author: GRAVES, J.

text:
    JOHN WHINNERY et al., Appellants, v. MISSOURI LUMBER & MINING COMPANY.
    Division One,
    November 30, 1910.
    1. CONVEYANCE: Wrong Name: Tax Sale. The grantee cannot be permitted to accept a deed in a wrong name and put it of record in that name, and then when the land has been sold for taxes to contend that he never accepted the title in that name. So that where the grantee was Whinnery, but the record of the deed named Whinney as grantee and the land was • ’sold under a judgment for taxes in a suit brought against Whinney as record owner, Whinnery should not be permitted to recover the land in a suit against the purchaser at the tax sale by a simple showing by oral evidence that the real grantee was Whinnery. The court cannot assume, without the production of the original deed itself, that Whinnery was named as grantee therein and the -mistake in the name was the error of the recorder. Especially should that be the ruling where the patentee cnveyed to Pierson and Whiney, aud Pierson to Whinney, and Whinney’s son Stephen Whinney conveyed to his brothér John Whinney, who is plaintiff, and whose name is John Whinnery, the assessment and suit being against Whinney.
    2. ORDER OF PUBLICATION: Not Published Until After Next Term. Service is not complete until there is an order and a publication of the order. So that, where a petition is filed in vacation in a tax suit, alleging defendants are non-residents, and the clerk makes an order of publication as and for a summons to the next term, but the order is not published, and after the next term the clerk makes an order for the next term, in which he recites the former order and that it was not published, assigning no reason why it was not, and that order is published in time for said next term, the publication is good and the summons valid. The fact that the clerk made an order that was never published does not invalidate the second order which was.
    Appeal from Shannon Circuit Court. — Non. W. N. Evans, Judge.
    Affirmed.

      J. W. Chilton -and James Orchard for appellants.
    (1). The true owner’s title to land is not affected by tax proceedings unless they are brought against him; and it matters not that the proceedings were brought against the record owner, if in recording the owner’s'deed the recorder made a mistake and recorded the name erroneously. Chamberlain v. Blodgett, 96 Mo. 482; Troyer v. Wood, 96 Mo. 478. The ap-' pellant’s name is John Whinnery, and the name John Whinny, against which the tax suit was brought, is not the same, and is not idem son-ms. Wheelen v. Weaver, 93 Mo. 430'; Chamberlain v. Blodgett, 96 Mo. 482; Simonton v. Dolan, 114 Mo. 176; Geer v. Mining Co., 134 Mo. 85. (2). It was entirely competent for witness Robert Whinnery to testify to the contents of the deeds under which plaintiffs claimed title, his inability to produce the originals having been shown. Bosworth v. Bryan,' 14 Mo. 575; Addis v. Graham, 88 Mo. 197; Eversole v. Rankins,' 102 Mo. 488. (3). John Whinnery being the common source of title, the respondent was not concerned with the chain of title leading up to him. Graton v. Holliday Co., 189 Mo. 322; Harrison Mch. Wks. v. Bowers, 200 Mo. 219; Gage v. Cantwell, 191 Mo. 698 ; Cooper v. Gunter, 215 Mo. 558. (4). The issuance of the order of publication in the tax suit, relied on by respondent for service therein, by the clerk of the court in vacation, based solely upon the ground of a judicial finding made by the clerk that a previous order of publication by him issued and returnable to a previous term of his court had not been püblished as the law required, was wholly without warrant of law, and was void, and conferred no jurisdiction upon the court to render judgment in said tax suit. Kelly v. Murdough, 184 Mo. 377; Otis v. Epperson, 88 Mo. 131; Van Natta v. Real Estate Co., 1-20 S. W. 738; Harness v. Cravens, 126 Mo. 246; Parker v. Burton, 172 Mo. 91. Constructive service is in derogation of common law, is a harsh substitute at best, and is always construed strictly. Young v. Downey, 150 Mo. 317; Van Natta v. Real Estate Co., 120 S. W. 738 ; Tooker v. Leake, 146 Mo. 419.

      L. B. Shuck and Louis F. Dinning for respondent.
    Appellants have confounded a deed having the wrong name inserted therein as grantee, with the fact of the grantee therein being correctly stated and the recorder of deeds making a mistake in the recording thereof: For instance, if the deeds in question, for there are three of them, had had the names John Whinnery and Stephen Whinnery properly inserted therein, and the recorder of deeds had recorded them, naming the grantee as Whinney, and after recording the same had certified thereon that the deed had been recorded in a certain book and page, then the’owner’s title would not be affected by a suit for taxes brought against the name recorded instead of the true name as written in the deed. The authorities cited hy appellants under their first point do not touch the point in issue here as we see it. These authorities all are upon the question of a mistake of the recorder in recording the deed. Not one of them refers to a deed in which, by mistake, the wrong name was inserted as grantee and the deed correctly recorded.
   GRAVES, J.

Plaintiffs, by petition in ordinary form, under section 650, Revised Statutes 1899, sought to have declared the title to 240 acres of land in Shannon county. Answer was a general denial with which was coupled a claim of title by defendants. By its judgment the court decreed title in the plaintiffs for eighty acres of said land and decreed title in defendant as to 160 acres thereof. With this decree all the plaintiffs were satisfied except John Whinnery. In the briefs it is admitted that the other three plaintiffs at no time claimed title in the 160 acres of land involved in this appeal. The case here, therefore, is simply a contest between John Whinnery and the defendant, and reaches this court upon the appeal of plaintiffs, taken in the usual time and form.

John Whinnery, to sustain the issues upon his part, introduced record evidence as follows: (1) Plat book of entries of Shannon county, showing that the land in question was patented by the United States to John Berding; (2) warranty deed from John Berding to Christopher Pierson and Stephen Whiney; (3) quit-claim deed from C. Y. Pierson and wife, Delila, ■to Stephen Whinney; (4) quit-claim deed from Stephen Whinny and Mary J., his wife, to John Whinny.

The defendant claims title by virtue of a tax deed given under a tax sale in a tax proceeding against John Whinney and others. In this, service was had by publication and several objections are urged as against the validity of this tax proceeding. These questions we state more fully and discuss in the opinion.

In addition to the record evidence above indicated, one witness, Robert Whinnery, testified for the plaintiffs. His testimony is short and we reproduce it, inasmuch as upon it turns the case. This testimony was interspersed with objections, some of which were ruled upon and some not, and also interspersed with the introduction- of the written documents first above described. For brevity we cut out all but the testimony proper. It thus reads:

“Q. Who was your father? A. My father was Stephen Whinnery.
“Q. Where did he reside? A. Upper San-dusky, Wyandotte county, Ohio.
“Q. Do you know of his purchasing the land in question in this county? A. Yes, sir.
“Q. Do you know whether he is living or dead? A. He is dead.
“Q. When did he die? A. In 1877.
“Q. This deed described his name as Whiney? Is that correct, or should'it be Whinnery? A. It should be Whinnery.
“Q. Were you acquainted with C. Y. Pearson? A. Yes, sir.
“Q. How long did you know him? A. All my life until the time of his death.
Q. Do you know where he lived? A. At upper Sandusky, Wyandotte county, Ohio.
“Q. Do you know whether Christopher Pearson and C. Y. Pearson were one and the same person? A. Yes, sir.
“Q. Do you know your father and C. Y. Pearson were the ones that purchased this land? A. ’Yes, ■sir.”

. On cross-examination he testified:

“Q. Do you know anything about this deed this record stands for, the deed piirporting to be from John Berding to Christopher Pearson and Stephen Whinnery? A. Yes, sir, I saw the deed.
“Q. Where is the deed? A. It is now among my mother’s old papers in Grand Rapids, Michigan..
"Q. Who has this deed in custody? A. My brother there.
“Q. You have this deed? A. I am pretty certain we have this deed.”
On re-direct examination:
"Q. Did you make an effort to find this deed before you came down here? A. Yes, sir.
"Q. Did you find it? A. No.
“Q. Did you or your brother search for it? A.. Yes, sir.
“Q. You couldn’t find it? A. No, sir.
“Q. You couldn’t find the patent? A. No, the way the papers got mixed up, after father’s death, us children, four of us, were all engaged in railroading and were away from home and mother was old and feeble and the administrator gets a guardian appointed for her.
“Q. You have seen the deed? A. Yes, sir, I have seen the deed and the patent. ’ ’

On re-cross examination:

"Q. You-just stated a moment ago the papers were in your brother’s possession? A. They are.
“Q. What search did you make before coming down here? A. We searched all the time we had to-search.
“Q. (By the Court): That is indefinite. What search did you make? A. I searched through all the papers at that time I could find of the heirs.
"Q. Did you make a search through all those papers? A. I searched through all my brother had there.-
"Q. Did you make search through your brother's papers in Ohio ? A. I went there and my brother was not home, and his wife did not know anything about it.
"Q. Did you piake any search? A. No. . ■
‘ ‘ Q. Did you make any search through your brother’s papers in Logansport, Indiana? A. No, sir..
‘ ‘ Q. All the papers your mother had of your father’s estate are among the heirs? A. Yes, sir, all that I know of. ”

On re-direct examination:

“Q. Did you bring all the papers you could find? A. All I could find. ’ ’

On further direct examination:

“Q. I will ask you again now if you were acquainted with O. Y. Pearson? A. Ye¡p, sir.
“Q. I will ask you if Christopher Pearson and O. Y. Pearson are one and the same person? A. Yes, sir.
“Q. Christopher is the one named in this deed? . A. Yes, sir.
“Q. Did you see this deed from O. Y. Pearson to your father? A. Yes, sir.
“Defendant objects to the introduction of any further evidence in regard to the deed from O. Y. Pearson to Stephen Whinny until it was either shown that the deed was lost or destroyed. ' (No ruling of the court at the time.)
“Q. You say your father died. Who did he leave as heirs? A. John Whinnery, Hiram Whinnery, Joseph Whinnery and Robert Whinnery.
“Q. They are the plaintiffs in this case are they? A. Yes, sir.”

On re-direct examination:

“Q. Are these heirs of your father all alive? A. Yes, sir, the last I heard of them a few days a,go.
“Q. And all parties to this suit? A. Yes, sir.
“Q. Did you not say that you had the original deed from Berding and could find and produce it if you had the opportunity? A. Yes, sir, I made that statement down there to you.
“Q. I will ask you- also if you did not state you could have brought it along if the attorney had called for it? A. No, I just stated I brought all he asked me to bring.
“Q. You still believe if given the opportunity, you could produce this deed? A. I do not know. I believe it might have been found.”

Robert Whinnery recalled by defendant:

“Q. You say the name is spelled Whinnery ? A. Yes, sir.
“Q. Was that name ever spelled or recognized by any other spelling than that? A. A great,many people will misspell it every time. We have been called Whitney, and a great many spell it with one n.
“Q. You say the name has been called Whiney? A. Yes, sir.

On re-direct examination:

“Q. You spell it Whinnery? A. Yes, sir.
“Q. That is the way the family spell the name, all of them? A. Yes, sir.”

Prom this statement a discussion of all points urged can be made.

I. Plaintiff thus states his contentions' in the brief:

“The defendant (respondent) claims title under a sheriff’s deed for taxes, based on a judgment against John Whinney (and some other persons who never had any title to the land), which sheriff’s deed we contend is hopelessly void for two reasons:
“1st. John Whinnery, the owner of the land, was not sued or named as a defendant ih said tax suit.
“2nd. The order of publication made in said tax suit was wholly unauthorized by law, and gave the-court rendering the judgment no jurisdiction of the defendant there, John Whinnery.”

Of these two contentions in their order. As we-gather it, the first contention is that John Whinnery was the real owner of the land and was never sued. In' other words the contention seems to be that there was-a mistake in the recording of the several deeds so far as the name Whinnery is involved, and that a mistaken record of a deed, does not make a record owner different from the real owner. Counsel do not urge that if the actual record owner is properly sued, such proceeding will not hind an unknown real owner.

It would seem to be settled law in this State that if in the record of a deed, the name of the grantee is. .wrongly recorded, and a suit for taxes is brought against such wrongly recorded record owner, by publication, the tax judgment will not bind the real owner, whose name has been wrongly recorded and spread .of record by the officials of the county. [Troyer v. Wood, 96 Mo. 478; Chamberlain v. Blodgett, 96 Mo. 482.]

Counsel for defendant do not controvert the rule announced by Sherwood, J., in the two' cases, supra. They contend, however, that the evidence introduced does not show that there was an error in the record of ' the deeds involved, and for this reason we give the testimony in full in the statement. They urge that the trial, court was fully authorized to find that the deeds were properly recorded, and that John Whinney was the record owner at the date of the tax suit. They further suggest that if there was an error in the original deeds as to the name of the grantee, such error cannot be corrected in this proceeding. As to this latter contention there can be no doubt. If the original ‘deed, as contradistinguished from the record thereof under which the plaintiff claims, showed the grantee therein to be John Whinney, then there is a substantial accord between the original and the record thereof. Not only so, but if plaintiff accepted such deed in that name and placed it of record, he is in bad grace to urge . the question now. [Nolan v. Taylor, 131 Mo. 224.]

One should not be permitted to accept and place of record a deed in a wrong name, and then after taxes have been allowed to accrue, and a sale had for the same, to then say that he never accepted the title .under that name. In this case it is not necessary to go thus far. The trial court received the evidence as to the contents of the original deed to plaintiff’s father-subject to objection. The question to be determined was whether or not there had: been a mistake in the recording of these deeds from Berding to Whiney, from Pierson to Whinney, and from Stephen Whinny to John Whinny. Upon the evidence, received subject to objection as it was, the court could have well said that there was no sufficient showing as to the loss of the original deeds, and for that reason there was no evidence as to a mistake in the record of the first two deeds above mentioned. The showing made as to the non-production of the originals, is, to say the least, extremely slight. But even though it be conceded that there was evidence tending to show an error in the record of the deeds from Berding to Pierson and Whiney, .and the deed from Pierson to Whinney, yet there is no .attempt to show that there was a mistake in the record of the deed from Stephen Whinny to John Whinny. Upon this point the judgment should not be disturbed. The plaintiff makes no attempt to show that-the deed to him was in the name of Whinnery instead of "Whinney and without such proof there is no showing that there was an error in the record of his deed. The other question we discuss next.

II. The next contention is, to our mind, the material question in this record. Prom the evidence it appears that a petition to enforce the State’s lien for back taxes was filed in vacation. It further appears that in such petition was an allegation of non-residence. Upon this petition there can be no question that the clerk of the court had the right to make an order of publication. [R. S. 1899, sec. 575.] This order of publication was made in regular form to the March term of the court for year 1886, but it would seem was not published for that term. Thereafter the clerk of the court made an .additional order to September term, 1886. The only material portion of this additional order is the first part thereof, which thus reads:

“In the circuit court ,of Shannon county,. Missouri, in vacation.
“The State of Missouri at the relation and to the use of James F. Norton, collector of the revenue of Shannon county,. Missouri, plaintiff, against John Whinney, E. C. Poppleton and W. H. Stout, defendants.
“Whereas, on the 4th day of January, 1886, the plaintiff, James F. Norton, collector of the revenue of Shannon county, ■ Missouri, by attorneys, filed in the office of the clerk of the circuit court of Shannon county, Missouri, his petition in the above entitled cause, setting forth, among other things, that defendants are non-residents of the State of Missouri and cannot be summoned in this action by the ordinary process of law, and thereupon the said clerk ordered, by an entry of record, that publication be made, notifying the said defendants of the pendency, nature and objects of this suit and requiring them to appear at the March term, 1886, of the circuit court of Shannon county, Missouri, and answer said petition; and it appearing to the satisfaction of the undersigned clerk that said order was not published for the. time and in the manner required by law; ’ ’

Following the semicolon above quoted is the usual order of publication, except the • clerk uses the word “again” in the first few lines thereof in this manner:

“It is therefore, again ordered by the said clerk of the circuit court of Shannon county, Missouri, in vacation, that publication be made notifying said defendants — •”

As tending to shed further light upon this situation, we find the following admission in the record:

“It was thereupon admitted by the defendant that prior to the March term, 1886, of the Shannon County Circuit Court, when the petition was filed in this cause., an order of publication was issued based upon tbe affidavit and allegations in petition, of non-residence of defendants, and tbat such order was never published, and that after the March term, 1886, and before the September term, 1886, and before the September term of the same year, the clerk' of said court made another order of publication which applies to both tax suits and which is as follows:”

The material portion of the order which is involved in this suit and is covered by this admission, we have set out above. It will be observed that the admission does not state the date of the order of publication. It might have been too short a length of time for service at the March term, so far as we can gather from this admission. Nor does the new order add much light on this point unless the word “thereupon” as used therein fixes the date. The new order, by preamble, recites that the petition was filed January 4, 1886. It would crowd the clerk to have an order issued and the requisite number of publications made in time for the March term of the court, although by prompt action under section 575, supra, and section 581, which fixes the number of publications, it might have been done.

Plaintiff claims that inasmuch as the clerk had in fact made an order of publication to the March term of the court, his power was exhausted and the subsequent order was void. This is our analysis of the contention. The defendant contends that the statute then in force was broad enough to authorize the course of the clerk. The statute then in .force was Revised Statutes 1899, section 575, and reads: “Sec. 575. In suits in partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics’ liens, and all other liens against either .real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court, if the plaintiff or other person for him shall allege in his petition, or at the time of filing same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are non-residents of the State, or is a corporation of another State, kingdom or country, and cannot be served in this State in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this State, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition, and, in suits in partition, describing the property sought to be partitioned, and requiring such defendant or defendants to appear on a day to be named therein and answer the petition, or that the petition will be taken as confessed. If in any case there shall not be sufficient time to make publication to the first term, the order shall be made returnable to the nest term thereafter that will allow sufficient time for such publication. ’ ’

It must be borne in mind that plaintiff for the purposes of the trial admitted that the first order had never in fact been published, and this takes some of the sting out of the clerk’s admission in the second order when he recites that the first “was not published for the time and in the manner required by law.”

Taking plaintiff’s admission and this statute, how stands the power of the clerk?

Suppose on January 5,1886, the petition had been filed, and no record entry in vacation by the clerk had been made until after the March term had elapsed, would the intervention of the term preclude the clerk from acting? Under very similar statutes it has been held that such would not preclude the action of the clerk. [Kane v. McCown, 55 Mo. 181; Johnson v. Gage, 57 Mo. 160.]

If therefore he is precluded at all, it is by reason of the fact .that he made an order which he never pub-lished or caused to be published. We hardly think this invalidates the second order under'the statute, supra. The last clause of the statute provides that “if in any case there shall not be sufficient time to make publication to the first term, the order shall be made returnable to the next term thereafter,” etc. Suppose the clerk discovered, after making his first order, that there was not sufficient time to make it properly returnable to the March term: he could have then and there corrected his order and made a good one returnable to the September term. Instead of so doing he waits until after the March term, and then does what he could have done prior to the March term. If,- as held in Kane v. McCown, and Johnson v. Gage, supra, the intervention of one term of court did not preclude action, we are inclined to think this publication good. Service is not complete until there is an order and a publication of the order.

We are cited by plaintiff to Kelly v. Murdagh, 184 Mo. 377; Otis v. Epperson, 88 Mo. 131; Parker v. Burton, 172 Mo. l. c. 91 and Harness v. Cravens, 126 Mo. 246. These cases do not reach the point here. A review of their holdings and the statute and points held in judgment would add nothing to the two propositions involved in this case.

We are of opinion that the judgment nisi is right and the same is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    THE STATE ex rel. J. P. BELL, Treasurer of State Hospital No. 1, Appellant, v. MARTIN YATES et al.
    Division One,
    November 30, 1910.
    1. LIMITATIONS: Bond of Treasurer of State Asylum. An action against the sureties on the bond of a treasurer of a state hospital is barred in three years. So that where Thomas, as treasurer of State Hospital Number 1 at Fulton, appropriated to his own use, in 1897 and 1898, money belonging to the hospital, a suit brought in 1905 against the sureties on his bond for either of those years, is barred by the three-year Statute of Limitations, under Sec. 1890, E. S. 1909, unless Thomas by fraudulent concealments prevented the discovery, by due diligence, of his conversion. The words "other officer” used in said statute, stating that an action “against a sheriff, coroner or other officer,” etc., are broad enough to include such treasurer.
    2. —^—: -: Strict Interpretation. The liability of a surety is not to be stretched by implication. If the contract of suretyship is unambiguous, his obligation is strUctissimi juris. And that rule is to apply to the plea of limitations, for statute's of limitations are favored in modern law, and are liberally construed to further their beneficent purpose.
    3. -: -: Exception: Fraudulent Concealment. The statute itself provides an exception to the running of the limitation against an action on a treasurer’s official bond. . If there be fraudulent concealments, or any other improper act preventing the discovery, by the exercise of due diligence, of the facts constituting the cause of action, then the statute does not begin to run in favor of the sureties until the officer’s fraudulent conversion is disclosed. But if the referee finds that there was a lack of diligence on the part of the board of managers of the state hospital to discover the treasurer’s fraudulent conversion of its funds, and there is substantial evidence to support his findings, the action on the sureties’ bond is barred in three years after the actual conversion.
    4. -: -: -: -: Complacent Confidence. Where the duty is put upon the board of managers and the superintendent of a state hospital to protect the State against a corrupt use or loss of its money, and they have among the records in their own keeping proof that the treasurer is receiving money from month to month which he is not accounting for, their failure to discover his stealings does not prevent the running of the Statute of Limitations in favor of the sureties on the treasurer’s bond. Implicit confidence in the treasurer’s integrity is no excuse. Complacent acquiescence in the truthfulness of his reports, is negligence, not diligence.
    t>. -: -: -: -: Not Pleaded. A party relying on the presence of fraudulent concealment to prevent the running of the Statute of Limitations against the action, must plead it; but if the case was tried on the theory that the pleadings embraced that issue, it will on appeal be disposed of upon the same theory.
    Appeal from Callaway Circuit Court. — lion. Alex. E. Waller, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, for the State; North T. Gentry of counsel for appellant.
    The Statute of Limitations is not a defense in this case, for the reason that there, was fraudulent concealment by the treasurer, W. B. Thomas, of the plaintiff’s ■ cause of action. At the monthly meetings of the board of managers of the State Hospital for the Insane, Mr. Thomas presented his written reports, which purported to show all of the money that he had received, from whom he had received it, the date when it was received and to whom payments had been made. By comparing these statements, or settlements, with the treasurer’s booh, the board of managers concluded that his settlements were correct, as his book and his statement each time agreed the one with the other. Having confidence in Thomas, believing him to be thoroughly reliable, and never having heard of any complaint against him, the gentlemen composing this board had no reason to doubt the truth of his statements, nor the correctness of the treasurer’s book which was kept by him with the assistance of a lady in his office. The members of this board were not experienced accountants — one of them was a lawyer, one an editor, and the -others men of occupations different from that of a. bookkeeper. While they all understood bookkeeping-to some extent, they did not understand the investigating or ferreting out of errors in accounts similar to-those made by Thomas. The Statute of Limitations will not run against the plaintiff, where the defendant has fraudulently concealed from the plaintiff either the cause of action, or information regarding the plaintiff’s rights. Shelby County v. Bragg, 135 Mo. 298; 2 Wood on Limitations, p. 702; Hoffman v. Parry, 23 Mo. App. 28; Bispham on Equity, sec. 203; Bank v. Thayer, 184 Mo. 95; Prewitt v. Prewitt, 183 Mo. 685; Hunter v. Hunter, 50 Mo. 445; Bank v. Perry, 144-Mass. 313; 25 Cyc. 1185-1193; 19 Am. and Eng. Ency. Law (2 Ed.), 243; Foley v. Jones, 52 Mo. 67; State ex rel. v. Hawkins, 103 Mo. App. 251; Bowman v. San-born, 18 N. H. 205 ; Aultman v. Adams, 35 Mo. App.. 503; Aultman v. Loring, 76 Mo. App. 66; Kilbournev. Sunderland, 130 U. S. 506; Dye v. Bowling, 82 Mo.. 587; Carder v. Primm, 52 Mo. Ápp. 102; Fisher v. Tuller, 122 Ind. 31. And all of the authorities hold that the concealment of facts and resort to artifice to prevent the discovery of the truth constitutes such fraudulent conduct as to prevent the running of the Statute of Limitations. Gibson v. Cunningham, 14 Mo. 131; Calm v. Reid, 18 Mo. App. 150; 14 Am. and Eng. Ency. Law, 38; 25' Cyc. 1192. After a careful examination of the record, there can be no escape from the conclusion that fraud was practiced upon the members of the board of managers by Thomas, and that the board was-deceived thereby. So great were his misrepresentations that it was impossible for the board to ascertain-the true condition of his accounts. It took Mr. Simpson, an experienced accountant, several months to go through-the treasurer’s book, which he said was unreliable;- and then he found it necessary to carefully go-through the accounts of Thomas at three banks in Fulton, also the secretary’s book, and to correspond with county clerks and the guardians of patients in different counties in the State. Even then the referee'did not concur in all of the findings of the accountant; but after many months of investigation and research, that officer made his findings, and the trial court adopted the same as showing the exact amount of the shortage of Thomas.

      W. M. Williams and Harris <3 Hay for respondents.
    (1) A party seeking to avoid the bar of the Statute of Limitations on account of fraud must aver and show that he used due diligence to detect it, and if he had the means of discovery in his power he will be held to have known it. Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. There must be reasonable diligence; and the means of knowledge is the same thing in "effect as knowledge itself. Shelby County v. Bragg, 135 Mo. 291; Wood v. Carpenter, 101 U. S. 141; Comrs. v. Lods, 36 N. E. 772; Comrs. v. Kyle, 37 N. E. 279; Callan v. Callan, 175 Mo. 346. In order to avail himself of the .rule as to concealed fraud, to excuse delay in bringing an action, the bill or complaint should set forth the nature of the transaction fully, and also the acts of concealment and the time of discovery. State v. Giles, 52 Ind. 356. Wood v. Carpenter, 101 U. S. 141; Callan v. Callan, 175 Mo. 346; Mather v. Rogers, 68' N. W. 700. (2) The exception applies only where the party claiming its benefit has used due diligence. The books kept by the secretary of the board and under its direction and supervision would at all times have shown to the most casual observer the discrepancies now complained of. Statutes of Limitation are favored in the law and cannot be avoided unless the party seeking to do so brings himself clearly within some exception. Shelby County v. Bragg, 135 Mo. 291; Callan v. Callan, 175 Mo. 346; State ex rel. v. Hawkins, 103 Mo. App. 251. One seeking to avoid the bar of the Statute of Limitations because of the fraud of the defendant must allege and show that he used due diligence to detect it, and if he had the means of discovery in his hands he will be held to have known it. Shelby County v. Bragg, 135 Mo. 291; State ex rel. v. Hawkins, 103 Mo. App. 251. Where the .right depends on recorded instruments, there must be such misrepresentations as to prevent an examination of the records. Haynie v. Hall, 5 Humph. (Tenn.) 220. Nor will equity interfere in a case where the party seeking relief might by the exercise of proper diligence have discovered the fraud. Sturgis v. Morse,. 24 Beav. 541; Wood on Limitations (3 Ed.), secs. 275, 653; Wynne v. C'omelison, 52 Ind. 312; Township v. French, 40 la. 601; Miller v. Powers, 119 Ind. 79; Stone V; Brown, 116 Ind. 78. And if the acts which are claimed to constitute the fraud are evidenced by public records, it cannot be claimed that there was such a concealment as would prevent the operation of the statutes. Wood on Limitations, sec. 276, p. 661; Morris v. Haggan, 136 U. S. 386. The rule that in cases of fraud the Statute of Limitations begins to run only from the discovery of the fraud does not apply if the party affected by the fraud might, with ordinary and reasonable diligence, have discovered it. Yigus v. O ’Bannon, 118 111. 334; Smith v. Blackly, 198 Pa. 173.
   LAMM, P. J.

The State sues in the circuit court of Callaway county, at the relation and to the use of Bell, treasurer of State Hospital No. 1, on August 5, 1905, on the bond of an absconding ex-treasurer, Thomas, to recover $7721.06 alleged to have been wrongfully converted by him to his own use. of the moneys of the hospital in his hands. Defendants are Thomas’s sureties on his official bond in the penal sum of $24,000, dated April 13, 1897, the condition of the bond running:

“Whereas, the said William D. Thomas was, on the 12th day of April, 1897, duly appointed to the office of treasurer of the State Lunatic Asylum No. 1, at Fulton (Missouri), and has been duly commissioned. Now, therefore, if the said William D. Thomas shall faithfully, perform all the duties of said office, shall faithfully pay over and account for all moneys, property and effects that may come into his possession as such officer, then this obligation, to be void, otherwise to remain in full force and effect.”

The breaches are that Thomas, at divers times from April 17, 1897, to March 17, 1899, collected moneys due said hospital from various sources, aggregating said sum, which he failed to report to its board of managers or the State Auditor, and failed to pay into the State Treasury, or otherwise lawfully account for. Judgment was asked for the penalty of the bond with award of execution for $7721.06 damages.

The sureties’ answer was a general denial, plus a plea of the three-years’ Statute of Limitations. [Sec. 1890, R. S. 1909.]

Sent to a referee, E. W. Hinton, Esq., of the Boone Bar, the order of reference gave him power “to take evidence, try and decide the law and the fact, and make report thereof.” At a certain time (having duly qualified and heard the case) he made report, accompanied by the evidence taken. Among his findings, one was that Thomas received and appropriated to his own use several thousand dollars of the funds of the hospital— his defalcation divided between 1897 and 1898'. Further, that the board of managers did not exercise ordinary care “in examining the accounts and settlements of W. D. Thomas as treasurer of said asylum, and 'that by the exercise of ordinary care in the examination of such accounts and in comparing the same with the books of the secretary and the treasurer’s duplicate receipts on file with him, such board of managers could have discovered many of the discrepancies in the treasurer’s accounts, and that he was not reporting and accounting for all funds received.”

In conclusions of law on that finding of fact the referee reported, inter alia, that: “The action is barred by the three-years Statute of Limitations.” The Attorney-General appeared ex-officio and joined in exceptions to the report — among them, the following:

“6. The referee erred in finding that the plaintiff’s cause of action is barred by the Statute of Limitations. ...
“8. The referee erred in finding that the board of managers of State Lunatic Asylum No. 1 at Fulton could have discovered many of the discrepancies in the accounts of W. D. Thomas, treasurer as aforesaid, by the exercise of ordinary care.
“9. The referee erred in finding that the failure of the board of managers of State Lunatic Asylum No. 1 at Fulton, to discover the discrepancies aforesaid, did not arrest the running of the Statute of Limitations.”

The exceptions were overruled, the report was approved and confirmed, judgment for defendants following. On due steps the cause comes here on the State’s appeal.

We put aside all exceptions to the referee’s report, save the above, because our learned Attorney-General and his learned co-counsel (as we read the State’s brief) hang the case on appeal on a single thread, viz., the finding relating to the Statute of Limitations and on error below in the ruling thereon. This eliminates several exceptions, for example:

There was an admission made that on March 10, 1896, the board of hospital managers amended their bylaws so that the term of office of the treasurer became one year instead of two as theretofore. Thomas, first elected in April, 1897, was elected for another term of one year on May 10, 1898. There was no evidence showing a new bond given for the second term. On such record the referee found, as a conclusion of law, that the bond in suit did not cover defalcations during the second term. For defendants it is argued that such conclusion was sound. But, as we see it, the case breaks on a vital point before that one is reached in logical order.

So, contention was made that the general language •of the petition did not properly allege breaches of the bond. The learned referee so found. The point is elaborately briefed by defendants’ counsel, but, however inviting the field, its exploration will not be attempted in this case, but the question will be reserved to be determined in some case hinging on the proposition.

Attending to the main question anent the Statute •of Limitations, we all agree it was well ruled below. Because:

(a) . Section 1890, Revised Statutes 1909', ordains that an action “against a sheriff:, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution or otherwise,” shall be commenced within three years. This section announces the rule of limitations applicable to Thomas’s sureties. Its exposition in State ex rel. v. Harter, 188 Mo. l. c. 528, et seq., removes the question from the realm of debate by holding that the doctrine of ejusclem generis does not apply to “other officer,” and that such term was broad enough to include all persons measuring up to the definition of a statutory officer — in that case the treasurer of a school board. Confessedly, Thomas was such person.

(b) . Assuming a given contract of suretyship is unambiguous, then the obligation of the surety is .strictissimi juris. His liability may not be stretched by implication.

Not only so, but statutes of limitations are favored in modern law and are liberally construed to further their beneficent purpose. [Wetmore v. Crouch, 188 Mo. l. c. 652, et seq.; Shelby County v. Bragg, 135 Mo. l. c. 300.] Says Mr. Justice Swayne in Wood v. Carpenter, 101 U. S. l. c. 139, speaking for the whole court: “Statutes of limitations are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and' stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. Whil e time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere-delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.”

(c). Keeping in mind paragraphs (a) and (b), we come to a closer view of the case, viz.: There is a main exception to the running of the statute. • If there-be fraudulent concealments, " any improper act, ’ ’ preventing the discovery of the facts constituting the cause of action by the exercise of due diligence, then the statute does not begin to run until the fraud is discovered and the facts constituting the cause of action, theretofore concealed by the fraud and improper acts, come to light. This independent equitable principle of use in the administration of the law of limitations is somewhat shadowed forth in Revised Statutes 1909, section 1905, reading: “If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after ■the commencement of such, action shall have ceased to-be so prevented.” See section 1889, Revised Statutes 1909, where the same idea is expressed as controlling actions for fraud.

The case is submitted on the theory that the three years statute ran, unless the State brings itself within the above exception; for it appears without any dispute that the moneys converted came into Thomas’s official hands and were misappropriated by him (that is, the cause of action accrued) more than three years before the commencement of the action'. On this phase of the case defendants contend there was no diligence used to discover the defalcation. Contra, the State contends that discovery was prevented by the improper acts and fraudulent concealments of Thomas, and that the board of managers of Hospital No. 1 were diligent in the premises. The referee found a lack of diligence. From that finding, as a postulate, he drew the conclusion that the three years’ statute was a bar. His conclusion is sound if his premises be sound. Therefore we have nothing to do but to see if there was substantial evidence showing a lack of diligence. This, because (whatever the rule in equity) the finding of fact by a referee in a law ease fills the office of a special verdict, and must be judged of by the rules pertaining to verdicts. Hence, if there is substantial evidence to support the finding, an appellate court will no more meddle with the weight of it than with the weight of the evidence in a jury trial.

Thus, in McGregor v. Construction Co., 188 Mo. l. c. 621, it was said: “The findings of fact by a referee in a ease at law stand upon the same footing, in an appellate court, as the verdict of the jury. It is not the practice of this court to review a finding of fact by a referee or jury in an action at law. This court looks to the facts, in such a case, only far enough to ascertain whether there is any substantial testimony to support the finding, and where such is the case it does not interfere with á finding of fact. ’ ’

.The McGregor case but announces a settled doctrine, needing no new exposition. See, for example, Vogt v. Butler, 105 Mo. 479; Bissell v. Warde, 129 Mo. 439; Dunlap v. Elks’ Social Club, 25 Mo. App. 180, and cases cited; Grocery Co. v. Fidelity and Guaranty Co., 130 Mo. App. 421, and cases cited.

Attending to the testimony, we shall not cumber the opinion with it. It tends to show that Thomas from month to month reported his pretended receipts and disbursements to the board of managers, transcribing the account from his own books as treasurer and presenting receipts from the State Treasurer showing he had deposited with that official such moneys as his own report and the books showed he had received. The board of managers accepted his report as true and, finding the receipts of the State Treasurer to agree with the amounts reported by Thomas, looked no further and allowed Thomas’s peculations'to continue systematically during 1897 and 1898. Their excuse for this was that they had implicit confidence in his integrity and took no steps to check up his accounts to see if he had charged himself with all funds coming into his hands. At that very time facts and documents (duplicate receipts) showing* systematic and heavy stealing were spread on the very books of the hospital and were in its files, subject to their command for inspection and use. Their bookkeeper kept a set of books as did the treasurer. This bookkeeper was secretary of the board and attended its meetings. It was the duty of the superintendent of the hospital to be present at the meetings of the board of managers and to make reports to the board. The books kept by the bookkeeper show that Thomas had received from time to time many thousands of dollars he was, in some instances, not accounting for, and, in others, was accounting for long after their receipt. The superintendent, under the evidence, as well as the bookkeeper and ex-officio secretary of the board, had handled most of the warrants, checks and drafts evidencing the moneys stolen, and, as said, these amounts appeared on the books of the bookkeeper, and yet neither, the bookkeeper nor the superintendent was asked to investigate the state of Thomas’s accounts as spread on the bookkeeper’s books, nor did the board investigate the bookkeeper’s books and compare them with Thomas’s to see if they tallied. ■ •

It is the duty of the superintendent to constantly reside in the hospital (R. S. 1899, sec. 4849); the treasurer is an officer of the hospital, but need not reside therein (Ibid); before entering on his duties, the superintendent makes oath “that he will diligently, faithfully and impartially discharge all the duties required of him by law” (R. S. 1899, sec. 4854); it is made the duty of the superintendent to see to it that the treasurer faithfully and diligently discharges his duties (R. S. 1899, sec. 4855); other provisions of the statute (Art. 1, chap. 72, R. S. 1899) contemplate that the superintendent, who is the ranking executive head of the hospital, should exercise active supervision over the accounts. Turning to article 1, chapter 118, Revised Statutes 1899', we see that the board of managers severally take an oath of office requiring each to attend the meetings of the board and “faithfully guard the interest and welfare of the inmates, . . . and will protect the State against any extravagant or corrupt use of the State’s money or property . . . . ” [sec. 7702.] In section 7703, the bookkeeper is made the secretary of the board. By section 7709, it is made the duty of the board through its proper officers to report to the* General Assembly, under oath, not only disbursements, but the amounts received from the State and other sources for the maintenance of the hospital. By section 7807 it is made unlawful for the superintendent to receive any person as an inmate, unless the sum required by law for the support of such inmate has been paid into its treasury, thereby showing that the superintendent has an active duty to perform in that behalf.

The statutory scheme for the management of the hospital shows in its entirety that its board act, inter alia, as auditors, and diligence in that behalf is but a main part and parcel of the very body of their duties. If such board is to complacently assume that its .treasurer is- competent and honest, and is to assume, without looking or inquiring elsewhere than in his own books, that his accounts are true, then the board is a mere ornamental appendage with prefunctory duties, and its supervision and management are idle formulas, pertaining to the surface (and missing the heart) of the matter. Nothing is so productive of integrity and care- as the knowledge on the part of an officer that his official acts in handling public funds pass under the vigilant, scrutinizing and impartial eye of an efficient and intelligent board of management. To the contrary, nothing is so conducive to slovenliness, inefficiency and dishonesty as that a board of managers, with eyes blinded with conventional confidence in its officers, assume as true the very thing they were appointed to seek out and determine, viz., that their- treasurer’s books tell the whole truth about the receipt of public moneys. Those who sign bonds, as sureties for treasurers, sign them in the assurance that superintendents and boards of managers will perform the duties, cast upon them by the law.

In Shelby County v. Bragg, supra, Bragg, as circuit clerk, made his quarterly and annual statements under oath to the county court of the fees received by virtue of his office. These reports were approved as settlements. Subsequent investigation showed that he had not reported certain fees. In a suit to recover, the Statute of Limitations was successfully interposed as a defense. The county appealed, and the judgment was affirmed. Speaking to the point (we think decisive of the case at bar), Macfarlane, J., with the concurrence of his brethren, said:

‘ ‘ The question is whether the statements made by defendant were such fraudulent concealments of the facts as delayed the operation of the- statute until a discovery of the truth. , The question is not whether the county, or its agent the county court, was merely ignorant of the facts constituting the cause of action. Such ignorance will not suspend! the operation of the-statute unless it can be properly attributed to the fraudulent concealment of the facts by defendant. [Wells v. Halpin, 59 Mo. 97; Garrett v. Conklin, 52 Mo. App. 659, and cases cited; Foley v. Jones, 52 Mo. 64.]
“It cannot be said that the evidence of the facts constituting plaintiff’s cause of action was concealed or suppressed. The evidence all existed upon the official books and records of the office open to the examination of the court. The expert accountants who afterward made an examination encountered no difficulties-in making an account of fees collected. They reported no destruction of books, or the suppression or concealment of no fact which could prevent an accurate statement being made.
“It is insisted that the duty of this officer and his relation to the county court was such that the latter had the right to rely implicitly on the correctness of these statements and that making a statement which did not fully and truthfully account for all fees collected is such a fraudulent concealment of the facts as would-delay the running of the statute. But the county court is required to examine the statements and see that they are correct before approving them; it was not intended that they should accept as true any statement the officer should make. The evidence by which the truth coulid have been ascertained was at hand and open to their examination. Indeed the statements themselves- did not all purport to be accurate; they do not pretend.to give an itemized account of the fees collected and from whom; they virtually refer the court to the records of the offices for the evidence. '
“Tile county court is given the power to audit the accounts of these officers and it is made their duty to examine statements made by them, and, if necessary, to hear the evidence of witnesses. A mere examination of the statements is not a proper performance of their duty. They should see that the statements are correct. This is particularly so when the statements on their face, as in this case, are not such as the law requires. It cannot be said that the county court was ignorant of facts which were open to its examination, and which it was its duty to know.”

A ease nearly in point as on all-fours is the District Township of Boomer v. French, 40 Ia. 601.

Unless the doctrine of the Bragg case is to be overturned it must control here. We know of no public policy or principle of law demanding the case to be overruled. It but proceeds upon trite precepts relating to negligence (and its converse, due diligence and care), viz., that he who has at his disposal the means of knowing, is held to know; that he who shuts his eyes when to open them and look is to see, is held to see; and that where there is a duty to use diligence those facts which diligence will discover are presumed to be known under the law of notice. One must not go to sleep or rest on his oars where the issue is negligence. He must be up and doing, for the law favors the wakeful and diligent. [Adams v. Gossom, 228 Mo. 566.]

In speaking to the point of when a cause of action, containing an element of fraud and concealment, accrued, Ellison, J., in State ex rel. v. Hawkins, 103 Mo. App. l. c. 254, said: “Our conclusion is that it accrued when plaintiff discovered the fraud; or when, by proper diligence as an ordinarily prudent man, he, under the circumstances, should have discovered it.”

In Wood v. Carpenter, 101 U. S., supra, many eases illustrating the application of the foregoing precepts are reviewed, and the general doctrine is announced that a party to avoid the bar of the statute on account, of fraud must aver and show that he used due diligence to detect it — that if he had means of discovering the fraud, he would he held to have known it.

The fraudulent concealment avoiding the running of the statute must go beyond mere silence. It must be something actually done or said directly intended to prevent discovery — some active conduct in thwarting investigation. [Smith v. Blachley, 198 Pa. St. 173.] In Stone v. Brown, 116 Ind. l. c. 81, the exposition o'f the matter was as follows: “As has often been declared, the Statute of Limitations is a statute of repose, and in order to bring a case within the section above referred to, and avoid the operation of the statute, something more than silence, or mere general declarations or speeches, on the part of the person liable, must be shown. It must appear that some trick or artifice has been employed to prevent inquiry or elude investigation or calculated to mislead and hinder the party entitled from obtaining information, by the use of ordinary diligence, that a right of action exists; or it must appear that the facts were misrepresented to or concealed from the party, by some positive acts or declarations, when inquiry was being made or information sought, and the particular acts of concealment or misrepresentation made must be set out in the pleading. Beside, ‘the circumstances of the discovery must be fully stated and proved, and the delay which has occurred must be shown to- be consistent with the requisite diligence.’ ”

It ought not to be necessary to add that there are limitations to the doctrines announced above, and that they are subject to modification in cases involving a fiduciary relation. [Vigus v. O’Bannon, 118 Ill. 334; Fisher v. Tuller, 122 Ind. 31.]

There being abundant evidence to sustain the finding of the referee on the lack of due diligence, his legal conclusion that the statute bars the action follows as a sequence.

"We look in vain in the pleadings abstracted to see any allegation in the petition o,r reply, bringing the case within the exception preventing the statute’s running. It is elementary that the party relying on the presence of fraud and concealment in preventing the bar of the statute should take himself out of the general rule of the'statute and bring himself within the exception by proper averments of fact, to be followed by proper proof. [Wood v. Carpenter, supra; Stone v. Brown, 116 Ind. 78; Mather v. Rogers, 99 Ia. 292; Wood on Limitations (3 Ed.), sec. 276; Callan v. Callan, 175 Mo. l. c. 361.] But if seems the case was tried, nisi, as though the pleadings were broad enough to raise the issues of fraudulent concealment and due diligence. W"e have, therefore, allowed it to proceed here as if issues so threshed out at the trial were within the purview of the pleadings.

Let the judgment be affirmed.

All concur.


text:
    THE STATE ex rel. J. P. BELL, Treasurer of State Hospital No. 1, Appellant, v. E. W. GRANT et al.
    Division One,
    November 30, 1910.
    KINDRED ADJUDICATION. .On the same facts, the law is the same and the judgment the same. Therefore, for the reasons set out in State ex rel. v. Yates, ante, page 276, the judgment herein, holding that an action on the bond of the treasurer of a state hospital to recover moneys stealthily converted to his own use, is barred in three years and that there was no such fraudulent concealments of his peculations as prevented the Statute of Limitations from running, is affirmed.
    Appeal from Callaway Circuit Court. — Hon. Alex. H. Waller, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, for the State: North T. Gentry of counsel for appellant.

      W. M. Williams and Harris £ Hay for respondents.
   LAMM, P. J.

In March, 1899, the board of managers of State Hospital No. 1, at Fulton, amended their by-laws so that the treasurer’s term of office was made two years instead of one. Presently, one W. D. Thomas was elected treasurer, gave bond in the penal sum of $30,000, with defendants as sureties, which bond was approved as by statute provided, and took charge of the office of treasurer and the hospital funds, serving out his official term. In 1905 he absconded, a defaulter, and from that to this time- has been out on leg bail, a fugitive from justice. After-wards, in 1905, an examination of his office disclosed that of a series of peculations covering several years, some of them occurred within the life of said bond. Thereat, on August 5-, 1905, the State, to the use of Bell, treasurer, sued said sureties to recover $11,151.57, official moneys alleged to have been received and converted by him to his own use during said term, praying judgment of forfeiture in said penal sum and an award of execution for damages, viz., said gross amount of Thomas’s malversations. Defendants interposed a defense of the three-years’ Statute of Limitations. Professor Hinton was appointed referee and (mutatis mutandis) the evidence heard, the findings of fact and the conclusions of law reported by him, the exceptions to his report, and the ruling below thereon are the same as in State ex rel. Bell v. Yates et al. ante, p. 276 (quod vide). The State appeals, here as there, from a judgment for defendants. Tins case is submitted on the same briefs, pleadings and assignment of error as that. The axioms are: On the same facts, the law is the same and the judgment is the same. It is proper to reason from similars to similars. Hence, on the reasoning and authority of State ex rel. Bell v. Yates et al., supra, the judgment is affirmed.

All concur.


text:
    THE STATE ex rel. J. P. BELL, Treasurer of State Hospital No. 1, Appellant, v. W. C. HARRIS et al.
    Division One,
    November 30, 1910.
    APPELLATE JURISDICTION: Suit on Bond. The Supreme Court does not have jurisdiction of an appeal from a judgment in favor of defendant's in a suit brought at' the relation of the State on a bond for $30,000 against the sureties, alleging that the treasurer of a state hospital converted to his own use $6901.68 during the two years which the bond embraced, and praying for a judgment of forfeiture in the penal sum of $30,000, and that execution be awarded for $6901.06 as damages. The “amount in dispute” in such case is not the penal sum nominated in the bond, but the shortage of the treasurer or the damage's to be assessed; and that being less than $7500, the case is transferred to the Court of Appeals.
    Appeal from Callaway Circuit Court. — Hon. Alex. H. Waller, Judge.
    Transferred to Kansas City Court of Appeals.

      Elliott W. Major, Attorney-General, for the State; North T. Gentry of counsel for appellant..

      W. M. Williams and Harris <& Hay for respondents.
   LAMM, P. J.

This is one of three suits instituted in Callaway Circuit Court on August 5,1905', severally, on each of three bonds of William D. Thomas, treasurer of State Hospital No. 1, at Pulton, to recover the amounts of sundry defalcations running through a series of years, beginning with the year 1897 and ending in 1903, so far as disclosed to us. Two of the cases (State ex rel. v. Yates et al.; and State ex rel. v. Grant et al.) have been determined here in opinions just handed down. The present suit is brought by the State to use of John P. Bell, treasurer of "the hospital, against W. O. Harris et al., sureties on Thomas’s bond for a term of two years .commencing March 12, 1901, and ending March 12,1903, in the penal sum of $30,000, conditioned the same as the bonds in the other suits. But there is this difference, viz., the amount unlawfully converted by Thomas to his own use is alleged to be $6901.68, so that judgment of forfeiture in the penal sum, $30,000, is prayed with award of execution for $6901.68 as damages. The same defenses were interposed in this suit as in the others. The same steps were taken in appointing* a referee, a hearing before him, a report of findings of fact and conclusions of law, in exceptions and rulings below — with this difference, in this case the referee found that of the sum converted all but $32.50 was received and became payable more than three years before the institution of the suit, and that the Statute of Limitations was a bar except as to said amount. Judgment went in accordance with the report, and the State appealed.

At the outset, we are confronted with a question of jurisdiction, not raised by counsel. If the amount in dispute be the penal sum nominated in the bond, this court has jurisdiction. If it be the shortage, this court has none. The question arises on the dual character of the judgment to be rendered in a suit on an official bond — such judgment going (secundum legem terrae) for a forfeiture of the bond in its entire penal sum, with assessment of damages and award of execution (not for the penal sum, but) for the quantum of damages so assessed. [R. S. 1909, sections 1213, 1236, 1239, 1240 and post; State to use v. Ruggles, 20 Mo. 99; State to use v. Fitzpatrick, 64 Mo. 185; State ex rel. v. Cooper, 79 Mo. l. c. 467.]

There is language in State ex rel. v. Emmerling, 12 Mo. App. 98, and State ex rel. Yeatman v. Fox, 15 Mo. l. c. 73, which might indicate that the penalty of the bond determines jurisdiction. In the Fox case, Judge Soott, whose fame is so justly great that his mere dicta arnot unfrequently entitled to the force and use of holdings, said: “The opinion has generally prevailed in this State, that the penalty of a bond determines the jurisdiction of the court. ’ ’ But he was there not dealing with the jurisdiction of ah appellate court hinging on the “amount in dispute,” but with that of a statutory court (St. Louis Law Commissioner’s Court) regulated by other statutory provisions; and, by way of argument, used the statute defining jurisdiction of justices of the peace over actions on constables’ bonds. What he there said must go with the facts of his case.

In State v. Emmerling, supra, Judge Thompson was dealing with the jurisdiction of justices of the peace and with a statute employing the jurisdictional phrase, “sum demanded.” Accordingly it was ruled that the “ sum demanded” was the penalty of the bond, and the question of jurisdiction hinged on that exposition.

But in State ex rel. v. St. Louis Court of Appeals, 87 Mo. 569, a case where the penal sum of the bond was $2700 and the amount of damages assessed for which execution was awarded was $2200; it was held that “the amount in dispute” on appeal was $2200, viz., the amount of damages, recovered for the breach of the bond, and not the penalty, and that the St. Louis Court of Appeals had jurisdiction and not the Supreme Court — the test of the jurisdiction at that time being $2500 in dispute. In that case the Ruggles, Cooper and Fox cases, supra, were considered and distinguished. The case is soundly reasoned and runs quatuor pedibús. Written by Norton, J., it was unanimously agreed to by his brethren and has never been criticised. Contra, it has been often cited and leaned on as a staff. [State ex rel. v. Lewis, 96 Mo. 148; McGregor v. Pollard, 130 Mo. l. c. 334; May v. Mortgage Trust Co., 138 Mo. 449; Douglas v. Kansas City, 147 Mo. 432; Pittsburg Bridge Co. v. Transit Co., 205 Mo. l. c. 180.] It is in line with the great weight of authority. Says a standard authority : ‘ ‘ But the weight of authority is to the effect that in an action on a penal bond if damages are claimed and are alleged with certainty, they, and not the penalty, determine'the jurisdiction.”' [3 Am. and Eng. Ency. L. & P., p. 866.]

In the case at bar the penalty of the bond is not in dispute. It is not even colorahly in dispute. The dispute is over the amount of Thomas’s peculations during the life of the bond and on whether or no the three years’ Statute of Limitation is a bar. In determining appellate jurisdiction, courts go for substance, not shadow; the kernel, not the shell. They look to the whole record. To do otherwise is to stick in the bark ■ — see eases supra. Here the amount in dispute is under $7500, at which figure we draw to ourselves jurisdiction in those cases where the amount in dispute determines it.

We have no jurisdiction. The case is transferred to the Kansas City Court of Appeals.

All concur.


author: WOODSON, J.

text:
    HELEN M. PATTON v. MORRIN-POWERS MERCANTILE COMPANY, Appellant.
    Division One,
    November 30, 1910.
    1. DEMURRER TO EVIDENCE: Effect. The function of a demurrer to the evidence is to admit as true all the facts which the evidence tends to prove, as well as all reasonable deductions which may be naturally drawn therefrom.
    2. NEGLIGENCE: Wagon Driver: Demurrer: Prima Facie Case: Nonsuit. Plaintiff, a lady seventy-five years old, of unusual vigor and with good eyes, was knocked down and trampled upon by a horse driven by an employee of defendant mercantile corporation, as she was attempting to cross a street at a crossing. She alighted from' a street car about_ seventy-five feet west of the north-and-south street, and, after looking for approaching vehicles and seeing none, started northerly across the east-and-west street, to its north side, for the purpose of taking a south-bound car; a few feet north of the track, defendant’s 'servant, in charge of a horse and wagon, in a half-intoxicated condition, with whip raised, drove down the east-and-west street, in a brisk trot, ran his horse against her, knocked her down and inflicted serious injuries; when within a few feet of her he shouted, “Get out of the way there,” and did not make any attempt to stop or slacken his speed until the horse was upon her; the street was a principal thoroughfare of the city, along which was a great deal of travel in street cars, vehicle's and on foot; and the same horse almost ran over a man, and would have done so had the man not placed his hand against the horse and pushed himself back, being thrown to his knees in so doing. Held, that plaintiff made out a prima facie case, and the court erred in sustaining a demurrer to the evidence and in compelling her to take a non-suit, and did not err in setting aside that order and granting a new trial.
    3. -: -: Contributory Negligence: Constant Lookout.All the law .requires of a pedestrian crossing a street is that she exercise ordinary care in looking for an approaching wagon. Where the plaintiff alighted from a street car, and, before attempting to cross the tracks, looked for approaching vehicles and saw none, the law does not require her to constantly look out for them while she is crossing the street; and the court cannot declare, as a matter of law, that she was , guilty of contributory negligence because 'she did not; whether she exercised ordinary care was, under the circumstances, a question for the jury.

      Appeal from Jackson Circuit Court — No». Hermann Brumbaok, Judge.
    Appirmed.

      Stewart Taylor for appellant.
    (1) Where plaintiff’s own evidence shows such contributory negligence as to defeat his right of action, it is the duty of the trial court to so declare as a matter of law. Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad, 105 Mo. 399; Hudson v. Railroad, 123 Mo. 445; Sindlinger v. City of Kansas, 126 Mo. 315; Barton v. Railroad, 52 Mo. 258 ; Weber v. Railroad, 100 Mo. 194; Powell v. Railroad, 76 Mo. 80; Wendall v. Railroad, 100 Mo. App. 562; Hogan v. Railroad, 150 Mo. 36; Roberts v. Telephone Co., 166 Mo. 370; C'ohn v. City of Kansas; 108 Mo. 393; Holwerson v. Railroad, 157 Mo. 216; Wheat v. St. Louis, 179 Mo. 572; Erickson v. Railroad, 171 Mo. 647; Evans v. Railroad, 178 Mo. 508; McGee v. Railroad, 214 Mo. 546; Meyer v. Railroad, 6 Mo. App. 27; Barker v. Savage, 45 N. Y. Í91; Messenger v. Dennie, 137 Mass. 197; Yore v. Transfer Co., 147 Mo. 679; Woodson v. Railroad, 224 Mo. 685; Butts v. Railroad, 98 Mo. 272. “In that case the court does not weigh the plaintiff’s evidence of defendant’s negligence, and pronounce it insufficient, but it takes the plaintiff’s evidence of his own negligence, at its face value, and passes judgment of nonsuit upon it.” Schmidt v. Railroad, 149' Mo. 287; Sims v. Railroad, 116 Mo. App. 579. (2) There was no proof of the specific act of negligence charged. McGrath v. Railroad, 197 Mo. 105; Hafner v. Railroad, 197 Mo. 202; Boring v. Railroad, 194 Mo. 552; Roscoe v. Railroad, 202 Mo. 587. (3) No inference of defendant’s negligence arises from the fact that there was a collision in which plaintiff was injured. Lee v. Jones, 181 Mo. 291; Yore v. Transfer Co., 147 Mo. 679. (4) There is no evidence that the plaintiff was or could have been seen in a position of peril in time by the exercise of ordinary care to have averted tbe injury. Prewitt v. Eddy, 115 Mo. 283; Rissler v. Railroad, 113 Mo-. App. 126; Roenfeldt v. Railroad, ISO Mo. 554; Sites v. Knott, 197 Mo. 684; Lennon v. Railroad, 198 Mo. 514; Renov.Railroad, 180 Mo. 1. c. 485; Ries v. Railroad, 179 Mo.' 1; Yancey v. Railroad, 93 Mo. 433. (5) There is no plea nor proof that the defendant willfully and wantonly ran into the plaintiff. Gfuyer v. Railroad, 17'4 Mo. 344; Yan Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Holwerson v. Railroad, 157 Mo. 216. (6) The fact, undisputed, that the horse stopped the instant plaintiff collided with his left shoulder, is proof conclusive that' it could not have been going at high speed just before plaintiff took the last step. This fact overcomes any possible testimony as to negligent rate of speed. McCreery v. Railroad, 221 Mo-. 18. It is well settled that courts will not stultify themselves by giving any heed to the testimony of witnesses, or the inferences deducible therefrom that are so opposed to all natural law and reasonable probability as to be manifestly false. Gurley v. Railroad, 104 Mo. 233; Dunphy v. Stock Yards, 118 Mo. App. 522; Demaet v. Storage Co., 121 Mo. App. 103; Payne v. Railroad, 136 Mo. 575; Baker v. Railroad, 122 Mo. 503; Weaver v. Railroad, 60’ Mo. App. 207. (7) The plaintiff had no right to be “oblivious to her surroundings” while crossing the street, but should have been on.the lookout for approaching vehicles. All she had to do was to use her senses and- the accident would have been avoided. Her eyesight and hearing were not defective. Waddell v. Railroad, 113 Mo. App. 684; Wheat v. St. Louis, 179 Mo. 580; Schmidt v. Railroad, 191 Mo. 234; Kelsay v. Railroad, 129 Mo. 375; Barker v. Savage, 45 N. Y. 191; Groom v. Kavanagh, 97 Mo. App. 372; Payne v. Railroad, 136 Mo. 586.

      Bush, L. Fisette and Bird £ Pope for respondent.
    (1) Plaintiff did not, as a matter of law, have to look for the wagon of defendant, or, on her failure so to do, stand 'convicted of contributory negligence. Dahlstrom v. Railroad, 108 Mo. 525; Baker v. Railroad; 147 Mo. 140; Cook v. Railroad, 19 Mo. App. 329; Hennessey v. Taylor, 189 Mass. 583; Schramm v. Parker, 72 N. J. L. 243; McCrohan v. Davidson, 187 Mass. 466. (2) The plaintiff can recover if defendant, by the exercise of ordinary care, could have avoided the injury, or if the defendant was so reckless that by the exercise of ordinary care it could not have avoided the injury. Dunkman v. Railroad, 95- Mo. 244; Hogan v. Railroad, 150 Mo. 54; Klockenbrink v. Railroad, 172 Mo. 687. (3) Expert evidence is not admissible as to the time or. space in which the horse and wagon ought to have been stopped. Express Co. v. Kinnare, 168 111. 643; O’Neill v. Railroad, 129 N. T. 125. If, as stated by Mr. Justice Earl in this New York case,.jurors are generally well acquainted with such common things as trucks and horses, and the power, action and capacity of horses, then in such a case the jurors were capable of forming an opinion .on the matter from all the facts, and expert evidence was not admissible, in this State, under the following authorities: Koenig v. Railroad, 173 Mo. 698; Rosenkranz v. Railroad, 109' Mo. 9; Gavish v. Railroad, 49 Mo. 274; Meng v. Railroad, 108 Mo. App. 553; Naughton v. Stagg, 4 Mo. App. 271; Gutridge v. Railroad, 94 Mo. 568; Rosenheim v. Ins. Co., 33 Mo. 230; Limberg v. L. Co., 127 Oal. 598. And see cases - under division 4. (4) Expert evidence, even if proper, was unnecessary in this case, for the jury, from the facts, were capable of forming a correct conclusion. Holden v. Railroad, 177’ Mo. 470; Shanks v. Railroad, 101 Mo. App. 702; Barrie v. Railroad, 102' Mo. App. 87; Jersey Dairy v. Railroad, 103 Mo. App. 90; Linder v. Railroad, 103 Mo. App. 574; Moritz v. Railroad, 102 Mo. App. 657; Kimble v. Railroad, 108 Mo. App. 78. (5) Contributory negligence does not bar a recovery where the conduct of the defendant is reckless or wanton, as in this case. Kellny v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262; Mayes v. Railroad', 121 Mo. App. 6Í4; Cole v. Railroad, 121 Mo. App. 605¡; 1 Thomp. on Negl., sec. 206; Thompson v. Livery Co., 214 Mo. 487.
   WOODSON, J.

The plaintiff, a lady, seventy-three years of age, was knocked down and trampled' upon by a horse, driven by an employee of defendant, on one of the public streets of Kansas City. Her injuries were quite serious, and she instituted this suit to recover the sum of $10,000 damages of defendant on account of those injuries, alleged to have been inflicted through the alleged negligence of said employee.

The defendant was engaged in the mercantile business in said city, and said employee was at the time of the injury engaged in delivering goods for the defendant.

At the close of plaintiff’s evidence, the court announced that it would give an instruction in the nature of a demurrer to the evidence, telling the jury that plaintiff was not entitled to a recovery, to which action of the court plaintiff duly objected and excepted; and, thereupon, she took a nonsuit with leave to move to set aside the same. In due time counsel for plaintiff filed a motion to set aside the nonsuit, and asking for a new trial. After due consideration the court, without assigning any reason therefor, sustained said motion; and to the action of the court in so ordering, the defendant properly excepted, and in due time appealed therefrom to this court.

The facts of the case as disclosed by the record are few and practically-undisputed. Plaintiff’s evidence tended to prove that on October 11, 1905, in the afternoon, she, a woman of seventy-three years of age and of unusual vigor and good health for one of her.years, left her home in Rosedale, Kansas, on a street car, for the purpose of visiting her daughter, who resided near the south end of the Roanoke ear line, in Westport. She took the Rosedale car in Rosedale, intending to transfer to a Roanoke car, south-hound, at Summit street,' Kansas City, Missouri. She left the Rosedale car about 4:45 p. m. on Southwest boulevard, about seventy-five feet west of Summit street, the point where the car stopped for passengers to alight, and was crossing on said boulevard in a northerly direction for the purpose of taking* a Roanoke car at the northwest corner of said boulevard and street. She had crossed north over both car tracks and was a few feet north of the north rail of the north track when knocked down, run over and injured by defendant’s horse and wagon. The plaintiff was perfectly familiar with the situation, having made this same trip numerous times, and almost every week. The place of the injury was at a regular transfer point for street car passengers. At the time of the catastrophe there was a heavy traffic on Southwest boulevard, also a heavy transfer of passengers at the intersection of Summit street and said boulevard — the cars of three lines were passing over the tracks of the Summit street line.

While the court assigned no ground for sustaining the demurrer to the evidence, however counsel for defendant in their briefs contend that the court properly sustained the demurrer, or rather indicated that it would do so, for two reasons: First, because the evidence did not make a case for the jury; and, second, because the evidence conclusively showed that plaintiff was guilty of such contributory negligence as should bar a recovery. It, therefore, becomes necessary for us to briefly state the evidence introduced bearing upon those questions.

John Pryor testified that what first attracted his attention was the driver going across the street car tracks in Summit street; that he went across at a pretty good gait; that he saw the horse before it struck the plaintiff; that he saw the horse as it “ran upon the old lady;” “that up to the time it struck the plaintiff he did not notice that the speed of the horse was cheeked; ’ ’ that the impact with the horse knocked the plaintiff to the ground on her side, and the horse was standing kind of over her; straddle of her; that there was a man (James H. Grilkey) ahead of the horse, who threw up his hand, and the horse came very near touching him; that he did not think it touched him; that he never saw the plaintiff when he saw the man ahead of the horse; that after plaintiff was struck and thrown to the pavement she was headed west; that the horse was going at a pretty good gait; and by that he meant the driver was driving at a pretty fast trot.

Mattie Stevens testified that the plaintiff got off of a Rosedale car and started north across the Southwest boulevard; that she noticed her very particularly; that plaintiff had “gotten across both tracks and was going straight to the sidewalk” on the north side of the street, and the “horse and wagon ran right into her” and knocked her down; . . . “that after she fell the fellow (driver) grabbed back on the horse like that .(illustrating) and the horse trampled all over her:” that “just about the time the horse hit her, the driver hollered, ‘Get out of the way there;’ that she did not see the driver do anything except pull back on the lines; that the plaintiff’s clothing were all dirt and dust and torn; that the horse’s hoofs had ground holes in her garments, and a piece of her clothing, about that-long (indicating) was torn nearly off and hung by the edge; ” . . . that she could tell when a person had imbibed liquor to excess; that the “driver was more than half intoxicated, too much so to be on a public wagon; that his eye-balls were red and his tongue thick,” and his breath smelt of “bad whiskey;” that she did not see the driver before he crossed the car tracks in Summit street, and “then he was just coming at full speed; he didn’t make any halt whatever;” that she had crossed both tracks, and had gotten across the second or north track about two or three feet; that she fell towards Rosedale; her head fell that way;' right straight with the tracks going west, and straight with the horse’s head; that she fell full length; that the horse seemed to be standing on her stomach, but he-was on her clothing; she did not know whether he was on her'body or not.

On cross-examination: “ Q. Did you see her the instant she fell? A. Yes, sir. Q. Which direction was she going then? Like this (indicating), facing north? A. Her face was that way, yes, sir. Q. Did she look towards the east at any time? A. Why, sjie saw the wagon right on her, and just .did that way (indicating with hér hands) and fell. Q. But she didn’t see the wagon until it was right on her? A. I couldn’t say whether she did or not; I wasn’t using her eyes. Q. You were telling about what she was doing; you didn’t see her look towards the east to see if a car or wagon was coming? A. No, sir; I don’t remember anything about that at all.” That plaintiff’s left side struck the pavement; that she first saw the horse and wagon just as it bounced across the Summit street car tracks; that there is a good deal of travel there, but never any rush; no fast traffic along there; that wagons usually slack up a little at transfer points and crossings; that she did not notice the driver particularly before the horse struck the plaintiff. “Q. Now, did you or did you not say you noticed him continuously from the crossing of Summit street until his horse struck her? A. He was right in front of my eyes driving that way. I don’t know that I had my’eyes set right on him. Q. Did you or did you not watch him continuously from the time 'he crossed the Summit street tracks until he struck the plaintiff? A. Yes, sir; I saw him from the time he crossed the track until he struck her. Q. Did you watch him continuously? A. I couldn’t say I did, but I saw him. Q. You saw him crossing the Summit street tracks, you tell us, and you saw him when his horse struck the old lady; now, did you see him between those times. A. Well, there was nothing to see between the time he drove across the track and when he struck her; it wasn’t more than three or four seconds. ’ ’ That she would have run and grabbed the plaintiff out of the way if she would have had time. " Q. Did you notice that she was in danger ? A. I saw he was going to run into her, and hé hollered, "Get out of the way, there.’ Q. When did you see he was going to run into her? A. Just about the time he ■vjas going to run into her. ’ ’ That she saw the plaintiff just before she was struck, and the plaintiff threw up her hands like that (indicating); that she did not know whether a car was passing on the north track or any other wagon in the street at or about the moment the plaintiff was struck.

James H. Gilkey testified that he was right where the horse came along, and had his hand on the horse or he would have been caught too. Q'. What effect did it have on you when you put your hand on the horse ?. A. It knocked me down; I fell on my knees, but I jumped up again. The team was coming this way. It Came with force, very fast, and I seen it was going to hit me, and I jumped back and put my hand against the horse and it threw me down on my knees and I jumped up. And when I jumped up the old lady was lying down and the horse standing on her with one foot. Q. Now, you say this horse was coming fast; can you give the jury any idea of about how fast it was coming? A. It was coming pretty fast, for the man that was on the wagon was holding his whip up and that made the horse run faster, and it ran on her, and would have run on me, but I put my hand against the horse and fell down on my knees. And I ran and tried to get the horse off of her, but another man got there before me.” That he got off of a Rosedale car and was going to take a south-bound Roanoke car; that the first thing he saw was the driver with his whip up, and the horse was going awful fast; that when he first saw the horse it was about as far “as from here to that iron railing there” (indicating) about fifteen feet. ‘ ‘ Q. Fifteenfeetisthe distance that the wagon was away when you first saw it,.is that right? A. I think so.” That he would be seventy-three years old in July; and was a little slow on his legs, and a little hard of hearing, but his eyesight was good; that he touched the horse on the left shoulder, and fell back kind of sideways ; that the plaintiff was beside him and on his left, and the horse went on and hit her; that they had to cross over the Southwest boulevard tracks to get to the Roanoke car; that there was no sidewalk to cross on to get there, and they had to cross, the way they did; that it was a couple of car-lengths (60 feet) from the Summit street car tracks to where they got off the Rosedale car, but he did not think it was one hundred feet; that he saw the horse standing with his left forefoot on the plaintiff, on her side, and the other foot on the ground, and the plaintiff was lying there on her back; that the left fore-foot of the horse was on the side of the plaintiff, or it seemed to him that way; that the plaintiff was walking a little piece from him, three or four feet; that she did not go around behind the car she got off of; the car had gone on; that the plaintiff was three or four feet from him, and the horse was lunging when he touched him.

Plaintiff testified that she was not acquainted with Mrs. Mattie Stevens, the witness who saw her struck by the horse and wagon, before she was hurt. “Q. (By Mr. Bird): You remember sending it (a transfer) to me at my house ? A. Yes, sir; I had it in my pocketbook ever since. But I can’t tell you any more after I got out and went around the street ear; then I can’t remember anything. Then I expect the boy struck me, but I can’t remember anything else. Q. Have you any recollection of the horse striking you? A. No, sir; I never knew what happened to me if they hadn’t told me.” That she had gone over that route about every week; that she crossed over the street that day the same as she had done once a week, and as everyone else did, if they wanted to catch a south-bound Roanoke car, that her eyesight was goQd; that her injuries were in her left side and in the back part of her bead; that her left eye was all right before the injury, but her right eye had been weak for ten years before she was hurt'; that after the injury she noticed that she was forgetful and could not remember as well as she could before. -

On cross-examination: “Q. (By Mr. Taylor) : Isn’t it a dangerous thing for almost anyone to come down town with these crowded streets and street cars ¶ A. I wouldn’t say that, for.I did.” That she was thrown on the side of her face; that she thought she was across the car tracks in the Southwest boulevard, but she could not tell; she thought she had gotten pretty nearly to the- sidewalk, but she did not know where she was struck; that she got across the tracks; that she did not see the horse or the man (Gilkey.) “Q. Do you know whether you stopped on the north track to look for a car coming from the east? A. I always stand there when I get off the car. I always look before I start across the track. Q. And you think you looked at that time? A. Yes, sií. Q. And you stopped- while you were looking, did you? A. I don’t think I stopped. I could see without stopping. Q. Why was it when you were looking for the car you did not see this horse and wagon coming? A. I don’t know. lie- must have come like a whirlwind:. Q. Your hearing is go'od, Mrs. Patton? A. Yes, sir. Q. And you could have heard him if he was coming like a whirlwind? A. Yes, sir; I could. Q. Did you notice whether there were any wagons on the north side of the street there? A. No, sir; I don’t think I did. I wasn’t thinking about that; I was only thinking of where I was going, and I didn’t think there was anything to hnrt me. Q'. And were you in a hurry to go where you were going when you got off of the car? A. Nothing more than usual. Q. Didn’t you testify in your direct examination that you were in a hurry when you started across the street? A. I didn’t think there was anything' to hurt me when I started across the street. Q. The question I asked! you is, whether you did not testify, in answer to Mr. Bird’s question, that when you got off this car and started across the street it was late and you were in a hurry to get to your destination? A, I expect I was. Q. You were in a hurry then when you were crossing these tracks, just before you were run into by this horse? A. I am always in a hurry going any place, and I remember well of getting off the car and going across the street car tracks, and that is all I do remember. Q. You wére not looking for the horse then? A. I was looking for the horse if there had been any in my sight. ’ ’ That she did not think she 'had a veil on. ‘ ‘ Q. Were you on the track, or was it just before you got on the track, on the north track, that you looked east and stopped to see if there was a car coming from down town? A. Yes, sir; I always do that. Q. Then you started on. ■ Now, did you look again after you got off the track, or did you keep your face straight to the north in the direction you were going? A. I expect I looked straight ahead, but if there had been a wagon close to me, I would have seen it, and heard it too.” That there was no wagon coming that she saw, and if the wagon was coming it was coming as fast as it could, or she would have noticed it; that the Eosedale car had moved on before she saw whether there was another car coming; sometimes the cars meet right there. ‘ * Q. Did you look to see whether any wagons were coming after you had stepped on the track? A. I reckon I did, because I always looked.” That tbe boxse stepped on ber side; "I think his foot stepped on my side and slipped off; I don’t know anything about it; I can’t tell you. I don’t know anything more about that than yon do now. I never knew anything after I started to cross the street; after it struck me I didn’t know anything;” that she did not think the horse would have struck her at all if the driver had been attending 'to his business.

In regard to the distance in which the driver ought to have stopped the horse and wagon, John Pryor, who had been a teamster for eight years, and who claimed to be an expert driver, testified that the horse was going at a pretty good gait, and by that he meant the driver was driving the horse at a pretty fast trot, and that he was going that same gait just before he hit the plaintiff; that there is a water grade on the Southwest boulevard at that point, sloping to the west, but the grade there was not very much of a- one. And the witness, after being qualified, was asked and answered the following questions: Q. Now, taking that grade', and assuming that the load in the wagon was "over two thousand pounds, and that the horse weighed no more than eleven hundred and twenty pounds, would it,be possible to stop with that load in that wagon when going at such a rate of speed as you say he went across Summit street, and stop in within two feet? A. Yes, sir; with a one-horse wagon that way. Q. How would he do it? A. Throw on your brake and pull down on your lines. Q. Now, Mr. Pryor, when a man could do that, it would be some evidence that he had his horse under pretty good control, wouldn’t it? A. Yes, sir; certainly. Q. The fact that he could stop after kno eking a person down, and stop his horse right over him, would be evidence that he had complete control of his horse, would it not? A. He would have control enough to stop him. Q. He could do that if his horse was running away? A. No, sir. Q. You could not do that if the horse was going four or six miles an hour? A. You can stop pretty quick 'with, a one-horse wagon especially. ’ ’

I. The foregoing statement is a brief resume of the evidence introduced at the trial of this cause as disclosed by the record; and upon that showing counsel for appellant insist that it did not make out a prima facie case"for the jury; that for that reason the trial court properly announced that it would sustain a demurrer to the evidence.

In the consideration of the demurrer to the evidence, it should not be forgotten that the function of a demurrer “is to admit as true all the facts which the evidence tends to prove, as well as all reasonable deductions which may be naturally drawn therefrom. ’ ’ [Meily v. Railroad, 215 Mo. l. c. 584; Kinlen v. Railroad, 216 Mo. l. c. 155.]

The evidence tended to show that the respondent alighted from the street car on Southwest boulevard about seventy-five feet west of Summit street, and, after looking for approaching vehicles, started northwest across the boulevard to the north side thereof for the purpose of taking passage on the Summit street car line; that when she had reached a point a few feet north of the north track of the boulevard line, appellant’s servant, in charge of his horse and wagon, in a half intoxicated condition, with whip raised up in the air, came driving down the boulevard, as some of the witnesses said, in a “brisk trot,” while others said in a “fast run,” and ran his horse against respondent, knocked her down and inflicted the injuries of which she complains. The evidence also tended to show that when he was within a few feet of her, without attempting to stop the horse-, he holloed at hér, “Get out of the way there;” and that not until the horse was right upon her did the driver make any attempt to stop or slacken the speed of the- horse. In addition, the evidence tended to show that the street on which she was injured was one of the principal thoroughfares of Kansas City, upon and along which there was a great deal of travel in street cars, vehicles and on foot; also that the same horse and wagon almost ran over one of the witnesses in the case, and would have done so had he not placed his hand 'against the horse and pushed himself back out of the way; but in doing so the high speed of the horse knocked him back with such force as to make him fall to his knees.

íf we apply the rule previously announced to the evidence in this case, then there can be no doubt but what respondent made out a prima facie case for the jury; and that the court erred in compelling her to take a nonsuit, and for that reason the court very properly set aside the nonsuit and granted her a new trial.

II. The nest and final insistence made by counsel for appellant is, that the evidence shows respondent was guilty of such contributory negligence as should preclude a recovery in this case; and that the trial court for that reason properly compelled her to take a nonsuit..

We are unable to lend our assent to that insistence. The evidence show's that she alighted from the car, looked for approaching vehicles, and started across to the north side of the street, and while so proceeding she was run over and injured. While there is some evidence from which it might be inferred that she was not constantly looking out for vehicles while walking across the street, however, under the law of this State, that is not absolutely necessary. If she looked when she started across the street and saw no approaching danger, then the court should not have declared as a matter of law that she was guilty of such negligence as would preclude a recovery, simply because she did not constantly keep up a vigilant watch.

The case of Thompson v. Livery Co., 214 Mo. 487, was not as strong a case as the one at bar, yet in that case this court held that the evidence made a case for the jury. There the plaintiff not only looked for approaching teams, but actually saw the defendant’s carriage about a half block away rapidly approaching the crossing, upon which she and others were standing, waiting for a street car. There was, as here, evidence which tended to show that the plaintiff did not keep a continuous lookout for the carriage, but supposed, and relied upon the supposition, that the driver thereof would slacken the speed of the team before reaching the crossing upon which, as before stated, there were several persons standing, including the plaintiff, awaiting the arrival of a street car; but instead of stopping ■or slackening the speed of the team, the driver there, as here, drove right into the crowd, and knocked plaintiff down, and drove against someone else, and a third narrowly escaped being trampled under the feet of the horses by jumping into the front end of the approaching car. In the case at bar the respondent did not see the horse and wagon, and, consequently, she was not required to exercise as great a decree of care for her safety as if she had seen them approaching her.

All the law required of her was that she exercise ordinary care under the circumstances; and what was ordinary care was a question of fact for the jury. [Thompson v. Livery Co., supra, l. c. 497, 498; Kinlen v. Railway Co., supra.] In discussing this question in the latter case, this court, at page 155, said: “The streets of our cities are public thoroughfares upon which all have the right to travel, but neither the pedestrian, the street car, nor the carriage drawn by horses, has the exclusive right to the use thereof. Their rights and duties are relative, and all must exercise reasonable care in order not to- injure each other. While a motorman in charge of a car is not necessarily required to stop his car every time a man, horse or vehicle crosses in front of him, yet in populous cities where the streets are crowded with people, ordinary care requires him to keep a vigilant watch for those who, for any cause, are exposed to the. danger of being struck by tbe approaching ear. And when the motorman saw o.r by the .exercise of ordinary care could have seen Mr. Kinlen’s buggy hanging to and sliding along the rail, the law imposed the duty upon him to use reasonable care to stop the car or slacken the speed thereof, and thereby avoid striking him, and whether he did or not was a questioü for The jury to determine. ’ ’ The same rule applies to a driver of a team upon the streets of a populous city.

After a careful consideration of the evidence, we are clearly of the opinion that the court erred in compelling the respondent to take a-nonsuit, and that it properly set it aside and granted her a new trial.

For the reason before stated, we are of the opinion that the judgment should be affirmed; and it is so ordered.

All concur.