author: BOND, J.

text:
    CORNELIUS H. BUEL et ux., Appellants, v. UNITED RAILWAYS COMPANY.
    Division One,
    February 28, 1913.
    1. DAMAGE ACT: Purpose. The Damage Act (See. 5425, R. S. 1909), was intended originally to alter the common law rule that an action for personal injuries abated upon the death of the 'injured person, and to provide .for the survival of such an action. It did not create a cause of action; it only provided for the survival of one which existed at common law and abated at the death of the injured party.

      2. -: -: Unborn Child. At common law a child. injured while en ventre sa mere hut subsequently bom alive did not have the right to maintain an action for the injuries-so received. And as the child itself could not maintain such an action had it lived, the action is not by the statute made to-survive to its parents upon its death.
    3. -: -: -: This Case. A pregnant mother on September 22 was a passenger on defendant’s street car, which was stopped at her signal to enable her to alight, and while she was doing so the car was negligently started, dragging and throwing her to the ground, and inflicting injuries on the arm and body of her unborn child, causing its death on July 5, six months and a few days after its birth. H'eld, that the child after its birth and before death did not at common law have a right to maintain a suit for the injuries inflicted prior to its birth, and as the purpose of the Damage Act was to provide for the survival of an action maintainable at common law that abated on plaintiff’s death, the child’s-parents cannot maintain an action for its death.
    Appeal from St. Louis City Circuit Court. — Now.. George H. Williams, Judge,
    Affirmed.
    P. H. Sheridan, Henry B. Davis and A. B. Taylor for appellants.
    (1) The court erred in holding that an unhorn child while alive in the womb of the mother, sustaining injury by the negligence of the employees of the-railroad on which the mother was a passenger, which child was afterwards born and lived after its birth and then died from the injuries so received, was not a “person” within the words and intent of the above-cited statute. (2) By the words and intent of the statute, the penalty applies, not to the date or time of the injury, but to the time of the death. ' If the party injured is, at the time of his death, a person within, the terms of the statute, then the penalty for “such . . . so dying” applies. This deceased child at the date of his death was in law a person, and the court erred in holding otherwise. (3) The statute in question is a remote evolution from Lord Campbell’s Act which, in different forms, has been adopted in many, if not all, the States of this Union, and by Congress, in the Employers ’ Liability Act of 1908, under the power contained in the Constitution of the United States, authorizing Congress to regulate commerce between the States. The difference, in substance, between the Missouri statute in question and Lord Campbell’s Act, is that the Missouri statute carries a penalty; and as last-construed by the Supreme Court, is both penal and compensatory. (4) The decision of the trial court in sustaining the demurrer to the petition was .founded on an opinion of the Queen’s Bench, Exchequer Division, 28 Irish L. R. 69, in Walker v. Railroad, and the trial court in holding that the reasoning of that case applied to or controlled the construction of the statute of Missouri. This case, under the statute, is to be determined alone by the statute, and its language and intent. If this child’s death resulted from or was occasioned by the negligence,' etc., of the employees of the defendant then, in that case, the law of the statute declares that the defendant must forfeit and pay the penalty provided by the statute. (6) The statute is constitutional as declared by this court and is enforceable according to its terms. Young v. Railroad, 227 Mo. 320; Murphy v. Railroad, 228 Mo. 87. (7) Whether the statute is wholly penal as declared in the Young case, supra, or whether the intent of the statute is both penal and remedial as intimated, but not decided in the Murphy case, supra, and as pointedly decided in Boyd v. Railroad, 236 Mo. 54, its application to the facts alleged in the petition in this case remains the same. (8) In this case the defendant by its employees in charge of its car in question received the mother of Dennis Buel as a passenger on the car in the condition of pregnancy. It is the common knowledge of men that women in a state of pregnancy, become and are received as passengers on vehicles of a carrier of passengers. Whenever a mother, as Mary Bnel was, for she had her children with her, presents herself as a passenger for carriage on a carrier’s vehicle, the carrier knows that she may be bearing a child in her womb and in assenting to the reception of the mother in this condition assents to the presence of the child on the carrier’s vehicle of carriage. West v. Bailroad, 187 Mo. 363. (9) The child being received on the car thus with the assent of the carrier, when he sustained injuries resulting in his death after birth, caused by the negligence of the carrier’s employees “whilst running, conducting or managing a street car,” he was injured and died precisely within the language of the statute; and the trial court erred in holding otherwise.

      G. T. Priest for respondent.
    The demurrer to said petition was properly sustained by the trial court, for the reason that it appears that whatever injuries deceased may have sustained were received while en ventre sa mere. Allaire v. Hospital, 56 1ST. E. 638; Dietrich v., Northampton, 138 Mass. 14; Walker v. Bailroad, 28 Irish L. B. 69. The word “person” in the Damage Act was not intended to include and does not include an infant en ventre sa mere.

    STATEMENT BY THE COURT.

       Plaintiffs are the mother and father of a child who was born on the 25th day of December, 1907, and died on the 5th day of July, 1908. On the 22nd day of September, 1907, while the m0^er was enceinte of said child, she and her husband and another child were passengers on defendant’s street railway, which was stopped at their signal to.enable them to alight, and hile they were so doing and the mother was assisting the child who was riding with them to leave the car, it was negligently pnt in motion, thereby dragging and throwing her to the ground and inflicting injuries- on the 'arm and body of her unborn child that caused his death, as before stated.
    The petition prayed for judgment for $10,000. The defendant filed a demurrer to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained February term, 1909, of the circuit court of St. Louis. Plaintiffs declining to plead further, final judgment was rendered against them, from which they duly appealed to this court.
   OPINION.

BOND, J.

(After stating the facts as above).— The statute under which the petition herein wag framed so far as applicatory to its allegations is, to-wit:

Right of Parents to sue. “Whenever any person . . . shall die from any injury resulting or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any . . . street, electric . . . car,. . . . the corporation, ... in whose employ such agent, servant, employee, . . . shall be at the time such injury is committed, or who owns, operates or conducts any such . . . street car ... at the time any injury is received resulting from or occasioned by any . . . unskillfulness, or negligence- . . . above declared, shall forfeit and pay as a penalty, for every such person ... so dying, the sum of not less than two thousand dollars and not exceeding-ten thousand dollars, in the discretion of the jury, which may be sued for and recovered ... or, third, if such deceased be a minor and unmarried . . . then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment.” [R. S. 1909, sec. 5425.] The only point for review is whether the statute was intended to provide a penalty for the death of a person after birth, caused by negligent injuries before its birth. The statute in question, with some modifications and expansions of its scope and remedies, has existed in this State for more than fifty years. It was intended originally to alter the common law rule that an action for a personal injury abated upon the of the injured person, and to provide for the survival of such actions. We have not been able to find any precedent at common law establishing the right of a child injured while en ventre sa mere but subsequently born alive, to bring an action thereafter for the injuries so received. This being the purpose of the Legislature, .the declaratory act must be .interpreted in that light and to effectuate that object, When this statute was passed no case had arisen wherein the right to maintain such an action had been affirmed. Nor, as far as we are informed, had any such suit been brought, although there must have been many occasions in the progress of society when a basis existed for such a suit if it had been thought to be maintainable. Since the statute a few cases have arisen. In a case before the Massachusetts Supreme Court, opinion by Mr. Justice Holmes, now of the Supreme Court of the United States, it was held that a child injured before its birth in consequence of an injury sustained by its mother, did not acquire after its birth any right of action for such injury, and, hence, its administrator could not sue for its death so occasioned. [Dietrich, Admr., v. Inhabitants of Northampton, 138 Mass. 14.] The right to maintain such an action was.also denied by the Supreme and appellate courts of Illinois. [Allaire v. Hospital, 184 Ill. 359; Allaire v. Hospital, 76 Ill. App. 441.] These and other authorities were quoted without disapproval by Lamm, J., in Kirk v. Middlebrook, 201 Mo. l. c. 285, 286. The right to maintain an action for injuries before its birth which caused a child after its birth to be permanently crippled, was denied by the Queen’s Bench Division in Ireland. [Walker v. Great Northern Ry., 28 Law Beports (Ireland), 69.] The decision in that case was concurred in by three judges. It was taken to the appellate court, but before the judgment of that court was pronounced, the child died. This is shown by the text of a recent work on Negligence in Law, Beven’s (3 Ed.), p. 76. In all the cases the right of a mother to maintain an action for negligent injury to herself and her unborn child is conceded. The only question is whether a dual right exists in cases where the child was injured in its mother’s womb and is subsequently bom alive, and seeks to recover for the effects after birth, of the injuries so received. In the above citations this right was denied. [Nugent v. Brooklyn Heights R. R. Co., 139 N. Y. Supp., 367.] Those decisions were rendered after consideration of the argument that unborn children are regarded at common law as being in esse lot the purpose of taking property by descent or by devise and for the purpose of guardianship and in other respects; but these faculties of unborn children are said in those decisions to rest upon a legal fiction invented to enable the child to take a benefit which, if born, he would be entitled to, and not to afford any sufficient ground for an action by a living child for injuries suffered before its birth.

It is not necessary to rule upon the rationale of these decisions. It is enough to say that they demonstrate that by the act in question (B. S. 1909, sec. 5425) the Legislature could not have intended (in view of the law existing or declared at that time) when it used the terms “persons so dying” to include a person who died after birth from injuries received by its mother prior to its birth. Such a design on the part of the' legislature would have been out of keeping with the paramount object of the act to create a survival of actions which would have lapsed at common law upon the death of the injured person. For in the case of a child so injured no right of action accrued to such child after its birth by the common law as it had been then adjudged; and, hence, there was no prior right to sue, which the statute could take hold of and cause to survive the death of the person injured. If it had been the purpose of the statute to create a cause of action which did not theretofore exist, certainly that intention would have been expressed in the terms of the act. This was not done at the time of its enactment or in any of its subsequent amendments. It follows that the trial court did not err in sustaining the demurrer in this case; and.it is affirmed.

Woodson, P. J., Lamm and Graves, JJ., concur.


source: Caselaw Access Project

author: WOODSON, P. J.

license: Public Domain

text:
    C. G. SHEPARD, Appellant, v. J. R. BREWER.
    Division One,
    February 28, 1913.
    1. SLANDER: Words Slanderous Per Se: Explanation: Secret Intent: Abuse. To say of another, “He is a thief,” and to charge in unequivocal language that he is a keeper of a rendezvous for thieves, is to use words that are actionable per se, and the law presumes malice on the part of him who utters them; and testimony to show that he had a secret or reserved intent not to charge the person concerning whom they were uttered with larceny, is inadmissible. Defendant cannot be permitted to explain them by testifying that by using them he only meant to abuse plaintiff for annoying him by frequent and frivolous lawsuits. The intention of the speaker is material, to be inquired into, only when the words have a doubtful, ambiguous or hidden meaning.
    2. -: -: -: -: Instructions. And the testimony being inadmissible and incompetent, instructions basing a defense upon it are erroneous.

      3. OBJECTION TO TESTIMONY: As Usurping Province of Jury: Rebuke by Court. Counsel have the right to object that certain, testimony is an invasion upon the province of the jury to find the ultimate fact; and if it is clearly inadmissible for that reason, and the objection is' made in respectful language and in a decorous manner, it is erroneous and prejudicial for the court to severely reprimand and threaten counsel for making the objection, as a public criticism of the court’s conduct.
    Appeal from. Pemiscot Circuit Court. — Now. Henry G. Riley, Judge.
    Reversed and remanded.

      S. J. Corbelt for appellant.
    (1) To charge that a person is a thief is actionable per se, and malice is presumed on the utterance of the slanderous words. Carpenter v.. Hamilton, 185 Mo. 60S; Hall v. Jennings, 87 Mo. App. 627; Lewis v. McDaniel, 82 Mo. 577; Baldwin v. Pries, 46 Mo. App. 288; Buckley v. Knapp, 48 Mo. 152; Callahan v. Ingram, 122 Mo. 355. (2) The court erred in permitting the defendant to testify as to the meaning he meant to convey by the words used, and in permitting other witnesses to testify as to what they understood to be the meaning of the words used.' Snell v. Snow, 13 Met. (Mass.) 278; Gilber v. Press Co., 37 Minn. 277; Callahan v. Ingram, 122 Mo. 355. Evidence of the motive or intent of the defendant in speaking the defamatory words is inadmissible; Buckstaff v. Hicks, 94 Wis. 34; Shipp v. Story, 68 Ga. 47; Rearick v. Wilcox, 81 111. 77. (3) The fifth instruction given at the request of the defendant is clearly error, and directly in the face of every holding on a similar state of facts of the appellate courts of this State, as well as of every State in the Union. The evidence plainly shows that the defendant on numerous occasions had said plaintiff was a thief, yet on most every occasion there was some other word used in connection with the word thief, which we would not care to place in print. And the defendant himself was permitted to testify that he did not intend to call the plaintiff a thief; bnt that he only meant them as words of abuse; then the court instructed the jury that if they believed they were words of abuse the plaintiff could not recover. Under the theory on which the court tried this ease, this instruction was tantamount to a peremptory instruction to find for the defendant. Israel v. Israel, 1091 Mo. Ápp. 396; Sheffiell v. Yan Dusen, 15 Gray (Mass.), 485; Quinby v. Tribune Co., 38 Minn. 528; Battell v. Wallace, 30 Fed. 229; Hosley v. Brooks, 20 111. 115; Mousler v. Harding, 33 Ind. 176; Poissenet v. Cruce, 81 S. W. 380; Lodgewood v. Elliot, 51 S. W. 872. (4) The language of the court in the presence of the jury was highly prejudicial, wholly uncalled for, and could have no other effect than to prejudice the jury against the plaintiff and his counsel.

      E. E. Beeves and J. J. Bussell for respondent.
   WOODSON, P. J.

The plaintiff instituted this suit in the circuit court of Pemiscot county against the defendant to recover the sum of $5000 actual and as punitive damages upon each of the four counts of the petition, alleged to have been sustained by him through and by virtue of certain slanderous and derogatory words spoken of and concerning him by the defendant.

A trial was had before the court and jury, which resulted in a verdict and judgment for the defendant, and after taking the proper preliminary steps the plaintiff appealed the cause to this court.

The petition filed was in the following language:

“1. Plaintiff for his cause of action states that defendant wilfully, wantonly and maliciously spoke of and concerning plaintiff certain false, defamatory and slanderous words, to-wit:
“ ‘He is a thief’ — meaning this plaintiff — which words were spoken of and 'concerning this plaintiff in the presence of others and which words were spoken in the city of Caruthersville, county of Pemiscot, and State of Missouri, between the 15th day of November, 1905', and the 1st day of January, 1906.
“Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of five thousand dollars', for which he prays judgment. Plaintiff prays judgment in the sum of ten thousand dollars, as exemplary or punitive damages.
“2. Plaintiff for another, further and separate cause of action and for a second count in his petition against defendant, says that defendant wilfully, wantonly and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit:
“ ‘He is a perjurer’ — meaning this plaintiff— which words were spoken of and concerning this plaintiff in the presence of others, and which words were spoken in’ the city of Caruthersville, county of Pemiscot, State of Missouri, between the 15th day of November, 1905, and the 1st day of January, 1906.
“Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of five thousand dollars, for which he prays judgment. Plaintiff says said words were maliciously spoken, and plaintiff prays damage in the sum of ten thousand dollars as exemplary or punitive damages.
“3. Plaintiff for another, further and separate cause of action, and for a third count in his petition against defendant, says the defendant, on or about the first of February, 1906, had a conversation with one J. W. Bader of and concerning a lawsuit which had been filed in the Pemiscot County Circuit Court, styled J. H. & T. Cole Powell v. L. B. Powell et ah, in which said suit this plaintiff and S. J. Corbett' were attorneys for the plaintiff, and that in and during the said conversation between the said J. W. Bader and the defendant herein, the defendant wilfully, wantonly and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit: ‘You are among a den of thieves up there,’ meaning thereby to call this plaintiff’s office a thieves’ den, and to call this plaintiff a thief, which words were spoken of and concerning this plaintiff in the presence of and to the said J. W. Bader.
“Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of five thousand dollars, for which he prays judgment. Plaintiff says that said words were maliciously spoken, and plaintiff prays judgment in the sum of ten thousand dollars as exemplary or punitive damages.
“4. Plaintiff for another, further and separate cause of action, and for a fourth count in his petition against defendant, says that defendant, at various times and places in the city of Caruthersville, and in the presence of numerous parties, in conversations with others concerning plaintiff, wilfully, wantonly, falsely and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit: ‘He’ — meaning plaintiff — ‘will go to the books when a case is brought to him, or when he is consulted about a case, and find out what evidence it will take to win the case and then tell the party interested the evidence he will have to procure in order to win the ease,’ and that this plaintiff would lay the plans, and that Sam J. Corbett and others with whom he worked would falsely procure testimony to win cases, thereby meaning to say that this plaintiff liad been guilty of subornation of perjury, which words were spoken between the 15th day of November, 1905, and the 1st day of February, 1906.
“Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of five thousand dollars, for which he prays judgment. Plaintiff says said words were falsely and maliciously spoken, and prays exemplary or punitive damages in the sum of ten thousand dollars. ’ ’

The answer was as follows;

‘Now comes the defendant, by leave of court first obtained, and for his answer to plaintiff’s petition, and eac^ an(^ every count therein cont&Wd denies each and every allegation contained in the several counts of said petition and prays judgment for costs.
“Further answering, the defendant admits that he may have used some abusive language to one J. W. Bader, but denies that he used the language as charged in the third count of plaintiff’s petition, and whatever language he did use, was simply language of abuse and not intended by the defendant to charge the plaintiff or anyone else of being a thief or guilty of the crime of larceny. The defendant says that whatever defendant may have said in the way of abuse of and concerning plaintiff was provoked by the wilful and malicious treatment by the plaintiff of the defendant, by charging him with various wrongs, and by persisting in harassing him with frivolous and vexatious litigation, and defendant again asks judgment for costs.”

Either at the beginning of the trial, or at the conclusion of the introduction of the evidence, which is not clearly shown by the record, the plaintiff dismissed the cause as to the second and fourth counts in the petition.

The evidence for the plaintiff tended to support the allegations of the petition as stated in the first and third counts thereof, and in fact, if I correctly understand the record, the defendant not being represented here, it was scarcely denied that defendant used the language complained of in said counts, but seeks to escape the effect thereof by the pleadings' and proof, that he did not mean thereby to charge plaintiff with larceny or perjury or subornation of perjury, but used said language as justifiable abuse only.

That justification consisted of the following testimony of the defendant, James R. Brewer, which was admitted over the objection of the plaintiff, viz.:

J. R. Brewer testified on behalf of the defendant:

“Q. I will ask you what Shepard’s treatment of you has been during the last twelve months ?
“Mr. Shepard: We object to that as being irrelevant, immaterial and incompetent, and it does not tend to prove any of the issues in this case. I am not charged with mistreating Brewer.
“Court: Court will let him answer. Exception noted.
“A. Mr. Shepard and Sam Corbett have been on me like twq fices on a big dog for the past two years. They have been bringing what I consider frivolous lawsuits.
‘ ‘ Q. How many suits has Mr. Shepard brought or instituted against you over land? A. Acting as the attorney of J. H. and T. Cole Powell he brought a suit against me, J. J. Williams and L. B. Powell. That suit was on change of venue carried to Dunklin county. It was tried there and appeal was granted; then he filed the suit of J. W. Bader, T. Cole Powell and J. H. Powell against me, Dr. J. J. Williams and L. B. Powell, in which he seeks to set aside a deed made by a trustee under deed of trust for some land in 11, 17, 12. Previous to the filing of this lawsuit in which he seeks to set aside the deed, I was always very friendly to Mr. Shepard until that time. And when this suit was filed I lost my patience. It i's true I did not have a good feeling toward him after he filed the ’first lawsuit. Mr. Shepard was a lawyer in the suit that was tried over in Dunklin county, and my best impression is that he was present at the time a motion for a new trial was made, and I don’t remember whether he was present at the time the motion was acted upon. My best remembrance is he was. The appeal was granted in this case on November 15, 1905. Then Mr. Bader files the lawsuit in this court of J. W. Bader, T. Cole Powell, John H. Powell v. L. B. Powell, J. R. Brewer and J. J. Williams. Jn that petition he bases the right of the plaintiffs therein T. Cole Powell and J. H. Powell—
“Mr. Corbett: We object to the matters in that petition — it will speak for itself.
“Court: Yes, sir; the petition will speak for itself. ’ ’

Further on witness Brewer said that after he saw the petition and knew that Mr. Shepard had information that an appeal had been taken he concluded it was a matter of persecution on the part of Mr. Shepard, and to the best of his memory he stated to Bader, “You are among a set of thieving sons of hitches.”

1 ‘ Q. Let me ask you in this connection whether you had any intention at the time of chargmg Mr. Shepard with being guilty of larceny?
“Corbett: Object to that question for the reason it is an inference to be drawn by the jury from the words that he said.
“Court: Court will let him answer.
“Mr. Corbett: Note our exceptions.
“A. It looks this way—
“Mr. Corbett: Object to that for the further reason that it permits the witness to take the province of the jury, as it is the jury’s province.
“Court: The court is trying this case. We cannot permit you to criticise its conduct publicly; the court will grant you the right to except to a°ti°n ; but if you make further reference to the action of the court the court will fine you for contempt. You have the right and the court will grant you ample time to make, an objection, but for an attorney to criticise the court publicly for its action, that is an act of contempt which we will undertake to punish you for; this is the .second time you have undertaken to criticise our conduct; we will not permit you to do that. You may talk on the outside; but when you come into court, we propose to exercise our authority. ’5

L. L. Collins testified on behalf of the defendant that he was present in the office at the time Mr. Brewer had the conversation with Mr. Bader as mentioned in the evidence; that the conversation grew out of a talk between Bader and Brewer relative to the lawsuit being brought against Mr. Brewer and that in that conversation Mr. Brewer used about the words mentioned by Mr. Bader. On cross-examination he was asked:

“Q. He was in your office, you say, after the suit was tried over in Dunklin county? A. I did.
“Q. You heard him have numerous conversations in this office soon after that suit was tried in regard to me and Mr. Corbett, and others? A. Yes, sir; I heard him say something about you and Mr. Corbett. He came back mad; but what he said about either of you I would not undertake at all to tell.
“ Q. I will ask you if he did not go to Kentucky and come back again? A. Well, he has been living in Kentucky for something like now two years, and he come back and forth every court, and always made our office his headquarters, doing his work, preparing his papers.
“Q. I will ask you if he did not have some conversation in your office after he came back to Kentucky? A. I have heard him several times make remarks about you.
“Q. I will ask you if these remarks were not made most every time my name was mentioned or anything in regard to that suit was mentioned from the time it was tried clear on up until now? A. Well, I have heard him make several remarks about you to me in the office; but just what they were I wouldn’t undertake to tell.
“Q. In reality Brewer has not cooled off from the time of that as far as I am concerned? A. Prom the way he talks he is not friendly to you.”

There was other evidence of similar import introduced, but this is sufficient to indicate the legal questions presented by counsel along that line.

At the request of the defendant, and over the objections of the plaintiff, the court gave the following instruction, viz:

“5. The court instructs the jury that, although you may believe and find from the evidence in this case that previous to the institution of this . suit defendant uttered the words charged in the petition, yet if you further find and believe from the evidence that said words were mere words of abuse, and that defendant did not intend thereby to charge the plaintiff of the crime of larceny, then in such case the plaintiff cannot recover, and your finding should be for the defendant.”

Any other facts which may be ■ necessary for a proper consideration of the legal questions involved will be noted and considered in the opinion.

Upon this state of the record, the plaintiff below, the appellant here, assigns the following errors:

“1. The court erred in admitting irrelevant, immaterial and incompetent evidence on the part of the defendant.
£2. The court erred in refusing relevant and competent testimony offered by plaintiff at the trial of this cause.
££3. The court erred in permitting counsel for the defendant to use in his argument before the jury the language complained of in plaintiff’s motion for a new trial.
“4, The court erred in giving instructions numbered 1, 2, 3, 4, and 5, at the request of defendant.
“5. The verdict and the judgment are against the law and the evidence, and against the law under the evidence.
“6. The verdict of the jury was on the first and second counts in plaintiff’s petition, there being no finding on the third count.
“7. The jury failed to make any finding on the third count of plaintiff’s petition.
“8. There is no judgment on the third count in plaintiff’s petition.
“9. The court erred in the uncalled for rebuke of plaintiff’s counsel in this cause before the jury, during the progress of the trial.

I. The errors assigned may be resolved into three propositions; first, that the circuit court erred in the admission of evidence; second, that it erred in giving instruction numbered five; and third, that the strictures passed upon counsel for appellant, during the trial by the court, were uncalled for and prejudicial to the rights of appellant.

We will consider those propositions in the order stated, but in passing, it might be well to state that the two former are so closely related that is said of the one will necessarily and largely apply to the other.

Attending the first: It is insisted by counsel for the appellant that the court erred in permitting respondent to testify as to what he meant by the use of the language, to the effect he, the plaintiff, is a thief and that the plaintiff’s office is a thief’s den.

It is the contention of counsel for appellant that the ordinary and plain meaning of that language used was to accuse the appellant of being a thief, and that his office, with his knowledge and consent, was the rendezvous of thieves and dishonest persons, which cannot be contradicted by parol evidence.

Counsel for respondent, upon the other hand, insist that he did not intend by the use of the language stated in the petition and established by the evidence to charge the appellant with the crime of larceny, or that he associated with or harbored thieves, but only meant to abuse the appellant for annoying and harassing him with useless and vexations litigation.

It will he noticed by reading the answer, and the evidence introduced by respondent, that he does not undertake to state or show that the language used by him, of and concerning the appellant, did not on its face mean, or was not understood by those who heard him, to mean, that he, the respondent, was not charging appellant with the crime of larceny, or that they did not understand him to thereby charge appellant with being the associate of thieves and dishonest men, but simply that he, the respondent, had no such intention in his own mind, but that he only intended thereby to abuse the appellant for annoying him by the frequent institution of what he termed frivolous lawsuits. Or more tersely stated, it will be observed by reading* the answer and the testimony of the respondent, that he does not charge or contend that at the time of uttering the words complained of in the petition, or in uttering them, he used any other language in connection therewith which detracted from or changed the me am ing of said words, when used in their ordinary sense, but undertakes by both his answer and testimony to' show that he had a secret or reserved intent not to* charge the appellant with the crime of larceny or perjury-

Clearly that testimony was inadmissible, for the reason that the words of the respondent charged in unequivocal language that the appellant was a thief and the keeper of a rendezvous for thieves, which is actionable per se, and the law presumes malice on the part of the person who utters them of and concerning another. [Carpenter v. Hamilton, 185 Mo. 603; Hall v. Jennings, 87 Mo. App. 627.]

In discussing a similar question this court in the first case cited, at page 614, used this language:

“The argument is, that because, in the same connection in which defendant charged plaintiff with stealing his material, he added, ‘You have used it on somebody else’s work,’ he thus gave an antidote along with the poison and shows that defendant was merely mistaken in the law rather than guilty of a malicious purpose. Hall v. Adkins, 59 Mo. 144, is cited to sustain this contention, but the distinction between the facts of that ease and the case at bar is apparent. In that case a landlord charged his tenant with stealing his corn. The defense was that defendant, at the time of speaking-the actionable words, detailed to every person who heard the slanderous words the taking of corn on which he had a landlord’s lien, and defendant honestly believed the taking of the corn by his tenant under those circumstances was larceny. The defendant pleaded these facts in justification, and in mitigation of the damages. Because the court ruled that although the defendant honestly believed the facts and circumstances attending the taking of the com constituted larceny, and so believing and without malice uttered the slanderous words only to those to whom he communicated the facts which in his opinion constituted larceny, it was no mitigation, the Supreme Court reversed the cause. In that case it was apparent from the facts stated by defendant that the act of plaintiff was not larceny, as plaintiff conld not steal his own property. In this case there is no plea of justification or in mitigation of damages, and there was no such communication- of the facts- upon which he based the slanderous charge to those who heard it as amounted to a justification or mitigation. The 'words proven were as alleged, and we discover no statement in them which in the slightest degree relieved them of the imputation of the crime of larceny. On the contrary, they added emphasis to the charge. It is no qualification of a charge of stealing paint to add to it that the painter had used it on another’s property. The charge of stealing the paint was actionable per se and the law presumes malice .from its utterance and no proof of malice was necessary. [Callahan v. Ingram, 122 Mo. 355; Johnson v. Dicken, 25 Mo. 582; Barbee v. Hereford, 48 Mo. 323; Pennington v. Meeks, 46 Mo. 217.]
£ £ Christal v. Craig, 80 Mo. 367, has no application to the facts of this case. In that case the words in the petition were, ‘You have took my pocket-book and money, and have got it there in your pocket,’- and it was properly ruled that these words were not actionable per se without some explanatory averment showing their application. ‘If they were intended and un-. derstood to impute the crime of larceny, they would be actionable per se.’ ‘Do they, on their face, without more, convey such imputation?’ To say you have my pocket-book or money in your pocket, does not necessarily or legally imply its theft. The party might reasonably have so taken it under a claim of right, or through mistake or in sport. ’
“But when one says to another in the presence of others, ‘You bring back that material that you took of mine,’ and when the person addressed denies having any of his material, he follows it up by, ‘You have used it on somebody else’s work; that material you stole from me, if you don’t return it, I will make it hot for you, ’ there is and can he hut one inference drawn, and that is a charge of larceny and a threat of prosecution if the stolen material is not brought back. ”

There are many other cases in this State, and elsewhere, of like import; and it seems to us that it should not need the citation of any authorities to support the proposition that, when one person says of another, he is a thief or a perjurer, he meant what he said; nor should it require the citation of authority to show that it would be against public policy and good morals to permit such a person to testify that he had a hidden or reserved opinion of the person of whom he spoke, which was different and better than that expressed by the speaker of the words. Such a ruling would invite, and place a premium upon perjury.

The intention of the party who speaks of another, is only material to he inquired into when the words spoken have a doubtful, ambiguous or hidden meaning. When that condition exists, not only may the person who used the words testify as to his meaning, but all persons who heard the words spoken may testify as to what they understood the speaker meant by their use.

This is settled by the case of Cook v. Globe Printing Co., 227 Mo. 471.

We are, therefore, of the opinion that the evidence complained of was improperly admitted, and that the action of the trial court in admitting it was reversible error.

II. It is next insisted by counsel for appellant, that the instruction numbered five was erroneous, and did not correctly declare the law to the jury.

This instruction simply put in crystallized form, what the trial court understood the law to be governing the facts of the case, as shown . .. . -, . , , t by the improper evidence introduced; and if that evidence had been admissible, then as a necessary corollary thereto, this instruction would have been proper, but as we have shown by paragraph one of the opinion that said evidence was erroneously admitted, then, it must necessarily follow therefrom that this instruction is erroneous, which reclares the legal effect of that improper evidence.

III. The last question presented for determination is the language ,of the court, addressed to counsel for appellant when he objected to the introduction of the evidence, which we have just held was ^erroneously admitted.

Counsel insisted that the witness was by his testimony invading and usurping the province of the jury, that is, counsel contended it was for the ÚW ascertain from the language used by the respondent of and concerning the appellant the meaning he intended thereby to convey to those whom he addressed, and that it was improper for the respondent to tell the jury a year or more after the language was spoken what he meant by it; and for that reason, among others, counsel objected to the introduction of that evidence.

For some reason not disclosed by the record the court conceived the idea that counsel by making such objections was criticising the action of the court, and in consequence thereof addressed this language to counsel: “The court is trying this case. We cannot permit you to criticise its conduct publicly; the could will grant you the right to except to its action; but if you make further reference to the action of the court, the court will fine you for contempt. You have the right and the court will grant you ample time to make an objection, but for an attorney to criticise the court publicly for its action, that is an act of contempt which we will undertake to punish you for; this is the second time you have undertaken to criticise our conduct; we will not permit you to do that. You may talk on the ■outside; but when you come into court, we propose- to exercise our authority.”

As previously stated, there is nothing contained in the record which could have warranted this severe reprimand, without it was the simple action of counsel in making the objection. That, however, should not have subjected him to the treatment he received at the hands of the court, for the objection was timely made and was presented in respectful language, as will appear from the following:

Mr. Brewer, the respondent, among other things testified, that to the best of his memory he stated to Bader, “You are among a set of thieving sons of bitches. ’ ’
“Q. (By counsel for respondent): Let me ask you in this connection whether you had any intention at that time of charging Mr. Shepard with being guilty of larceny?
“Mr. Corbett, Counsel for Appellant: I object to that question for the reason it is an inference to be drawn by the jury from the words that he said. ’ ’
‘ ‘ Court. Court will let him answer.
“Mr. Corbett: Note our exceptions.
“A. It looks this way—
“Mr. Corbett: Object to that for the further reason that it permits the witness to take the province of the jury, as it is the jury’s province. ’ ’

Then follow the strictures of the court before copied.

This evidence was clearly inadmissible, not only for the reason stated, but also for the reason that it was clearly an invasion of the province of the jury.

We are also clearly of the opinion that the language of the court was not justifiable and was erroneous and prejudicial to the rights of the appellant.

We have treated this question purely as a question of law, as it appears- upon the face of the record as we see it: but from our long and personal acquaintance of the learned circuit judge who tried this case, we are satisfied in our own minds that there was something back of what appears of record, which called forth said stricture of the judge. However, we can only look to the record when passing upon legal questions, but when a ruling necessarily involves the personnel of the judge, we have the right to consider the fact that in this case neither the judge nor the respondent is represented in this court, and for that reason, the judge’s position is not made clear here.

There is also complaint made because the jury did not find a verdict as to the third count of the petition.

That question is not vital to this appeal and whatever error was, in that regard, committed, can be corrected upon the next trial.

For the reasons stated, the judgment is reversed and the cause is remanded to the circuit court for á new trial.

All concur.


author: GRAVES, J.

text:
    W. H. DALTON v. A. L. REGISTER & COMPANY, Appellant.
    Division One,
    February 28, 1913.
    1. APPEAL: Record Proper: No Filing of Motion for New Trial. Tbe abstract of tbe record proper, as distinguished .from the abstract of the bill of exceptions, must show the filing and overruling of a motion for a new trial, if any matter of exception is for consideration on appeal. It is not sufficient that it appear in what purports to be an abstract of a bill of exceptions that a motion for a new trial was filed.
    2. -: -: -: New Rule: Retrospective Operation. The new rule (Rule 32, adopted December 10, 1912), declaring that the appellant need not abstract the record entries showing the steps taken below to perfect such appeal, does not avail to save a defective abstract filed before the rule was adopted.

      Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.
    Affirmed.

      Edward G. Wright and Perkins & Blair for appellant.

      Harry 8. Miller and Hugh Dabbs for respondent.
   GRAVES, J.

In this case the respondent has challenged the sufficiency of the abstract of record. Upon that challenge he stands and has not briefed the case'upon the merits. We are of opinion that we cannot consider more than the record proper and are precluded from going into matters of exceptions. The abstract of the record proper before us fails to show the filing of a motion for a new trial. It is true that in the abstract of a purported bill of exceptions, it appears that such a motion was filed, but in a line of cases we have held this insufficient. These cases are of such long-standing and so numerous that the lawyers of the State must abide by them; and so consistent is the ruling that we shall not further restate the rule, other than to state that under these we have held that the abstract of the record proper, as distinguished from the abstract of the bill of exceptions, must show the filing and overruling of a motion for new trial. And if it does not so show, then we have only the record proper before us for consideration.

It is true that we have recently adopted a new rule of practice in this court, which we hope may be better understood and more generally followed than the one under which the cases suggested were decided, but this new rule cannot avail this appellant for two reasons (1) because his abstract was filed before the rule was adopted by the court, and (2) because the abstract as filed does not comply either with the old or new rule. Having before us nothing but the record proper for consideration, it is sufficient to say that the judgment entered is one which responds to the petition and is supported by the petition and therefore should be affirmed. It is so ordered.

All concur, Bond, J., in result only, because he is of opinion that the case should be affirmed on the merits rather than upon the theory of the opinion.


text:
    PHILIP GROSSMAN, by Next Friend, ROSA GROSSMAN, Appellant, v. UNITED RAILWAYS COMPANY.
    Division One,
    February 28, 1913.
    APPEAL: Motion for New Trial: Not in Bill of Exceptions. Where the bill of exceptions, as set out in the abstract, does not contain the motion for a new trial or any ruling thereon or any exception relating thereto, the Supreme Court will ^review only the record proper, although that part of the abstract relating to the record -proper and distinguishing it from the bill of exceptions, sets out the motion and recites that it was overruled and that an exception was saved,
    Appeal from St. Louis City Circuit Court. — Row. Matt G. Reynolds, Judge.
    Affirmed.

      John R. Boogher and Eustace G. Wheeler for appellant.

      Boyle & Priest, Morton J ourdan and T. E. Francis for respondent.
    STATEMENT BY THE COURT.
    Plaintiff by his mother, his next friend, sued the defendant for personal injuries alleged to have been sustained while he was a passenger on one of its street cars.. The answer set up that plaintiff was a trespasser, and without the knowledge or consent of the defendant or its representatives placed himself in a position of peril and received the alleged injuries while attempting to ride, without paying, on one of defendant’s cars; and that the injuries sustained by bina were also caused by Ms negligence in placing himself on the outside of the car and projecting his body so as- to cause it to come in contact with another car moving in an opposite direction. The reply took issue.
    Plaintiff adduced testimony tending to prove that he boarded the car and gave up his seat to a lady and went out on the platform, where he was seen by another passenger, and was not holding to the side of the car. Plaintiff offered, in evidence a statement signed by Mabel Cody to the effect that she had seen the accident, and that the boy was not hanging on the outside of the car, but the accident took place about 7:30 o’clock at night of the Veiled Prophet’s parade in St. Louis. This paper was offered in rebuttal and excluded. Defendant introduced the deposition of this witness, who stated, in substance, she was an actress; that two men came to see her; that she signed some paper. She further stated in her deposition that she was a passenger on the car on the night in question fo.r the purpose of witnessing the display; that she did see the boy on the side of the car; that he was hanging to the outside, holding to the bars across the window and had his feet ‘£ on this wide piece on the bottom; ’ ’ that an eastbound car passed, when he was hurt by being mashed between the cars. Defendant introduced a number of other witnesses who testified that the accident was occasioned by the position of the boy hanging on a car going east and being struck by a car coming west. The injuries alleged in the petition, which the evidence tended to show, were that his foot was so injured that he has lost the use of his toes, and one of his fingers of his left hand and the use of the others is permanently impaired. The jury rendered a verdict for the defendant. Plaintiff duly appealed to this court. Plaintiff assigns no error except the refusal of the court to. admit in rebuttal the statement signed by Mabel Cody.
   OPINION.

BOND, J.

(After stating the facts as above). — It is insisted by respondent that the abstract in this case presents nothing to review except the record proper. An examination of the abstract filed shows that it contains recitals belonging to the record proper, and others relating to the bill of exceptions under that title; that in the first portion it sets out the filing of a motion for a new trial, and that it was overruled and due exception taken by appellant. But under the head -of Bill of Exceptions the abstract does not set out the motion for new trial nor that it was overruled, nor that any ■exception was taken to such order — in fact, makes no allusion whatever to a motion for a new trial This condition of the record necessarily restricts our review to the record proper.

It has been often decided by this court that abstracts should distinguish between parts which relate to the record proper and the bill of exceptions. [Gilchrist v. Bryant, 213 Mo. l. c. 431.] This was properly done in the present case. But the bill of exceptions is the proper repository of the motion for new trial, and is the place where an exception to the ruling of the court on that motion must be preserved. The bill of exceptions in this case wholly fails to contain the motion for new trial or any ruling thereon or any exception relating thereto by appellant. Under the repeated decisions of this court, this excludes from the view of the appellate court anything but the record proper. [Kolokas v. Railroad, 223 Mo. l. c. 462; Harding v. Bedoll, 202 Mo. l. c. 629.] The record proper in this case shows a joinder of issues which would sustain a verdict for the defendant. Having no power to look to any other matter, we must conclude that the verdict was correctly rendered. It is therefore affirmed.

Woodson, P. J., and Lamm and Graves, JJ., concur.


text:
    IRVIN GORDON et al. v. JOSEPH H. MILLION et al., Appellants.
    Division One,
    February 28, 1913.
    1. CONVEYANCES: Mineral Estate: Severance. There may he a complete severance of the mineral estate from the surface estate, and the mineral estate may be conveyed separately from the surface estate — either by exception or by grant.
    2. -; -; Construed Against Grantor. A deed which attempts to convey a coal mine must be construed most strongly against the grantor.
    3. -: -: Coal Mine: Open and Operated. The owner of land by warranty deed conveyed “the one equal undivided half of the coal mines being and situate on the east half of the southwest quarter of section sixteen . . . ; said mines are now showing themselves in the bed of the creek running through said described tract of land about one hundred and fifty yards more or less above the ford of said creek on” a certain public road. Held, that these words do not restrict the grant to open or operate mines, or to such veins as were in fact open and exposed on the creek mentioned, nor to the particular viens of coal shown by croppings on the creek, but were used in the sense of “coal deposits, subject to being mined.”
    4. EJECTMENT: Segregated Mineral Estate: Possession of Defendants. -Where defendants claimed the entire property under a deed which made no reservation of the coal deposits on the land, and were at the time in possession of the surface, but not using or mining the coal, but were claiming everything from the surface to the center of the earth, there was proof of such possession by defendants of the coal deposits as authorized a judgment in ejectment for the possession of the mineral estate, both plaintiffs and defendants claiming through a common source of title, who by deed had made a separate grant of the mineral estate to plaintiffs’ ancestor, there being no question of title by limitations to said separated estate.
    5. -: -: -: Separate Estate: Right to Surface. Coal deposits, when separated by grant or by reservation in a deed, are as much an estate in lands as is the surface of the same lands; and such an estate carries with it the right to use so much of the surface estate as may be reasonably necessary for the proper use of the mineral estate; and plaintiffs, who by deeds are owners of the segregated mineral estate alone, have the right to sue in ejectment to recover that estate.if it is in possession of defendants who own the surface estate and claim to own and be in possession of both.
    6. -: Common Source of Title. When plaintiffs in ejectment put „ in deeds which show, that they and defendants claim through a common source, and defendants by their pleadings or proof do not claim a different source, the plaintiffs need not go back of that common source to deraign title.
    Appeal from Boone Circuit Court. — No». Nat M. Shelton, Special Judge.
    Affirmed.

      McBaine & Clark for appellants.
    (1) The proof failed to sustain the allegations of the petition. 7 Cyc. 266; Mining Co. v. Grogan, 53 111. App. 60; White on Mines and Mining Injuries, p. 1; Gloninger v. Coal Co., 55 Pa. St. 9; Shaw v. Wallace, 25 N. J. L. 453'. (2) The respondents failed to prove that appellants were ever in possession of the coal described in plaintiffs’ petition. Lewellyn v. Lewellyn, 201 Mo. 306; Sec. 2385, R. S. 1909; R. S. 1899, sec. 3056; 27 Cyc. 642; Zerres v. Yannia, 134 Fed. 610; Shaw v. Tracy, 95 Mo. 532; Callahan v. Davis, 90 Mo. 78; Ins. Co. v. Cummins, 90 Mo. 271; Gordon v. Park, 219 Mo. 600; Sec. 2525, R. S. 1909; Sec. 650, R, S. 1899, amended, Laws 1909, p. 343. (3) Plaintiffs failed to prove title to the property involved. McAnaw v. Clark, 167 Mo. 443; Stewart v. Land Co., 200 Mo. 281; Duncan v. Able, 99 Mo. 188; Snuffer v. Howerton, 124 Mo. 637; McYey v. Carr, 159 Mo. 648; Nalle v. Thompson, 173 Mo. 595; Pierce v. Lee, 197 Mo. 480.

      E. W. Hinton for respondents.
    . . (1) The words, “coal mines, situate on the east half of the southwest quarter, etc.,” as used in the deed from Berkley Estes to Boyle Gordon, are sufficient to pass title to all the coal deposits under the entire tract, because a grant is to be construed most strongly against the grantor. Bray v. Conrad, 101 Mo. 331. (a) The term “coal mine” is commonly used in the sense of coal deposits, as when we speak of the coal mines of Alaska or of Manchuria. It is evident that this term was not used in Berkley Estes ’ deed in the sense of an opened mine or a pit or shaft, because the deed mentions the fact that the mines were showing themselves in the bed of the creek. It would be absurd to talk about opened shafts showing themselves in the bed of the creek, (b) If the words of the deed are given their obvious and natural meaning, the grant is of the coal deposits on the southwest quarter, etc., and naturally embraces all coal deposits under the entire tract, unless there is some restriction, either in express terms or by necessary implication, because the words are to be taken most strongly against the grantor, and if left in doubt,- it must be resolved in favor of the grantee. Wordel v. Watson, 93 Mo. 107. (2) The possession of the surface under color of title to the coal and under express claim of title to the coal, was sufficient possession by defendants to enable the plaintiffs to maintain ejectment. Gordon v. Park, 219 Mo. 600. Where there is no physical occupancy by a third person, it is sufficient that the defendant have constructive possession. The mere constructive possession of the minerals from actual possession of the surface under claim of right to the whole, is not sufficient to create title by adverse possession, which is a vastly different thing. To apply such a rule would mean that ejectment would never lie for coal under the surface, except where the defendant was actually working it and mining it when the action was brought. (3) The plaintiff proved that Berkley Estes was the common source of title, and that is sufficient. Sloan v. Chitwood, 217 Mo. 462.
   GRAVES, J.

A reading of the record and the statements made by counsel upon the two sides of this controversy, demonstrates, that the statements made by either counsel could be safely adopted. We adopt that made by counsel for the respondents, because by a fraction it could be said to be the winner in a contest for brevity. Both are brief, however, and do not differ as to what is shown by the record. The questions are largely questions of law. Respondents thus state their case to this court:

“This was an ejectment to recover the coal under a part of the east half of the southwest quarter of section 16, township 48, range 12, in Boone county, Missouri. This is a part of the same tract involved in Gordon v. Park, 202 Mo. 236, and Gordon v. Park, 219 Mo. 600, and the plaintiffs relied on the same chain of title, which is as follows:
“1. Deed from Berkley Estes to Boyle Gordon, executed February 26, 1859, and duly recorded, and conveying ‘the equal undivided half of the coal mines situated on the east half of the southwest quarter, etc.; said mines are now showing themselves in the bed of the creek running through said described tract of land. ’
“2. Deed from Boyle Gordon to George W. Gordon, containing the same description and recitals.
“3. Will of George W. Gordon, devising the residue of his property to the plaintiffs.
“For the purpose of proving that Berkley Estes was the common source of title, plaintiffs read:
“1. The will of Berkley Estes, devising this tract of land to his daughter, Sarah F. Estes, ‘except the interest in the coal mines which I have sold, etc.’
“2. Deed from Allen Park, sole heir of Sarah F. Estes, deceased, to Mary E. Million, conveying that part of the tract in controversy. This deed contained no exception of the coal mines.
“3. The admission that Mary E.. Million died intestate, leaving the defendants as her sole heirs at law.
“The oral evidence showing that no mining had ever been done on this part of the tract, and no pits or shafts had been opened, bnt that while Allen Park was the owner of the land, a well was dng, and that the-men struck a seam or vein of coal.
“The plaintiff, Webster Gordon, also testified that the defendants were in possession of the surface, and claimed the coal also, because the deed under which they claimed contained no exception of the coal. The defendants offered no evidence, and the court sitting as a jury found for the plaintiffs.
“Defendants now appear to rely on three points,. viz.:
“1. That the language of the'deed from Berkley Estes, namely, ‘The coal mine being, and situate on the east half of the southwest quarter, etc.,’ was not sufficient-to pass title to any and all coal deposits under that tract, but that because' of the recitals that ‘said mines are now showing themselves in the bed of the-creek,’ etc., the grant should be restricted to these precise croppings, or at least the same seams or veins so mentioned, and hence the plaintiff could not recover without proof identifying the coal under this part of the land as the same vein mentioned in the deed as cropping out in the bed of the creek above the ford.
“2. That there was no proof that defendants were in possession of the coal because no mines had been opened on the part of the land here in controversy.
“3. That there was no proof that Berkley Estes was the common source of title, and hence no proof of plaintiffs’ title to the coal.”

This statement had page references to the abstract which we have omitted in quoting the statement. It may be that appellants’ contentions are not as fully stated by respondents as they are urged in the brief, but upon the whole this statement of the respondents-sufficiently states the case, and we adopt it because it is as concise and fair as we could make it.

I. The first point made by the appellants is that the proof failed to sustain the allegations of the petition. About this contention cluster a n’am^J,er points which ' we will separately discuss. First, the point raises the question as to what is the real meaning of the Berkley Estes deed. The terms of that deed had better perhaps be more fully outlined, because its language becomes important. The deed is short, and for this discussion it had best be set out:

“Know all men by these presents that I, Berkley Estes, of the county of Boone and State of Missouri, in consideration of the sum of fifty dollars in hands paid, the receipt of which is hereby acknowledged, have this day granted, bargained and sold, and by these presents do grant, bargain, sell, and convey unto Boyle Gordon, his heirs, and assigns, the one equal, undivided half of the coal mines being and situate on the east half of the s'outhwest quarter of section sixteen, township forty eight and range twelve in Boone county, Missouri; said mines are now showing themselves in the bed of the creek running through said described tract of land about one hundred and fifty yards more or less above the ford of said creek on the road leading from Fulton to Columbia. The other half of said mines having been sold to John B. Gordon in his lifetime by Richard Estes by deed dated 31st of May, 1850. To have and to hold said undivided half of said mines unto the said Boyle Gordon, his heirs and assigns forever.”

That there may be. a complete severance of the mineral estate in lands from the surface estate is clearly shown by the authorities in this State and elsewhere. In the case of Gordon v. Park, 219 Mo. 613, m discussing an objection urged against the judgment nisi in that case, we said:

“The objection urged is in the use of the word ‘premises’ in the last sentence. As said by Black, J., in Snoddy v. Bolen, 122 Mo. l. c. 487: ‘Coal, mineral and stone under the surface of the earth are subjects of grant and exceptions; and when excepted in a deed become a separate and distinct inheritance. They may be conveyed separate from the surface. [Wardell v. Watson, 93 Mo. 107; Caldwell v. Fulton, 31 Pa. St. 475; Lillibridge v. Coal Co., 143 Pa. St. 293; Coal Co. v. Mellon, 152 Pa. St. 286,]’
“In this case the separate inheritances were ■created by deed of grant, whilst in the Snoddy case they were created by exception in the deed. But whether created by a deed directly granting the mineral estate, or by an exception in a deed granting the surface estate, there are created two separate and distinct estates. To the same effect is Wardell v. Watson, 93 Mo. l. c. 111. To our minds the words ‘said premises’ used in the judgment simply refer to what precedes, and only mean that restitution go for two-tenths of the separate mineral estate. In other words, it means the mineral premises as distinguished from the surface premises. ' .
“The grant of the coal carries with it the use of the surface so far as is necessary to carry on mining operations. [Wardell v. Watson, 93 Mo. l. c. 111, and cases cited.]
“The word ‘premises’ as used in the judgment only goes to the mineral estate and things appurtenant thereto, and in this sense it is correct. ’ ’

The Cordon-Park case is a part of the land covered by this Estes deed. I do not understand that the appellants now seriously challenge the law as to the divisibility of lands into> two separate estates as. discussed in the Park case, supra, but they do contend that the Estes deed upon its face is not broad enough to carry the mineral estate in these lands, and especially in view of the fact that no mines have ever been opened and operated on these particular lands.

The words in dispute here as found in this deed are: “Coal mines situated on the east half of the southwest quarter of section sixteen.” Respondents contend that the term “coal mines” as used in this deed means coal deposits under the surface of this land. Appellants would have us to restrict the meaning of the word in the deed to open or operated mines, and if not, then at least to such veins as were in fact open and exposed on the creek mentioned. In construing this deed the terms, of the grant, if doubtful, must be construed most strongly against the grantor. Such a rule has. met the approval of this court. [Bray v. Conrad, 101 Mo. 331.] It is also said in the eases that we should go to the four corners of the instrument and from the instrument as a whole determine its meaning and the intent of the parties.

doing therefore to the whole instrument for the meaning of the words “coal mines” we are of the impression that the term is used in the sense of “coal deposits, subject to being mined” rather than to open or worked mines. The deed is warranty in form, thus evincing the idea of creating a fee simple estate. Had the grantor desired to restrict his broad grant to a grant of mines then being open and operated on the land, by appropriate terms he could have done so. He did- not do so, but chose a form of conveyance calculated to not only separate the fee in the land into two estates, i. e., the surface and the mineral estates — but to make each fee simple in character. It is urged* however, that there is a limitation by the usé of the words “said mines are now showing themselves in the bed of the creek running through said described tract of land.” We do not think so. We think that had there been an idea to restrict the deed to.the particular veins of coal shown by the croppings in the creek, the grantor would have made the limitation clear by adding the word “as” to the clause above quoted. It would have then read ' ‘ as said mines are now showing themselves,” etc. It occurs to us that this clause in the deed was used more to express the fact that there was evidence of coal deposits under' the land described, rather than to place a limitation upon the mineral estate conveyed. It is clear the deed did not refer to open and operated mines. A cropping of coal in a creek bed is not an open or operated mine. We find no direct precedent covering a deed of this language. The term “coal mines” has a varied meaning, and this 'meaning must be gathered from the context of the instrument in which it' is used, as well as the connection in which it is used. As shown by authorities cited by appellants it is sometimes used in the sense of opened or operated mines. But we think the term, when used in the proper connection, may mean “coal deposits,” and in this latter sense we think it was used in this-deed. We shall so rule.

II. Defendants rested their case upon the close of plaintiffs’ evidence. As another of the several questions clustering around the first question, i. e., that the proof failed to make a case. ^or plaintiffs under the petition, it is urged that the proof fails to show possession of the mineral estate in the defendants, and therefore the remedy by ejectment fails the plaintiffs. If by possession of the coal estates is meant that defendants were not mining the coal, then the charge-would be true. There is no claim that defendants were-actually mining the coal and thereby in open and notorious possession thereof.

This suit was brought in 1907, and the only deed,without the coal reservation, in their chain of title, is> the deed from Allen Park and wife to Mary E. Million of date April 25,1899. Under this deed the defendant's-claim. They had no possession prior thereto. Their possession had not run ten years at the institution of this suit and hence the Statute of Limitations is not in the case. There is no evidence in the record that prior owners of the surface estate' claimed both estates. There is evidence in this record that in digging a well on the land in dispute a vein of coal was- discovered. There is evidence that when one of the plaintiffs spoke to defendants about their rights to the coal, they claimed a legal right to the whole property described in their deed. In other words, they said that there was no reservation of the coal in their deed and they claimed possession of the whole estate. They were at' the time in the possession of the surface, but not using the coal. The evidence clearly shows that they were claiming to be in possession of everything from the surface to the center of the earth. The question then for our discussion is whether or not under these facts ejectment is the proper remedy for the plaintiffs. Had defendants conceded the legal title to the mineral estate, or rather coal estate, to have been in plaintiffs, and thereby denied their possession thereof, the question might be different. This they did not do. Had they done so, and then refused defendants the right to enter upon the surface for the purpose of using the conceded mineral estate, it might be a debatable question as to the remedy, a question we are not called upon now to decide. But defendants claimed to be in the possession of and to have the right to use all which their Immediate deed attempted to convey. Under such claim, made prior to suit, as in this case, we think ejectment is the proper remedy to try the title to the estate in the coal mines created by the original Estes deed. Such estate is as much of an estate as was the surface estate after the separation by this deed. If the claims and conduct of defendants showed, as in our judgment they did show, that a claim of possession was made by defendants, under their deed, for both estates, then ejectment will lie to try the title to such claimed possession. If defendants had never claimed all which was attempted to he conveyed hy their deed, bnt had disclaimed any interest in the mineral estate, then plaintiffs would have been put on their proof to show possession of the mineral estate in the defendants at the time of instituting the suit. Bnt the defendants did not see fit thus to plant their claims in this lawsuit. They proceeded below upon the theory of having the legal title as well as the possession of both the surface and all below the surface. By that theory they are hound here.

It must be remembered that the coal deposits, when separated by grant or reservation in a deed, are as much of an estate in lands as is the surface of the same lands. [Gordon v. Park, supra.] Not only so, but such an estate carries with it the right to use so much of the surface estate as may be reasonably necessary for the proper use of the mineral estate. The fact that plaintiffs might have sued under our old section 650, if it be conceded that such statute could have been invoked, does not destroy the right to sue in ejectment to recover an estate in lands if such estate is claimed to be in the possession of another.

But in this case the defendants claimed possession prior to suit of everything attempted to be conveyed by their deed. This includes the mineral estate, and having so claimed the possession prior to suit, and not having denied such claim at the trial, they are in a bad plight to here urge that there is no proof of their possession. The proof of their claim to possession is in the record and undenied.

III. It is further urged that there was no admitted, or proven, common source of title. It is true there is no admission in the record of a .common source of title. It does appear from the record that the defendants are claiming by virtue of the deed we have above mentioned. The record does further show that their deed is not an independent instrument, but is only one in a chain of deeds, all of which get their strength and vitality from the Estes deed first herein set out. It must be remembered that defendants make no claim of adverse possession under color of title in their answer. Plaintiffs put in evidence all the deeds and these deeds prove a common source of title. Had defendants by their pleadings indicated a different claim of title, the question might have been different. I say might have been different, because we have divided somewhat upon the question. See dissenting opinion in Howell v. Sherwood, 242 Mo. 513.

It is sufficient to say in this case that the evidence adduced shows a common source of title, and when such a title is admitted or shown by the evidence, the plaintiff in a case need not go back of such common source. The contention, therefore, that plaintiffs failed in making a paper title, because they did not go back further than the common source, is unavailing.

This we believe answers the crop of contentions suggested by us in the beginning. The cause seems to have been well tried and the judgment should be and is affirmed.

All concur.


text:
    CYNTHIA G. HECTOR et al., Appellants, v. J. A. HORRELL.
    Division One,
    February 28, 1913.
    1. CONVEYANCING: Description: Sufficiency. In order to sustain a judgment of partition and a conveyance of real estate made in pursuance thereto, the description of the land must be sufficiently definite to enable the sheriff to locate it therefrom. A description of “320 acres, being the B. 2 of Sec. No. 13, Twp. 20, Range 13 East” is sufficiently definite to enable the sheriff to identify it, although the simple figure “2” is used for half. So also is “120 acres being W. 2 of N. W. 4 and N. E. 4 N. W. 4 of Sec. 15,” etc.
    2. -: -: -: Township and Ranges. In describing several tracts of land in the same township and range it . is not necessary to repeat in the description of each the township and range after the word “section,” but it is sufficient to state the township and range after the last tract otherwise described.
    Appeal from Butler Circuit Court. — Eon. Jesse C. Sheppard, Judge.
    Affirmed.

      Sam J. Corbett and C. G. Shepard for appellants.
    (1) The abbreviations in all. of the descriptions are such as to make the whole transaction void for want of certainty. When we consider the descriptions where neither the township nor range is given, it certainly cannot be contended that the description is sufficient to locate any land whatever, or to pass title to defendant. Neither can it be said that said descriptions are in any way connected with the other descriptions given. They stand alone, separate and distinct, and could as well be covered by a deed conveying land in another county as in the deed in question. Such vague, indefinite and uncertain descriptions have ever been held insufficient where personal service was had, and surely it cannot be held good where defendants are brought into court by publication, as was done in the partition proceedings through which defendant holds the land in question. O ’Day v. McDaniel, 181 Mo. 529; .Martin v. Kitchen, 195 Mo. 477; Talty v. Schlatitz, 180 Mo. 231; State ex rel. v. Burrough, 174 Mo. 700; Winningham v. Trueblood, 149 Mo. 572; Low v. Ekey, 82 Mo. 286. (2) The evidence in this ease discloses the -fact that the lands herein mentioned were all wild, unimproved and unoccupied.

      Oliver & Oliver for respondent.
    The complaint is based upon the nse of abbreviations in describing the subdivisions of a section, and the use of punctuation marks, and the failure to follow up the different sections by describing the township and range of each section, although there are several sections or subdivisions of different sections in the same township and range. This is the sum total of appellant’s grievance. Respondent contends that the description in the deed is a good one, clearly describing the land, and is in accord with the almost universal usage of conveyances in transferring landed property. In each tract, and in each section, is stated: the subdivision of the section (by the use of well-understood abbreviations), and the number of each section, each township and range. This is a perfect description. R. S. 1909, secs. 11372,11520; Sparks v. Clark, 57 Mo. 58.
   WOODSON, P. J.

This suit was brought in the circuit court of Pemiscot county, and involves practically the same questions, that were involved in the cases of Hector v. Mann, 225 Mo. 228, and Hector v. Warren, 225 Mo. 255, which upon consultation will disclose the main facts of this case; since, however, they are not material to the question to be detennined in this case, they will be omitted largely from the statement of this case.

The plaintiffs sought, by this suit, to recover from the defendant a large tract of land situate in Pemiscot county. A trial was had in the circuit court, which resulted in a judgment in favor of the defendant, and the plaintiffs duly appealed the cause to this court.

In regard to this case, counsel for appellant state that of the law as announced in the cases previously mentioned they have no complaint to make; and that “this case was tried on two theories, to-wit:

“First: That the court which tried the partition proceedings under which the land herein mentioned was sold in partition never acquired jurisdiction over the person of the defendants in said partition proceedings (plaintiffs in this suit), and for that reason the sale in partition conveyed no title.
“Second: The description given in said partition proceedings, the order of publication, and the deed made by the sheriff, was insufficient as to part of the land herein described, and did not in fact describe any land whatever.”

Counsel for appellants, in their brief, concede that this court in the cases previously mentioned, decided the first proposition mentioned against them, and that the appellants are not entitled to recover any of the lands which were properly described in the partition proceedings mentioned in said cases; but insist that some of the lands involved in this case were not ■described in said partition proceedings.

This concession, under the evidence, which is undisputed, reduces the case to two legal propositions for ■determination.

The land involved in this case was described in said partition proceedings, and the deed made in pursuance thereof, in the following language (omitting county and state):

320 acres, being the E. 2 of Sec. No. 13, Twp: No. 20, Range 13 East.

120 acres being W. 2 of NW. 4 and NE. 4 NW. 4 of See. No. 15.

40 acres being the NW. 4 of SE. 4 of Sec. No. 10.

160 acres being the S. 2 of NW. of the NE. 4 of NE. 4 and the SW. 4 of NE. 4 of Sec. No. 17, Twp. No. 20, Range 12 E.

80 acres being N. 2 of SE. 4.

40 acres being* SW. 4 of NW. 4 and

160 acres, being E. 2 of W. 4 of Sec. No. 18 Twp. No. 20, Range 14 East.

I. Counsel for appellants state their position in the following language:

“Should it be conceded that the first description of 320 acres is good, and that the description of the last two tracts, that is, of the 40 and 160-acre tract last described, is good, which we do not, it must be held that the description of the other lands mentioned in said partition proceeding is the same as no description at all, and wholly insufficient to deprive these plaintiffs, of their land, or convey title to the defendant herein.
“120 acres being the W. 4 of NW. 4 and NE. 4 of NW. 4 of Sec. 15, is no description at all, and certainly the trial court was wrong when it was willing to guess' these plaintiff’s land away in any such manner.
“40 acres being NW. 4 of SE. 4 of Sec. No. 10, is equally as bad and conveys no title.
“80 acres being N. 4 of SE. 4. What court is willing to- say that description covers the land in question in this suit?”

In brevity, their contention is, first, that the description of the entire land sued for was so vague and uncertain that it was in fact no description at all, and that the judgment in the partition suit and the deed made in pursuance thereof were and are absolute nullities; and, second, that even though that be not true, nevertheless, that was and is true as to all the tracts mentioned excepting the first, fifth and the two last tracts.

We will dispose of these two contentions in the order stated.

As to the first: There can he no doubt but what the law is, that, in order to sustain a judgment of a court affecting real estate, the description thereof must be sufficiently definite to enable the sheriff of the county in which it is located, to locate the land therefrom.

The real contention on this branch of the case is, that the abbreviations, used in the description of the lands in the judgment and deed, as shown in the statement of the case, were and are vague, uncertain and meaningless, and therefore constitute no description of the land whatever. For instance, it is insisted that the letter “E” and the figure “2,” as used in the first tract of land mentioned in the' statement of the case, though used in the connection in which they are found, have no meaning. Said first tract is described as follows: “320 acres, being the E. 2 of Sec. No. IS, Twp. No. 20, Range 13, East.”

In the case of Burnett v. McCluey, 78 Mo. l. c. 691, this court in considering a similar question, used this language:

“If the description were an abbreviated one and stood thus: ‘N. 1-2, S. W. 1-4, S. W. 1-4, sec. 6,’ few persons familiar with the system adopted for the survey and subdivision of lands in the western states, and the abbreviations in use for the designation of such subdivisions, would hesitate to construe such description to mean the north half of the southwest quarter of the southwest quarter of section 6. But when such abbreviated descriptions are translated into words, it is usual to insert both the words, ‘of ’ and ‘the’ after the words and figures designating the subdivisions.”

The court then proceeded and held that said description in a sheriff’s, deed was valid, and sufficient to convey the north half of the southwest quarter of the southwest quarter of section 6.

It seems to me that the description under consideration in this case is much more definite and certain than was that used in the case referred to. In that case the'words “of” and “the” which usually follow the figures designating the subdivisions of the land were entirely omitted by the sheriff from the deed, while in the case at bar, both of those words are used and correctly so; but it is contended in this case, that because the numerators- of the fractions which designate .the size of the subdivisions are omitted from the judgment and deed, both of them are void.

That position is untenable, because the size of the subdivision is clearly indicated by the figures and the word “320 acres,” which is one half of a section, and when they are followed by the language “being the E. 2 of Sec. 13,” etc., there can be no doubt but what the abbreviations here used, when written out in full, would be as follows: “320 acres, being the east % of section No. 13, township- No. 20, range 13 east.” This is the correct description of the land sued for, and in our opinion the same land is properly described in the judgment by the abbreviations before quoted.

What has been said by us of this tract, applies equally as well to the other seven tracts sued for in this case.

We, therefore, decide the first contention of counsel against the appellants.

II. The second contention, as previously stated, is that the judgment and deed are void as to all the tracts of land sued for, except the first, fifth and the two last, for the reason that the township and range are not stated therein, after each tract.

Counsel for respondent answers that contention by saying that in describing several tracts of land in a deed in the same township and -range, it is not necessary to repeat in the description of each the township and range, and that it is only necessary to state the township-, range and county at the end of the last tract described in that township, range and county.

In our opinion that is a correct statement of the . law, without it should affirmatively appear to the contrary from the face of the deed. That is a custom which is very extensively followed in this State by conveyances, and I have never before heard the validity of such a deed questioned.

According to the record in this case, the first tract of land described in the judgment and deed is located in township No. 20, range 13; the second, third, fourth and fifth in township No. 20, range 12; and the sixth, seventh and eighth in township No. 20, range 14, Pemiscot county.

"We therefore decide this question against the appellants.

It must follow from these observations, that the judgment of the circuit court should be affirmed; and it is so ordered.

All concur.

      Independent of the legal propositions presented and disposed of it is apparent upon the face of the record that there are some typographical errors existing in the description of some of the tracts of land just mentioned; but in no manner do they affect the merits of the case.