source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    OLLIE BALANCE v. LIZZIE GORDON and PEARL GORDON, Appellants.
    Division One,
    December 24, 1912.
    1. HOMESTEAD - LAWS: Liberally Construed. The correct judicial attitude towards homestead laws is one of as great liberality in construction as their words and spirit permit. Courts should be quick to see and astute to aid the beneficent purposes of homestead statutes. They were not framed to aid creditors to collect debts. Their purpose was to preserve a home for the family against the vicissitudes of fortune.
    2. HOMESTEAD: Interest of Children, etc. There is a well-marked distinction between the quality of a mere exemption privilege in the householder and the homestead estate vesting in his widow and minor children.
    3. --: -: Date of Record of Deed. Whether or not the time of filing the deed to the homestead is material in considering the title of the widow and minor children, will not be decided where the homestead was acquired before the note upon which judgment was rendered in the probate court, under which the property was sold to appellants by the administrator, was made — there being no proof that the note was given for a pre-existing debt.
    4. -:-:-: Presumption that Deed was Recorded. Where the answer admits that the householder acquired title to the land in 1893, the presumption is, in the absence of any evidence to the contrary, that the deed was presently put of record.
    5. -: Antedating Debt: Burden of Proof: Sale Ordered by Probate Court. A creditor who through legal process has a homestead sold to pay his debt must carry the burden of showing the debt was older than the homestead. The allowance of the debt by the probate court, and its order to sell the property claimed as a homestead, do not amount to presumptive proof that the debt antedated the homestead. It will not be presumed, in aid of the creditor’s effort to defeat the homestead, that the probate court would not have ordered the sale unless the debt antedated the homestead.
    6. -; Sale Subject to Homestead: After 1895: Vested Interest in Remedy. Although the debt was made and the homestead established prior to 1895, and although under the Act of 1875 the homestead property could be sold to pay the householder’s debts subject to the widow’s and children’s continued right of homestead therein, the creditor had no such vested interest in that remedy as gave him any right to the property as a purchaser where the householder died and an attempt was made to sell the homestead property after the enactment of the Act of 1895, which does not permit a sale, subject to the widow’s and'minor children’s right to homestead, to pay the householder’s debts. The purchaser’s interests were restricted by the homestead statutes existent when the householder died.
    7.-: Vested Interests of Creditors and Widow. The rights of creditors in the homestead property, and the rights of the widow and minor children therein, must be measured by the law in existence at the death of the householder. The creditor has no vested interest in the property given by a particular statute no longer in force when the householder dies, though the debt was made and the homestead was acquired before that statute was repealed; and neither does the widow have any vested right in a homestead taken away by statute before the householder died.
    Appeal from Moniteau Circuit Court. — Hon. W. H. Martin, Judge.
    AFFIRMED.

      C. M. Gordon and 8. G. Gill for appellants.
    Under the Homestead Law of 1875, Sec. 5439, R. S. 1889, the homestead of deceased could be sold to pay the debts of deceased, subject to the homestead rights of his widow and minor children. Keene v. Wyatt, 160 Mo. 1; Robbins v. Boulware, 190 Mo. 33. The construction of the Homestead Law of 1875 was as much a part of the contract of indebtedness — the Taylor note in this case — as any other part of it. Broyles v. Cox, 153 Mo. 251; 36 Cyc. 1210 and 1211. Homestead exemption rights are effective only from date of filing for record the deed to such homestead. Sec. 5441, R. S. 1889; Acreback v. Myer, 165 Mo. 685. If the construction of the Homestead Law of 1875 was a part of Taylor’s contract with Balance — said note dated Oct. 27, 1894 — then such homestead of deceased was subject to sale to pay said debt, whether debtor died prior to or after said amendment of 1895 to said Sec. 5439, R. S. 1889. If tbe debt of Taylor was contracted before tbe filing of tbe Balance deed for record, it was subject to be sold to pay said debt under any theory of this case; but if such deed were filed for record prior to date of debt expressed in said note dated Oct. 27, 1894, tbe creditor, Taylor, under tbe Homestead Law then in effect, bad tbe right to rely on Balance paying same if be lived, and in case of his death to rely on tbe construction of said homestead law then in force, to have said homestead sold to pay said debt, subject to tbe homestead rights of said widow, Dolly Balance, and. any minor children, and that subsequent legislation could not take away this right.

      John M. Williams for respondent.
    (1) The pleadings and evidence in this case admit and show that the property in controversy was the homestead of Gilbert Balance, purchased by him November 22, 1893, that he built a cabin on it immediately afterwards, and lived there until his death. The debt and the only debt probated against his estate was due Taylor and dated Oct. 27, 1894, nearly a year after the homestead was acquired by Balance. The debt due said Taylor as evidenced by said note, having occurred after the acquisition of the homestead, the homestead was not liable for its payment. Sec. 5439, R. S. 1889. There is no evidence showing that the debt was contracted before the note was given. (2) It devolved on the defendants to show all the facts necessary to authorize the probate court tq authorize the sale, and these facts require the court to find that the debt from Balance to Taylor w;as prior to the deed and also prior to the filing of such deed for record. Anthony v. Rice, 110 Mo. 229; Rogers v. Marsh, 73 Mo. 64; Kelsay v. Frazier, 78 Mo. 112.
   LAMM, J.

Gilbert Balance, an ex-slave, died full of years and testate on the 1st of August, 1898, in the city of California, seized of lots 25 and 26 in Gri-ner’s Addition and leaving a widow, Dolly, and children — one of them, a minor daughter Ollie, the plaintiff. Gilbert, by his will duly probated, devised the lots to Dolly during her life- and after her death to plaintiff. Defendants having taken possession of the lots in April, 1908, plaintiff presently sued to determine and adjudge title, averring in her petition facts sufficient to invoke old section 650 and (inter alia) that the lots were the homestead of Gilbert for many years before and at his death.

By answer, defendants admit Gilbert died as alleged, leaving a will with the provisions alleged; averring that they, defendants, took and held possession; averring- they claim as owners, and denying plaintiff has any interest; averring that Gilbert acquired title by' deed on the 22d day of November, 1893; that thereafter in October, 1894, he executed a note for forty dollars “in settlement of a debt which he then owed the said Taylor and which he ha,d owed for a long'time;” that the note was not paid; that one Hardy was appointed and qualified as administrator of Gilbert’s estate; that the Taylor note was allowed against the estate by the judgment of the probate court; that, other than the lots, there was.no property to pay the note or costs of administration; that the lots were ordered sold by the probate court and were sold to pay the Taylor debt and said costs; that defendants as the highest and best bidders purchased at that sale for forty dollars and received an administrator’s deed; that afterwards in 1902 they acquired the widow’s interest by deed; wherefore by said conveyances they became sole owners of the lots. In conclusion the answer prayed title be adjudged in defendants.

{Note-. In one clause the answer sets up title through a deed under a tax proceeding and mesne con-veyanees, but it developed at the trial that plaintiff •was not a party to the tax suit and the court ruled out the record anent that sale. As defendants do not now complain of that ruling, that matter is laid aside on the shelf. This, under the precept: "What-is not judicially presented should not be judicially decided.)

By replication plaintiff reasserts the claim in her petition and next avers that the Taylor debt was not legally charged against the homestead of Gilbert Balance in his lifetime and that the probate proceedings whereby a sale of the homestead - was attempted by the administrator were'in the teeth of the statutes and void.

The court adjudged title in plaintiff subject to the life estate of Dolly, the widow (now held by defendants) ; and defendants appeal.

In addition to the admission in the pleadings, the facts are that the lots were Gilbert’s homestead in 1893 and on up to the time of his death. On October 27,1894, he executed a due bill to one Taylor for forty dollars payable one day after date. He paid on the same $27.60. On December 1, 1900, the duebill was allowed in the probate court against his estate in the sum of $21.75 and the lots were sold by proceedings in that court to pay that allowance and costs of administration, defendants becoming the purchasers, and ^afterwards by quitclaim deed getting the widow’s title. Said deed refers to the widow’s interest, thus: “my interest being a life estate.”

There was no evidence tending to prove the allegation of the answer that the Taylor note was given in settlement of a debt which Gilbert owed Taylor “for a long time” or for any time prior to the date of the note. There is no direct evidence when Gilbert’s deed to his homestead was recorded.

I. There are some general guiding propositions it is not amiss to invoke by way of foreword.

(a) First-. The correct judicial attitude toward homestead laws is one of as great liberality in construction as their words and spirit permit. Thus, courts should he quick to see and astute to aid the beneficient purposes of homestead statutes. Yerily, as nature abhors a vacuum, so enlightened public policy abhors pauperage and vagrancy. The force of homestead laws is spent in preventing both and all their evil attendant train. The broad public policy mentioned is the very life and essence of such laws. So, such laws are intended to discourage a mere tenantry. They aim at breeding the virtues springing from rooting citizens to the soil of their country. Bold and self-reliant householders are a nation’s pride and defense. Those laws were not framed in the interest of creditors to aid a debt-collecting subversive of homes; contra, they face the other way with emphasis. They are a statutory shield to protect the householder while he lives and his widow and minor children on his death from vicissitudes of fortune. All men contracting with a householder, contract in the light of such controlling fact. To that end the homestead is forbidden fruit to the creditor. He may not take or eat thereof. Such statutes are not in contravention of the common law, hence are to be liberally construed. Above all, they are not to be dwarfed or whittled away by sour, ovemice or austere construction. In effect, one or the other of those propositions is announced in one ox the other of the following cases (q. v.): Blandy v. Asher, 72 Mo. l. c. 28; Gowdy v. Johnson, 104 Ky. 648; Brewington v. Brewington, 211 Mo. l. c. 60, et seq.; Vogler v. Montgomery, 54 Mo. l. c. 583; Bushnell v. Loomis, 234 Mo. l. c. 391, et seq; Seilert v. McAnally, 223 Mo. l. c. 516.

(b) Second: The difficulties incident to the exposition of our several homestead statutes, as abundantly shown by appellate cases, have been so prevalent and acute as to lead to dicta afterwards repudi.ated, or to rulings afterwards exploded or modified. It seems difficult to hold a uniform voice in applying the details of homestead statutes, worded as ours. Hence, the wiser course in homestead judicial construction is to decide no more than precisely what the case in judgment calls for, and nothing without caution.

Giving heed to the foregoing, we come to a closer view of the case.

II. Something in said of the tenor and effect that the record does not disclose the date of record of the homestead deed. The point is, we suppose, that under Sec. 6711, R. S. 1909 (in force at the time of the administrator’s sale), a method is pointed out for ascertaining what homesteads shall he subject to attachment and levy of execution, it being provided by that section that a homestead should be subject to attachment and levy upon all causes of action existing at the time of acquiring the homestead, and,- further, that “for this purpose such time shall be the date of the filing in the proper office for the records of deeds, the •deed of such homestead,” etc. Given that provision In that section, is it to be read into the section relating to vesting homesteads in widows and minor children? In passing we call attention to the fact that there is a well marked distinction between the quality of a mere exemption privilege in the householder and the estate vesting in his widow and minor children. [Brewington v. Brewington, supra.]

As said, section 6711 pertains to attachment and levy of execution. Now, no attachment ,or levy of execution runs against a dead man’s estate. Hence the section does not on its face, at least, pertain to the vesting of a homestead .in a widow or minor children or the acquisition of a homestead for such purpose. That is provided for, to-wit, in' Sec. 6709, R. S. 1909 (the provisions of which, pertinent here, were in existence when. Gilbert Balance died). Bnt we need not stop to inquire whether the time of filing the deed to the homestead is material in considering the title of snch widow and children under section 6709. This is so because in this case it is conceded in appellants ’ brief there was a homestead with homestead rights vested. The proof was that the homestead was acquired in 1893 and hence was in existence when the Taylor note was made. Under snch circumstances we can see no substance in the silence of the record on the date when the deed to the homestead was filed. The homestead confessedly existing, we will take the fact as we find it.

But there is another view heading to the same result. In appellants’ answer it is admitted Gilbert Balance acquired title by a deed in 1893. With that admission in the case, and not controverted, would it not be presumed that the deed was put of record presently? That is the usual course — the course contemplated by the statute and dictated by due care and prudence. Presumptively the usual course was taken, absent proof to the contrary. We inquire: What avail would it be to reverse this judgment on this narrow point, only to be confronted on retrial with the fact the deed was promptly recorded, as we have not a particle of doubt was the case? Indeed, the very allegations in the answer relating to the execution of the deed and its date argue persuasively, that appellants got those facts from the records, the receptacle provided by the law for such information on titles.

Furthermore, defendants’ answer is obviously drawn on the theory that a homestead existed and was operative to defeat the administrator’s deed unless affirmative matter, pleaded therein, was effective (when proved) to sustain the administrator’s deed. That affirmative matter is outlined in the allegation that Taylor’s debt existed so long before the date of the note, as to antedate the acquisition of the homestead.

III. In putting in their proof, defendants failed to sustain the allegation in their answer, meaning in effect that the Taylor debt antedated the acquisition of the homestead. Does the order of sale in the probate court supply presumptive proof of that fact? In other words: Will it he presumed in aid of defendants ’ effort to defeat a homestead right, that the pro-hate court would not have ordered the sale unless the fact was as suggested in the answer? It was early established that a creditor who through legal process laid his hands on a homestead and sold it to pay his debt could only validate his act by carrying the burden of showing that the debt was older than the homestead right. [Rogers v. Marsh, 73 Mo. 64; Kelsay v. Frazier, 78 Mo. 111; Daudt v. Harmon, 16 Mo. App. 203.] Presently it was held otherwise. [Murphy v. De France, 105 Mo. 53.] Presently, in Anthony v. Rice, 110 Mo. 223, the doctrine of the Murphy-De France ease in that particular was exploded and we returned to the better early doctrine of the Rogers- ' Marsh and Kelsay-Frazier cases. If we have since the Anthony-Rice case reasserted the doctrine of the Murphy-De France case on that point, we are not aware of it.

As appellants threw off the burden put upon them by the law, we can not hold that Gilbert’s homestead was acquired after the cause of action on the Taylor debt existed.

IY. There is left one other feature of appellants ’ brief, viz: It is suggested that as Gilbert died after the amendment of the homestead act in 1895, but acquired his homestead, and the Taylor debt accrued, while the amendment of 1875 was in force, the creditor had a vested right in the remedy as that remedy was construed by this court to exist under the Act of 1875, viz: That the homestead itself might be sold by administration proceedings, subject to homestead rights. As to that we say:

In two cases it was ruled that the creditor had no such remedy under that act so long as homestead rights exist. [Broyles v. Cox, 153 Mo. 242; In re Estate of Powell, 157 Mo. 151.] But in Keene v. Wyatt, 160 Mo. 1, some of the doctrine of these two cases was repudiated, and we returned to that of an early case, Poland v. Vesper, 67 Mo. 727, which held, that the creditor could, through an administration sale, sell the homestead subject to the homestead rights of the widow and minor children. But weighty and pertinent matter is found in the per curiam In Bane when the Keene-Wyatt case came there from division. (Vide, p. 9.) The Broyles-Oox case and Powell case dealt with a case like that at bar, to-wit, where the householder died after the Act of 1895 took effect. But in those cases there were dicta concerning the Act of 1875, which, if followed, would have overturned the early construction put upon the Act of 1875 in the Poland-Vesper case. In this condition of things the gist of the ruling In Banc in the Keene-Wyatt case was leveled at disapproving (not all, but) only those parts of the judgments in the Broyles-Cox and Powell cases which construed the Act of 1875. So far as those cases construed the Act of 1895, they were •approved. Witness the per curiam itself:

“Per Curiam. — This case was sent by Division Two of its own motion to Court in Banc, because of its apparent conflict with some observations in the opinions of the court in Broyles v. Cox, 153 Mo. 242, and In re Powell’s Estate, 157 Mo. 151.
“The facts which form the basis of this action occurred while the homestead law of 1875 was in force, and the case is of course governed by that law, while the facts which form the basis of the cases of Broyles v. Cos, and In re Powell’s Estate, snpra, bring them within the provisions of the homestead law of 1875, 1879 and 1889, as amended by the Act of 1895, and in so far as the questions really involved in those cases are concerned, they are not in conflict with the case at bar, bnt the rulings in those cases to the effect that the homestead of a deceased housekeeper or head of a family, within the statutory size and limits, can not be sold under the homestead law of 1875, by an order of the probate court of the proper county, for the payment of the debts allowed against the estate of the deceased, subject to the homestead rights of the widow and minor children, are disapproved. With these suggestions, the foregoing opinion of Burgess, J., in Division Two is approved, and adopted by the Court in Banc.”

The significance of that per curiam will be at once seen by comparing the statute of 1875 with that of 1895, and marking the alteration in the law. In 1875 the statute was made to read (and continued to read until 1895) as follows (R. S. 1879, Sec. 2693):

“If any such housekeeper or head of a family ¡shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and .vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall .attain its legal majority, and until the death of such widow, and such homestead shall, upon the death of .such housekeeper or head of a-family, be limited to that period. But all the right, title and interest of the deceased housekeeper or head of a family in the premises, except the estate of the homestead thus continued, shall be subject to the laws relating to devise, descent, dower, partition and sale for the payment of debts against the estate of the deceased, and the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”

In 1895 the foregoing section was, ■ by amendment, made to read as follows (R. S. 1899, Sec. 3620):

“If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless, legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive-respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage-it shall pass to the heirs of the husband; and the-probate court having jurisdiction of the estate of the-deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons' entitled thereto.”

It will thus be seen that after this court had held under the'Act of 1875 that the homestead might be sold subject to the homestead rights of. the widow and minor children, the lawmaker’s attention was called to the great sacrifice that would result in such form of sale (vide, Showers v. Robinson, 43 Mich. l. c. 508) and accordingly eliminated that part of the statute which this court had held authorized such sale by an administrator, and the question is whether a creditor has such vested right in that particular form of remedy that tlie statute could not be changed (as to him) after Ms debt accrued. We do not think so.

We have held that homestead rights vest in the widow and minor children on the death of the householder, or head of a family, and not before. That up to that time the wife of the householder had no vested right under any particular once existent hut now nonexistent amendment of the homestead law. Nor had the householder such vested right when called on to claim his exemption privilege. [Bushnell v. Loomis, 234 Mo. 371.] How then in reason could we hold that the creditor had a vested right in some particular amendment, no longer in force when the householder dies, when the very persons for whose benefit the homestead act exists have no such vested right? That would he a bouleversement indeed. Under the doctrine of the Bushnell-Loomis case, we hold that the' rights of creditors, as well as those of the widow and minor children, must he measured hy the law in existence at the death of the householder.

It is needless to say we are not dealing with the right of a creditor whose debt existed before any homestead act was passed. We are dealing with a creditor that became such after a homestead law withdrew the homestead from the list of debt-paying assets, but gave a remedy in given conditions on his. debtor’s death against his debtor’s estate, and then, took the remedy away for reasons well grounded in¡ public policy.

It results from the premises that the judgment must be affirmed. It is so ordered. All concur. .


author: BROWN, C. PER CURIAM

text:
    RUBY SPERRY v. ALLIE COOK, Appellant.
    Division One,
    December 24, 1912.
    1. HOMESTEAD: Exemptions: Filing Deed: Cause of Action. The exemption of the homestead statutes applies to all causes of action accruing after the filing of the deed by which the title is vested in the execution or attachment debtor, even though the property may not have become a homestead until after the cause of action upon which ‘the process is founded had accrued.
    2. -: -: Cause of Action: Accrual: Breach of Promise to Marry. A cause of action for breach of promise of marriage does not accrue (and therefore does not “exist” under the exemption to the homestead statutes) until after breach of the promise by one of the • parties.
    Appeal from DéKalb Circuit Court. — Hon. A. D. . Burnes, Judge.
    REVERSED AND REMANDED-.

      Hewitt & Heioitt for appellant.
    (1) The debtor acquired the homestead on the 11th of February, 1904, that being the day on which the deed to the same was filed for record in the office of the recorder of deeds for DeKalb county. E. S. 1899, Sec. 3622; Shindler v. Givens, 63 Mo. 396; Bant v. Gale, 42 Yt. 27; Lamb v. Mason, 45 Yt. 500; Finnegan v. Prindeville, 83 Mo. 517; O’Shea v. Payne, 81 Mo. 519; Payne v. Fraley, 165 Mo. 196. (2) The primary rule of statutory construction of homestead laws is that the intention of the Legislature governs. And the courts in view of the benevolent'purpose of these statutes have almost universally held that they are to be liberally construed. 12 Am. & Eng. Ency. Law (2 Ed.), p. 533, note 5, and p. 535. (3) The primary right arising under the promise to the respondent was to have the promise fulfilled on the 24th day of February, 1904, and it was the corresponding duty of the appellant to fulfill his promise; the delict or wrong done hy the defendant consisted in the breach of this right or duty. It was these elements that constituted respondent’s cause of action. To state briefly, the cause of action consisted of the right belonging to respondent and the breach committed by appellant. Pomeroy’s-Remedies, sec. 452; Noonan v. Pardee, 200 Pa. St. 474, 55 L. R. A. 474; Tube Co. v. Burgess Co., 40 N. Y. Supp. 871; Post v. Campau, 42 Mich. 90; Fields v. Daisy Gr. M. Co., 26 tJtah, 373; Matz v. Railroad, 85 Fed. 180; Cause of Action, Bouvier’s Law. Diet.; 2 Words & Phrases, p. 1015; Trammell v. Vaughn, 158 Mo. 226; Wanneck y. Kratke, 66 L. R. A. 801, note 5. (4) The verbal noun “existing,” as used in the statute, Sec. 3622, R. S. 1899, in connection with “cause of action,” defined by Webster as being a fact, an entity, the state of being. Note the language of Sec. 3622, R. S. 1899, is “upon all causes of action existing.” Plaintiff’s cause of action did not come into existence, or being, till the breach of her right to have the contract fulfilled. (5) Respondent did not become a creditor of defendant until the breach of the contract February 17, 1904, viz., the date of the marriage. 14 Am. & Eng. Ency. Law (2 Ed), 253; Loring v. Groomer, 142 Mo. 9.

      Platt Subbell and George Subbell'for respondent.
    (1) This is an action for breach of a contract. This is an action ex contractu — not an action ex de-licto. Broyhill v. Norton, 175 Mo. 203. “The date of the execution of the contract and not that of the breach of it, governs in respect to the priority of the creditor’s claim over that of the homestead.” 15 Am. & Eng. Ency. Law, 634; Berry v. Ewing, 91 Mo. 395; Travis v. Davis, 15 S. W. (Ky.) 525; Stivers v. Horn, 62 Mo. 476; Lincoln v. Rome, 64 Mo. 138. Plaintiff’s cause of action grew out of a breach of a promise to marry, made in June, 1903. The defendant’s liability was created when he entered into that contract. The canse of action accrued then, though the right of action did not come into existence till the breach of that promise. The distinction between the terms cause of action and right of action should not be overlooked. Titus v. Warren, 67 Vt. 242; Ellinger v. Thomas, 64 Kan. 180; Ingram v. Wilson, 125 Fed. 913. The case of Loring v. Groomer, 142 Mo. 1, is not in point because there was no personal contract in that case— no obligation in personam — there was an obligation in rem, a covenant of general warranty “which runs with the land.” (2) Ownership, filing of deed for record, occupancy of the land, and the marriage of the defendant must all exist at the same time, before the right to homestead exemption could come into existence. Barton v. Walker, 165 Mo. 25; Rose v. Oaton, 168 Mo. 296; Holland v. Rongey, 168 Mo. 16 ; Burton v. Look, 162 Mo.. 512.
   BROWN, C.

This cause was certified to this court upon-a division of opinion in the Kansas City Court of Appeals, the majority of that court being in favor of the affirmance of the judgment below, Ellisok, J., dissenting. It is a proceeding in the DeKalb county Circuit Court to quash the levy of an execution on land in that county on the ground that the property levied on was the homestead of Cook, the judgment debtor. The majority opinion of the Court of Appeals (Sperry v. Cook, 138 Mo. App. 296, 297) contains a succinct statement which clearly presents the single issue as follows:

“In June, 1903, defendant, whose right name is J. Alden Cook, promised to marry plaintiff and February 24, 1904, was fixed as the date of the wedding. In October, defendant bought a farm of eighty acres in DeKalb county and filed the deed for record on February 11,1904. Sis clays later, lie married another woman, and in March he and his wife began the occupancy of the farm as their homestead. Plaintiff then sued defendant in the circuit court of DeKalb county to recover damages for breach of promise of marriage and on May 7 following, obtained judgment in the sum of $1750. She had execution issued on this judgment and levied on the farm and the sole question for our consideration is whether defendant had acquired a homestead right to the property as against the cause of action on which plaintiff’s judgment is founded.”

Sec. 6711, E. S. 1909, provides: “Such homestead shall be subject to attachment and levy of execution upon all causes of action existing at the time of the acquiring such homestead, except as herein otherwise provided; and for this purpose such time sháll be the date of the filing in the proper office for the records of deeds, the deed of such homestead, when the party holds title under a deed, but when he holds title by descent or devise, from the time he becomes invested with the title thereto; and in case of existing estates, such homestead shall not be subject' to attachment or levy of. execution upon any liability hereafter created.” The question involves the construction of this provision to ascertain (1) when the homestead of the appellant was acquired, and (2) when the cause of action represented by the judgment under which the respondent seelrs to sell it began to exist.

I. As was said for this court by Fox, J., in Sharp v. Stewart, 185 Mo. 518, 529, the subject of homestead is one in which the courts have manifested a very deep consideration, and “in view of the benevolent purposes sought to be accomplished by them, it has been nearly the universal ruling of the courts that such statutes should be liberally construed.” It also assists us if we bear in mind that these statutes are not .in derogation of the common law. The execution statutes authorizing the sale of these lands are in derogation of the common law, and the homestead statutes are simply restrictive of the innovation (Wharton on Real Property [6 Ed.], 309); for, “by the common law a man could only have satisfaction of the goods, chattels, and - the present profits of lands, . . . hut not the possession of the lands themselves.” [3 Blackstone’s CQmmentaries, 418.] So there is nothing which requires or even, justifies us in extending the operation of these restrictive provisions beyond the scope of a reasonable inteipretation of the words in which they are expressed, whatever may be- our own idea of the duty which rested upon the Legislature.

Section 6704 exempts the homestead of every housekeeper or head of a family, consisting of a dwelling house and appurtenances and the land used in connection therewith, to the amount and value named, which is or shall be used by such housekeeper or head of a family as such homestead, from attachment and ■execution, except as provided in the act. There is nothing uncertain about this. Leaving, for the moment the exceptions out of our consideration, it refers only to the time the property is sought to be taken in execution; so that if it should he thus occupied at the time, it would come within the terms of the exemption, unless there might be some constitutional question raised as to its application to contractual obligations assumed before the enactment of the law. We must, then, look for any modification of this absolute exemption from the operation of the writs named, in some other portion of the act.

In this inquiry the history of the law is helpful. The first homestead act (Laws 1863, p. 21) provided for the exemption “from sale under execution -(or other process) when owned by the head of a family, or wife, who shall be a bona fide resident of the State, any of his or .her real estate, not exceeding (one bun-' clrecl and sixty acres, if farming land, or one lot in town or city) in value one thousand dollars, at the date of such exemption, to he held and enjoyed by such party as a homestead.” It would seem that this section was framed, with studied care, to avoid the construction that the land must, at the time the exemption should be claimed, be occupied as a homestead by the party, provided such party should then reside in the State. There were excepted from its operation (Sec. 13) taxes, and “any debt or liability contracted for on account of the purchase of said homestead, or improvements made upon the same;” and (Sec. 10) “any debts or liabilities contracted before the taking effect of this act.” This was superseded by the law enacted in the General Statutes (1865), all the pro-' visions of which affecting this controversy, have been continued ever since. It changed the original act by requiring that the property exempted shall be used as a homestead. It also includes all the exceptions to the operation of the exemption which it creates, in a single section (Sec. 7) which is the same as Sec. 6711, E. S. 1909, omitting only the words “but when he holds title by descent or devise, from the time he becomes vested with the title thereto.”

Recapitulating these provisions in their application to this case, the Act of 1863 exempted every homestead held as such at the time of the exemption, except as against debts or liabilities contracted before the taking effect of the act. The Legislature evidently thought that in this respect it covered the ground of their constitutional power. In the Act of 1865 they evidently intended to change it so as to make the exception apply to all causes of action accruing before the acquisition of the land where it was acquired after the passage of the act, leaving the law unchanged as to lands acquired before its passage. Every word used was necessary and appropriate for this purpose and no other. This leads us to the conclusion that the exemption of the homestead applies to all causes ■ of action accruing after the filing’ of the deed by which the title is vested in the execution or attachment debt- or, even though the property may not have become a homestead until after the cause of action upon which the process is founded had accrued.

If we have devoted more discussion to this question than it apparently deserves, it is because'we have not heretofore been entirely consistent upon the question. In Barton v. Walker, 165 Mo. 25, we evidently adopted a different view, while in both the earlier case of Finnegan v. Prindeville, 83 Mo. 517, and the later one of Sharp v. Stewart, 185 Mo. 518, it was distinctly held, following decisions in the State of Vermont, which is said to have furnished the model for our homestead Jaw, that “the policy of the law is to secure housekeepers and heads of families homes which cannot be taken from them for debts contracted after the acquisition of the homestead. The acquisition of the land must be followed by its occupancy as a homestead, and this occupancy, whenever it occurs relates back to the time when the deed was filed for record. ’ ’ Onr reasoning in the, Barton case that the view we now take would, in case one has two tracts of land on one of which he resides, have the effect to give him two homesteads at the same time, overlooks the fact that the one only would be exempt on which he resides with his family at the time of the levy of the execution, and that the provisions we are now considering simply perform the purely legislative office of indicating the character of the liability to which the exemption of his one homestead shall apply.

II. It is suggested that the existence of the “cause of action,” which resulted in the judgment under which the respondent is attempting to sell the real estate levied on, dates (1) from the time the promise of marriage was made; (2) from the date of its breach by the appellant; and (3) from the date of the judgment. If the first contention is correct, it will result in the affirmance of the judgment; otherwise it will have to be reversed under our holding in the first paragraph of this opinion. The question is, therefore, did the cause of action, within the meaning of the homestead law, date from the time of the promise.

There is no expression in all our legal nomenclature that carries its meaning more conspicuously on its sleeve.than does the phrase “cause of action.” The words are unmistakable when we apply the meaning, universally accorded to them, and the expression has no technical signification other than that they express. Bouvier, in his excellent dictionary, defines it as “matter for which an action may be brought;” and explains it by saying: “A cause of action does not accrue until the existence of such a state of things as will enable a person having the proper relations to the property or persons concerned, to bring an action.” Quoting from the authorities, he says: “A cause of action is said to accrue to any person when that person first comes to a right to bring an action.” If we desire further support for what seems a self-evident proposition we can find citations and' quotations in abundance under that head in Words and Phrases. With that perspicacity which the courts sometimes display in the search for half hidden expressions of the legislative will, we have found in the homestead law (Secs. 3619; 3620, R. S. 1899), that the words “debt,” “debts” and “debtor” are used in connection with those liabilities with respect to which the homestead is exempted, and have, accordingly, by construction, properly extended the operation of the expressions contained in Sec. 3622, R. S. 1899, already quoted, so as to include indebtedness arising out of money obligations not yet due. [Farra v. Quigly, 57 Mo. 284; Stivers v. Horne, 62 Mo. 473.] The word debt however has a meanina- ‘so well established that it cannot be extended to include a promise of marriage while it remains in full force and unbroken. Bouvier in his definition of the word debt says: “The distinguishing and necessary feature is that a fixed and specific amount is owing and no future valuation is required to settle it.” This court in Saleno v. Neosho, 127 Mo. 627, 639, said: “A debt is understood to be an unconditional promise to pay a fixed sum at some specific time, and is quite different from a contract to be performed in the future, depending upon a 'condition precedent which may never be performed, and which cannot ripen into a debt until performed.” The books teem with learning on the subject, so easily available that its repetition here would be unjustifiable. We do however call attention to the discussion of the terms “cause of action” and “debt” in Patterson v. Patterson, 59 N. Y. 574, 578 et seq., as being peculiarly relevant to this case.

In Berry v. Ewing, 91 Mo. 395, this court seems to have used an expression inconsistent with our present conclusion respecting the meaning of the phrase “cause of action” in our homestead law. The case however was decided expressly and properly on the ground that the homestead claimed could not be constitutionally exempted from a money liability incurred by the execution of a curator’s bond before the passage in 1863 of our first homestead law. The question we have discussed was again before this court in Loring v. Groomer, 142 Mo. 1, when we held that the covenants of a warranty deed do not, before breach, create a cause of action within the meaning of the very section we are now considering. We note that the Court of Appeals in its majority opinion disposes of the case just cited with the following remark: “The case of Loring v. Groomer, 142 Mo. 1, much relied on by the defendant, is not in point. Covenants of general warranty in a deed to real property run with the land and being in rem differ in the rules by which they are controlled from obligations in personam.” The court does not seem to have thought it worth while to explain the difference in this respect between the title to an obligation of this character obtained through a transfer by the effect that the law gives to a conveyance of the land, and a transfer by any other means appropriate to the nature of the liability. Nor does it explain the peculiar sense in which it uses the word “in rem,” which we understand to be usually a technical term used to designate proceedings in an action against the thing, while the ordinary action for indebtedness upon a covenant is in personam.

The judgment of the DeKalb Circuit Court is reversed and the cause remanded to be proceeded with in accordance with this opinion.

PER CURIAM

The foregoing opinion of Browu, C., is adopted as the opinion of the court. All the judges concur.


author: WOODSON, J. G-eaves, J.,

text:
    PETER SCHUMACHER, Appellant, v. KANSAS CITY BREWERIES COMPANY.
    Division One,
    December 24, 1912.
    1. NEGLIGENCE: Safe Place: In Connection with Work. It is not only the duty of the master to provide a reasonably safe place in which his servant is to work) but a reasonably safe place on the premises to which he properly resorts in connection with his work.
    2. -: Contributory: Vouching for Own Witnesses. The plaintiff is not concluded by the testimony of each one of the several witnesses introduced by him. His prima facie case of negligence is not destroyed by the testimony of one witness which tends to show him guilty of contributory negligence, if that testimony is contradicted by other witnesses whose testimony tends to show he was not negligent. It is for the jury to say which witnesses they will believe, although all of them are introduced by plaintiff.

      3.-: -: Throwing Lumber Into Passageway. Plaintiff was employed in the stock building of a brewery; between it and the engine room was a passageway, through which the men went to and from their work. The second floor of the engine room was being replaced by concrete, and the timbers as taken out were thrown from a window into the passageway, sixteen feet below. To notify the men throwing out the lumber when an employee was in the passageway, a watchman was placed at its entrance and the rule was that when the men were ready to throw out lumber they called out, “Look out below,” and if no one was in the passageway the watchman replied, “All right.” ■ The work of throwing out the lumber had been going on for eleven days, at intervals of hours and days. Plaintiff, on the way to his work, entered the passageway, and saw and passed three or four men standing in the passageway about fifteen feet from the window. He testified that he did not know one of them was t&e watchman, that they gave him no warning, and that just as he was under the window something struck him which rendered him unconscious. Held, that this testimony made out a prima facie case; and was not destroyed by the testimony of the watchman, introduced by him, that when the timber which struck plaintiff was shoved out of the window six or eight feet the men in the building hallooed, “Look out below,” and he looked around to see if any one was coming, and seeing no one called back, “All right,” and turned his head to watch the timbers so as to keep out of their way, and that he did not see plaintiff until after he was struck; nor, by the fact that the same witness testified that at the time there was a pile of lumber three or four feet high lying in the passageway beneath the^ window, scattered confusedly around, that had lately been thrown out, and it was customary as the timbers were thrown out to stack them up in an orderly way along the building wall, and that plaintiff did not look up at the window as he passed under it — the plaintiff having testified that there were only three or four pieces of lumber and they were laid in regular order against the wall.
    4. -: Fellow-Servant. An employee in the cookroom of a large brewery, with many departments, having a foreman in each and one general superintendent, is not a fellow-servant of the carpenters and workrAen in another part of the building engaged in replacing the wooden floor with a concrete one.
    5. -: Pleading: Instruction: Omitting Necessary Element. An element of defendant’s negligence cannot properly be omitted from the instruction unless it could also have been properly omitted from the petition.

      6. -: Master and Servant: Assumption of Duty. If the master was under no obligation to furnish a watchman to warn his servants of danger, the mere fact that he voluntarily assumed that duty would not of itself render him liable for injury due to the negligent performance by the watchman of the work imposed upon him.
    7. -: Pleading: Two Acts: One Omitted from Instruction: Variance. Where the petition charged that the master was negligent in failing to exercise ordinary care in throwing timbers from a window into a passageway through which his servants customarily passed to and from their work,, and in not warning plaintiff that a timber was about to bo thrown out as he passed the window, an instruction embracing the first charge, but containing no words requiring the jury to find as a fact that it was the duty of the master to furnish a watchman to warn him, but instead thereof permits a verdict for plaintiff if the jury find that the master customarily furnished a watchman and thereby misled and lulled him into a feeling of security, and his watchman, though present, failed to warn him, is erroneous; and while the general charge of negligence that the timbers were negligently thrown from the window would be sufficient to support a judgment after verdict, even under such an instruction, if there was substantial evidence to support it, yet where there is no evidence that the timbers were negligently thrown out, and the material negligence was the failure of the watchman to warn him that the timber was about to be thrown out, a verdict based on an instruction which does not require the jury to find that it was the master’s duty to furnish a watchman, cannot stand. The instruction so broadens the issues as to constitute a variance.
    Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge.
    Affirmed.

      Bloch & Bloch, A. F, Smith, Boyle & Howell, and ■Guthrie, Gamble & Street for appellant.
    (1) It is tbe duty of tire master to maintain tire place where employees may properly resort in connection with their employment, in a reasonably safe condition. This is a positive duty of the master which cannot be delegated so as to relieve the master. Other servants performing this duty are not fellow-servants. Railroad v. "Wise, 106 111. App. 174, 206 Ill. 453; 26 Oye. 1087; King v. Railroad, 143 Mo. App. 289; Bailey v. Dry Goods Co., 149 Mo. App. 656; Strobel v. Mfg. Co., 148 Mo. App. 22; Van Verth v. Candy Co., 155 Mo. App. 304; Koerner v. Car Co., 209 Mo. 157; Stone Co. v. Mooney, 60 N. J. L. 323; ITjelm v. Granite Co., 94 Minn. 173; Railroad v. Holcomb, 9 Ind. App. 198;, Sronfe v. Moran, 28 Wash. 381; D’Agostino v. Railroad, 72 N. J. L. 358. (2) The men specially engaged in reconstruction work, something not a part of the ordinary work of the brewery, under a separate foreman employing and controlling them, were in a different department of employment among the numerous distinct departments in different buildings in this particular one of several plants of the master, and not within the fellow-servant rule. Koerner v. Car Co., 209 Mo. 153; Tabor v. Railroad, 210 Mo. 397; MeMurray v. Railroad, 225 Mo. 305; Music v. Dold, 58 Mo. App. 334; Shore v. Brewing Co., Ill Mo. App. 288; Haas v. Railroad, 111 Mo. App. 709; Tabler v. Railroad, 93 Mo. 79; Sullivan v. Railroad, 97 Mo. 119; Parker v. Railroad, 109 Mo. 362; Dixon v. Railroad, 109 Mo. 413; Relyea v. Railroad, 112 Mo. 93; Schlereth v. Railroad, 115 Mo. 87; Swadley v. Railroad, 118 Mo. 268; Church v. Railroad, 119 Mo. 203; Kelly v. Railroad, 141 Mo. App. 449; Jones v. Railroad, 178 Mo. 275; Lanning v. Railroad, 196 Mo. 661. (3) In every case in which different men might reasonably differ as to what care would be exercised by an ordinarily prudent man under all the circumstances, the question of contributory negligence is solely for the jury. (4) Where a system of signals giving warning of intermittent dangers is being employed, and such system is known to-the party charged with contributory negligence, he cannot be said, as a matter of law, to be guilty of contributory negligence for failure to keep watch against the specific danger. It is for the jury to say, under-all the circumstances, how far an ordinarily prudent man would rely upon the giving of the customary warning. Beach on Contributory Negligence (2 Ed.), sec. 190; Cooley on Torts, p. 802; Shearman & Red-field on Negligence (5 Ed.), sec. 466, note 8; Wilkins v. Railroad, 101 Mo. 105; Curley v. Railroad, 104 Mo, 211; Kenney v. Railroad, 105 Mo. 286; Crumpley v. Railroad, 111 Mo. 158; Francis v. Railroad, 127 Mo. 658; Hutchinson v. Railroad, 161 Mo. 254; Riska v, Depot Co., 180 Mo. 191; Montgomery v. Railroad, 181 Mo. 500; Sites v. Knott, 197 Mo. 717; Johnson v. Railroad, 203 Mo. 400; Strauchon v. Railroad, 232 Mo. 600; Burbridge v. Cable Co., 36 Mo. App. 670; Cox v. Granite Co., 39 Mo. App. 424; O’Keefe v. Railroad, 108 Mo. App. 184; Rissler v. Transit Co., 113 Mo. App. 124; Peterson v. Transit Co., 114 Mo. A,pp. 378; Railroad v. Amos, 54 Ark. 164; Dolph v. Railroad, 74 Conn. 538; Ranford v. Railroad, 126 Ga. 452; Railroad v. Hutchinson, 120 Ill. 587; Railroad v. Blaul, 175 Ill. 183; Railroad v. Yundt, 78 Ind. 373; Railroad v. Stege-meier, 108 Ind. 309; Railroad v. Brandt, 172 Ind. 647; Buchanan v. Railroad, 75 Iowa, 393; Railroad v. PIol-land, 60 Kan. 213; Sights v. Railroad, 117 Ky. 442; Railroad v. Ruoff, 141 Ky. 623; Cooper v. Railroad, 81 Me. 267; Railroad v. Stumpf, 97 Md. 78; Bailey v. Railroad, 125 Mass. 62; Merrigan v. Railroad, 154 Mass. 189; Lang v. Terry, 163 Mass. 138; Luke v. Mining Co., 71 Mich. 364; Engle v. Smith, 82 Mich. 1; Tobias v. Railroad, 110-Mich. 440; Anderson v. Mill Co., 42 Minn. 424; Stegner v. Railroad, 94 Minn. 167; Hoelgin v. Railroad, 143 N. C. 96; Harmer v. Apartment Co., 68 N. J. L. 332-; D’Agostino v. Railroad, 72 N. J. L. 358; Glushing v. Receiver, 96 N. Y. 678; Palmer v. Railroad, 112 N Y. 234; Wallace v. Railroad, 138 N. Y.. 306; Railroad v. Schneider, 45 Ohio St. 678; Roberts v. Railroad, 177 Pa. St. 183; Wilson v. Railroad, 18 R. I. 193; Railroad v. Ray, 25 Tex. Civ. App. 367; Kimball v¡ Friend, 95 Ya. 138; Jones v. Mill Co., 65 Wis. 315.

      Cowherd, Ingraham, Durham & Morse for respondent.-
    (1) The trial court was right in bolding that plaintiff was guilty of sncli contributory negligence as to bar a recovery, (a) Plaintiff’s attention was not engrossed in any work at the time of-the accident. Therefore, it was. his duty to use his sight, hearing and forethought for his own protection. This he admits he did not do. Wheat v. St. Louis, 179 Mo. 572; Montgomery v. Railroad, 189 Mo. 508; McNamara-v. Railroad, 126 Mo. App. 152; Evans v. Railroad, 178 Mo. 517; Holland v. Railroad, 18 Fed. 243; Mayliani v. Railroad Co., 108 Minn. 48; Woodson v. Railroad. 224 Mo. 685; Clancy v. Railroad, 192 Mo. 655; Schmeizer v. Furniture Co., 134 Mo. App. 493; Glover v. Bolt & Nut Co., 153 Mo. 327; Blockschmidt v. Railroad, 205 Mo. 435; Newton v. Railroad, 152 Mo. App. 167; Sis-sel v. Railroad, 214 Mo. 515; Degonia v. Railroad, 224 Mo. 364; Nivert v. Railroad, ■ 232 Md. 644; Cahill v. Railroad, 205 Mo. 393. (b) Plaintiff had no right to rely blindly upon a watchman to warn and not look for a danger which he knew existed. Absence of any warning does not absolve plaintiff from the exercise of care. Mockowick v. Railroad, 196 Mo. 550; Threl-keld v. Wabash, 68 Mo. App. 127; Schaub v. Railroad, 133 Mo. App. 446; Yan Dyke v. Railroad, 230 Mo. 25'9; Davis v. Railroad, 159 Mo. 1; Kelly v. Railroad, 88 Mo. 534; Kleiber v. Railroad, 107 Mo. 261; 3 Elliott on Railroads, p. 1754, sec. 1157. (c). The danger was obvious to plaintiff, had he looked. It is not negligence, therefore, for defendant not to warn. Smith v. Box Co., 193 Mo. 715; Nugent v. Milling Co., 131 Mo. 241; Ilirsch v. Bread Co., 150 Mo. App. 162; Pohl-mane v. Car Co., 123 Mo. App. 219; Stigman v. G-er-ber, 146 Mo. App. 101. (d) Plaintiff could have gone to bis work through three other entrances without any clanger to himself. It was his duty to do this. Cohn v. Kansas City, 108 Mo. 703; Woodson v. Railroad, 224 Mo. 701. (2) Plaintiff’s injuries were due to the acts of his fellow-servant, and, therefore, he cannot recover. Ryan v. McCully, 123 Mo. 635; McCarty v. Hotel Co., 144 Mo. 397; Oher v. Construction Co., 158 Mo. App. 213; Sheehan v. Prosser, 55 Mo. App. 569; Jackson v. Mining Co., 106 Mo. App. 441; Card v. Eddy, 129 Mo. 510; Schmeizer v. Furniture Co., 134 Mo. App. 493; Livengood v. Mining Co., 179 Mo. 229. (3) The motion for new trial was properly sustained because of error in plaintiff’s instruction 1. Said instruction does not conform to the, cause of action pleaded. Hufft v. Railroad, 222 Mo. 302; Degonia v. Railroad, 224 Mo. 590; Black v. Railroad, 217 Mo. 672. The instruction as a matter of law assumes that a failure to warn plaintiff was negligence. It was for the jury to say whether under the circumstances it was the duty of defendant to warn and whether a watchman was necessary. Welsch v. Railroad, 72 Mo. 451; Becke v. Railroad, 102 Mo. 551; Railroad v. Ins. Co., 144 17. S. 421. It assumes as 'a matter of law that a warning by a watchman was necessary and that any other method would be insufficient — such as the danger sign or the cry of the men throwing the timber.
   WOODSON, J.

The plaintiff instituted this suit in the circuit-court of Jackson county, against the defendant, to recover twenty-five thousand dollars damages for personal injuries received February 14, 1908, through the alleged negligence of the defendant.

The petition was in the usual form; and the answer consisted of a general denial and a plea of contributory negligence, assumption of risk, and that whatever injuries the plaintiff sustained were the re-suit of the negligence of a fellow-servant. The reply was a general denial.

A trial was had before the court and jury, which resulted in a verdict for the plaintiff for the sum of twelve thousand and five hundred dollars.

In due time, a motion for a new trial was filed, which was by the court sustained, for the reasons assigned of record, “that plaintiff was guilty of such contributory negligence that he ought not to recover; that the court erred in overruling defendant’s demurrer at the close of plaintiff’s ease, and giving plaintiff’s general instruction number one, and for the reason that plaintiff was guilty of such contributory negligence that he ought not to recover.” Prom this order sustaining.the motion for a new trial the plaintiff duly appealed the cause to this court.

The defendant introduced no evidence; and the plaintiff’s evidence, outside of the physician’s, consisted of his own testimony and that of four or five-witnesses, employees of defendant.

The facts of the case are but few, and are practically undisputed; but there is a wide variance between counsel as to the legal conclusions which should be drawn therefrom.

The appellant was an employee of respondent, and worked in what is known as the ‘ cook house ’ ’ or the “brew house;” that is, in the room where the ket■tles in .which the beer is cooked are situated, and his duty was to look after the kettles, keep them clean, mix the materials which were cooked therein and attend them while the cooking was going on, etc.

The entire plant of appellant covered nine acres of ground, and consisted of many separate departments; among others were the bottling shop and racking room, where bottles and kegs were stored, washed and filled with beer; the elevator building, where the grain was received and stored; the engine room, the •refrigerating plant, the stock houses and stock cellars, where the beer is stored; barns for horses and wagons; and office buildings, and many others, according to the plat introduced in evidence. But those mentioned are the only ones which the evidence shows were under the charge and control of separate foremen, and who had the authority to employ and discharge .all persons employed in their respective departments.

The entire plant was under the general control of a general manager; and the respondent also had a general superintendent, Mr. Kridler, known as the '‘brew master,” who had general supervision of all the departments of the plant, and, as before stated, the departments mentioned had a special or operating foreman.

Mr. Kridler, the general superintendent, was also the brew master, and had charge of the brew house, where the beer was manufactured and where appellant worked. There were employed in this department about twenty-five men, and about one hundred and fifty in the entire plant. Mr. Kridler , employed and discharged those working in the brew house, and had the authority, as I understand the record, to discharge men from practically all of the different departments.

One Martiny was the. foreman, or as he testified, the “wharf foreman,” of the place where the grain was stored, but it seems that he was an all-round kind of a man, and was at times assigned by Kridler to do various kinds of work, as the occasion might arise, in other departments. At the time of the injury complained of, Martiny had been assigned to the storeroom, or cellar No. 1, which was on the second floor of the building, along side of which respondent was injured, to tear out the partitions, floors and joists, with the view of replacing the floor with concrete. Martiny was placed in charge of this work, and he went out and hired three or four men to assist him in doing that work, he acting as foreman.

They began the work on February 3, 1908, and completed it on. March 24, thereafter.

The appellant was injured in a passageway,, about fourteen or fifteen feet wide, between said stock house on the west, and the building* in which were the engine and boiler rooms on the north and the brew house on the south, the latter building* being on the east side-of the passageway. Near the center of this, passage there was located a railroad track, running-north and south, but at the time it was but little used. This passage continued on south a. considerable distance, between the malt house on the one side and the elevator building on the other.

This passageway was in common and general use by the employees of respondent, in going to and in returning from their work, there being a door opening from the brew house, where appellant worked, into this passageway. Whenever cars stood upon this track,, which was about once a week, the employees did not use this passageway in going to and returning from their work. There were two or three other ways by which the employees could go to their work, but the one previously mentioned was the most direct and convenient route for those to go who lived north of the plant, one of whom was the appellant.

The appellant was injured by being struck with a heavy piece of timber about sixteen feet in length, and six by twelve inches in thickness, thrown from a window in the second story of the stock house, some sixteen or seventeen feet above the ground. This window was on the west side of the passageway, and about thirty-five or forty feet south of the north end thereof, the point where the appellant entered it.

As before stated, the appellant was injured on the 14th day of February, 1908, eleven days after respondent began tearing out the partitions and floors previously mentioned. The first materials removed from the building were light stuffs taken from the partitions and floors. This stuff was taken to the window and thrown out without ceremony, if the passageway was clear; but when they began moving the heavy timbers, some time before the accident, the exact time not shown, a watchman was stationed at or near the north end of the passageway, to warn the parties-who were throwing the timbers from the window, when the passageway was clear. Under that arrangement, whenever the parties in the building wished to throw or push timbers from the window, one of them would halloo, “Look out below,”' or some such words, whereupon, the watchman below would, if the passageway was clear, answer, “All right,” or some such words. After that was gone through with, the timber would be thrown out, which would take about fifteen or sixteen seconds from the time the people in the house received the answer, “All right.”

This work of throwing out the timber was not continuous. It lasted at times for a few minutes or hours, or perhaps a half of a day; then there would be intervals at times for hours and days. The watchman was stationed at his post of duty only at those times when these timbers were being thrown from the window. The watchman was not always the same person. The foreman, when he got ready to resume the work of throwing out the timbers, would select a watchman and station him at his post. The watchman might or might not be the same person who acted in that capacity upon former occasions.

The evidence also shows that the employees of respondent had been notified that a watchman had been placed on duty, but were not informed as to who the watchman was, nor did they have any means by which they could ascertain those facts, except by seeing the watchman perform the duties of such.

At the time appellant was injured, Carl Ludwig was the watchman on duty, and he was instructed “to look out for the people so that nobody got struck, and that if a plank stuck up straight and not in the row by the others, to pull it down and lay it flat.” That is, ‘ ‘ To keep people from going through while we was throwing out lumber. ’ ’

Some of the witnesses testified that in pursuance to the foregoing instructions, the lumber, as it would be thrown out of the window, would be picked up and laid in a straight pile between the building and railroad track.

The appellant knew that timbers had been thrown out of the window of the stock house, and piled along the side of the wall, but he testified that he had only seen it done twice.

Appellant’s hours of work were from three o’clock p. m. to eleven; and a few minutes before three, on February 14, 1908, in going to work, he passed around the north end of the stock house, and as he turned into the passageway, he glanced down and saw three or four men standing therein, about fifteen feet north of the point where he was injured.

Tie testified that about the same time he saw three or four pieces of lumber lying piled up along the wall of the building, but no one was throwing lumber out of the building at that time, nor was there any evidence that such was being done, that he saw.

Without looking up to the window he walked on south toward the door where he was working, and just as he reached a point almost under the window, something struck him and rendered him unconscious. The uncontradicted evidence shows that the thing which struck appellant was a piece of heavy timber thrown or shoved out of the window before mentioned, by Martiny and his men. That Carl Ludwig, the watchman on duty, was one of the men he saw and passed in the passageway before mentioned; that he did not know that Ludwig was the watchman or that a watchman was on duty and that Ludwig did not notify him that the timbers were being thrown ont at that time, or on that day.

Ludwig testified that when the timber was shoved ont of the window so that it projected six or eight feet, the men in the building hallooed, '‘Look ont below,” and that he looked around to see if any one was coming, and seeing no one, he hallooed, “All right,” and turned his head to watch the timbers, so as to keep out of their way. That he did not see appellant until he was struck. Ludwig also testified that at the time of the accident and prior thereto, there was a large pile of lumber, four feet in height, lying in the passageway, beneath the window before mentioned, scattered in all directions, just as it had fallen from the window. There was other evidence to the same effect.

There was other evidence which tended to show the passageway was obstructed frequently, at different intervals,' almost every day, with the lumber which had been thrown out of said window, and that appellant saw it every day as he went to work.

That on the wall of the brew house, just at the north entrance to the passageway, was written or printed with chalk the words, “Danger,” or “Danger; look out.” The evidence, however, does not show the size of the letters, or how conspicuous the words were.

I. There are but two questions presented by the . record to the court for determination, and they are questions of law; the first is one of contributory neg- • ligenee; and the second is one of fellow-servant.

We will consider these questions in the order stated.

It is elementary that it is not only the duty of the master to provide a reasonably safe place for his servant to work, hut a reasonably safe place where he properly resorts, on the premises, in connection with his employment. In the light of this general prinei-pie of tlie law, counsel for respondent do not contend that appellant did not make out a prima facie case, nor does tlie trial court question that fact, but a new-trial was granted upon the ground of contributory negligence.

There is no question but what the record abounds with evidence which tends to show contributory negligence on the part of appellant, and probably it is stronger than I have stated it in the statement of the case; but it is equally true that there is other evidence, as before stated, which made out a prima facie case, and tended to contradict the evidence of contributory negligence.

• But if we correctly understand counsel for respondent, their contention is this: They insist that since all the evidence in the case was introduced by appellant, he is 'bound as a matter of law by the evidence tending to show contributory negligence on his own part.

That insistence, in our opinion, is untenable, for the reason that it is a well established rule of evidence that a party litigant is not conclusively bound by the testimony of any one or more of the witnesses offered by him. That is true for the reason that the party offering a witness cannot always tell just what facts the witness will testify to; and it may be the witness may innocently testify falsely or willfully state an untruth. In either event, it would be unjust to deprive the party of his legal rights upon that character of testimony. That being true, the law in its wisdom has properly provided that the jury may consider and weigh all the evidence in the case, whether introduced by the plaintiff or defendant, and believe or disbelieve the testimony of any witness they may see proper. In other words, while a party will not be permitted to impeach his own witness, yet he will be permitted to introduce other evidence touching the same matters, though in doing so he discredits or contra-■diets the testimony of his former witness. [Brown v. Wood, 19 Mo. 475; State v. Shapiro, 216 Mo. 359, l. c. 370; Fearey v. O’Neill, 149 Mo. 467, l. c. 473.]

Counsel insist that since the appellant was perfectly familiar with the situation, and saw the lumber scattered promiscuously in the passageway beneath the window where he knew respondent had been in the habit.of throwing it out, that was such a warning to him of the then existing danger, that the law will not permit him to say that he did not see or know of the actual danger impending.

If that evidence had not been contradicted by other competent evidence, there would be great force in that insistence, but unfortunately for the respondent there was substantial evidence introduced by appellant tending to show that there was no lumber in the passageway except three, or four pieces of timber piled up along the side of the building; that lumber was not thrown out at any regular or stated times, but at intervals with hours and days intervening, and only then after having placed a guard on duty to notify the persons throwing the lumber out that the way was clear, and to warn persons of the danger of entering the passageway; that the guard negligently failed to notify appellant of the danger; and that appellant was ignorant of the fact that a guard was on duty.

If that evidence were true, then, in our > opinion, the court had no authority to declare as a matter of law that appellant was guilty of contributory negligence. If there was nothing to call the attention of appellant to the fact that lumber was then being thrown from the window, but the contrary was true, the negligence of the guard to notify appellant of the impending danger was to lull him into a sense of security and cause him to believe that Martiny and his men were not working in that building on that day.

If that were the condition of things and the actual state of appellant’s mind, then what negligence was he guilty'of? None, I submit, without it be true, .as-it is insisted, that the end of the timber which struck appellant was, when he entered the passageway, sticking out of the window some eight feet, and that, he was guilty of negligence in not looking up and seeing it.

In answer to that insistence, it may be said that, counsel for respondent, in order to excuse the negligence of Ludwig, in not seeing appellant approaching the place of danger, stated on page three of their brief, that it was thrown out so quickly (fifteen seconds) that he “turned his head to watch the timber so as to protect himself from its toppling over against him,” and that he never saw appellant until he was injured.

Now if it he true that Ludwig did not have time, after hallooing “All right” to Martiny and his men, who were throwing the timber out, to look and see appellant and get out of the way of the timber, then by what process of sound reasoning can it be said that appellant had time to see it and get out of its way, when he was right, under it, while Ludwig was at least fifteen feet away.

In our opinion there was ample evidence to carry the case to the jury, and that the court erred in holding to the contrary.

II. It is next contended by counsel, that the motion for a new trial was properly sustained because appellant was injured through the negligence of his fellow-servant, and therefore the master is not liable.

In our opinion the evidence does not bear out this contention. It is uncontradicted that the entire plant covered nine acres of ground and consisted of many buildings, widely separated, some of them seven stories high, in which buildings the different departments of the business are housed, with a foreman in charge •of each department with authority, respectively, to employ and discharge the men under them; and the aggregate number of employees in all the departments was about one hundred and fifty, and there was a general superintendent who had charge and control of all the various departments, who also had the authority to hire and discharge any or all men working anywhere in the plant, also to transfer them from one •department to another.

The employees in one department saw but little ef those working in the other departments; and the character of the business conducted in one department, and the instrumentalities with which it was carried on, were wholly different from those of all other ■departfiaents.

In this case the appellant was employed in the brewing department, and Martiny was the regular foreman of the elevator department, but some ten or twelve days prior to the accident complained of the general superintendent transferred him temporarily to the stock room, which was in an entirely different building from the brewing building, to tear out and remove the partitions and floors thereof, and replace them with concrete floors, etc. Martiny went out in the city and employed three or four men to assist him and they went to work to tear out the old partitions and floors.

Under this uncontradicted state of facts, we are unable to see how it can be logically contended that the ■carpenters and concrete workers in the construction department, doing work in the store house, or in any ■other department, for that matter, could be said to be fellow-servants with the brewers in the brewing department.

It is true Kridler had a general charge and' control over all the departments, foremen and employees in the entire plant; nevertheless, that fact did not make the individual employees of one department the fellow-servants of those of an entirely different department, any more than a bridge carpenter, in the construction department of a railroad company is a fellow-servant with the conductor on a train in the transportation department. Both may be and are often under the same general superintendent, but under separate departmental foremen. They are not fellow-servants.

[Tabor v. Railroad, 210 Mo. 385, l. c. 398; Koerner v. Car Co., 209 Mo. l. c. 153; McMurray v. Railroad, 225 Mo. 272, l. c. 305.]

Nor in principle can. it be held that the appellant and Martiny and his men were fellow-servants.

III. Counsel for respondent next insist that the action of the court in granting a new trial was proper, for the reason that the cause of action stated in the petition was the failure of respondent to exercise ordinary care in throwing timbers from' the window mentioned, and in not warning appellant of that fact. They also insist that instruction numbered one, given for appellant, submitted to the jury a different cause • of action from that stated in the petition.

After a careful reading of the petition there is no doubt but what the petition charges both the carelessness of respondent in throwing the timber out of the window, and negligently failing to notify appellant of that fact, that is, it was the duty of the respondent to furnish a watchman to warn appellant of the danger, when the timbers were being thrown' out, and that the watchman negligently failed to so notify him; or more briefly .stated, the injury was the result of both of the negligent acts before mentioned.

So much of said instruction as is necessary for a proper understanding of this question, reads as follows :

“The jury are instructed that if they find and believe from the evidence that on or about the 14th day of February, 1908, the plaintiff was an employee of the defendant, Kansas City Breweries Company, at a brewing plant called Heim Brewery in Kansas City, Missouri, and that the plaintiff in pursuance of such employment was walking upon the premises of said defendant on his way to the place of his employment for the purpose of proceeding with his work, and that the place where the plaintiff was walking was one commonly, generally and customarily used by the employees of said defendant during the course of their employment, and in going to and from the same, and that this was known, or by the exercise of ordinary care should have been known, to the defendant, and that at said time said defendant was engaged in throwing timbers from the second story of one of its buildings adjacent to such passageway and that such timbers were of such size and character and being thrown under such conditions that the employees throwing the same were unable to reasonably provide against' the fall thereof upon persons in such passageway, and that said defendant had been so engaged at intervals from time to time for some weeks prior to said time, and that said defendant, for the purpose of protecting employees using such passageway from injury from such timbers, had, to .the prior knowledge of plaintiff, provided a watchman to stand in such passageway at the time such timbers were thrown to warn employees against using such passageway at a time when timbers were being thrown, and that while the plaintiff was using such passageway at the times aforesaid, a timber was thrown so that same fell upon and injured the plaintiff, and that, the watchman provided negligently failed to warn the plaintiff that a timber was about to be thrown, or otherwise warn the plaintiff, and that the plaintiff’s injury (if any) were the direct result of such negligence (if any),” etc.

By reading this instruction it will he noticed that it eliminates from the case one of the elements which the petition charged resulted in the injury, namely; that it was the duty of the respondent to furnish a watchman, etc., and submits the case to the jury upon the theory that respondent had theretofore customarily stationed a watchman in the passageway to notify employees of danger; that appellant knew of that custom and relied upon it; and that at the time of the injury the watchman negligently failed to warn him of the danger, and that in consequence thereof he was injured.

. Prom this it is seen that the court authorized the jury to find for appellant, if they believed from the evidence that respondent had theretofore furnished the watchman, without further requiring them to find the fact that it was his duty to furnish such watchman, as charged in the petition.

The vice of this instruction is, that it authorizes a recovery from the mere fact that the respondent furnished the watchman on previous occasions, regardless of the question of his duty to so-do. If respondent owed appellant no duty to station a guard there, then the mere fact that he assumed that duty, would not, of itself, render him liable, without we should adopt the theory of the instruction, namely; that said custom misled appellant and lulled him into a sense of security, and thereby caused him to go into the place of danger, which he would not otherwise have done. But this custom was not stated in the petition as a ground for a recovery, which will be presently considered.

The law is well settled that if the master was under no legal obligation to furnish a watchman to warn persons of danger, the mere fact that he voluntarily assumes that duty would not of itself render him liable for failure to so do.

In discussing this principle of law, this court in the case of Barney v. Eailroad, 126 Mo. 372, l. c. 392, in speaking through Shebwood, J., said: “But plaintiff’s counsel says that defendant assumed the duty of keeping its yards clear of hoys, by giving instructions to its yard hands, etc.; but that this duty was neglected and therefore a cause of action arises alone from this neglect. But if the prior duty did not exist to keep the boys out of the yards, then the mere assumption of a nonexistent duty would be but a gratuity, with no precedent or concurrent consideration on which to base it, and therefore no liability would follow such assumed and pretermitted duty. Mere pre-termission of a self-imposed precaution does not constitute actionable negligence.”

If this charge of duty to furnish the watchman was properly omitted from the instruction, then it ■could have been properly omitted from the petition. Now, if omitted from the petition, the only remaining ■act of negligence charged would be the general statement, that the lumber was negligently thrown from the window, with stating the facts constituting the negligence. "While this general charge of negligence might •ordinarily have been sufficient after verdict, but not •so in this case, for the reason that there was no evidence introduced to support it. The evidence failed to show that the mode or manner of throwing the lumber from the window was negligence, but it did tend to show that the omission to furnish a watchman to warn employees of the danger incident to the careful mode or manner- of throwing it was negligence and that said negligence was the cause of the injury. That "being true, it necessarily follows that the instruction given was erroneous, because of the variance between the petition and the instruction, without it can be held good, upon the theory contended for, that the custom before mentioned to furnish a watchman, was known to appellant and that relying npon the custom, he was lulled into a sense of security, and that in consequence of said negligence of the respondent in failing to furnish the watchman, he was injured.

This contention will not cure the error pointed out in the instruction, and consequently will not bridge the chasm existing between the instruction and the petition, because it broadens the issues made by the pleadings and authorizes a recovery upon a ground not stated in the petition.

G-eaves, J.,

in a separate concurring opinion in the

case of Black v. Railway Co., 217 Mo. 672, l. c. 685, clearly stated the rule applicable to this state of facts,, in the following language: “In other words, a correct and proper instruction must be (1) an instruction based upon and authorized by the evidence, and (2) an instruction in no wise going beyond the purview of the pleadings. If in the trial of a cause the court permits the evidence to assume a broader scope than indicated by the petition, such does not authorize an instruction broader in terms than is the petition. ‘A court does not possess the power to change by instruction the issues which the pleadings permit/ [Bank v. Murdock, 62 Mo. l. c. 73.] ”

There are no rules of pleading or evidence which will support this instruction.

We are, therefore, of the opinion that the order of the court granting a new trial was proper, because it gave the erroneous instruction mentioned.

The judgment is affirmed. All concur.