joined.

The presumption of law obtains in ordinary cases, but there is also another presumption of law, which is left out of account by the instruction, to-wit, that the motorman will do his duty, and will so run the car as that a,collision will not occur, even though the driver of the vehicle does not do his duty. As was said in Schafstette v. Railroad, supra, “It is true that street cars are not compelled to check up every time a person approaches a track, but it is equally true that if the person is on or so close to the track that a car cannot pass without a collision, and the operator of the car sees, or by the exercise of ordinary care can see, the condition of danger of such person, it is his duty to check the speed of the car, or even stop the car entirely to prevent injury to the person. ’ ’

The instruction as asked overlooked entirely that duty of the motorman.

The second instruction asked by the defendant and refused by the court told the jury that if the collision was caused by the joint and concurring negligence of defendant’s agents in charge of its car, and the driver of the vehicle, in which the plaintiff was riding at the time of such collision, and that the negligence of either without the concurring negligence of the other, would not have caused said collision, the plaintiff could not recover.

It has been pointed out that there was no negligence on the part of the driver of the vehicle, in which the plaintiff was riding, and therefore there was no basis of fact upon which to predicate the instruction.

Instruction number five asked by the defendant and refused by the court told the jury that if the vehicle, in which the plaintiff was riding, was turned suddenly across the defendant’s tracks, in front of its car, and immediately upon discovering that the plaintiff was coming upon the track, upon which the car was moving, the motorman began setting his brakes and reversing the power of the car, and was unable thereby to stop the car and avoid the collision, then the plaintiff could not recover.

The motorman testified that the car was running at the rate of six and one-half or seven miles an hour; that he did not see the vehicle in which the plaintiff was riding, until the car was within forty feet of it; that the vehicle was then turned onto the track, and he gave a very loud ring, and also applied the brakes and reversed the current. When asked on cross-examination why it was if he applied the brakes and reversed the car, the car ran forty feet, he said: “Well, it takes some time to wind up the brake and check it in forty feet if you are going at six and one-half or seven miles an hour.” When interrogated by the court, as to how far the vehicle was ahead of him when he first discovered it, he answered: “Well, my car did not quite get to Eleventh street, as I remember. ’ ’

The undisputed evidence in the case is, that the collision occurred eighty-two feet east of the line east of Eleventh street. Giving, therefore, all the weight to the testimony of the motorman, to which, under the physical facts, it is entitled, he had forty feet in which to stop the ear, after he applied the brakes and reversed the power., áccording to his own testimony, bnt in fact he had more than eighty feet in which to do so.

Under such evidence the court cannot be adjudged guilty of error in refusing to put to the jury a theory of the case which would cut off the plaintiff’s recovery, which rests only upon testimony which is contrary to the physics of the case, and to the common knowledge of all men. A ear traveling at the rate of six or seven miles an hour moves only ten and a fraction feet a second, and it is manifestly absurd to say that a car traveling at that rate on a level street could in forty or eighty-two feet overtake a vehicle traveling in the same direction, even at a walk, and cause a collision therewith, after the brakes had been applied and the power reversed. The testimony of the motorman, taken in its entirety, does not amount to substantial evidence and therefore affords no basis for the instruction asked.

The sixth and seventh instructions asked by the defendant and refused by the court were substantially covered by the eighth instruction asked by the defendant and given by the court, and therefore there was no error in refusing them.

VI.

Over the objection of the defendant, the plaintiff was permitted to testify that she visited New Mexico, Alabama, and Cape Girardeau, Missouri. The abstract of the evidence shows that the court admitted this testimony, as bearing upon the question of the plaintiff’s condition, and of her attempts to regain her health, by following the instructions of her physicians as to rest, leisure and change of climate. The record further shows that, in consequence of the trips made by the plaintiff, her condition was improved.

It is difficult, therefore, to see how the defendant could have been prejudiced by the testimony.

VII.

The defendant sought to have the plaintiff identify two written statements said to have been signed by her. She testified over defendant’s objection that she did not sign one of them, and further that it was not true. This is assigned as error. The statements, themselves, were not offered in evidence, therefore, her characterization of them that they were false, did not injure the defendant, nor did it convey to the jury, as the defendant claims, any impression that the defendant’s agents were seeking by trick and artifice -to deceive the plaintiff into making, a statement, which was unfavorable to her, and not in accordance with the facts.

The defendant produced this condition by interrogating the plaintiff concerning the statements.

VIII.

The last contention of the defendant is that the verdict is grossly excessive. The defendant disposes of this contention by simply stating it and citing Stolze v. Railroad, 188 Mo. 581, and Chitty v. Railroad, 166 Mo. l. c. 442.

In the Stolze case the verdict was for $15,000, and this court affirmed it on condition that the plaintiff remit $7,000, thus leaving a verdict of $8,000: The verdict in the Chitty case was likewise $15,000. This court ordered a remittitur of $5,000, and thus permitted the verdict to stand at $10,000.

The verdict in the case at bar was for $9,000, which is the average between the verdicts in the Stolze and Chitty cases, and therefore those cases are not authority for the contention that the verdict is grossly excessive.

For the foregoing reasons the judgment of the circuit court is affirmed.

All concur, except Brace P. Jabsent.