author: LAMM, J.

text:
    GRACE F. VIERTEL v. WILLIAM VIERTEL, Appellant.
    Division One,
    May 30, 1908.
    1. JURISDICTION: Judge Sick: Trial: Appeal and Subsequent Trial. Where the regular judge was sick, and called another to hold court for him, who tried the case and rendered judgment, which on appeal was reversed, and the cause remanded, the regular judge had jurisdiction to try the case. The judge who first tried it did not retain jurisdiction.
    2. BILL OF EXCEPTIONS: Recitals: Jurisdiction. A narration or preface in a bill of exceptions on the first appeal, read to the jury at the second trial after a remanding of the case, thus, “The testimony in said bill of exceptions, containing the evidence adduced upon the trial before Hon. Samuel Davis, the judge who presided at the trial of this cause, February, 1906, during the January term, 1906,” etc., is no part of the bill of exceptions, neither is another narration to the effect that “ the regular judge of this court was sick and on that account was unable to hold the January term, 1906, at which this cause was first tried, and Hon. Samuel Davis, judge of the Fifteenth Judicial Circuit, by request of the regular judge, held the regular term and tried this among other cases,” etc. Such narrations, though found in the bill of exceptions, are not matters of exception, and have no place therein, when exceptions are not saved.
    3. APPEAL: Reversal With Directions: Res Adjudlcata: Cross-Bill. Where the court refused to decree a divorce for plaintiff, and on her appeal the Court of Appeals reversed the judgment, and remanded the cause “with directions to enter up a decree of divorce in favor of plaintiff and to adjudge to her alimony and to fix the amount and to decree the care and custody of the children,” there was nothing for the trial court to do but to follow those directions, which were final and res adjudicate/, on all questions involved as to her right to a divorce, and the trial court properly refused to permit defendant to file a cross-bill or to amend his answer.
    4. DIVORCE: Alimony: Support of Children. Although the wife be awarded alimony in gross and the custody of the minor children, the father is still liable for the support, maintenance and education of the minor children, in the absence of a contrary direction in the decree.
    5. -: -: Excessive. An award of $11,000 in gross as alimony for the wife in her suit for divorce against the husband, who is shown to be worth $30,000 to $35,000, is held not excessive under the circumstances, there being two children awarded to her, and she being about 42 years of age.
    Appeal from Cooper Circuit Court . — Hon. Wm. H. Martin, Judge.
    Affirmed.

      John é J. W. Cosgrove for appellant.
    (1) After Judge Davis acquired jurisdiction to try this case, he could not be divested of jurisdiction by the subsequent action of Judge Martin, and, under the repeated rulings of this court, Judge Davis’s jurisdiction continued until the final determination of the case. State v. Moberly, 121 Mo. 608; Bank v. Graham, 147 Mo. 250; State v. Davidson, 69 Mo. 509; Rawlins v. Timons, 80 Mo. App. 84; State v. Hayes, 81 Mo. 580, 88 Mo. 334; State v. Sneed, 91 Mo. 556. “The regular judge of the circuit court, on the presentation of the mandate of the Court of Appeals, entered up a judgment of divorce in favor of the plaintiff, and the defendant appealed. This judgment of the circuit court was reversed for the sole reason that it should have been entered by the special judge.” State ex rel. v. St. L. Ot. of Apps., 99 Mo. 219; Dawson v. Dawson, 29' Mo. App. 521. A divorce suit is a proceeding in rem. Could v. Crow, 57 Mo. 203; McDermott v. Cray, 198 Mo. 285. If error is apparent on the face of the record, it may be raised for the first time on appeal. Fields v. Maloney, 78 Mo. 172; Mclntire v. Mclntire, 80 Mo. 470'. There is no waiver; it was timely to question Judge Mai’tin’s jurisdiction for the first time in the motion for new trial. Stansbury v. Stansbury, 118 Mo. App. 427. (2) This court will exercise jurisdiction over the whole case, and the question of divorce is not res adjudicata. Cerche v. Cerche, 100 Mo. 240; State ex rel. v. Cill, 107 Mo. 49. (a) The decision of the Court of Appeals is not binding on this court. Paddoch v. Railroad, 155 Mo. 534; Hennesy v. Brewing Co., 145 Mo. 115; Sedalia ex rel. v. Donahue, 190 Mo. 407. (b) If this court has jurisdiction over one of several questions involved, its jurisdiction will attach to the whole case. State ex rel. v. Francis, 95 Mo. 48; State ex rel. v. Smith, 177 Mo. 69. (3) It was error for Judge Martin to refuse to permit the filing of defendant’s cross-bill and to hear evidence in support thereof. (4) The award of $11,000 alimony in gross is excessive, in view of the fact that the decree does not require plaintiff to educate, support and maintain said children, and does not relieve defendant therefrom. 9 Am. and Eng. Ency. Law (2 Ed.), 871; Lush v. Lush, 28 Mo. 94; Chester v. Chester, 17 Mo. App. 659.

      W. F. Johnson and W. M. Williams for respondent.
    (1) The Kansas City Court of Appeals had undoubted jurisdiction of the first appeal. This was expressly so decided in State ex rel. v. Gill, 107 Mo. (2) The case having been regularly appealed to the Kansas City Court of Appeals, and that court having appellate jurisdiction thereof, was empowered to -render such judgment as, in its opinion upon the record before it, the trial court should have given. R. S. 1899, sec. 866; Land Co. v. Bretz, 125 Mo. 418. (3) The judgment of the Kansas City Court of Appeals reversing that rendered by the trial court and remanding the cause with directions to grant plaintiff a divorce, was a final judgment as to the divorce and is conclusive and binding upon the parties. The Court of Appeals had power either to enter the proper judgment, or remand the cause to the court of original jurisdiction, with directions to that court to make the proper entry. In either case, the judgment is that of the appellate court, and is final and conclusive. The inferior court only carries into execution the judgment rendered by the appellate court. Young v. Thresher, 123 Mo. 312; Smith v. Adams, 130 U. S. 167. (4) The Kansas City Court of Appeals, having jurisdiction and being authorized to direct the judgment that should be, given by the circuit court, and the cause having been remanded with specific directions to grant plaintiff a divorce, the trial court was .absolutely concluded by the finding of the appellate court, and could do nothing else except follow the mandate of that court. Stump v. Hornbeck, 109 Mo. 272; State ex rel. v. Givan, 75 Mo. 516; Choteau v. Allen, 74 Mo. 56; Shroyer v. Nickell, 67 Mo. 589'; Hurck v. Erskine, 50 Mo. 116'. (5) The trial court properly refused to' permit an amended answer and cross-bill to be filed. State ex rel. v. Edwards, 144 Mo. 467, 3 Cyc. 497. (6) Where the Court of Appeals remands a case for a new trial, and, upon a second appeal, the case comes within the appellate jurisdiction of this court, the rules^ of law laid down by the Court of Appeals governing the new trial will not be binding upon this court; but, where the Court of Appeals has jurisdiction and remands á cause with directions to the circuit court to render a particular judgment, this is final and conclusive in' all courts. Orvis v. Elliott, 147 Mo. 231; Choteau v. Gibson, 76 Mo. App. 51. (7) Judge Davis, of the Fifteenth Judicial Circuit, was not called at the first trial to hear this particular case. No application for a change of venue from the regular judge was ever made, nor was he disqualified from trying it. The rule as to a special judge, called on account of the disqualification of the regular judge, to sit in a particular case, has no application here. The regular judge was sick, and Judge Davis, at his request, held the entire January term of court, 1905, at which this cause was first tried. The statute provides that the judge called to hold such a term under such circumstances “shall, during the period he shall so act, possess the same powers and be liable to the same responsibilities as the judge of said circuit.” R. S. 1899, sec. 1678; .Hendricks v. Railroad, 107 Mo. App. 127. (8) The parties appeared before the circuit court of Cooper county, in which the regular judge was presiding.. The court had jurisdiction of the subject-matter. No objection was made by defendant to the trial before said jndge. The act of the defendant in voluntarily appearing in such court before said judge, and in going to trial without objection, now precludes him from raising the question of jurisdiction. Tracey v. McKinney, 82 Mo. App. 511; Ivy v. Yancey, 129 Mo. 501. (9) ' Defendant has no cause to complain of the amount allowed as alimony. The plaintiff, a woman wholly destitute of the means of support, was awarded $11,000, while defendant, an active, vigorous man, will retain about $25,000, after paying the sum awarded to his wife for her support and maintenance. This certainly was not an unreasonable provision for a wife who had worked and labored in the manner shown by this record for fourteen years, and received the treatment accorded her by plaintiff, as set out in the evidence and referred to in the opinion of the Court of Appeals. The decree follows that directed to be given by this court in Gfercke v. Gercke, 100 Mo. 237.
   LAMM, J.

— Born Fiscus, Grace F. (aged twenty-sis years) intermarried in 1891 while a school teacher by vocation, with Yiertel, a farmer aged thirty years. Fourteen years later, she sued for divorce in the Cooper Circuit Court, charging manifold indignities (setting them forth) rendering her condition intolerable and asking alimony and the custody of two children born of the twain — girls of tender years, Gladys and Mabel. She was' cast, nisi, on a hearing on the merits. Thereat she appealed in apt time and due order to the Kansas City Court of Appeals (Viertel v. Viertel, 123 Mo. App. 63). There, the judgment was reversed and the cause remanded with directions, witness the following mandate:

“Now at this day come again the parties aforesaid, by their respective attorneys, and the court here now being sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment aforesaid, in form aforesaid, by the said circuit court of Cooper county rendered, be reversed, annulled and for naught held and esteemed, and that .the said appellant be restored to all things which she has lost by reason of the said judgment. It is further considered and adjudged by the court that the said cause be remandad to the said circuit court of Cooper county, with directions to enter up a decree of divorce m favor of plaintiff and to adjudge to her alimony and to fix the amount and decree the care and custody of the children as may be right and proper, in conformity with the opinion of this court herein delivered, and that the said appellant recover against the said respondent costs and charges herein expended, and have therefor execution. ’ ’

When that mandate came down, the cause was redocketed for disposition in due course. Thereat defendant, to mend holds, tendered an amended answer making more specific his grounds of defense, and adding thereto a cross-bill of counter-charges to the effect that plaintiff had offered him such indignities (naming them) as rendered his own condition intolerable and had absented herself from his home without reasonable cause for a space of one year next before the filing of the answer and cross-bill; wherefore, he prayed a divorce with the care and custody of Gladys and Mabel. On consideration, the trial court was of opinion that, under the decision and mandate of the Kansas City Court of Appeals, all questions open at the time of the first trial were concluded. The effect of this ruling was to refuse defendant the right to file his amended answer and cross-bill. The point was saved by exception. Thereat the cause went to trial on the theory that only two questions were involved, viz.: (1) the amount of alimony and (2) the custody of Gladys and Mabel.

It was agreed that testimony preserved in the bill of exceptions, made when the cause was taken to the Court of Appeals, should be read as evidence. Defendant offered it as evidence on the right of a divorce. The court refused to permit it on that question, but permitted it on the issues of the custody of the children and the amount of alimony. The point was preserved by exception.

The trial resulted in a decree in fav«r of the mother for divorce, with custody of the children (subject to the right of the father to visit them and have them visit him at intervals and times specified in the decree) and for alimony in gross in the sum of $11,000.

In due time defendant filed his motion for a new trial and, the motion being overruled, tendered his affidavit for appeal to this court. Pending the perfecting of that appeal, plaintiff filed her motion for alimony pendente lite covering support and maintenance during, and attorney’s fees incident to, the appeal. This motion being allowed, it was adjudged that defendant pay plaintiff $75 on the first of every month, beginning December 1, 1907, until the case be finally determined — said payments to be credited on the principal judgment for alimony in gross. Further, that plaintiff recover of defendant $350 for costs, expenses and attorney’s fees to be incurred in the prosecution of the appeal and that execution issue for said amounts on failure to pay when due and demanded. Thereupon defendant filed his motion for a new trial directed to the subsidiary judgment and, it being overruled, filed his several affidavits for appeal from the principal as well as the subsidiary judgment. Thereupon an appeal was allowed and. the cause comes here for final disposition.

Any facts necessary to a just disposition of the case will appear in connection with the consideration of material questions made. As we see it, those questions appear as alleged errors, in that:

(a) Judge Martin, who tried the case the second time, had no jurisdiction; Judge Davis, who tried it the first time, had jurisdiction.

(b) The judgment of the Kansas City Court of Appeals was not res judicata on the question of divorce, is not binding on this court. Our jurisdiction attaches to the whole case including the right to a divorce. Therefore, there'was error, nisi, in refusing to file defendant’s amended answer and cross-hill and to hear evidence in support thereof.

(c) Looking well to the whole case, plaintiff was not entitled to a divorce on the facts disclosed, for sundry reasons; for instance, the isolated acts of indignity shown did not constitute a course of conduct and hence were insufficient as statutory grounds.

(d) The wife, counter to the husband’s wish and protest, kept her mother as a member of the family. The mother-in-law was the disturbing factor in the case — the hitter spring from which all the had matrimonial water flowed. Hence, the trouble was of plaintiff’s own making.

(e) Under the facts here, any and all indignities were condoned by cohabitation.

(f) In view of the fact that the decree does not place upon the mother the burden of educating, supporting and maintaining Gladys and Mabel and does not relieve the father from that burden, the award of alimony is grossly excessive.

Is there soundness in any of the foregoing assignments of error? In our opinion, No. This because:

I. Of jurisdiction.

This court will take judicial notice of the fact that William H. Martin is judge of the circuit court of Cooper county. That a circuit court has jurisdiction of a divorce suit involving also the incidents of custody of children and alimony is primer knowledge, and, therefore, unless the record itself shows that Judge Martin lost the jurisdiction once his, there can he no question made on that score. A status of things once shown to exist is presumed to continue till the contrary appears. There is no competent record proof of such loss of jurisdiction. The record shows that without any protest or objection the defendant submitted himself to the jurisdiction of Judge Martin. He was willing to take a “sporting chance” in the event — to speculate on the chance of success or failure. When he lost, then, for the first time in his motion for a new trial he raised the point that the trial was an idle ceremony, that the time lost and expenses incurred went for naught "because the wrong judge presided. It is not necessary to decide, and we do not decide, that defendant waived or is estopped to make the point. It will do to say, however, that (as the law favors the diligent) it comes late and."its lateness invites comment.

If a change of venue was taken from Judge Martin or if he disqualified himself on some . statutory ground, an entry in the record proper should show such fact. No such entry "being abstracted, the point is based on certain casual narrations in the bill of exceptions, made by the way. Thus, when learned counsel offered the testimony preserved in the first bill of exceptions and it was submitted as evidence at the second trial on the issue of the custody of the children and the amount of alimony, that incident is preserved in the present bill of exceptions, somewhat by way of rhetorical flourish or explanatory preamble, thus:

“The testimony in said bill of exceptions, containing the evidence adduced upon the trial before Hon. Samuel Davis, the judge who presided at the trial of this cause, February, 1906, during the January term, 1906, of the circuit court of Cooper county, Mo., as "preserved in the bill of exceptions, upon which the cause was tried in the Kansas City Court of Appeals, is as follows:”

It is on that narration that the theory is predicated that Judge Martin has no jurisdiction. Looking further, however, we find the bill of exceptions contains another narration, viz.:

“The regular judge of this court was sick and on that account was unable to hold the January term, 1906, at which the cause was first tried, and lion. Samuel Davis, judge of the Fifteenth Judicial Circuit, by request of the regular judge, held said term and tried this among other cases. And when the case was called for this trial no objection was- made to the regular judge sitting in the case, and no such objection was made till this motion was filed. ’ ’

If, then, the matter first narrated is to be considered as ‘ record, ’ ’ by the same token we must consider as “record” the matter last narrated. The two offset each other, and, as estoppel against estoppel setteth the matter at large, so here. The two narrations taken together mean no more than that Judge Davis held Judge Martin’s January term, 1906, not as a special judge in any particular case on change of venue, but in the place and instead of the regular judge. He stood in his shoes (if the figure be permissible) as a matter of convenience and courtesy.

The statute provides as follows: “Sec. 1678. When Judge of another circuit may sit. — Whenever the judge of any circuit shall be sick, absent, or from any cause unable to hold any term or part of term of court in any county in his circuit, such term or part of term of such court may, by request of the judge, be held by the judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, who shall, during the period he shall so act, possess the same powers and be liable to the same responsibilities as the judge of said circuit.”

It will be seen from that statute that the powers and responsibilities of such borrowed judge are limited to “during the period he shall so act.” When he ceases to “so act,’’ the end is at hand. Any other conclusion would result in chaos and confusion breeding hardships abhorrent to the administration of justice; for if jurisdiction of all the cases pending at the January term, 1906, was transferred to Judge Davis by the mere fact that he presided at that term because of the sickness of Judge Martin, then (barring another change of venue) he would have to preside over the intermediate and final incidents in all such cases at every term —an absurd result not in the mind of the Legislature, and one not necessary to subserve the ends of the statute.

But we need not pursue the matter because neither one narration nor the other is properly a part of the bill of exceptions. A bill of exceptions is what its name indicates, to-wit, a receptacle for matter of exception. The foregoing narrations were not matter of exception and none were saved. The allegations in the motion for a new trial to the effect that the Hon. Samuel Davis had jurisdiction as the only judge competent to sit in the case did not prove itself. Neither-is there, as said, competent record here showing the fact.

The point is ruled against defendant.

II. Of res adjudicate/,.

Was the judgment of the Court of Appeals final and conclusive on the merits as to the right of plaintiff to a divorce?

If held conclusive, then according to right reason the following things necessarily result: First, the merits of the divorce suit (including the issue of con-donation) were not before the court at the second trial; second, not being there they are not here — our jurisdiction being only appellate; and, third, the trial court did not err in refusing to permit the filing of the amended answer going to the merits and the cross-bill having for its purpose not only the defeat of plaintiff’s divorce but defendant’s securing one of his own. All these questions are wrapped up in the determination of the conclusiveness of the judgment on the first appeal; henee, need no attention if we determine the point of res adjudicada in favor of plaintiff.

Attending.to the main proposition: That the Court of Appeals had jurisdiction to determine the question of divorce cannot he gainsaid. That such jurisdiction conferred power to reverse and remand a case with directions to enter a certain judgment, nisi, on a given issue is a commonplace of the law of appellate procedure in Missouri. A direction that does not direct is a misnomer — is palpable nonsense — for it is a precept of the law that it requires no vain or foolish thing to be done, hence when an appellate court reverses and remands a case and directs a certain judgment, nisi, its mandate must be strictly pursued. Nothing is left to the judicial discretion of the lower court, Avhich latter acts as a mere amanuensis in that behalf —the judgment directed to be entered being but the judgment of the upper court, entered below, so that when open questions are determined -the final judgment becomes a unit, an entirety covering all issues instead of appearing in piecemeal and in different courts. Now, that the Court ofi Appeals in this case determined the merits of the divorce, is plain on the face of its mandate and is writ large in its opinion. That mandate left no power to retry the case on its merits or permit the amended answer and cross-bill. [Hurck v. Erskine, 50 Mo. 116; Stump v. Hornback, 109 Mo. 272; Young v. Thrasher, 123 Mo. l. c. 311, et seq.; State ex rel. v. Edwards, 144 Mo. 467.] In Donnell v. Wright, 199 Mo. l. c. 312, it was'said, in effect, that in awarding a new trial it may be on the whole case, or on a certain issue, or a new trial may be awarded with directions to eliminate pointed-out errors, or to try the case on a certain theory of the law, or with the exclusion or inclusion of certain evidence —the award adjusting itself to meet the ends of justice.

The Court of Appeals had other powers; for example, it had the power to reverse the case and remand it for a new trial generally. If it had done so in this case, a different issue would have been tried out below and another question would have been here. It had even the power to commit error, but it would turn things topsy turvy to permit the circuit court, by disobeying its direction, to act upon the theory it had done so. The action of the trial court in this instance was en regie and must be commended.

Did the situation change in aught when an appeal was taken to this court from the result of the second trial? Clearly not. This is a court of errors. Its jurisdiction is strictly appellate in this case. May we convict the lower court of error in doing its duty by obeying the direction of the Court of Appeals? To state that question is to answer it.

We hold, then, on the issue of divorce or no divorce, that the judgment of the Court of Appeals was res adjudicate/, as to both the trial court and this court. The point is ruled against defendant.

III. Of alimony.

The general rule is: “The allowance of permanent alimony is a matter of sound judicial discretion, to be exercised with reference to established principles and upon a view of all the circumstances of each particular case, such as the estate and ability of the husband, the condition and means of the wife, and the conduct of the parties.” [2 Am. and Eng. Ency. Law (2 Ed.), 120.]

It is well enough to notice the compass fetched by counsel themselves on the issue — a compass fetched with a veteran hand and seasoned judgment. For instance, they do not say the alimony is excessive because the husband is without bodily and mental vigor and is handicapped by a lack of earning capacity — such was not the case; nor do they rely upon the proposition that the wife has such bodily and mental vigor and earning capacity as make the award unjust. True, in her young womanhood she was a school teacher with (presumably) an earning capacity as such; but having borne fruit of her body she has given hostages to fortune, as Lord Bacon puts it; and even a court may assume that the wear of the many daily duties of a wife and mother in the long years since she ceased that vocation, has somewhat lopped off that earning-capacity. Counsel do not say that she is rich or that the husband is poor and needy. To the contrary, she is practically without means of her own. She brought to her husband and put into the common chest her modest inheritance and he is shown to possess lands, moneys and bills receivable between $30,000' and $35,000' in value.

They put their point on these propositions, viz.: (1) ’ That the decree has left the burden of maintaining the children upon the father, and (2) the record shows such unhappy conduct on her part as the yoke-fellow of defendant as makes the reward unconscionable. Of these in order:

(a) Whatever may be the general rule or the doctrine in other jurisdictions [See 9 Am. and Eng. Ency. Law (2 Ed.), 871, and authorities cited in the notes on that page], the rule in Missouri is settled that where a decree of divorce is silent on the subject of the children, the liability of the father to support his minor children remains in full common-law vigor, though their mother is awarded their custody, as here. [Keller v. St. Louis, 152 Mo. 596; Meyers v. Meyers, 91 Mo. App. 151.] This case may proceed, then, on the theory that in the present status of the decree of divorce the common law duty of supporting his children remains with the father. But this view of the case does not, in and of itself, make the alimony exorbitant. If $11,000 be put out at six per cent it would produce $660. If allowance be made for taxes and a possible lower rate of interest, for safe investment, the income would be reduced to, say, $400. An income of $400 is little enough to provide a roof, a fireside blaze, food and raiment for any woman, allowing she may add to it pin money as best she may.

(b) There remains the question of her marital conduct.

We have gone over this long record with an eye to that fact. It tells a miserable story — a story once preserved in the pages of the reports and which need not be spread again of record — the story of a domestic drama acted on the stage of the lives of these two. Its curtain lifted on a scene bright with hope and was rung down on one bitter with ruin and despair. We cannot say the wife was altogether blameless. Much less can we say that the husband was not greatly to blame — he being the head of the house and charged with the duty of ruling with tact, chivalry,' justice and sweetness. Both parties often forgot that:

“As one lamp lights another, nor grows less,

So, nobleness enkindleth nobleness;”

forgot that a soft word turneth away wrath; that it takes two to make a quarrel; that charity, the cardinal virtue, covers a multitude of faults, and that to forgive and forget is the golden rule of marital conduct.

The curious may find the minutiae of the misery, misunderstandings, wranglings, quarrels, sarcasms, oaths, the threats and acts of hatred uncovered by the record set forth in the opinion of Judge Broaddus in Viertel v. Viertel, supra. We have compared that opinion with the record and approve the conclusions reached in meting out praise and blame. The sum of the matter was that the wife was entitled to a divorce because in tbe eye of tbe law she was the injured and innocent party.

Considering tbe needs of tbe wife, tbe ability of tbe husband to pay and tbe conduct of both parties, we tbink tbe award evidences a judicial discretion soundly exercised by tbe trial judge. It was well witbin tbe boundaries prescribed in approved cases. [Hamilton v. Hamilton, 37 Mich. 603; Metzler v. Metzler, 99 Ind. 384; Gercke v. Gercke, 100 Mo. 237.]

Let tbe judgment be affirmed. It is so ordered.

All concur, except VaMant, P. J., wbo is absent.


source: Caselaw Access Project

author: VALLIANT, P.

license: Public Domain

text:
    C. P. MOSS v. EDWARD KING et al.; WILLIAM ALLBRITAIN, Executor, Etc., Appellant.
    Division One,
    May 30, 1908.
    1. DEED OF TRUST: Redemption. When property covered hy a deed of trust to secure a debt, is sold hy the trustee in conformity with the terms of the deed and is bought in by the cestui que trust, it is subject to redemption by the grantor and his assigns, at any time within one year from the date of the sale, by payment of the debt and interest and all legal charges and costs incurred in making the sale, upon the giving of security, to the satisfaction of the- circuit court or clerk, for the payment of the interest to accrue after sale, and for all damages and waste.
    2. -: -: Notice and Security: Reasonable Time. Either the security required by the statute must be given on the day of the foreclosure sale, or notice must be given immediately upon the sale of an intention to give security and the security itself must be given within a reasonable time. Giving it within forty-two days is not giving it within a reasonable time. The reasonable time meant is time to accomplish that which the party could accomplish at once were it not for some particular condition hindering him, such as sickness or other adventitious circumstance. The time is not extended to permit him to experiment in the “market in trying to sell the property for more than it brought at the sale, with the intention to let the purchaser thereat have it for his bid if the experiment should not succeed.

      3. -: -: Abandonment by Answer. An allegation in the mortgagor’s answer that within the time allowed by law for filing his redemption bond he had entered into an agreement with the purchasers at the foreclosure sale that if they would allow him until a certain date to dispose of the property and if he did not succeed he would thereafter allow them to take their deed from the trustee and would not exercise his right of filing a bond, is a clear abandonment of his purpose, if he ever had the purpose, to give the bond to redeem.
    4. -: -: Trustee: Trying to Find Better Buyer, Etc. After the sale, the trustee is under no obligation to assist the mortgagor to organize a company to take the property at a better price, nor is he under any obligation to refrain from organizing a company to buy it from the purchasers at the foreclosure sale.
    Appeal from Johnson Circuit Court.— Eon. N. M. Bradley, Judge.
    Affirmed.

      Webster, Gilmer S Crowley for appellant.
    (1) The redemption bond-filed by appellant was, under the facts in evidence, filed within a reasonable time, as prescribed by statute, and the court erred in decreeing it null and void. E. S. 1899, secs. 4343 and 4344; Ins. Co. v. Eogers, 155 Mo. 307; Sheridan v. Nation, 159 Mo. 27. (2) By reason of this suit and the decree therein, appellant has been deprived of the benefit of the statute giving him one year in which to redeem, and in equity and good conscience he should have as much time for redemption after the termination of this suit as if the same had not been brought.
    <7. W. Suddatk for respondent.
    (1) A mortgagor under a deed of trust is not entitled to redeem, as a matter of course, but only upon full compliance with the statute. Updike v. Elevator Co., 96 Mo. .160; Vanmeter v. Darrah, 115 Mo. 157; Keith v. Browning, 139 Mo. 196; Dawson v. Egger, 97 Mo. 36. (2) Forty-two days is not a reasonable time in which to file a bond under the circumstances of this case, and gives the party- no right to redeem. Vanmeter v. Darrah, 115 Mo. 157; Updike v. Elevator Co., 96 Mo. 160; Dawson v. Egger, 97 Mo'. 36 ; Ins. Co. v. Rogers, 155 Mo. 307. (3) A trustee in a deed of trust becoming the owner of the note renders his position .that of a mortgagee with power of sale. Cassady v. ■Wallace, 102 Mo. 580; 26 Am. and Eng. E-ncy. Law (1 Ed.), 878. (4) A mortgagee with power of sale is not in any proper sense a trustee, because he stands at all times in the position of a creditor whose interests are adverse to those of the mortgagor; and when he executes the power, he does so solely for his own benefit, and not in a fiduciary capacity. 26 Am. and Eng. Ency. Law (1 Ed.), 879. (5) A mortgagee with power of sale, after the sale, is a trustee for the mortgagor only with respect to the balance of the purchase money, or surplus after sale, if there should be any. Warner v. Jacob, 20' Ch. Div. 220; Martin v. Clowes, 21 Ch. Div. 857. (6) There is no complaint here of any defect or lack of proper action in the conduct of the sale. Hence, the only question is, Did appellant have a right to- file bond after date of contract of December 14, 1904? If so, was the bond filed in a reasonable time? Respondent claims not; the court found not. (7) Defendant’s cross-bill, or cross-petition, in this case, states no facts that entitle him to any equitable relief, and the facts stated are wholly unsupported by the evidence. (8) While this court is not conclusively bound by the findings of fact by the lower court, yet it will defer greatly to its finding, especially where the evidence is oral, and the lower court had the opportunity to see and judge of the credibility of the witnesses, as here. Parker v. Roberts, 116 Mo. 667; Blount v. Sp-ratt, 113 Mo. 54; Matuias v. O’Neill, 94 Mo. 530; McMurray v. McMurray, 1801 Mo. 533.
   VALLIANT, P.

~Plaintiff, as assignee of the purchasers at a foreclosure sale, brings this suit to require the trustee to execute a deed conveying the land to him in accordance with the terms of the sale. The land in suit is a tract of about four or five acres, on which is situated a flour mill, in Johnson county. It was encumbered with a deed of trust to secure three notes aggregating $1,186 principal. Defendant All-britain, as executor of the will of Harriett L. Jameson, deceased, was the owner of the equity of redemption; defendant King was the trustee in the deed of trust. This debt being due and unpaid, the trustee, after due notice, offered the property at public sale to the highest bidder for cash, in accordance with the terms of the deed of trust and it was struck off to A. W. Burke and B. B. MacMacken for the sum of $1,259.21, which was the highest bid.

The date of the trustee’s sale was November 11, 1904. Immediately after the sale defendant Allbritain gave notice to the trustee and to Burke and MacMacken that he would give the bond and security allowed by the statute, sections 4343 and 4344, Revised Statutes 1899, to redeem the property within one year. After receiving that notice, King, the trustee, declined to give the purchasers a deed, but gave them a certificate declaring that he had sold them the property at the price named and would make them a deed unless the defendant Allbritain should within a reasonable time give the bond .and security promised. So the matter stood on December 14th, when Allbritain, having not then given the bond, Burke and MacMacken had some talk with him about it, whereupon they came to an understanding or agreement which was evidenced in the form of a letter from Allbritain to Burke and MacMacken, dated December 14, 1904, the body of which was as follows: “Gentlemen: This is to witness that unless I succeed in selling or trading the Kingsville Mill Property by December 25th, 1904, the title thereto will be conveyed to you either by Miss Bell, the present holder, or by Mr. Ed. King, the trustee in the deed of trust on said property. If I succeed in closing a deal in such way as to pay off your claim and need a reasonable time in which to consummate the deal I shall expect reasonable treatment on that line as heretofore talked. ’ ’

On the next day, December 15th, Burke and MaeMacken sold and transferred their interest evidenced by the certificate of purchase to the plaintiff Moss by a writing to that effect endorsed on the certificate. The consideration for this assignment was $1225' paid them in cash. The negotiations that resulted in this assignment were conducted by King acting for Moss. When Burke and MacMaeken delivered the assigned certificate to King for Moss, they also delivered to him the letter above mentioned from Allbritain to them.

On December 23d, 1904, Allbritain executed a bond to redeem, as if in compliance with the statute above mentioned, and it was filed on that day in the office of the circuit clerk. After December 25th had passed, Moss demanded a deed from the trustee, but he declined to execute it because Allbritain had given the bond and insisted that he had the right to redeem within the year. Moss then brought this suit to compel the trustee to execute the deed.

The answer of Allbritain states that at the time of the foreclosure sale, Burke and MacMaeken were the owners of the entire debt covered by the deed of trust; “that within the time allowed by law for filing said bond, this defendant and the said Burke and MacMacken entered into an oral agreement whereby this defendant agreed that if said Burke and MacMaeken would allow him until the 25th day of December, 1904, in which to dispose of said property, or to get the same •into contract for its disposition, he would allow them to take their deed from the trustee and not exercise his-right of filing said bond in the event he should fail to dispose of said property or make a contract for the disposal thereof within that period.”

Then the answer goes on to say that that agreement was afterwards reduced to writing (by which we understand is meant the letter of December 14th, above mentioned) and that King knew it, hut that he, scheming to get the property for less than its value, bought the interest of Burke and MacMacken, concealing the fact from defendant, and took the assignment in the name of Moss to hide his own interest, and then busied himself trying to organize a corporation that would take the property off his hands at a large price, all this without the knowledge of the defendant, who after the agreement of December 14th, had tried to form a company to purchase the property, hut had been unable to do so through the contrary interference of King; that as soon as defendant discovered (which he did on December 18) that King had bought the interest of Burke and MacMacken, he immediately set about giving the redemption bond and accomplished that purpose on December 23rd, which, considering the circumstances, defendant says was within a reasonable time.

There was no evidence tending to show what were the terms of the alleged oral agreement between defendant Allbritain and Burke and MacMacken except what might he inferred from the letter of December 14th and the conduct of the parties; indeed, Allbritain m his answer says that that letter contains the agreement. There was no evidence tending to prove that King bought the interest for himself taking the assignment in the name of Moss, except that he and Moss are relatives and he negotiated the trade and advanced the money which Moss afterwards repaid him, and it was in evidence that it was understood between him and Burke that the assignment of the interest was not to be mentioned to Allbritain, bnt Allbritain himself testified that Burke did inform him of it.

It came out in the evidence that on the day of the foreclosure sale, before the sale, King joined with Burke in buying two of the three notes covered by the deed of trust, and his share of the purchase money at the foreclosure sale, because of his interest in the two notes, was $209 and this sum was deducted by him from the $1225' he paid Burke and MacMacken for Moss. After the redemption bond was given and the controversy arose as to whether King should make the deed to Moss or wait until the expiration of the year in which to allow Allbritain' to redeem, King took the advice of a lawyer who told him that the better way was to let Moss bring a suit to compel him to make a deed, then the rights of the parties would be settled in court according to law. King afterwards saw Moss in Kansas City and told him what the lawyer said and Moss authorized him to employ a lawyer to bring the suit and he employed the lawyer whom he had already consulted. '

The trial court found the issues in favor of the plaintiff and rendered a decree requiring the trustee King to make the deed, from which judgment defendant Allbritain appealed.

I. When property covered by a deed of trust to secure a debt is sold by the trustee in conformity with the terms of the deed and is bought in by the cestui que trust, it is subject to redemption by the grantor in the deed or his assigns, at any time within one year from the date of the sale, by payment of the debt and interest and all legal charges and costs incurred in making the sale. [Sec. 4343, B-. S. 1899.] Without that statute such right of redemption does not exist, and no one can have the benefit of that statute “until he shall have given security to the satisfaction of the circuit court for the payment of the interest to accrue after the sale, and for all damages and waste that may he occasioned or permitted by the party whose property is sold. In case the circuit court is not in session, such security may be taken by the clerk of said court.” [Sec. 4344.] The statute does not specify the period within which the security must be given, but it has been interpreted to mean that it must be given on the day of the sale. [Updike v. Merchants ’ Elevator Co., 96 Mo. 160; Dawson v. Egger, 97 Mo. 36.] Later it has been held that if the party cannot give the bond immediately but gives immediate notice that he intends to do so, he may have a reasonable time in which to accomplish his purpose. [Vanmeter v. Darrah, 115 Mo. 157.] Allbritain gave timely notice that he intended to give the bond and security, but he allowed forty-two days to elapse before doing so. The foreclosure sale occurred November 11th, the bond was given December 23rd. Was the bond given within a reasonable time? The statute contemplates prompt action, the reasonable time which it has been interpreted to give means a period in which the security could be obtained supposing the party to be desirous of obtaining it and able to do so; it means' a reasonable time to accomplish that which the party could accomplish at once if it were not for some particular condition hindering, as for example sickness or other adventitious circumstance. The hindering cause to excuse the delay must be such as to prevent the immediate giving of the security which otherwise could and would be given and which would be given as soon as the conditions should cease. The time is not extended to enable the party to experiment in the market in trying to sell the property for more than it brought at the foreclosure sale, with intention only to- let the purchaser at the foreclosure sale have it for his bid if the experiment should not succeed, but the time is given him to be used in diligent effort to obtain the security and give the bond. After the security is given he may take the balance of the year, if he so chooses, in efforts to sell the property, bnt in that event he would not be experimenting at the expense of the purchaser at the foreclosure sale.

There is nothing in this record to show why the defendant Allbritain could not as well have given the bond on the day of the foreclosure sale as on the day he did give it; there is nothing to show that he made any effort to give it sooner than he did. His own testimony shows that the only efforts he made to save the property to the estate he represented were in the way of trying to organize a stock company to buy it, and even if the defendant King had crossed him in those efforts it would not excuse his failure to give the bond, King did not interfere with him in that respect.

In his answer Allbritain says that on the day of the sale he notified the trustee and the purchasers that he would give the security called for by the statute and “that he would, within one year from the date of said sale, redeem said property from the debt and interest secured by said deed of trust.” The notice was given as stated, but the circumstances of the case, according to his own testimony, show that he had no purpose of paying the debt and redeeming the property unless he could effect a better sale of it in the meantime. In his testimony he said: “The situation was simply this: At ail times from the time I got hold of it, until after the sale, and until after the 25th day of December, the matter was in such shape that I did not have any reasonable time to turn it, and I wanted to get matters in shape so I would have a reasonable time in which to turn it, but having to work at short range, my purpose was to get some reasonable sum out of the equity and let it go, and I gave them to understand that while I thought it was worth $3,500 to $4,000, that I would not stand for that, but- would be reasonable about putting the equity in and taking stock in place of it.” He also testified that the assets of the estate other than the equity of redemption in this property did not amount to more than $50 or $100'. And in his answer, after saying that he had given the notice, he said: “That within the time allowed by law for filing said bond, this defendant and the said Burke and MacMacken entered into an oral agreement whereby this defendant agreed that if said Burke and MacMacken would allow him until the 25th day of December, 1904, in which to dispose of said property or to get the same into contract for its disposition he would allow them to take their deed from the trustee and not exercise his right of filing said bond,” etc. That is his own interpretation of his agreement, and it is a clear abandonment of the purpose, if he ever had the purpose, to give the bond to redeem. So far as the rights of Allbritain are influenced by that contract he has no cause to complain; there was no breach of it on the part of Burke and MacMacken or of Moss, their assignee. The contract did not forbid Burke and MacMacken selling their right under the certificate of purchase, their sale of it was no breach of faith or breach of contract. When they did sell it they gave the purchaser the written memorandum or letter of December 14th, which evidenced the agreement, and the assignee did nothing in violation of it. If there was any breach of that contract it was hy Allbritain himself who after being allowed the time therein specified, to-wit, until December 25th, in which to try to effect a sale and failing therein, interposed the bond and thereby prevented a delivery of the deed which he had agreed might then be delivered.

II. The burden of Allbritain’s complaint is that King, the trustee, thwarted him in his efforts to organize a corporation to buy the property. But the evidence does not sustain him in that complaint. The evidence does not show that King did anything inconsistent with his duty as trustee in the matter. It was shown that he became a part owner of two of the mortgage notes before the sale, but no point is made of that in the pleadings. After the sale, King owed no dnty to either party except the mere ministerial duty of executing the deed. He was under no obligation-to assist Allbritain in organizing a corporation to take the property and he would have violated no trust obligation if, after the sale, he had organized a corporation himself with a view to buying the property from the purchasers at that sale. It was not until more than a month after the sale and after the contract of December 14th between Burke and MacMacken and. Allbritain, wherein the latter abandoned (even if he then had) a right to give the redemption bond, that King, acting for Moss, bought from Burke and MacMacken their right in the property. After the time agreed on in the contract of December 14th had passed, he would have been justifiable in executing a deed conveying the property to the assignee, notwithstanding the bond filed on December 23rd, but in a spirit of fairness he preferred to have the point in dispute decided by the'court, and it is not to his discredit that, after conferring with Moss, the purchaser, he engaged for Moss the lawyer who had been his own legal adviser to bring this suit.

The trial court took the correct view of this cause. The judgment is affirmed.

All concur.


author: WOODSON, J.

text:
    JOEL R. CROW v. HOUCK’S MISSOURI & ARKANSAS RAILWAY COMPANY, Appellant.
    Division One,
    May 30, 1908.
    1. NEGLIGENCE: Permission to Look Over Engine. Permission by the conductor of a freight train to the engineer of a crippled engine, which was being towed to the repair shops, to “look over his engine” and an assurance that he would have plenty of time to do so, as alleged in the petition, was not a license or permission to him to. crawl under the trucks of the engine for the purpose of repairing the truck cellar; and the doing of that, at night, without notifying those in charge of the train of -his intention of doing so, was such contributory negligence as precludes a recovery for injuries sustained by the backing up of the train against the engine while he was under it. The permission to look over the engine cannot be tortured into a permission to go under it to make repairs in the cellar truck which an examination might discover to be defective. To assume such a dangerous position without notifying the train men of his intention to do so, was gross negligence.
    2. -: -: Pleading. And a petition which states that the engineer went under the engine, but fails to state that he gave the trainmen notice of his intention to do so, shows on its face such contributory negligence as bars, his recovery.
    3. -: -: Implied: Pleading. If the permission to “look over his engine,” implied permission to go under it and was accepted and understood by the train men to so mean, that fact should be alleged in the petition; otherwise, it fails to state a cause of action.
    4. -: Defendant’s Employee: Two Corporations. Although plaintiff was an employee of one railroad corporation, and the conductor in charge of a train which was towing to the repair shops plaintiff’s engine over the lines of another corporation . was in the employ of this other company, yet where the facts disclose that the two roads were part.of one general railroad system, operated under one general management, and that the general manager of the entire system ordered plaintiff to leave his road and take his disabled engine, which was the property of the defendant, to the repair shops, over the defendant’s line, it will not be held as a matter of law that plaintiff was not an employee of defendant; but the question is one for the jury, under proper instructions.
    5. -: Instructions: Assumption of Facts. The instruction designed to cover the whole case should not assume as true disputed facts. .

      6. -: -: Departure: Employee. Where the petition charges that plaintiff was an employee of defendant, an instruction which authorizes the jury to find for him, even though they might find that he was not an employee of defendant but of another corporation, is erroneous, and a clear departure from the issues presented by the petition.
    Appeal from Dunklin Circuit Court. — Hon. J. L. Fort, Judge.
    Reversed and remanded.

      Giboney Houck and John A. Hope for appellant.
    (1) The court erred in overruling defendant’s objection to the introduction of any evidence on the ground that plaintiff’s petition did not state facts sufficient to constitute under the law any cause of action, which objection was interposed at the beginning of the trial. According to this petition, the train had stopped at Morley Station on the railroad, and the conductor asked the plaintiff if he desired to look the engine ove'r, he told the conductor that he would do so if he had time, and the conductor informed him that he would have all the time he wanted. This permission to look the engine over is the sole and only explanation disclosed by the petition for the extraordinary conduct of the plaintiff in going under the engine, laying himself across the tracks between the wheels of the engine, and in this position working on the trucks. The petition nowhere alleges that the conductor, or any member of the train crew, knew, or had the least intimation, that plaintiff intended to put himself in a position of such danger. If the conductor or any member of the train crew knew that plaintiff was under the engine at the time the train was forced backward, the petition does not disclose it. This petition states an exceptionally good case of flagrant contributory negligence on the part of the plaintiff but fails utterly to show any negligence on the part of defendant, or any member of its train crew. Hnrst v. Railroad, 163 Mo. 30'9; Mackey v. Mill Co., 210 111. 215. (2) The court erred in refusing to instruct the jury at the close of plaintiff’s evidence in chief that under the pleadings and evidence plaintiff was not entitled to recover, and to return a verdict for the defendant, as asked for in defendant’s refused instruction numbered 1. (a) As the very foundation of plaintiff’s case it was necessary for him to prove the allegation in his petition that he was in the employ of defendant Houck’s Missouri & Arkansas Railroad Company. The answer denied under oath the allegation of the petition. His suit is based on the theory that the relation of master and servant existed between defendant and him, and that the injury he sustained arose out of a violation by the defendant of the duties and obligations the defendant owed him as his master, that he was a fellow-servant with the various members of the train crew, all in the employ of defendant, and that the negligence of these fellow-servants caused his injury. Plaintiff failed to prove that he was an employee of defendant; in fact, his own testimony proved that the only railroad owned and operated by defendant extended from Morley to Cape Girardeau, that the line of railroad from More-house south was under the control of and operated by the St. Louis, Kennett & Southern Railroad Company; that he had never been at work on the railroad north of Morehouse; that the disabled engine No. 4 was a part of the equipment of the lines south of Morehouse, which lines belonged to the St. Louis, Kennett & Southern Railroad Company. According to his own testimony, his contract.of employment was made with the master mechanic of the St. Louis, Kennett & Southern Railroad, and he was paid for his services at Kennett by checks on the Kennett bank signed by Mr. Ponder, superintendent of the St. Louis, Kennett & Southern Railroad. 1 Labatt on Master and Servant, sec. 6; 6 Thompson’s Com. Law of Neg., secs. 7522, 7524; Carroll v. Railroad, 88 Mo. 239; Logan v. Central, etc., Co., 139 Ala. 548.; Alabama, etc., Co. v. Williams, 140 Ala. 236. (b) Under plaintiff’s own statement of the circumstances surrounding the accident, Ms injury resulted from his own contributory negligence. Weber v. Railroad, 100 Mo. 194. His testimony to the effect that before going under the engine he “gave the stop signal and got an answer” was irrelevant and incompetent; the petition contains no such allegation; and to allow this to be considered as a ground for charging defendant with negligence would be permitting plaintiff to seek a recovery on a ground not alleged in his petition. Walsheir v. Railroad, 71 Mo. 514; Feary v. Railroad, 162 Mo. 96; McLure v. Feldham; 184 Mo. 722. The petition alleged as the only ground of negligence on defendant’s part that the conductor gave plaintiff permission to “look over the engine;” under this permission the conduct of plaintiff in working under the engine in the way he did was wholly inexcusable, ajid Ms injury was caused by his own negligence. Thompson’s Com. Law Neg., sec. 7464; Hurst v. Railroad, 163 Mo. 322; Moore v. Railroad, 176 Mo. 528.

      Wilson Uramer, Robert L. Wilson and M. A. Dempsey for respondent.
    (1) The petition stated a cause of action, the evidence of plaintiff fully sustained its allegations and the peremptory instructions were rightly refused. (2) The allegation that Crow was in the employ of the defendant was merely matter of inducement and not essential to recovery. Lee v. Railroad, 1 Am. Neg. Rep. 208. (3) Moreover, because of the complicated relations existing between the various railroad corporations of the Houck system of railroads, there was sufficient evidence to support the allegations for the purpose of this case. (4) And there was direct evidence that for the purpose of looking after the dead engines plaintiff had been actually employed by Barney Gill, foreman of the EL M. & A. shops, and was performing work in the line of such employment at the time of his injury. (5) Notice to the crew that plaintiff was about to inspect the engines put the train crew on guard, and of itself relieved plaintiff from the charge of contributory negligence. Gibson v. Railroad, 5 Am. Neg. Rep. 325; Edington v. Railroad, 204 Mo. 67. (6) It is not necessary that defendant should actually know the danger to which plaintiff is exposed. It is enough that, if having sufficient notice to put a prudent man upon the alert, he does not take such precautions as a prudent man would take under similar notice. This rule is now almost universally accepted. Rodgers v. Railroad, 117 Mo. App. 684; Lange v. Railroad, 115 Mo. 588.
   WOODSON, J.

— This suit was instituted to recover damages for personal injuries received by plaintiff through the alleged negligence of the defendant. The suit was brought in Scott county and taken on change of venue to Dunklin county, where a trial was had before the 'court and á jury, which resulted in a verdict and judgment for the plaintiff for the sum of ten thousand dollars. After an unsuccessful move for a new trial and in arrest of judgment, the defendant duly appealed to this court.

As the sufficiency of the petition is assailed, it becomes necessary to set it out in this statement, which, after omitting the formal parts, is as follows:

“That on the 8th day of November, 1901, and the day following, he was in the employ of defendant railroad company as an engineer and had charge of engine No. 4 on its said road, which he had been directed and ordered by defendant to take from tbe town of More-house to the railroad shops at the city of Cape Girardeau for repairs; that while he was on his way with his said engine under the aforesaid orders, the same became disabled between Morehouse and the station of Crowder and he was unable to proceed further; that on the following day, November 9th, another of defendant’s trains passing along said road undertook to tow plaintiff’s engine No. 4 to the city of Cape Girardeau and on reaching the station of Morley made a stop; that while said train was standing still, at about the hour of eight o’clock at night, the conductor in charge thereof demanded to know of plaintiff whether he desired to look Ms engine over, and upon being told by plaintiff that he would do so if he had time, was informed by said conductor that he would have all the time he wanted, and thereupon plaintiff descended from his said engine No. 4 and began an examination thereof; that upon such examination he found that one of the bolts of the engine truck cellar had been lost, and, knowing that said engine could not safely proceed in that condition, he undertook to remedy the defect, relying upon the assurance of the conductor of said train that he would have plenty of time. And plaintiff further states that it was necessary to insert a new bolt in place of the one that had been lost, and plaintiff, for the purpose of making such repairs, took a position on the end of the ties behind the engine truck and had Ms arms extended underneath the engine in the act of holding up the engine truck cellar with a hammer handle while an assistant was inserting the bolt to be put in, when, suddenly, 'and without notice or warning to Mm, defendant, by its agents having in charge and operating said towing train, carelessly and negligently caused a number of freight cars to be violently forced back against the train in which Ms said engine was standing, thereby causing the wheels of the engine truck to be run back rapidly and pass over Ms rigM arm so that the same was torn and mangled and the bones thereof crushed from the wrist to the elbow, and plaintiff was struck by some part of the engine about the head and face and sustained painful injuries and bruises.”

Defendant’s amended answer contains a general denial and then proceeds as follows:

“2. For another and further answer defendant avers that plaintiff never was in defendant’s service or employ in any capacity whatever, and that at the time mentioned in his petition plaintiff was merely a passenger on board defendant’s freight train, with instructions from defendant’s conductor and crew in charge of said freight train to stay in the caboose at the end of said train, and that such injuries as plaintiff received, if any, were caused solely by his own reckless conduct and negligence contributing directly thereto, in this, to-wit, that he left said caboose at nighttime and went to and extended his arm under an engine coupled in said freight train while cars were being switched from the side tracks and coupled with said freight train at Morley station on defendant’s railroad, and thus received said injuries, all of which he did in violation of the said instructions of said train crew and without any persons having* any notice or warning of Ms dangerous and reckless conduct or his said dangerous position. Wherefore, defendant again prays for judgment and that it may be dismissed with its costs.

“For another and further answer defendant says plaintiff never was employed by defendant as a locomotive engineer or in any other capacity, and avers that at the time mentioned in his petition plaintiff was in the service and employ of the St. Louis, Kennett & Southern Railroad Company, owning and operating a railroad separate and distinct from defendant’s railroad, and that said St. Louis, Kennett & Southern Railroad Company, desiring to have one of its disabled engines repaired, engaged defendant to haul the same to the railroad shops at Cape Girardeau, and defendant had its train crew to attach said disabled engine to defendant’s freight train, and, with said disabled engine attached, defendant’s train crew was proceeding with said train to the city of Cape Girardeau; that on said run to Cape Girardeau plaintiff accompanied said engine, not in defendant’s service or employ, but as an employee and servant of the St. Louis, Kennett & Southern Railroad Company, accompanying its said disabled engine to the Cape Girardeau shops, and that he was directed and expected by defendant’s train crew to ride and remain throughout said trip and run to Cape Girardeau in the caboose at the end of said freight train; that such injuries as plaintiff may have received, if any, were caused solely by his own recklessness and negligence contributing directly thereto in this, to-wit, that when said freight train reached the town of Morley and said train crew were engaged in the usual and ordinary switching of cars to and from its side tracks, plaintiff, in violation of said directions of defendant’s train crew and without giving any notice or warning of any kind to any of said crew, recklessly and negligently left said caboose and went under and began work on the trucks of said disabled engine, and that, proceeding with the usual, ordinary and necessary switching at said town, cars were switched from the side tracks and coupled to said train on the main track, when, as the result solely of his own voluntary recklessness and negligence in leaving said caboose and going under said engine, as aforesaid, plaintiff received such injuries. Wherefore, defendant, having fully answered, again prays judgment and that it he dismissed with its costs.”

The facts of the case are few and practically undisputed, and are as follows:

The defendant, Houck’s Missouri & Arkansas Eailroad Company, was the first link in a system of railroads known as the “Houck’s System,” composed of various separate railroad companies, extending from Cape Girardeau, this State, to Leachville, in the State of Arkansas, with a. branch to Kennett, Missouri. This first link ran from the Cape to Morley. Another, named the Morley & Morehouse Eailroad Company, connected those two towns. ' From More-house south to Clarkton it was known as the St. Louis, Morehouse & Southern Eailroad Company. At Clark-ton it connected with the branch which leads over to Kennett. This branch road was incorporated under the name of the St. Louis, Kennett & Southern Eailroad Company. This latter company had a road leading south from Morehouse to Leachville, upon which plaintiff was employed as an engineer and for whom he generally worked. Each of these companies was a separate and distinct corporation, but all were operated under the same management as one system of railroad. But two of those companies figure specially in this case. One is Houck’s Missouri & Arkansas Eailway Company, and the other is the St. Louis,' Ken-nett & Southern Eailroad Company. The former had repair shops at Cape Girardeau, and the latter at Ken-nett.

On November 8th, 1901, Crow was working on a Houck’s Missouri & Arkansas engine south of More-house. On that date his conductor Hardy told him that Mr. Louis Houck, general manager, had ordered the engine taken to the Cape, because the flues had given out and the engine wasn’t able to pull a full train. He was on his way to the Cape pulling a car of steel and Houck’s Missouri & Arkansas engine No. 7, which was also disabled and was in charge of Barney Gill, foreman of the Houck’s Missouri & Arkansas shops at Cape Girardeau. The flues sprung an extra leak and the engine died out on the line; a work train shoved them on a side track at Crowder. On the morning of the 9th Barney Gill, before going in on the passenger train, gave Crow instructions, told him that an engine would come after them from the Cape and directed him and the fireman to see those engines into the Cape safe.

About six o ’clock the local came along in charge of Tom Gill as conductor, picked up^ the two engines and car of steel, placing them at the rear of the train in front of the caboose. There were about twelve freight cars between the engine pulling the train and the dead engines. They proceeded on their way to Cape Girardeau, Crow and his fireman riding in the caboose with the train crew. "When the engine whistled for Morley, Crow inquired of the conductor the name of the station, and upon learning it asked if he would have time to look the engines over. Gill told him that they had no business at Morley except to unload one box and that he would have plenty of time. When the train stopped all in the caboose got out, Crow taking a lantern walked up along side of the train to the dead engines, accompanied by his fireman and Conductor Gill. Crow proceeded to oil engine 7 while the fireman oiled one side of No. 4, Gill slowly walking away towards the head of the train. After oiling No. 7 and one side of No. 4, Crow discovered a hot engine truck and found that a cellar bolt on the right side of the forward truck had slipped out, the cellar dropping down at one side and losing the packing. The “cellar” on a truck is a receptacle placed underneath the bearing of the axle to hold oil and waste for the purpose of keeping the bearing properly oiled while in motion. If the cellar fails to perform its office the bearing becomes overheated and the “hot box” condition results. The steel of the axle is liable to become crystallized and to break under the strain of friction and the weight of the engine. All that is required is to slip a bolt of iron through the holes already made in the iron of the cellar and the piece to which it is connected and then turn the protruding end of the bolt so that it cannot slip out. The cellar being on the inside of the wheel, it was necessary that Crow should work from underneath the engine while inserting and fastening the bolt, so, as an extra precaution, he took his lantern, and swung it across the track to give the stop signal. The stop signal given to a train not in motion means to “stop still, do not move until signaled to do so. ’ ’ Crow received an answer acknowledging his signal from somewhere near the upper end of the train, but the record does not show who it was that gave this answer or that it was intended as an answer to his signal, but he assumed it was given by some of the trainmen, and that it was an answer to his stop signal, and then proceeded to repair the engine, without notifying the conductor, engineer or any other person connected with the train that he intended to do so. While the fireman on the outside of the wheel prepared to insert the bolt, Crow lay across the rail between the wheels, the upper portion of his body being beneath the engine, held up the loose end of the cellar with a hammer handle so that the bolt would pass through the holes and was ready to turn the end to fasten it in place. Suddenly he heard the rumbling of the ears bumping against one another, and realizing that the forward end of the train had been put in motion he placed his right hand upon the ground, forced his body backward and out between the wheels before the motion of the train was communicated to his engine, but- before he could withdraw his arm, the wheel caught it and passed over it. To save the arm from further mangling as the wheel slowly passed he reached it with his left hand and pulled out the remains of the right. The bones had been completely crushed and severed, and the amputation was made with a pair of scissors. In getting away from the engine Crow was struck on the head by the cylinder box and badly burt. A local physician at Morley bandaged the stump and Crow was taken in the caboose to Cape Girardeau. There the train stopped down in the yards and Gill and Crow walked to a boarding house up-town, where, when it was discovered that surgical treatment was necessary, admission was refused. They then walked to the hospital where a physician was called and performed the operation. He was confined in the hospital until December 30th. Two separate operations were performed. At the time of the trial Crow’s arm frequently caused him pain.

The testimony on the part of the defendant showed that the rules of railroads required blue signals, a flag by day and a lantern by night, to be put out, front and rear, when a car is being repaired; but all the witnesses admitted that such rule applied only to a car set out on a side track in the yards and not to a train in operation upon the main line. Further it was shown that there were no blue lanterns on the trains. The defendant’s witnesses, Gill and Lavey, and the fireman on the engine, stated that they did not see Crow’s stop signal, but Gill and Lavey had their backs towards Crow. Gill admitted that he had given Crow permission to look his engine over, that he walked up with him to the dead engine and was only two or three cars ahead when the injury occurred.

At the close of plaintiff’s evidence, and again at the conclusion of all the evidence in the case, the defendant asked an instruction in the nature of a demurrer to the evidence, each of which was by the court refused, and to the action xof the court in so refusing them defendant duly excepted.

After overruling defendant’s said demurrers, the court instructed the jury for the plaintiff as follows:

“1. The court instructs the jury that if you find from the evidence that plaintiff was. employed by the defendant as an engineer on its railroad and as such had charge of one of its engines which was being towed over said defendant’s railroad in another of defendant’s trains, and shall further find that it was the duty of the plaintiff under his employment to look after and keep his said engine in condition to be so towed to its destination, and you shall further find from the evidence that said train was stopped at or near the sta,tion of Morley, and while it was so stopped the conductor in charge of said towing train gave plaintiff the assurance that he would have ample time to examine his said engine before the train started, and you shall further find from the evidence that, acting upon said assurance, plaintiff thereupon examined his said engine and found that one of the engine cellar bolts thereof was lost and said engine was in need of repair, and that plaintiff, relying upon said assurance of said conductor, then undertook to repair said engine by inserting another cellar bolt, and you shall further find from the evidence that for the purpose of executing said work, it became and was necessary for plaintiff to place his body partly under said engine in a recumbent position, and that, while he was in such position, engaged in said work with due care and diligence on his part, the agents and employees of the defendant in charge of said train, knowing that plaintiff was engaged in looking after and attending to said engine, carelessly, negligently and without warning to the plaintiff, caused certain cars to be run back and against said train in which plaintiff’s engine was standing, and that in consequence thereof the wheel of said engine ■rolled back and caught plaintiff’s right arm, crushing the bones and rendering amputation below the elbow necessary, and plaintiff sustained other injuries about the head and face, then he is entitled to recover, and your verdict should be for the plaintiff.

“2. You are further instructed that, although you may find from the evidence that plaintiff was not in the employ of defendant corporation, but was a servant of the St. Louis, Kennett & Southern Railroad Company or of the St. Louis, Morehouse & Southern Railroad Company, and that the disabled engine of which he had charge belonged to the St. Louis, Kennett & Southern Railroad Company or the St. Louis, Morehouse & Southern Railway Company, and if you further find that the defendant corporation undertook to pull said engine over its road to the city of Cape Girardeau, and that plaintiff was in charge of said engine, and that it was his duty to look after same, and attend to all repairs of -same needful while said engine was so being towed, and that plaintiff was injured in the manner and under the circumstances detailed in instruction No. 1, given for plaintiff, while said disabled engine was being towed by defendant’s train, then plaintiff is entitled. to recover, and you will find the issues for the plaintiff.

“3. The court instructs the jury that if you find the issues for the plaintiff, you should assess his damages at such sum, not exceeding twenty-five thousand dollars, as from the evidence you may find and believe will be a fair compensation to him for the injuries he is shown by the evidence to have sustained, and that, in estimating such damages, you should take into consideration the physical pain and mental anguish occasioned by his injuries; the fact, if you so find, that his injuries are permanent, his physical deformity, and any diminution or impairment of his earning capacity, if any, which you may find from the evidence has been occasioned by his injuries.”

Defendant objected and excepted to the giving of the above instructions and each of them.

The court gave the following instructions for defendant :

“A. In determining whether the defendant’s agents and servants negligently and carelessly handled its train of cars, or whether the injury to plaintiff was occasioned hy their neglect and careless handling of defendant’s train of cars, you are to consider all of the attending facts and circumstances, but you are in no wise at liberty to presume negligence or carelessness on the part of defendant from the mere happening of the accident. These are facts which require affirmative proof, and the burden of showing them, as well as the want of contributory negligence on the part of the plaintiff, rests upon the plaintiff.

“B. The jury are instructed that the plaintiff Crow was bound to exercise such care and prudence as might reasonably be expected of a man of his age and capacity under similar circumstances, and that the degree of care and prudence in avoiding danger is to be determined from the age and experience of the plaintiff in railroading; and if the jury believe from the evidence that plaintiff was a man of mature years, and an experienced locomotive engineer, they may take that fact into consideration in considering the question of negligence or carelessness on the part of said plaintiff.

“C. Negligence as used in these instructions means a want of such reasonable care as a person of ordinary prudence would be expected to exercise under all the existing circumstances in view of the probable danger of injury.

“D. If you find from the evidence that plaintiff began the work of inserting a cellar bolt in the truck of the disabled engine, and gave the train crew no warning of his position except to ask and receive from the conductor permission to look over, or to look around the engine, then the plaintiff did not exercise such reasonable care to avoid injury as a person of ordinary prudence should have exercised under similar circumstances, and he was guilty of negligence which contributed directly to cause the injury to his arm, and your verdict should be for the defendant.

“E. If you believe from the evidence that plaintiff was himself guilty of any negligence that contributed directly to the injury of which he complains, then he is not entitled to recover, even though you may further find that there was also negligence on the part of defendant’s train crew.”

The court refused the following instructions asked by defendant, to which refusal as to all and each defendant excepted:

“F. Although the jury may find and believe from the evidence that the plaintiff Crow was struck and injured by a train of defendant’s cars, yet that does not authorize the jury to find a verdict for the plaintiff in this action; and unless it has been proved to the satisfaction of the jury that, after said plaintiff had got under his engine, his dangerous situation was discovered by those in charge of the train, or that they could have seen it by the exercise of ordinary care and watchfulness, and have stopped the cars in time to have prevented the injury, then the finding must be for the defendant.

“Gr. You are further instructed that before you can return a verdict in this cause for the plaintiff you must find and believe from the evidence that at the time of receiving the injury complained of in his petition plaintiff was in defendant’s employ, and that when defendant’s train stopped at Morley station defendant’s trainmen negligently backed cars against a disabled engine, coupled into said train, on which engine plaintiff was at work, and that such negligence on the part of defendant’s trainmen was the sole and direct cause of the injury to plaintiff, and that plaintiff was not himself guilty of any negligence that contributed directly to the injury. If plaintiff was guilty of any negligence contributing directly to' cause the injury lie cannot recover, or if the injury was caused by the negligence on the part of both plaintiff and defendant, contributing directly thereto, plaintiff cannot recover, for however negligent defendant’s employees may have been plaintiff cannot recover if he himself was guilty of any negligence that contributed directly to produce the injury he sustained.”

I. The first assignment of error presented by appellant relates to the action of the court in admitting any evidence under the petition. It is the contention of the appellant that the petition does not state facts sufficient to constitute a cause of action against it.

The petition alleges in substance that when the train reached Morley, the conductor asked plaintiff if he desired to look Ms engine over, and, upon being told that he would if he had time, was informed by the conductor that he would have all the time he wanted, and that thereupon he descended from the caboose and began an examination thereof; that upon discovering that one of the bolts of the engine truck cellar had been lost, he undertook to remedy the defect, relying upon the assurance of the conductor of said train that he would have plenty of time. And that in order to make the repairs he took a position on the end of the ties behind, the engine truck and had his arms extended underneath the engine in the act of holding up the engine truck cellar with a hammer handle while an assistant was inserting the bolt, when suddenly, and without warning to him, defendant negligently caused a number of cars to be violently forced back against the train in which his engine was standing, thereby causing the wheels of his engine truck to be run back rapidly and pass over his arm, and thereby inflicted the injuries complained of.

It is the contention of the appellant that the permission given by the conductor to the respondent to look over the engine was no license or authority for him to crawl under the trucks of the engine for the purpose of repairing the truck cellar, and that the doing so, at night, without notifying those in charge of the train of his intention to do so, was such contributory negligence as would preclude a recovery on his part.

We fully concur in this contention of appellant. There was nothing in the words of the conductor which could possibly be tortured into a permission to go under the engine to make repairs, which perchance might be discovered upon an examination.

There is nothing in the petition which shows that the servants in charge of the train had any reason whatever to apprehend that respondent would assume a place of danger by inspecting the engine, or that he was in a place of danger at the time the cars were pushed back against those attached to the engine under which he was working.

To assume such a dangerous position without notifying the trainmen of his intention to do so can be denominated nothing less than gross negligence of the most reckless character. Any man of ordinary prudence, possessing due regard for his own safety, would have gone when he discovered the defective truck cellar to the conductor or other proper person in charge of the train and notified him of the trouble, and asked permission to go under the engine to1 make the necessary repairs, or have notified him of his intention of doing so. Having failed to state either of those facts in his petition, we are of the opinion that it shows upon its face that respondent was guilty of such contributory negligence that he cannot recover.

We do not understand learned counsel for respondent to really controvert the correctness of the conclusions above stated; but to insist that when the conductor gave respondent permission to look over his engine such permission when given and accepted by railroad men also carried with it permission to repair all defects discovered in pursuance to the examination so made, and respondent introduced some evidence over the objection of appellant which tended to prove that contention.

If it be true' that the granting of such permission also carries with it permission to make the necessary repairs that might be discovered and that such was the understanding of the parties giving and accepting the permission, then such facts should have been alleged in the petition; and having failed to do so, we have no hesitancy in holding that it failed to state a cause of action. But since counsel for respondent proceeded upon the theory that he could make that proof without pleading the facts and seems to have some merit in his case, we will reverse the judgment and remand the cause with direction to the circuit court to permit respondent, if he sees proper, to amend his petition by alleging the matters before suggested, and grant him another trial.

Ordinarily this would fully dispose of the case in this court, but, as the cause must be retried, we deem it proper to pass upon some additional questions presented by the record, for the reason that they will be presented again to the trial court for decision; and by expressing our views upon those questions at this time, it may serve to prevent another appeal of this case to this court.

II. The next insistence of the appellant is that the action of the court in refusing its instruction in the nature of a demurrer to respondent’s evidence was reversible error.

This contention is based upon the fact the petition alleges that he was in the employ of the Houck’s Missouri & Arkansas Railway Company and was injured through the negligence of its agents and servants, while the evidence showed that he was in the service of the St. Louis, Kennett & Southern Railroad Company and was injured by its employees, which rendered the latter company, if anyone, liable for his injury. In other words, that there was a total variance between the allegation of the petition and the proof. While it is true the evidence shows that the two roads mentioned were distinct and separate corporations, yet it further disclosed the facts that they were parts of one general railroad system, which was operated under one general management, and that plaintiff was subject to the orders of that management. It is also true that respondent was employed by the master mechanic of the St. Louis, Kennett & Southern Railroad Company; that his services were generally performed for that company; that he received his pay from it. Those facts constituted respondent an employee of the latter company in the first instance, but when the general manager of the entire system ordered him to leave that road and take his disabled engine, which was the property of respondent, to the repair shops at Cape Girardeau, over the Houck’s Missouri & Arkansas Railway, then quite a different proposition is presented. Clearly he was not a passenger upon the latter road, for the reason he was still in charge of and caring for his disabled engine, as much so as was the engineer of the engine which was drawing the train at the time of the accident in charge of his. He was likewise subject to the orders and as much under the control of the conductor of that train, who was an employee of respondent, as was the engineer thereof.

In the light of all this evidence, we are unwilling to declare as a matter of law that the respondent at the time he was injured was not an employee of the appellant but was an employee' of the St. Louis, Kennett & Southern Railroad Company. "While the evidence is somewhat meager and unsatisfactory upon this question, yet we are of the opinion that there was sufficient evidence tending to prove respondent at the time 'of the injury was an employee of appellant to warrant the court, under proper instructions, in submitting that question to the jury.

In this same connection appellant also insists that the court should have sustained its demurrer to the evidence, for the reason that respondent’s evidence showed he was .guilty of such contributory negligence as should preclude a recovery in this case.

This question is closely related to the question of pleading considered in the first paragraph of this opinion, and much of what is there said applies with equal force to the question now under consideration; but, as there shown, the defective condition of the pleadings upon this question prevented its proper presentation to the court and jury, and for that reason we thought that the judgment should be reversed and the cause remanded for a new trial, in order that this question might be more fully and properly presented by the pleadings and the evidence.

Under the present state of the pleadings, of course the demurrer to the evidence should have been sustained, but we cannot in advance anticipate fully what the evidence will be upon another trial after the pleadings have been amended.

III. The action of the court in admitting evidence over appellant’s objections is bitterly assailed.

Respondent introduced evidence tending to prove that all the roads mentioned constituted one entire railway system, known as the “Houck System,” with Mr. Louis Houck at its head, and general manager; the relation each of said roads bore to each other; what charge and .control Louis Houck and other officers of the various roads had over respondent; the relation the repair shops bore to each company and to the “ITouck System;” the person and company who employed respondent in the first instance, and his duties and where performed; the ownership of the engine which respondent had. charge of and by which he was injured; by whom his services were paid for, etc. This evidence was properly admitted. The question for whom respondent was working at the time of the injury was one of fact, to be determined by the jury from all the facts and circumstances in the case. All of those facts and circumstances tended to throw light upon that important question, and they should be considered by the jury in passing thereon.

IY. Appellant lodges many objections against the instructions given by the court in behalf of the respondent.

Instruction numbered one given.for respondent is objected to for the reason that it assumed certain matters stated therein to be true, while, as a matter of fact, they were undisputed. We are of the opinion that the instruction is erroneous, for the reasons stated; and at the next trial the instruction should be so amended as to submit those matters to the jury to pass upon, and not assume them to be true. [Thompson v. Botts, 8 Mo. 710; Wilkerson v. Eilers, 114 Mo. 245.]

Instruction numbered two given for respondent is clearly erroneous. It authorized the jury to find for respondent even though they found he was not an employee of appellant at the time he was injured. That was a clear departure from the issues presented by the petition.. It states that respondent was an employee of appellant at that time, while the instruction authorizes a recovery even though that fact was not true. That was reversible error. [Milliken v. Commission Co., 202 Mo. l. c. 654.]

V. It was not error for the court to refuse appellant’s instruction marked “F,” for the reason there was no evidence upon which to base it. It is error to give an instruction which is not based upon the evidence. [Paddock v. Somes, 102 Mo. 226.]

VI. As the judgment must be reversed and the cause remanded for the reasons before stated, it becomes unnecessary to pass upon the question regarding the newly-discovered evidence set up in the affidavits in support of the motion for a new trial.

The judgment is reversed and the cause remanded for a new trial in conformity to the views herein expressed.

All concur, except Valliant, P. J., absent; Graves, J., expresses no opinion on the propriety of the amendment suggested in the opinion.