text:
    PETER DeFORD, Appellant, v. ISAIAH JOHNSON.
    Division One,
    June 17, 1913.
    1. ALIENATION OF AFFECTIONS: Divorce: Effect of Statute. The alienation of the wife’s affections is a tortious act of some third person against the rights of the husband, and his right to sue is one which must arise while the marital relation exists, but it is not a right which grows out of the marital relation, and is not one of the forfeited rights mentioned in Sec. 2378, R. S. 1909, declaring that “in all cases of divorce from the bonds of matrimony, the guilty party shall forfeit all rights and claims'under and by virtue of the marriage.” The “rights and claims” mentioned in that statute are rights and claims between husband and wife which spring up by reason of the marriage, and do not include tortious acts of- third parties towards either during the existence of the marriage relation.
    2. -: -: Bar to Right of Injured Party to Sue. The obtaining of a divorce by the wife does not bar the right of the husband to maintain a personal action against a third party for the tortious act of alienating her affections committed during the existence of the marital relation. The husband cannot recover for defendant’s conduct towards his wife after she obtained a divorce; but for all his tortious acts toward the wife committed while the marriage relation existed defendant is liable, and the decree in the divorce suit, obtained by the wife, even though obtained for the fault of the husband, is no bar to the husband’s suit for alienation.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge. •
    Reversed and remanded.

      Bird & Pope for appellant.
    (1) A husband’s right of action for alienation of affections is personal, and is not barred by a judgment of divorce. Bennett v. Bennett, 116 N. Y. 584, 6 L. R. A. 553; Nolin v. Pearson, 191 Mass. 283; Wales v. Miner, 89 Ind. 118; Michael v. Dunlde, 84 Ind. 544; Wood v. Matthews, 47 Iowa, 409; Purdy v. Robinson, 133 App. Div. 155, 117 N. Y. Supp. 295; Prettyman v. Williamson, 1 Pa. St. 224; Beach v. Brown, 20 Wash. 266, 43 L. R. A. 114. (2) Sec. 2378, R. S. 1909, does not forfeit rights against third persons accruing during the existence of the marriage relation. Kilburn v. Kilburn, 89 Cal. 46; Kinzey y. Kinzey, 115 Mo. 496; Saunders v. Saunders, 144 Mo. 482; Schuster v. Schuster, 93 Mo. 438; Bufe v. Bufe, 88 Mo. App. 627; Wales v. Miner, 89 Ind. 118; State v. Parrish, 1 Ind. App. 441; Buttlar v. Buttlar, 67 N. J. Eq. 136; 2 Bishop Mar. &' Div., sec. 1623; Moss v. Pitch, 212 Mo. 484; Ross v, Ross, 21 Ore. 9; Barrett v. Failing, 3 Fed. 471. (3) No proof was made as to the effect of a divorce rendered in Idaho. The Missouri statute being penal there is no presumption that there is a similar statute in Idaho. St. Sure v. Lindspelt, 82 Wis. 346. (4) If proof had been made of a penal statute of Idaho such statute could not be made to act extraterritorially. Stanley v. Railroad, 100 Mo 435, 8 L. R. A. 549; Clark v. Clark, 8 Cush. 385; Succession of Herhandez, 46 La. 962; 2 Bishop Mar. & Div., sec. 1618; State v. Fenn, 47 Wash. 561, 17 L. R. A. (N. S.) 803; Smith v. Ross, 7 Mo. 232; Fall v. Eastin, 215 TJ. S. 1; Proctor v. Proctor, 215 111. 275; Hood v. Hood, 130 Ga. 610, 19 L. R. A. (N. S.) 193; Doerr v. Forsythe, .50 O. St. 726; Kline v. Kline, 57 Iowa, 386. (5) A judgment in one State enforcing a penal statute of that State cannot be made to carry the enforcement of that penalty to another State. State v. Ebbs, 150 N. C. 44; McGrew v. Ins. Co., 132 Cal. 85; Wisconsin v. Ins. Co., 127 U. S. 265; Phillips v. Madrid, 83 Me. 205; Van Storch v. Griffin, 71 Pa. 244; Garner v. Garner, 56 Md. 127; Ponsford v. Johnson, 2 Blatch. 51; Thorp v. Thorp, 90 N. Y. 602; Bullock v. Bullock, 122 Mass. 3; 14 Cyc. 729; 2 Bishop Mar. & Div., sec. 1620. (6) A judgment rendered on service by publication cannot affect property rights . of the defendant in another State. Moss v. Fitch, 212 Mo. 484; Anthony v. Rice, 110 Mo. 223; Hamill v. Talbott, 72 Mo. App. 22; Hamill v. Talbott, 81 Mo. App. 214; Anderson v. Anderson, 55 Mo. App. 272'; Pennoyer v. Neff, 95 U. S. 727; Hood v. Hood, 130 Ga. 610; Proctor v. Proctor, 215 111. 275;. McGuinness v. McGuinness, 71 N. J. Eq. 1; Doerr v. Forsythe, 50 O. St. 726; Kline v. Kline, 57 Iowa, 386; 14 Cyc. 089; Ellison v. Martin, 53 Mo. 575; Note to 9 L. R. A. (N. S.) 593. (7) The Idaho decree does not purport to affect any of defendant’s property rights. It only affected his matrimonial status. January v. Speeder, 38 Mo. 395; ITekldng v. Pfaff, 82 Fed. 403, 91 .Fed. 60; Rigney v. Rigney, 127 N. Y. 408. (8) If the Idaho decree had purported to affect any of defendant’s rights, the courts of Missouri would not be bound to enforce that judgment. Smith v. Ross, 7 Mo. 232; Pennoyer v. Neff, 95 U. S. 729; Haddock v. Haddock, 201 U. S, 562; Fall v. Eastin, 215 U. S. 1; Reed v. Reed, 52 Mich. 117; Smith v. Ross, 7 Mo. 232.

      Ben T. Hardin for respondent.
    (1) The trial court was right in sustaining defendant’s demurrer to plaintiff’s evidence. In all cases of divorce from the bonds of matrimony, the guilty party shall forfeit all rights and claims under and by virtue of the marriage. R. S. 1909, sec. 2378; Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223; Lieber v. Lieber, 239 Mo. 1; Hamilton v. Mc-Neill, 150 Iowa, 470; Story v. Story, 188 Mo. 127. ' (2) The effect of our statute, section 2378, is not limited merely to the relations • of the parties between themselves. It bears upon their future relations, each te the other, and each to the world. And the decree of divorce rendered in Idaho, is just as binding on the appellant here, and in every State in the Union, as it is in Idaho. Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223; Lieber v. Lieber, 239 Mo. 1; Hamilton v. McNeill, 150 Iowa, 470; Steamboat Co. v. Foster, 48 Am. Dec. 273; Arndt v. Griggs, 134 U. S. 316; Wehrman v. Conklin, 155 IT. S. 314; Arrington v. Arrington, 127 N. C. 190; In re James, 99 Cal. 374; Estate of Newman, 75 Cal. 213; Succession of Benton, 59 L. R. A. 135; Van Blarcum v. Larson, 130 N. Y. Supp. 925. (3) In tlie absence of the laws of Idaho, they are presumed to be the same as our own. That State never having been subject to the laws of England, but the territory out of which it was carved having been acquired from Spain, in the absence of its laws, our own must be applied. Biggie v. Railroad, 159 Mo. App. 350; McManus v. Railroad, 118 Mo. App. 152; Bain v. Arnold, 33 Mo. App. 631.
   GRAVES, J.

December 28, 1906, the plaintiff. sued the defendant in the circuit court of Jackson county for an alleged alienation of his wife’s affections. Plaintiff recovered judgment for $5500, and upon defendant’s appeal to the Kansas City Court of Appeals the judgment was reversed for error in an instruction. [DeFord v. Johnson, 152 Mo. App. 209.] In the opinion of the Kansas City Court of Appeals it is stated that the answer was a general denial. The record before us shows that on October 1, 1908, the plaintiff filed an amended petition, asking for damages in the aggregate sum of $25,000. Of.these alleged damages $15,000 is denominated actual, and $10,000 punitive. The Court of Appeals passed upon the case in January, 1911, and October 6,1911, the defendant amended its answer in advance of the retrial nisi. The answer in this record has two strings to its bow. First we have a general denial. For a further defense the new answer thus speaks:

“And for further answer to plaintiff’s petition, this defendant says that during that time that Mary DeFord was the wife of the plaintiff, he was guilty of such cruel neglect and barbarous treatment of his said wife, as to cause her to institute suit against him for divorce, and on the 26th day of May, 1909, Mary DeFord, the wife of the plaintiff, at their home in the city of Orangeville, in Idaho county, in the State of Idaho, instituted such suit in the district court of said county and State, against the plaintiff, Peter DeFord, for divorce, and afterwards, to-wit, on the 3rd day of September, 1909, in said court, á decree of divorce was adjudged in favor of the said Mary DeFord and against the said Peter DeFord, the plaintiff herein, and he was adjudged the guilty party, and that by reason of said judgment and decree in said suit for divorce, the plaintiff has thereby forfeited all rights and claims under and by virtue of his marriage with the said Mary DeFord, and plaintiff is thereby barred from any claim or right of recovery in this action. Wherefore, having fully answered, this defendant asks to be discharged with its proper costs.”

Reply to this new answer was a general denial.

The bill of exceptions filed is in abbreviated form and. was evidently so framed as to present a single issue. The bill of exceptions contains this recitation:

“And said plaintiff introduced evidence tending to prove all the allegations of his petition filed in the above entitled cause. And said defendant, as a part of the cross-examination of the plaintiff himself, offered in evidence a certified copy of original complaint, summons, alias summons and judgment in the case of Mary E. DeFord, plaintiff, v. Peter DeFord, defendant, in the district court of Idaho county, State of Idaho.
“To the introduction of which complaint, summons, alias summons and judgment in evidence, plaintiff objected as incompetent, irrelevant and immaterial, and of no extra-territorial effect, and no defense to the prosecution of this action, and of no binding force upon him in this action in the State of Missouri.
“The Court: Objection overruled.
“To which action, order and ruling of the court counsel for plaintiff then and there duly excepted.”

The bill of exceptions then contains a full transcript of all the proceedings in the Idaho court in this divorce proceeding, from the petition to -the judgment. The petition in the divorce suit was filed May 26, 1909. Proof of service of summons in the divorce cases thus reads:

STATE OF KANSAS, COUNTY OF WYANDOTTE.
James B. Follaré, being duly sworn says:
That he is a citizen of the United States over the age of twenty-one years and a resident of Kansas City, State of Missouri, and not a party to nor in anywise interested in the action mentioned in the annexed alias summons;
That he personally served the within alias summons on the defendant named in said alias summons, Peter DeFord, by delivering to and leaving with said Peter DeFord, said defendant, personally at Kansas City, State of Kansas, on the 14th day of June, 1909, a copy of said alias summons together with a copy of the complaint in the action named in the said alias summons attached to said copy of alias summons.
James R. Pollakd.
Subscribed and sworn to before me this 15th day of June, 1909. O. Q. Claelin,
Notary Public of the County of Wyandotte, State of Kansas.
(O. Q. Claflin, Notary Public, Wyandotte Co., Kansas.)

The grounds for divorce as stated in the petition are:

‘ ‘ That the said defendant for more than two years last past wilfully neglected to provide plaintiff with the common necessities of life, because of his idleness, profligacy and dissipation.
“That on or about November, 1906, the defendant disregarding the solemnity of his marriage vows, wilfully and without cause deserted and abandoned the plaintiff, and ever since has and still continues so to wilfully and without cause desert and abandon the plaintiff and to live separate and apart from her without sufficient cause or any reason, and against her will and without her consent.”

The judgment so far as material reads:

“Whereupon, witnesses on the part of the plaintiff were duly sworn and examined, and the evidence being closed the cause was submitted to the court for consideration and decision, and after deliberation thereon and it appearing to the court that all material allegations of the complaint are sustained by testimony free from all legal exceptions as to its competency, admissibility and sufficiency, and it also appearing to said court that said defendant was duly served with summons and all and singular the law and the premises being by the court here understood and fully considered.
"Wherefore, it is here ordered, adjudged and decreed and this does order, adjudge and decree that the marriage .between the said plaintiff Mary E. DeFord and the said defendant Peter DeFord, be dissolved and the same is hereby dissolved, and the said parties are, and each of them is, free and absolutely released from the bonds of matrimony and all the obligations thereof.”

On his cross-examination the plaintiff admitted that he was the Peter DeFord mentioned in the divorce proceeding, and further admitted that: "About five months after said decree of divorce was granted said Mary E. DeFord, his wife, that he was married to one Elder Childers in Kansas City, Wyandotte county, Kansas, the same county in which said summons in the divorce case of said Mary E. DeFord was served upon him by James R. Pollard on June 14, 1909, and that the said second wife died thereafter on October 15, 1910.”

The bill of exceptions, as duly signed and allowed by the trial judge, then further recites:

"At the close of the evidence on the part of plaintiff, the defendant asks the court to give the following instruction, to-wit:
" ‘The court instructs the jury that under the pleadings and the evidence in this case the plaintiff is not entitled to recover, and your verdict must be for the defendant.’
“And said instruction in the nature of a demurrer to the evidence having been argued by counsel and considered by the court was by the court given, but solely and entirely for the reason, as stated, held, and decided by the court at the time, that the right of the plaintiff to recover herein, as made by his evidence, was lost and destroyed by reason of the fact that since the plaintiff had commenced his said action herein his wife, Mary E. DeFord, had obtained said decree of divorce from him in the district court of Idaho county, State of Idaho, as shown by the said record of said .divorce proceeding, introduced in evidence, and in and by said decree of divorce said Peter DeFord had been adjudged the guilty party, and that thereby he had forfeited his right to have, and to further proceed with, the cause of action sued for herein, to all of which finding, decision and judgment, and each part thereof, plaintiff duly excepted.”
“And thereupon the court gave and read said instructions to the jury, in the nature of a demurrer to the evidence, said plaintiff duly excepting, and thereupon plaintiff took an involuntary nonsuit herein, with leave to file a- motion herein to set the same aside, which the court granted.”

After an unsuccessful motion to set aside the' non-suit, the plaintiff brings the case here by appeal.

I. Much is said in the briefs as to whether a certain statute of Missouri should be considered as'effective in this case. This statute is relied upon by the defendant. It is now section 2378, Revised Statutes. 1909, and so far as applicable reads:

“In all cases of divorce from the bonds of matrimony, the guilty party shall forfeit all rights and claims under and by virtue of the marriage.”

Plaintiff urges that the statute is penal in character, and hence there is no presumption of a similar statute in Idaho; or, in other words, that we cannot, in the absence of proof of the Idaho law, presume that it is the same as the Missouri law. In the view we have of the case it is a waste of energy to discuss this question. For our discussion we shall proceed upon the theory that Idaho did have such a statute as our statute, section 2378, supra. That statute has no application to a case like the one at bar. Alienation of the wife’s affections is a tortious act of some third person as against the rights of the husband. The right to sue is one which must arise whilst the marital relations exist, but it is not a right which grows out of the marital relation, and is not one of the forfeited rights mentioned in the statute. The “rights and claims” referred to in this statute, are rights and claims between husband and wife which spring up by reason of the marriage-, and the statute has no reference whatever to the tortious act of a third party during the existence of the marriage relation, which tortious act gives the husband a cause of action as against such third party. To put an A, B, C case: If a railway company cripple and injure the wife of A, so that he is deprived of her society and aid, is the right of action a right and claim “under and by virtue of the marriage?” We think not. Neither is the cause of action stated in this petition such a claim or right. Cases cited by learned counsel for the defendant are not in point. They discuss claims and rights which really grow out of the marriage contract and marriage relation. They do not discuss the rights of a husband for the tortious acts of a third party occurring whilst the marriage relation exists. This statute has no bearing upon the case at bar. A reading of it should have been sufficient for the trial court. •

II. By tlie petition the wrongful and tortious acts of the defendant are charged to have occurred in the years of 1905 and 1906. The divorcé proceeding was in 1909^ If the defendant violated the rights of the plaintiff, and if he wronged the plaintiff, such wrong was done whilst the marital relation existed. Plaintiff in the brief urges many reasons against the admission of the Idaho judgment and decree of divorce, but these we shall pass. We shall give to that judgment full credit, and permit it to have all the weight to which it is entitled. The question then arises, does that judgment bar and foreclose the right of plaintiff in this action? To this question we answer, no. The tort was complete before this divorce.' That such an action is a tort and a personal action belonging to the injured spouse, is clearly shown by the case law. [Bennett v. Bennett, 116 N. Y. 584; Nolin v. Pearson, 191 Mass. 283; Modisett v. McPike, 74 Mo. 636; Clow v. Chapman, 125 Mo. 1. c. 105.]

That a judgment for divorce even at the husband’s fault is not a bar to an action of this kind is clearly shown by the authorities. Thus in Michael v. Dunkle, 84 Ind. 1. c. 545, it is said:

“The evidence shows, or tends strongly to show, without conflict, that before the criminal intercourse occurred the appellee and wife had finally separated, that they did not afterwards live together, and that before the commencement of this action she obtained a decree of final divorce from him; and upon these facts it is insisted that the appellee was not entitled to recover. We think otherwise. The woman was still the appellee’s wife, and notwithstanding the differences which had led to the separation, which it seems was caused by his cruelty, there might have been a reconciliation between them; and indeed there is evidence that the appellee was seeking to bring this about at the time when the offenses of the appellant were committed and discovered. After this discovery, it is not strange that the appellee permitted his. wife, without resistance, to obtain a divorce ;• but he did not thereby waive or lose his right to redress for the injury done. It would not be in the interests of good order and the public morals to permit the seducer of a wife to set up a disagreement, or even a separation, between her and the husband, as complete defense to an action by the latter from the wrong.”

In Wales v. Miner, 89 Ind. 118, the rule is well stated in the second syllabus thus: “That the plaintiff and his wife were divorced before the suit was begun is no defense to a suit for criminal conversation.” In that ease the wife got the divorce, and the suit was not brought until after the divorce had been granted.

In Wood v. Mathews, 47 Iowa, 1. c. 411, that court ujoon this point says: “The evidence shows that after the injuries complained of, and before this action was brought, the plaintiff’s wife procured a divorce from him. The court instructed that this constitutes no defense to an action for damages against the defendant for any injuries which he may have sustained prior to the time of procuring the divorce. Appellant complains of the giving of this instruction. In it there is no error. Actions of this kind, after a decree of divorce, were maintained in Dickerman v. Graves, 6 Cushing, 308, and in Ratcliff v. Wales, 1 Hill, 63.”

In 21 Cyc. 1620, the rule, well supported by authority, is thus announced: “Where the wife’s right to sue is recognized, she may maintain .her action, although she has subsequently obtained a divorce from her husband; and the husband may likewise recover for alienation of his wife’s affections in a proper case although she has obtained a divorce. A separation agreement between a husband and wife is no defense to an action for alienating the husband’s affections.”

We are not without authority in this State. In Modisett v. McPike, 74 Mo. 1. c. 646, this court said:

“The fourth, fifth and sixth instructions for plaintiff announce with special clearness and force the true doctrine applicable to the facts of the case and all other cases, when the same question arises. They declare the general doctrine that although the jury may believe that plaintiff’s wife obtained a divorce from him, and that she made plaintiff’s misconduct ground for obtaining said divorce, yet if the jury believe that notwithstanding such misconduct on the part of the plaintiff, his wife would not have separated or remained apart from him, or sued him for a divorce if it had not been for the acts, conduct and influence- of defendant toward her; and that defendant purposely and intentionally, by such acts, conduct and influence, induced her to so separate or remain apart from plaintiff, or sue him for a divorce; then, the fact that plaintiff’s wife obtained such a divorce on account of plaintiff’s misconduct, does not, of itself, constitute any defense to this suit.
“That doctrine is not the doctrine announced in the third and fourth instructions given for the defendant. They assert another and a different doctrine, and we think an erroneous one. In effect, they declare, as a matter of law, that if the plaintiff was addicted to habitual drunkenness for the space of one year next before the separation of the plaintiff and his wife, or the institution of her said suit for a divorce against the plaintiff, the wife of plaintiff had a just cause for said separation and for the institution of said suit for a divorce and that the verdict should be for the defendant regardless of whether the defendant, or anyone else, advised her tó do so or not.
“The first proposition contained in the above in-r struction may be, and doubtless is, correct, but the second is by no means true. The wife may have a just cause for separation or divorce, but she may elect to abide by her situation, and remain with her husband nevertheless. If she chooses to do so, no stranger has the right to intermeddle with the domestic and marital relations of husband and wife, and if he voluntarily does so he is amenable for the consequences.”

In the McPike case there was a decree of divorce introduced in evidence, which showed that the wife had procured the divorce on account of the fault of the husband. Our court declined to recognize such decree as a bar to plaintiff’s action against the third party for the wrong occurring during the time of the marriage relation.

In Clow v. Chapman, 125 Mo. 101, the suit for alienation was prosecuted by the wife after the marriage relation had been severed. This case also recognizes the doctrine that the action is one in tort and not a right growing out of the marriage status. The petition in this case charges that the plaintiff was forced to separate from his wife by reason of defendant’s •conduct. The bill of exceptions says that there was evidence tending to prove all' the allegations óf plaintiff’s petition. As said by the Indiana court, supra, it is not strange that plaintiff made no defense to the action for divorce, grounded as it was as indicated by the record in our statement set out. The decree of divorce was perhaps proper evidence. The plaintiff •could not recover for defendant’s conduct toward his wife after the divorce. Defendant was liable for all his tortious acts, if any, which occurred whilst the marriage relations existed, and the decree in divorce, even though obtained on the alleged fault of the husband, Is no bar to plaintiff’s action.

The judgment will be reversed and the cause remanded, to the end that it may be reinstated upon plaintiff’s motion filed therein, and tried in accordance with the views herein expressed. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    FRANK GABAL v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    June 17, 1913.
    1. NEGLIGENCE: Switch Yard Car Repairer: Humanitarian Rule. The measure of duty which a railroad company, in the movement of its engines and cars, owes to car repairer, at work in a switch yard, whose very purpose is the continuous moving of cars back and forth, with which he is thoroughly familiar, is not such as is due a passenger or stranger. Upon him is imposed the duty to look out for himself, and that imposed duty justifies the engineer in charge of a yard engine in believing that the car repairer, though in a position of danger on the “lead” track, continually being used by the switching crew, will, upon the approach of cars, step to one side and avert the danger of being struck. In such case the humanitarian rule cannot be invoked upon the engineer’s mere seeing of the car repairer in a dangerous position, but can only he invoked from the time the engineer sees that he is not going to protect himself by taking the step or two aside necessary to his safety. Where the engineer, immediately after he discovered the car repairer was oblivious to the danger and was not going to take that sep, used every means at his command to avert injuring him, there can be no recovery.
    2. -: -: -: Distances and Speed. Where the cars were only 70 feet from the ear repairer, when, busy at his work, he was seen by the engineer to move out of a place of safety onto the track on which the train was moving backward at the rate of six miles an hour, or less than nine feet a' second, and the engineer immediately sounded the whistle and applied the brakes, there being no air-brakes, the injuries of the car repairer are to be attributed to his own contributory negligence.
    3. -: -: -: -Failing to See Sooner: Not Submitted. Where defendant did not at the trial, by his instructions, submit his case upon the theory that defendant’s engineer was negligent in failing to see him in a position of danger when to look was to see, he cannot be heard on appeal to contend that the track was straight for a half mile and the engineer could have seen him in time to have averted the injury, although the petition charged that the engineer saw, or by the exercise of ordinary care might have seen, plaintiff’s perilous position-in time to have prevented the accident. Besides, this rule does not apply in its strictness to an en^ployee in a switch yard. 251 Mo. — 17-

      Appeal from Jackson Circuit Court. — Mon. James 3. Slover, Judge.
    Reversed.

      W. F. Evans and Cowherd, Ingraham, Durham <§ Morse for appellant.
    (1) Under the pleadings and evidence in this case the judgment should be for defendant. The court should have so instructed, the jury. Degonia v. Railroad, 224 Mo. 564; Vandyke v. Railroad, 230 Mo. 259; Sissel v. Railroad, 214 Mo. 515; Evans v. Railroad, 178 Mo. 517; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435;' Sharp v. Railroad, 161 Mo. 214; Moore v. Railroad, 166 Mo. 513; Davies v. Railroad, 159 Mo. 1; ITitz v. Railroad, 152 Mo. App. 687; Clancy v. Railroad, 192 Mo. 615; King v. Railroad, 211 Mo. 1; Mockowick v. Railroad, 196 Mo. 550; Walker v. Railroad, 193 Mo. 453; Holwerson v. Railroad, 157 Mo. 216; Nivert v. Railroad, 232 Mo. 626. (2) Plaintiff’s instruction 1 is erroneous for the following-reasons: (a) There is no evidence that plaintiff was going along unaware of the approach of the train and would enter upon or too near the track in front of the train. Guger v. Railroad, 174 Mo. 350; Boyd v. Railroad, 105 Mo. 371; Schmidt v. Railroad, 191 Mo. 215. (b) There is no evidence and could be none that plaintiff would not turn around or stop before going into a place of danger, where he was struck. Boyd v. Railroad, 105 Mo. 371; VanBack v. Railroad, 171 Mo. 346; Koegel v. Railroad, 181 Mo. 379. (c) In the absence of such evidence defendant had the right to rely upon the presumption that plaintiff would remain in a safe position and would not get upon or too near the track. This instruction does not accord defendant this right. Tanner v. Railload, 161 Mo. 497; Helm v. Railroad, 193 Mo. 223; Guger v. Railroad, 174 Mo. 344; Evans v. Eailroad, 178 Mo. 508. (3) Plaintiff’s instruction number 2 is erroneous because it is not based upon any evidence, (a) All testimony upon the point showed that the defendant’s trainmen did everything they could to stop the train after they saw plaintiff in danger, and the train was stopped in the shortest possible time, (b) Defendant had the right to presume plaintiff would step out of the way of the approaching train in the absence of some showing that he was unconscious of his peril. In-plaintiff’s evidence there is no such showing. In defendant’s evidence it was shown that plaintiff stooped over and immediately thereafter the trainmen did everything possible to stop the train, and stopped it as quickly as could be done.

      Strother é Campbell and Reed <& Harvey for respondent.
    (1) It is conceded that if the uncontradieted evidence shows that Gabal was injured because he suddenly stepped upon or so. close to the track from a position of safety at a time too late for the foreman in charge of the train in question to stop it or slow it down and thereby avoid striking him, we have no case. While as our decisions declare, the last-chance doctrine is not enforced with the same rigor that obtains in the case of a stranger, where the life of an employee is at stake, nevertheless, unless much good law made by the Supreme Court is set aside, it is not yet allowable to kill or maim an nnobserving yard or track employee without warning when the warning might save him, or without reasonable effort to stop the train when this course might be effective. (2) No case cited by appellant under point one is upon its facts, like this one; it being conceded from all of the evidence that no warning whatever was given by the foreman in charge of this train, either by whistle or bell, before .the cars were practically upon Gabal and his companion. Under all of the Missouri cases like this one, the question of defendant’s negligence was for the jury, because: (a) The fireman-engineer and the switch foreman saw that plaintiff was moving with his back toward the train, engaged in the arduous labor of pushing a heavy load upon a truck; that he was absorbed in his work; that he was coming along a path dangerously near the track and must, of necessity, follow this same path because of impediments in and near the path; that at No. 5 switch, he had such a clear space of approximately only four feet for his truck and could not go around the ball and switch stand, (b) Despite the situation in which plaintiff had placed himself upon reaching No. 5 switch, which situation the trainmen saw, nevertheless, the train was permitted to run seventy-four feet (two car-lengths) before a stop signal was given; if the train was going at the minimum rate testified to by any witness, this permitted the fireman-engineer to pursue a policy of masterly inactivity for a period of about eighteen seconds during which time the ringing of the bell or the screamifig of the whistle might have saved Gabal. If, with watch in hand, one by actual test determines what can be done in this length of time, this statement will receive its full need of potency, (c) Although some of the defendant’s witnesses testified that Gabal suddenly changed his relative position to the oncoming train by stepping over the rail, nevertheless, plaintiff himself and his co-worker, Cook, testified to the contrary, as did two of appellant’s witnesses; namely, the switch foreman, Reidy, and the engineer, Moore. The four witnesses last referred to testified that plaintiff was going, when struck, just as he had been going'all of the time. This, with the other facts, raised a question for the jury. The following cases declare the law applicable to the case at bar: Degonia v. Railroad, 224 Mo. 564; Rashall v. Railroad, 249 Mo. 509; Dutcher v. Railroad, 241 Mo. 137; Heinzeman v. Railroad, 199 Mo. 56; Lynch v. Railroad, 208 Mo. 34; Sullivan v. Railroad, 97 Mo. 119; Kelly v. Railroad, 95 Mo. 279; Schlereth v. Railroad, 115 Mo. 101. (3) This is not a case where defendant’s servants in charge of the train had the right to assume that these men would quickly step aside from the danger zone: 1st, Because those in charge of the train knew that respondent was oblivious to his surroundings and was not aware of the approach of danger; and, 2nd, the employees of defendant, operating the train, saw the respondent in his position of peril in time to have prevented striking plaintiff. (4) The engineer testified that he saw these men at No. 5 switch. The nearest car to them in his train was approximately two hundred feet away. If Gabal and Cook are to be believed, and this was for the jury, they were not on the track, but walking forward with their load so near to the track as necessarily to be struck unless the train was checked or stopped. It was for the jury to say under the last chance doctrine, whether or not a warning given at this time would have averted the injury. No such warning was given. The train was permitted to run two car-lengths before any effort was made to stop; since the car that caused the injury ran only six or seven feet, according to witness Avis, after running over Gabal, or eight or nine feet, as stated by fireman Moore, it is indisputable that had an effort been made to stop the train when Gabal was first seen .in the danger zone, the injury would have been averted.
   GRAVES, J.

Action for personal injuries. Verdict and judgment for plaintiff in the sum of $8500, from which judgment the defendant has appealed.

Plaintiff’s petition is in two counts. The first pleads divers specific acts of negligence upon the part of the defendant, but inasmuch as the plaintiff by his instructions nisi abandoned this count of his petition further note thereof becomes unnecessary. The second count of the petition proceeds upon the humanitarian doctrine. This count alleges that.the place of accident was at a place continuously used by pedestrians, and pleads facts attempting to place the duty upon defendant to be on the lookout for persons at such place. In other words the theory of the pleader evidently was that the circumstances of the case were such as involved that branch of the humanitarian rule, which permits a recovery where the defendant saw, or by the exercise of ordinary ■care might have seen, the perilous position of plaintiff in time to have prevented the accident. But whilst the petition proceeds upon the theory that the defendant would be liable for failure to see the peril of plaintiff, when by the exercise of ordinary care it might have seen and known such peril, yet by his instructions the plaintiff abandons that theory, and presents his case below upon the single idea that the defendant saw his peril in time to have averted the injury, but negligently failed to use any effort to avert it after so seeing such perilous position. Excluding the instruction upon the measure of damages and other minor formal instructions, the instructions asked by plaintiff and given by the court read:

“1. The jury are instructed that if you find that plaintiff was walking along the track of the defendant, directly toward the place where he was hurt, and with his back toward the train of cars, and that he was manifestly approaching a point near No. 5 switch, where he would be struck by said train, and was manifestly unaware of the approach of said train, and that the servants of defendant in charge of said train saw and knew the position of said plaintiff and the direction in which he was moving and had good reasons to believe, as reasonable men, that the plaintiff was unaware of the approach of said train, that he would not turn around or stop but would continue to proceed to -a point where he would be struck by said train, and. after such knowledge and notice, had time, by the exer■cise of reasonable care and diligence, to have stopped said train and averted tbe injury to the plaintiff, and that they carelessly and negligently failed to do so, thén you may find in favor of the plaintiff, and this is true even though the plaintiff may have been careless and negligent in placing himself in a position of danger.
“2. If you find from the evidence that plaintiff was at a point near switch number 5., and in a position where he was in imminent peril of being struck by defendant’s train of cars, and that defendant’s employees in charge of said train of cars knew of his peril of being struck in time to have averted the injury to plaintiff, and did not, after seeing plaintiff in said position, have reasonable grounds to believe that plaintiff would escape from said perilous position, and if you further find that said employees, after they knew the facts aforesaid, if such were the facts, failed to exercise reasonable care and diligence under the circumstances to stop said train of cars; that if they had used such reasonable care and diligence they could have stopped said train in time to have avoided injuring the plaintiff, and that in failing to stop the same they were careless and negligent, and that by reason thereof the plaintiff, Gábal, was struck and his leg was cut off, then you may find in favor of the plaintiff, and this is true even though you may believe that Gabal was negligent in being in the place where he was injured.”

Defendant’s answer was (1) a general denial, (2) the usual plea of contributory negligence, and (3) assumption of risk.- It will be observed that the case is much shortened by reason of the theory finally adopted by plaintiff in the instructions above set out. Defendant urges several errors upon the part of the trial court, and among them the court’s failure to give a peremptory instruction for the defendant. These contentions, so far as necessary, will be noted in the course of the opinion. The foregoing outlines the case.

I. Plaintiff is an experienced car repairer, and for some years had worked in one of defendant’s switch yards in Kansas City. He was perfectly familiar with the operation of trains, cars, and switch engines in the switch yard. The defendant vehemently urges its demurrer to all the evidence, and a further statement of the facts becomes necessary.

In the switch yard was what in railroad parlance is called a “lead.” This is a main line of the yard, and is continuously used by the switching crew in shifting cars from one place to another. This “lead” runs north and south, and to the west of it, and running into it, are a number of tracks. To the east of this “lead” was a cinder pathway, the width of which is a disputed question. The spaces between the ties, from end to end of the ties, were filled with cinders, thus placing the pathway and the top of the ties on the same level. To the east of this pathway was a ditch or drain. On the morning of the accident the plaintiff had been directed by his foreman to get a draw-head and put it in a foreign car than standing in the yard. Plaintiff had with him his brother-in-law, Cook. Cook procured a freight truck, about two feet wide, and the two proceeded north on this cinder path until they reached a point where the plaintiff had “spotted” a draw-head suitable for his purpose. This they loaded upon the truck and proceeded south with it, until they reached No. 5 switch stand, when they were run into by some cars which were being backed down the “lead” from north to south, the destination of a part of the cars being this switch track No. 5. Plaintiff says that he and Cook were taking this truck along the cinder path, when he was struck and had his right leg run over and right foot cut off. He says Cook was in front pulling the truck, and he was behind, with a short board, pushing the truck by having one end of the board against the draw-head upon the truck and the other end against his shoulder. He also says that the path was only two feet wide at the point of accident, and he was in this path, pushing the truck as above indicated when he was run down and struck. . Cook says that plaintiff’s right foot was over the east rail of the track when he noticed him. The evidence for plaintiff also shows that neither plaintiff nor Cook saw or heard the backing switch engine and cars. So much for the situation from plaintiff’s standpoint.

On the other hand the facts appear thus: To the north of switch stand No. 5 was switch stand No. 8, at a distance of 177 feet. At this stand No. 8 were several diverging tracks to the west of the “lead.” Defendant’s switching crew had pulled out seven cinder cars from one of these tracks, through switch No. 8, and then pulled them out north such a distance as to have the last car clear the switch and leave the train entirely upon the ‘lead. ’’ Upon signal from the switching crew foreman, the engine and seven cars were started backward toward the south. For. some purpose a stop was made and the engineer left the engine to get a drink of water, and the fireman (an experienced man and very shortly thereafter advanced to the position of engineer) was left in charge of the engine. Upon a second signal, Moore, the fireman, started backward at the rate of six to eight miles per hour. He says that he saw plaintiff and Cook when he started backward with his train, but that at that time they were in the clear, and in no position of danger. He also says that within a car-and-a-half or two •car-lengths from them, he again saw them, and at that time he discovered that the draw-head had fallen from the truck and the two men were stooping over trying to replace it, and were then in danger. That he immediately warned them by whistle and put on his brakes and did every thing within his power to avoid the collision with them, but to no purpose. Other evidence corroborates this statement. Another witness-for the defendant says that the two men were lifting the truck over the iron bar which connects the switch stand with the rail, and while so doing the plaintiff got upon the track and was injured. It is really immaterial which of the two views of defendant’s witnesses is correct. These witnesses were evidently impressed with the idea that the two men were having-some trouble with the truck and its load, and had suddenly changed their position from one of safety to one of danger. "Whether this cause was the one or the other of the two things' stated is utterly immaterial, and one or the other set of the witnesses was mistaken as to the exact cause, but no doubt honestly mistaken. For the defendant it was shown that the cinder path to the west of the rail was from six to eight feet wide at the point of accident, and whilst on the stand the plaintiff was required to go to the yards and measure it and did so. Upon being recalled he said it was something like seven feet, but upon pressure by his counsel claimed that it was not that wide at date of accident. A mass of testimony for defendant showed that there had been no change in the pathway since the accident. It should also be noticed that, if the plaintiff and Cook did change their position from one of safety to one of danger, and this too in front of a moving-train, they did so without making any effort- to find out whether cars were approaching them on this “lead” track. They also did it with the full knowledge that cars were likely to be run down this track from the north at any moment. In fact the negligence of plaintiff in this regard stands admitted, and in the end the humanitarian doctrine is alone relied upon. Under these facts did plaintiff make a case for the jury? We think not. Our reasons we state in the following- paragraph. There are questions in the case which at least ■would require the reversal of the judgment and a remanding' of the cause, but with the view we have of the case, a discussion of these questions are afield.

II. In seeking the applicable law, the facts must-not be overlooked. This was a switch yard, and its very purpose was for the constant and continuous moving of cars back and forth therein. They had to be moved backward as well as forward. Plaintiff was thoroughly familiar with the situation. An employee-in such a yard stands upon a somewhat different footing from a passenger or stranger in other cases. No claim is made in this case that the movement of these cars was out of the ordinary. In the course of his work in the yards the duties of plaintiff had called him to this cinder path time and time again. In Aerkfetz v. Humphreys, 145 U. S. 418, a case in fact very sim- ■ ilar to the one at bar, Mr. Justice Brewer thus discusses the law:

“Upon these facts we observe that the plaintiff was an employee and, therefore, the measure of duty-to him was not such as to a passenger or a stranger. An employee of long experience in that yard, he was familiar with the moving of cars forward and backward by the switch engine. The cars were moved at a-slow rate of speed, not greater than that which was customary, and that which was necessary in the making up of trains. For a quarter of a mile east of him there was no obstruction, and by ordinary attention-he could have observed the approaching cars. He knew-that the switch engine was busy moving cars and making up trains, and that at any minute cars were, likely to be moved along the track upon which he was. working. With that knowledge he places himself with-Ms face away from the direction from which cars were to be expected, and continues his work without ever turning to look. Abundance of time elapsed between the moment the cars entered upon the track upon which he was working’ and the moment they • struck him. There could have been no thought or expectation on the part of the engineer, or of any other employee, that he, thus at work in a place of danger, would pay no attention to his own safety. Under such circumstances, what negligence can be attributed to the parties in control of the train or the management of the yard? They could not have moved the cars at any slower rate of speed. They were not bound to assume-that any employee, familiar with the manner of doing business, would be wholly indifferent to the going and coming of trains. There were no strangers whose presence was to be guarded against. The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forwards and backwards, would have simply tended to confusion. The person in direct charge had a right to act on the belief that the various employees in the yard, familiar with the continuously recurring movement of the cars, would take reasonable precaution against their approach. The engine was moving slowly, so slowly that any ordinary attention on the part of the plaintiff to that which he knew was a part of the constant business of the yard, would have made him aware of the approach of the cars and enabled him to step to one side as they moved along the track. It cannot be that, under these circumstances, the defendants were compelled to send some' man in front of the cars for the mere, sake of giving notice to employees who had all the time knowledge of what was to be expected. We see in the facts as discolsed no negligence on the part ' of the defendants, and if by any means negligence could be imputed to them, surely the plaintiff by' his negligent inattention contributed directly to the injury.”

And so it is in the case of all employees belonging to the class to which this plaintiff belonged. Upon such is imposed the duty to look out for themselves, and this imposed duty licenses the belief upon the part of the operator of the engine that such an employee, although in a place of danger, will upon the approach of the cars, step to one side and avert the danger. In such cases the humanitarian rule cannot be invoked upon the mere seeing of the man in a dangerous position, but can only be invoked from the time that the operator of the engine sees that the man is not going to protect himself, as is usually done in such cases, by taking a step or two to one side. If a different rule prevailed the work in switch yards would be unnecessarily retarded. In the case at bar the fireman says that after he saw and realized that these men were going to remain in a place of danger, he used every means at his command to avert the collision, and this testimony comports with other facts in the case. That the plaintiff and Cook were not over the rail of this “lead” shortly before the collision is shown conclusively by their own testimony. That they had shifted their position to one of extreme hazard is shown by the physical facts of the ease. That they had veered, from the east to the west in their course is demonstrated by the fact that the right foot of plaintiff (as he walked south according to his evidence) was west of the east rail of the “lead.” It had to be west of -this rail to be run over and cut off by the wheel of the car. Just when these parties veered off to the west is. not clear, but it was between the time the fireman first saw them and the time that he saw them the second time. It was at this second time that he saw the peril of the men and gave the warning whistle and set his. brakes. He had but sixty odd feet in which to do all this, and his train was running six to eight miles per hour and no air on the cars. The testimony shows not. to exceed two car-lengths to be the distance at which he discovered the peril. Call this distance seventy feet. Say he was running only six miles per hour, the most favorable to plaintiff, and what is the situation! There was seventy feet to be covered. The warnings were to be given and the appliances to stop the train were to be pnt in operation. At six miles per hour the train covered 528 feet per minute or 8 2-3 feet per second. Dividing seventy feet, the distance to be covered, by 8 2-3, we have a small fraction over eight seconds in which to save a man from a perilous position of his own making. In such a case we have held that the plaintiff must attribute his injuries to his own contributory negligence. [Degonia v. Railroad, 224 Mo. 1. c. 596 and 599; Burge v. Railroad, 244 Mo. 76.] In the Degonia case the engineer had ten seconds in which to act, and we thus said:

“As we view the weight of authority in this State, plaintiff is precluded from a recovery herein because of the negligence of deceased, and as we view the law and the facts the humanitarian rule in none of its. phases has a place in the case.”

The language of Mr. Justice Brewer in the Aerkfetz case, supra, has been approved v by this court in Cahill v. Railroad, 205 Mo. 408, and in the Degonia case, supra.

It is, however, urged that the track was straight for a half mile and the engineer could have seen the plaintiff in time to have averted the injury. In this contention learned counsel for plaintiff overlook two things: (1) that they did not submit their case nisi upon the theory that there was negligence in failing to see when to look meant to see, and (2) that this rule cannot and does not apply in its strictness to employees in switch yards. As said above the engineer in a switch yard may actually see an employee in a place of danger, yet knowing the duty imposed upon such employee to lookout for his own safety, and knowing' that such employees frequently remain in a dangerous position until the cars come very close to them, and then by a step or two reach a place of safety, he can rely upon the presumption that they will protect themselves, until such time as he sees that they are actually oblivious to their danger and have no intent upon their part to avert it. The eases upon this point are collected and discussed in the Degonia ease, supra. Under that case and the cases in this State and elsewhere upon which it is bottomed, the plaintiff here failed to make a case for the jury, and the demurrer to the evidence should have been given.

The judgment, therefore, should be simply reversed and it is so ordered.

All concur.


text:
    THE STATE ex inf. HERBERT S. HADLEY Attorney-General, v. STANDARD OIL COMPANY et al.
    In Banc,
    June 28, 1913.
    QUO WARRANTO: Judgment of Ouster: “Stay of Process. The Supreme Court stays and suspends, upon condition, its writ of ouster upon its judgment of ouster heretofore entered against a corporation convicted, upon the information of the Attorney-General, of entering into an unlawful combination and pool in restraint of trade; and retains jurisdiction of the case in order that, either upon the motion of the Attorney-. General or upon its own motion, it may compel compliance with said conditions.
    Quo 'Warranto.
    Writ ok ouster stayed.

      John T. Barker, Attorney-General, for plaintiff.

      Alfred D. Eddy, Frank Eagerman and John E. Lucas for respondent.
   JUDGMENT AND ORDER PER CURIAM.

Now at this time this cause coming on for judgment upon the motion of the Standard Oil Company of Indiana to stay the issuance of the writ of ouster upon our judgment of ouster heretofore entered herein, and the court having considered the evidence taken by the commissioner duly appointed by this court, the Hon. John Montgomery, Jr., and having considered the arguments and briefs of both parties hereto, and being now fully advised in the premises, doth now order and adjudge, that our writ of ouster upon the judgment of ouster heretofore entered be and the same is hereby stayed and suspended until the further order of this court, subject however to the following conditions:

1st. This court retains jurisdiction of this case for the purpose of rendering and entering therein any further and necessary orders and judgments with reference to the stay and suspension of the writ of ouster herein granted.

2nd. The stay and suspension herein is upon condition that the said Standard Oil Company of Indiana shall faithfully obey and observe, in the conduct of its business, all the laws of this State, and especially the anti-trust laws of this State.

3rd. That the Attorney-General of the State, in the event that said company shall, after the date of this order and judgment, violate the laws of this State as above indicated, may move for a vacation of this order and judgment staying and suspending our writ of ouster, and upon such motion may take and proffer proof of the charges in such motion contained, the defendant having the right to also make proof bearing thereon.

4th. The court also reserves the right, at any time, independent of the voluntary action of the Attorney-General, to direct that evidence be taken pro and con, by a commissioner of this court, touching the fact as to whether or not, after the date of this order and judgment, the said Standard Oil Company of Indiana has been faithfully-living up to-the laws of this State, and more especially the anti-trust laws of this State, and upon such hearing directed as aforesaid, reserves the right to modify, change or vacate this order and judgment.

5th. In all such investigations the proof taken shall be limited to matters and things transpiring since the date of this order.

6th. To the end that the jurisdiction of this court may not be questioned, this case is kept open, and the jurisdiction thereof retained, for all the purposes aforesaid.

7th. It is hereby ordered, adjudged and decreed that our writ of ouster, upon our judgment of ouster heretofore entered, is stayed and suspended, upon the conditions aforesaid, until such time as this court may make further orders herein.


text:
    THE STATE ex rel. GRANITE BITUMINOUS PAVING COMPANY v. CITY OF ST. LOUIS et al.
    In Banc,
    June 28, 1913.
    1. MANDAMUS: Validity of Tax Bill: Improvidently Issued. The writ of mandamus should not be. issued by the Supreme Court where the only question at issue is the validity of a special tax bill issued by the city of St. Louis in an unimportant matter of improving a public street. The writ is not one of right, but one resting in a wise legal discretion, and the exercise of a sound discretion does not demand its issuance in an unimportant matter, in which the parties have an ample remedy in another forum.
    2. -: -: -: This Case. The street to be improved runs north and south and crosses a private park 110 feet wide, which runs east and west, and which the plat declares' “is a private place laid out for the exclusive use and benefit of the parties fronting thereon.” The lots front on this private park, and run back to alleys. Those on the south are 190 feet from the alley to the center of the park, and those on the north are 200 feet from the alley to the center of the park. Lots which have been sold were sold as running to the center of the park, but the tax bills describe the lots on the south as having a depth of 135 feet from the alley to the south line of the park, and those on the north as having a depth of 145 feet from- the alley to the north line of the park; and the only question is, should the lots have been assessed as extending from the alleys to the center of the private park, or as extending from the alleys to the outer line of the park? Held, that an alternative writ, issued by the Supreme Court, to compel ,the city to issue new tax bills in lieu of those already issued, was improvidently issued, and a peremptory writ should be denied, without prejudice.

      Mandamus.
    "Writ denied.

      Sturdevant & Sturdevant for relator.

      William E. Baird and Truman P. Young for defendants.
   GRAVES, J.

The city of St. Louis passed an ordinance to improve Marcus avenue between Bell avenue and Cook avenue in Lewis & Marshall’s subdivision in said city. Marcus avenue runs north and south and crosses what is known as Lewis Park, a private way, 110 feet in width, which runs east and west from Taylor avenue to Walton avenue. On the plat this place is thus dedicated.

“Lewis Park from Taylor avenue to Walton avenue, 110 feet wide, is a private place laid out for the exclusive use and benefit of the parties fronting thereon. ”

This 110-foot strip is divided into three parts, the south thirty-five feet is called South Lewis Place, the center forty feet is called Lewis Park, and the north thirty-five feet North Lewis Place. The lots on both the north and south sides of this 110-foot park or private way front upon the private way and have an alley way in the rear. On the south side of Lewis Park the lots have a depth of 190 feet from the alley to the center of Lewis Park, and those on the north side have a ■depth of 200 feet from the alley to the center of Lewis Park. . Lots which have been sold were sold as running to the center of Lewis Park, or to the center of this 110-foot private way. Those unsold are being-offered for sale in the same way. When the tax bills were issued by the city those lots on the south side of Lewis Park were described as having a depth of 135 feet instead of 190 and those on the north side were described as having a depth of 145 feet instead of 200 feet. It will be observed that this excludes from such tax bills Lewis Park or any portion thereof.

The present action is one' of mandamus to compel the city to issue new tax bills in lieu of those heretofore issued. It should be stated that the city treated that portion of Lewis Park, within the taxing district, and to the west of Marcus avenue, as a lot abutting on Marcus avenue, and issued a tax bill covering the tract. Relator thus states the question this court is asked to solve:

“The legal question presented here is, therefore, this: Under the construction of the charter as to the manner of issuing tax bills in such cases, should the lots have been assessed as extending to the center line of Lewis Park, as contended, by the relator, or were they correctly issued in the form delivered to the relator and as described above — of lesser depth — and with said Lewis Park segregated and made the subject of a separate tax bill?”

With the view we have of this case no further statement need be made.

In our judgment our alternative writ of mandamus was imprudently issued in this case. We have, with much patience, determined in advanee the validity of many tax bills in the city of St. Louis, but it is time for us to call a halt. It should be said however, that the questions in previous cases were of much graver moment than the few tax bills involved here.

We have the right to issue writs of mandamus, but every little contention should not set this branch of our legal machinery in operation. A wise discretion should always he exercised. This writ is not a writ of right, hut one resting solely in a wise legal discretion. [State ex rel. v. Bridge Co., 206 Mo. 1. c. 136, and authorities there cited.] The scope of the present controversy is so narrow and unimportant that a sound discretion did not demand the issuance of our alternative writ. The circuit courts are open for all such minor contentions, and this court must draw a line somewhere. The parties" are not left without a remedy, but have at least one forum where all their rights can be fully and adequately adjudicated. The small amount of tax bills herein involved can be safely adjudicated elsewhere, and the case is not one which cries out for relief here. Let the peremptory writ be denied without prejudice, and thus leave the parties with full right to go to some other forum.

All concur.