author: BURGESS, J.

text:
    SOUTHERN BANK OF FULTON, Appellant, v. NICHOLS et al.
    Division Two,
    March 19, 1907.
    1. EQUITY: Submission of Issues to Jury: Peremptory Instruction. The finding of the jury in an equity case is only advisory. The chancellor is not hound by it. Hence no error is committed in instructing the jury to find for defendant on all the issues. submitted, if that is the finding the evidence authorizes, for that, in effect, is the chancellor’s finding.
    2. -: Chancellor’s Finding: Appellate Practice. While deferring somewhat to the chancellor’s finding of facts in an equity case, the appellate court will review the evidence and determine for itself whether or not he came to the right conclusion therefrom.
    3. FRAUDULENT CONVEYANCE: Necessary Showing. Before a creditor of the grantor in a deed can defeat the deed for fraud, he must show that it was made with a fraudulent intent, and that the grantee had notice of such intent when he accepted the deed. But while such intent must be proved, and can not be presumed, yet direct and positive evidence is not necessary to establish it. It may be inferred from facts and circumstances.
    4. --: Facts in Evidence: Notice to Grantee. One of the defendants and his brother borrowed of plaintiff bank $2,350 and ‘ executed their note therefor. Defendant at that time owned and resided on 140 acres of land, and the loan was made on the faith of his ownership of the land. After the note had run for several years and the bank wanted it settled, said defendant was in the bank to get the date and amount of the note, and was told by the bank that they wanted it settled, and he replied that, “We will attend to that all right in a short time.” Soon thereafter he conveyed the land by a quitclaim deed to his four children, the other defendants, one of whom was a minor, for the recited consideration of $1,500. thereby rendering himself hopelessly insolvent. Held, that the conveyance was made for the purpose of defrauding plaintiff, and the taking by the children of the quitclaim deed constituted them purchasers with notice.
    5. -: No Consideration. A conveyance by a father to his minor son. whom the father owed nothing, the son paying the father nothing, is void as to the father’s existing creditors.

      6. -: Insufficient Consideration. The conveyance by a father to his four minor children, to two of whom he owed nothing, to the other two of whom he owed $1,077, of land worth $2,766.66, in which he had a homestead, at a recited consideration of $1,500, the conveyance thereby rendering him insolvent, cannot be said to be supported by such an adequate consideration as to overcome the father’s manifest intent to defraud his creditors.
    7. -: To Daughter: To Pay Debt to Husband. A quitclaim deed by a father to a daughter, in payment of money loaned by her husband, and in payment of work done by the husband on the father’s barn while the daughter and her husband were living with the father, no showing being made of when the work was done or the money loaned or the value of the work or the amount of the loan, cannot be said to be supported by either an adequate or valuable consideration. Such evidence is too vague to be considered.
    8. -: Deposition of Grantee: Admission. The deposition of a .grantee in the conveyance, being party to the suit, taken by the adverse party, is admissible in evidence as an admission, although the deponent is in court when the deposition is offered. But the deponent will thereafter be entitled to have the entire deposition read, or at least so much of it as bears on the question in regard to which he was interrogated.
    9. ADMISSIONS OF PARTY: Witnesses. A party to a suit upon trial, although summoned as a witness by the adverse party, does not occupy the position of a witness not a party. The statements of the latter are only admissible for the purpose of contradicting or impeaching him, and then the usual foundation must be laid. But the statements of a party to the suit1 are admissible as original evidence against him.
    Appeal from C'allaway Circuit. Court. — Root. Robert McPheeters, Special Judge.
    Reversed and remanded'.

      T. A. Bouhvare with D. P. Bailey and 1. W. Boulware for appellant.
    (1) The issues formulated and submitted to the jury were illegal and erroneous. The second issue required the jury to find whether the conveyance was made to hinder, delay and defraud the grantor’s creditors, and if not made by R. H. Nichols to hinder, delay and defraud his creditors, to find for the defendants. R. S. .1899, sec. 3398; Baer, Seasongood & Co. v. Lisman, 85 Mo. App. 317; Rupe v. Alkire, 77 Mo. 641; Burgert v. Bofchert, 59 Mo. 80; Crow v. Beardsley, 68 Mo. 435; Dunham v. Halberg, 69 Mo.. App. 509. (2) In this case it is not a question of purpose and intent alone. If the effect of the transfer was to hinder, delay or defraud creditors, the same was void as to creditors. Cole Mfg. Co. v. Jenkins, 47 Mo. App. 664; Noyes v. Cunningham, 51 Mo. App. 194; Glens & Tiede v. Hargadino, 56 Mo. App. 245. (3) The instruction given to the jury by the court to find for the defendants on each of the issues was clearly illegal and improper. The jury had been .chosen and qualified and issues submitted to them. Plaintiff had closed its case. Defendant offered no testimony. The demurrer to the testimony was improperly and erroneously given. This demurrer admits every fact which the jurors might infer, if the evidence were before them. Moore v. Railroad, 194 Mo. 1; Frank© v. St. Louis, 110 Mo. 516; Bender v. Railroad, 137 Mo. 240. If plaintiff makes out a prima facie case, it should go to the jury. This is true however slight it may be, whether direct or inferential. Hughes v. Ellison, 5' Mo. 110; Emmerson v. Sturgeon, 18 Mo. 170. (4) The evidence was amply sufficient to authorize a finding for plaintiff. The evidence was substantial. The jury was taken on the court’s own motion. The issues of fact were formulated and submitted to them by the court. They were in every sense competent to try the case; hence, we submit that same rules of law are applicable as in a suit at law. If the peremptory instruction given by the court to. find for defendant would have been wrong in a suit at law, it was error in this case. (5) Although this may be an equitable proceeding, and the court may have the right to disregard the finding of the jury, after it called the jury, heard the evidence, directed the jury what verdict to find for defendants on each issue — then adopted the verdict and based its judgment thereon, yet we can but conclude that the acts and rulings of the court develop the fact that the case was tried on a wrong theory. (6) The fact that a part of the alleged consideration was invalid — a fraud against grantor’s creditors — will taint the whole transaction and avoid the whole sale in favor of creditors. Nattach v. Wylie, 25 Kan. 148; Hannah v. Finley, 33 Mo. App. 645; State ex rel. v. Hope, 102 Mo. 410; National Bank v. Fry, 168 Mo. 492; Kukendall v. McDonald, 15 Mo. 420; National Tube Works Co. v. Machine Co-., 118 Mo. 365; Seger’s Sons v. Thomas Bros., 107 Mo. 635. (7) If deed is voluntary as to one of the grantees, it is fraudulent as to grantor’s creditors. Patton v. Bragg, 113 Mo. 595; Snyder v. Free, 114 Mo. 360; Bank v. Fry, 168 Mo. 520; State ex rel. v. Hope, 102- Mo. 410. (8) Where a father strips himself of everything he owns that is subject to execution when he is indebted, and conveys his property to his children on an alleged payment of vague and uncertain claims for services rendered to him by his children years before, it is a strong and fair circumstance to be considered in determining- the bona tides of the transactions. Mason v. Perkins, 180 Mo. 707; Robinson v. Dryden, 118 Mo. 534; Hardware Co. v. Riddle, 84 Mo. App. 275; Burgert v. Borchert, 59 Mo-. 80. (9) The deed being voluntary — and without a valuable consideration — the grantor being heavily in debt — insolvent—was void and fraudulent as to his creditors. This is true, whether such was known to the grantees or not. Shaw v. Tracy, 83 Mo. 224; Needless v. Ford, 167 Mo, 495 ;- Worrill v. Kilner, 113 111. 418. (10) There was no valuable consideration for the conveyance from R. IT. Nichols to his children; said children had knowledge of all the facts connected with the transaction. They took from him a conveyance to all said 140 acres, stripped him of the last dollar, well knowing he was largely indebted to plaintiff and had no property but the 140 acres of land with which to pay. Van Raalte v. Harrington, 101 Mo. 602; Goldsby v. Johnson, 82 Mo. 602; Donovan v. Dunning, 69 Mo. 436; Bohanuon v. Combs, 79 Mo. 305 ; Swinford v. Teegarden, 159 Mo. 635. (11) While a creditor has an absolute legal right in Missouri to prefer one of his creditors over another so long' as he acts in good faith, he has no right to make an indebtedness to one creditor the means not merely of securing that creditor but of placing the surplus of his property over and beyond that security in the hands of such creditors in such a way as to put it beyond the reach of other creditors so as to- hinder or delay in their lawful actions, McDonald & Co. v. Hoover, 142 Mo. 495. (12) It is settled law that when it appears upon the face of any conveyance or by facts and circumstances that it is a secret trust for the grantor, it will be declared to be void. McDonald v. Hoover, 142 Mo. 495.

      A. Finley for respondents.
    This was R. H. Nichols’ homestead, valued at $1,-500, the commissioners gave him $300 exemption, maL ing a total of $1,800. Did he have a right to sell it? And did his children pay him what the land was worth, or approximately what it was worth? If it was his homestead he had a right to sell it, and said sale was not fraudulent to creditors. Davis v. Land, 88 Mo. 438; Bank of Versailles v. Guthrie, 127 Mo. 189: The rule is that fraud, like any other fact, must be proved and cannot be presumed. The relationship of the parties to a conveyance charged to have been made in fraud of creditors and the insolvency of the grantor and the •facts that the grantor continued to live on the farm after the transfer and that the consideration expressed in the deed was less than the value of the land, are not sufficient to show that the conveyance was fraudulent. Robinson v. Dryden, 118 Mo. 535. The evidence shows that R. H. Nichols owed his son-in-law, Trnitt, $300', his son, Hershel, $530 and his son, Shelt, $800', being a total amount of $1,630, in consideration of which he made a quitclaim deed to all of his children, William F. being included, it being understood among the children that they would adjust that between themselves. This does not show fraud, nor an intention to commit fraud, both of which must be proved in order to set aside a conveyance by deed. Gens & Tiede v. Hargadine & Co., 56 Mo. App-. 245. It is well-established law in this State that an insolvent debtor or one in failing circumstances may, with an honest view to pay an honest debt, prefer one creditor over another, though the effect be to hinder and delay the other creditor. Hardware Co. v. Riddle, 84 Mo. App. 276. Where in a suit in equity to set aside a conveyance as having been made in fraud of creditors, issues are submitted to the jury and the charges made in the petition are not established by the weight of the evidence, the court may peremptorily instruct the jury to find for the defendant. Robinson v. Dryden, 118 Mo. 534; Snell v. Harrison, 83 Mo. 657. The court had a right to submit issues to a jury, a right. to adopt or disregard the findings of the jury on the issues submitted to them. Robinson v. Dryden, 118 Mo. 534; Snell v. Harrison, 83 Mo. 657.
   BURGESS, J.

This is a suit to set aside a quitclaim deed made by defendant R. H. Nichols to- his children and codefendants, Berdina A. Truitt, Hershel I. Nichols, Richard S. Nichols and William F. Nichols, on the ground that the deed sought to be set aside was without consideration, and made with the intent to defraud plaintiff and hinder and delay it in collecting its debt, and that the said grantees accepted said deed with the intent and purpose of aiding the said R. H. Nichols in defrauding plaintiff, and hindering and delaying it in collecting its said debt.

The cause was tried at the May term, 1902, of the Callaway Circuit Court, when the following issues of fact were submitted by the court to the jury:

“1. Was the deed from the defendant, R. H. Nichols, to the defendants, B. A. Truitt, H. I. Nichols, R. S. Nichols and W. F. Nichols, dated November 29, 1899, and conveying the lands described in plaintiff’s petition, without any valuable consideration?

“2. Was said deed executed and delivered by the defendant, R. H. Nichols, fraudulently and with the intent to hinder, delay and defraud plaintiff?

“3. Was said deed received and accepted by the defendants, B. A. Truitt, H. I. Nichols, R. S. Nichols and W. F. Nichols, and by each of them, fraudulently and with the purpose and intent of defrauding plaintiff and for the purpose and intent of aiding the said R. H. Nichols in defrauding plaintiff and preventing plaintiff in collecting its said debts?”

At the conclusion of plaintiff’s evidence, the court, at the request of defendants, gave the following peremptory instruction to the jury: “The jury are instructed, at the close of plaintiff’s testimony, that under the pleadings and evidence, the verdict and findings must he for defendants, on all three of the issues submitted;” and the jury found accordingly. The court thereupon rendered judgment in favor of defendants and against plaintiff for costs, dismissing plaintiff’s bill; from which judgment plaintiff appeals.

The following is a summary of the facts:

On the 6th day of October, 1894, the defendant, R. H. Nichols, and James I. Nichols, his brother, executed and delivered to plaintiff their promissory note for $2,350, due one day after date, with interest from date at the rate of eight per cent per annum. At the time of the execution and delivery of said note defendant R. H. Nichols was the owner of 140 acres of land in Callaway county, which said land, by quitclaim deed, dated November 29, 1899', he conveyed to his said children and codefendants for a stated consideration of $1,500, his wife refusing to sign said deed. Upon suit brought for the payment of said note and interest due thereon, plaintiff recovered judgment against said James I. Nichols and R. H. Nichols, on the 22nd day of December, 1900, for the sum of $2,861.65 and costs, and by virtue of an execution issued thereunder the sheriff seized and levied on the said 1401 acres of land. After, the levy of said execution, and before the sale, the sheriff appointed three qualified commissioners, who assigned and set off to said R. H. Nichols, as a homestead, sixty acres of said land, and, in lieu of his exemptions as to personal property, ten acres of the said tract. The remaining seventy acres was sold by the sheriff at public sale, the plaintiff becoming the purchaser for $300, receiving the sheriff’s deed therefor. At the time of the institution of this suit no part of the said judgment was paid save the said sum of $300'.

Each of the three commissioners, James H. Ely, David Newsom and J. B. Gilpin, who set off the homer stead of defendant R. H. Nichols out of the 140-acre tract, testified as. to the value of the land. Ely testified that he was not well acquainted with the value of lands in the neighborhood of this 140 acres; that the sixty acres which they had set off as a homestead had the dwelling-house and. other improvements thereon, and' they set the value at $25 an acre; that the other ten acres set aside by way of exemptions was valued at $20 an acre. He stated that he did not look over the remaining seventy acres and could not estimate its worth. Newsom’s testimony was to the same effect as regards the value of the land set out as a homestead, but he thought the seventy acres remaining over was poorer land, and worth about two or three dollars per acre. Gilpin testified that he did not value the land as high as Ely and Newsom did the day he was there, and he thought the tract of 140 acres was worth about $2,200. ' He also said that, four or five years before this trial, he bought 320' acres of land near •this 140 acres, and paid $3,150 therefor, or about $10 ' per acre. He thought that part of his land was about as good as Nichols ’ land.

Dr. J. H. Howard testified that he knew the land in controversy a long time, and that it was reasonably worth twenty-five, thirty or thirty-five dollars per acre.

C. W. Jameson, who was plaintiff’s cashier at the time of the note transaction, testified that his information was that the land in question was worth between $3,500 and $4,000 and that the loan was made on the strength of that fact.

The statements of defendant R. H. Nichols, made some time before in answer to inquiries on an examination held before Judge John A. Hockaday touching his ability and means to1 satisfy the judgment against himself and J. I. Nichols, were read in evidence, the part relative to the making of the quitclaim- deed and the consideration therefor being as follows:

“ Q. “When did you first conclude or determine to deed this land to your children? A. Well, I was in debt to my children, and they wanted a settlement, and 1 had no money to make any settlement with them with, and had to deed them the land to satisfy them.

“Q. What did you owe them for.? A. I owed them for work they did, and for money I borrowed from them, and such things. .

“Q. Call the children by name and state how much you owed to each. A. There was Shelton, for one, he lived there and worked on the farm for about seven or eight years, and I was to give him a part of the crops and so much a year for outside work, for attending to the farm, keeping up the fences, and doing work that is necessary on a farm.

“Q. Who is the next one? A. Then there is Hershel. We went into the grocery business together, and lost money on it, and he paid all the debts. And then I borrow'd money from Mm to pay the taxes, and was in debt to Mm in that way.

“Q. How much money did you borrow from Mm, and when was it borrowed? A. I don’t know the amount exactly ;• I have not got it itemized.

“Q. About how much was it? A. It was somewhere between $300, $400 and $500, along there somewhere.

“Q. You borrowed that much money from him? A. No, sir; he paid the debts of the grocery firm for a part of it.

“Q. You say you borrowed! money from your children. How much money did you borrow from Mm? A. I borrowed some money from him to pay the taxes.

‘ ‘ Q. How much money did you borrow from him ? A. About $26 or $27.

“Q. Is that all the money you ever borrowed from him? A. He paid the note — we borrowed some money together and he paid the note off that we gave for it.

‘‘Q. How much was that? A. He added it up and-it came to between $400 and $500.

“Q. How old was he when you owed Mm that much money A. He was about twenty-seven or twenty-eight years old, somewhere in there. I don’t know exactly how old he was then.

“Q. He was living with you most .of the time on the farm down, there, was he? A. No, sir.

Q. Your son Shelton was the one who lived with you on the farm ? A. Yes, sir.

‘ ‘ Q. Did you borrow any money from Shelton? A. No, sir.

“Q. You owed him only for work on the farm? A. Yes, sir; and I was to give him $100 a year for outside work he did.

“Q. What work was that you were to pay him $100 a year to do? A. Keeping up the farm, looking after the fences, waiting on me, hauling wood, and all such things as that that are necessary to do on a farm.

'“Q. What is the name of the next child? A. Mrs. Truitt.

££Q. How much money did-you borrow from her? A. I borrowed the money from her husband, Mr. Truitt, not from her. And he built a barn for me one summer, too.

<£Q. When was it he built that barn for you? A. I could not say when it was.

££Q. Come as near to it as you can. When was it he built the bam for you? A. I don’t remember what year it was; and could not give it.

11Q. Where was he living when he built that barn? A. He lived right there at the house.

££Q. Did you ever pay him anything before you made this deed to your daughter? A. No, sir.

££Q. Did he ever say anything to you about paying him before you made this deed to your daughter? A. No, sir.”

Plaintiff offered in evidence the deposition of de¿ fendant W. E. Nichols, son of defendant R. H. Nichols, which was taken some days prior to the trial, and which plaintiff said was offered to prove certain admissions made by said W. F. Nichols relative to his interest in the land and the consideration paid his father therefor. Defendants objected to the introduction of the deposition on the ground that the deponent was present and within reach of the process of the court, and if' plaintiff wished to make him its. witness it could do so; which objection was sustained, and plaintiff excepted.

As the finding of the jury in chancery cases is only advisory, and the chancellor is not bound by it, there wias no error committed by the court in instructing the jury to find for the defendants upon all three of the issues submitted, providing the finding was authorized by the evidence. [Robinson v. Dryden, 118 Mo. 534; Cox v. Cox, 91 Mo. 71.] In effect, this was the finding of the chancellor of his own motion, which finding he had the authority to make. [Snell v. Harrison, 83 Mo. 654; Bevin v. Powell, 83 Mo. 365; Cox v. Cox, supra.] And while the finding of the chancellor in such cases will he deferred to somewhat, this court reserves the right to review the evidence, and to determine for itself whether the chancellor came to the right conclusion, under the evidence. [Snell v. Harrison, supra.]

It is well settled that before a creditor of the grantor in a deed can defeat the deed for fraud, it devolves upon him to show that it was made with a fraudulent intent,' and that the grantee had notice of such intent when he accepted.the deed. But while such fraud must be proved, and cannot be presumed, yet direct and positive evidence is not necessary to. establish it. It may be inferred from facts and circumstances.

Now what are the facts and circumstances disclosed by the record in this cased At the time James I. Nichols and the defendant R. H. Nichols borrowed from the plaintiff the sum of $2,350, .on October 6., 1894, and executed their note therefor, said R. H. Nichols was the owner of and resided upon the land in controversy, and the evidence shows that it was upon the faith of his ownership of said land, and his consequent ability to pay said note, that the loan was made.

After the note had been in the bank several years, plaintiff wanted it settled; and when R. H. Nichols was in the bank getting date and amount of the note, and was told by an officer of the bank that they wanted it settled, Nichols replied, “We will attend to that all right in a short time. ’ ’ But instead of settling the note in a short time, he soon thereafter, on the 29th day of November, 1899, .conveyed all of his land by quitclaim deed to his children, Mrs. B. A. Truitt, H. I. Nichols, R. S. Nichols and W. F. Nichols, for the recited consideration of $1,500'; which was much less than its value. By this conveyance said R. H. Nichols was rendered hopelessly insolvent. It also appears that W. F. Nichols, one of the grantees named in the deed, was a minor at the time. From these facts and circumstances there is no escaping the conclusion that R. H. Nichols conveyed the land to his children with the intent and purpose of defrauding his creditor, the plaintiff in this suit.

Now, as to the question of notice to defendants, the grantees, they took under a quitclaim deed from their father, the grantor, which, under repeated rulings by this court, constituted them purchasers with notice. [Sharp v. Cheatham, 88 Mo. 498; Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 Mo. 147; Stivers v. Horne, 62 Mo. 473.]

Defendants’ counsel, however, contend that the consideration paid to R. H. Nichols by his children, the grantees named in the deed, was valuable and adequate; and, it would appear, according to counsel’s computation, that the grantor was paid more than the land was worth. However, there is nothing before us, save the testimony of the witnesses, from which to make our deductions.

G-ilpin, one of the commissioners appointed to set out the homestead, testified that the 140 acres w'as, in his opinion, worth $2,200. Newsom stated that the sixty acres allowed R. H. Nichols for a homestead was valued at $25 an acre, and the other ten acres set out by way of exemptions, at $20 an acre. That is to say, the seventy acres, in his estimation, was worth $1,700. The remaining seventy acres he supposed was worth only two or three dollars an acre. According to Newsom’s figures, then, the whole tract was worth about $1,900. Witness J. H. Howard, who knew the land well, testified that, in his judgment, the land “was worth $25 or $30 or $35 per acre.” Taking the middle figure, or $30 per acre, as- his estimate, the 140 acres would amount in value to $4,200. Witness Jameson’s information was that the tract was worth $3,500 or $4,000, but this shall not be considered, as he was an interested party, and his information was mere hearsay. Now, taking the estimates of Gilpin, Newsom and Howard, and adding them together, we have $8,-300, dividing the same by 3, we have $2,766.66 as the average value of the land.

There was no testimony offered, save that of R. H. Nichols, regarding the consideration paid for the deed to the land. He said that his son, Shelton, lived with and worked for him on the farm some seven or eight years, and that he promised him $100' a year for his work; that he borrowed $27 from his son, Hershel, and that the latter paid off a partnership debt ‘ ‘ somewhere between $300, $400 and $500,” which debt was the result of their going “into the grocery business together, and losing money on it.” These items represent the only money consideration we have any account ,of. His daughter, Mrs. Truitt, loaned him no money; but he said that he borrowed some money from her husband, and that the latter built a barn for him one summer while he was living with him. This' is altogether too vague to be considered. He did not say when the money was.borrowed or the barn was built. Besides, he denied that Mr. Truitt, his daughter’s husband, had ever said anything to him about compensation before he made the deed wherein his said daughter is named as one of the grantees. Neither did the defendant, R. H. Nichols, say that his youngest son, W. P. Nichols, paid him anything whatever as consideration for said deed.

If the debt paid by Hershel Nichols was $500', and it was a partnership debt, he must bear his own share thereof, and not charge it all against his father. Taking half, or $250, as the sum owing Shelton Nichols by his father on this account, and adding thereto1 the $27 borrowed, as before stated, Shelton’s part of the consideration for the deed is $277. Said sum being supplemented by the eight hundred dollars supposed to be owing Hershel Nichols by his father for his eight years’ services on the farm, we have $1,077 as the total consideration for the deed, or a little more than one-third of the estimated value of the land.

There was no settlement between R. H. Nichols' and his children for the purpose of ascertaining and determining the sums due them, respectively, and which, according to the evidence, was mere matter of conjecture. In fact, there was no evidence whatever that R. H. Nichols owed his son, W. F. Nichols, anything, or that the latter paid any consideration for his interest in the land; so as to him the deed was voluntary, and1 clearly in fraud of the creditor, the plaintiff in this action.

In Needles v. Ford, 167 Mo. 495, it is held that a deed is a voluntary deed, and fraudulent in law and void as to existing creditors, when made by an insolvent or by one rendered insolvent by the very act of conveying his property. And this is true although the grantee may have been ignorant of the insolvency of the grantor and ignorant of the fraud intended and committed. [Shaw v. Tracy, 83 Mo. 224.]

Defendants, the grantees, are charged in the petition with a knowledge of the fraudulent purpose of their father in conveying the land to them; yet none of them testified as parties or witnesses in this case. It is manifest from this and the other circumstances mentioned that the purpose and intent of the grantor in conveying the land to his children was to defraud his creditors, and that the grantees in the deed had notice of and were parties to the fraud.

The declarations and admissions of a party to a lawsuit, against his interest, are always admissible in evidence in favor of the adverse party, although made in a deposition taken by such party, and the party making the statement or admission, as it may be, is in court at the time the parts of the deposition containing such statement or admission are offered in evidence. But the party making the statement or admission would thereafter be entitled to have the entire deposition read, or at least as much of it as has any bearing upon the question in regard to which he has been interrogated. A party to a suit upon trial, although summoned as a witness by the adverse party, does not occupy the same position as a witness not a party to the suit. The statements of the latter are only admissible for the purpose of contradicting or im-' peaching him, in order to do which the usual foundation must be laid by calling his attention to the time when and place where made, etc., and if he denies having made such statements, then evidence is admissible to show that he did. With respect to the statements of a party to the suit, however, his statements are admissible against him as original evidence, and the court, therefore, erred in ruling out the deposition of defendant W. F. Nichols taken some time before the trial, and which was offered by plaintiff to prove certain admissions made by said defendant relative to his interest in the land and the character of the consideration paid his father therefor.

For the reason stated the judgment is reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    JOHN METZ, Appellant, v. CAPE GIRARDEAU WATERWORKS & ELECTRIC LIGHT COMPANY.
    Division Two,
    March 19, 1907.
    WATERWORKS: Liability to Private Citizen for Fire. A water- . works company, required by the city ordinance, under which it constructed its plant, to provide hydrants and furnish water of a named pressure, to be available at all times for extinguishing fires, is not liable to a private citizen for loss of his buildings by fire because of its failure to furnish the requisite amount of water and pressure, although it may have for years received from the city a compensation for supplying said hydrants and pretended water supply, and although had it complied with its contract with the city the fire could have been extinguished soon after its inception.
    Appeal from Cape Girardeau Court of Common Pleas. —Hon. John A. Snider, Judge.
    Affirmed.

      Giboney Houck and Orren Wilson for appellant.
    (1) "Wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can bring ah action for damages against the person on whom that duty is imposed. Couch v. Steel, 3 El. & Bl. 402; Cooley on Torts, p. 788; Kelley v. Railroad, 101 Mo. 67; Dahlstrom v. Railroad, 108 Mo. 525; Gratiot v. Railroad, 116 Mo>. 450. (2) The ordinance under which the respondent operated, although it takes the form of a contract, provides for its acceptance and contemplates a written agreement in execution of it, is also and primarily a municipal regulation, and as snch, being duly authorized by the legislative power of the State, has the force of law within the limits of the city. Hayes v. Railroad, 111 U. S. 228; St. Louis v. Foster, 52 Mo. 513; Mason v. Shawneetown, 77 111. 533; Union Depot Company v. Railroad, 105 Mo. 562; Jackson v. Railroad, 118 Mo. 199; Kelley v. Railroad, 101 Mo. 67; Dahlstrom v. Railroad, 108 Mo. 525; Gratiot v. Railroad, 116 Mo. 450; Dillon on Municipal Corporations (1 Ed.), 245; Metcalf v. St. Louis, 11 Mo. 103; City of Tarkio v. Cook, 1201 Mo. 1; Verdin v. St. Louis, 131 Mo. 119; St. Louis v. Boffinger, 19 Mo. 15 ; Taylor v. Carondelet, 22 Mo. 105; State v. DeBar, 58 Mo. 395; Moore v. Cape Girardeau, 103 Mo. 4701; State ex rel. v. Meier, 143 Mo. 446; Railroad v. Railroad, 148 Mo. 647; Kansas City v. Marsh Oil Company, 140 Mo. 458 ; Railroad v. Railroad, 148 Mo. 671; Apitz v. Railroad, 17 Mo. App. 427; Ex parte Bedell, 20 Mo-. App. 131 ; St. Louis v. Alexander, 23 Mo. App. 483; Cape Girardeau v. Eiley, 52 Mo. 424; State ex rel. v. Heidorn, 74 Mo. 410 ; Railroad v. Kansas City, 29 Mo. App. 91; State ex rel. v. Heege, 40 Mo: App. 653; Spitler v. Young, 63 Mo. 42; State ex rel. v. Walbridge, 24 S. W. 457; City y. Howard, 24 S. W. 772; Steffen v. Pox, 56 Mo: App. 19; Hopkins v. Mayor of Swansea, 4 M. & W. 640; State ex rel. v. Meier (on motion to certify to Supreme Ct.), 72 Mo. App. 635; State ex rel. v. Berscb (on motion to certify to Supreme Ct.), 83 Mo. App. 668. (3) (a) The respondent und'ertook a public duty to be performed for the benefit of the inhabitants of Cape Girardeau distributively, for the negligent non-performance of which duty an action will lie on the part of any ■ individual specially damaged as for the non-performance of a public duty, and setting up the contract by way of inducement. Lampert v. Laclede Gas .Light C'o., 14 Mo. App. 393; Henly v. Mayor (reported 5 Bing. 91, 3 Mor. & P. 273. In error to King’s Bench, 3 Barn, and Adol. 97. In House of Lords, 2 Cl. & Pin. 331; 1 Bing. N. O. 222; 8 Bli. N. R. 690; 1 Scott 29); Hays v. Railroad, 111 H. S. 228; Shearman & Redfield on Negligence, sec. 353; Taylor v. Railroad, 45 Mich. 74; Cooley on Torts, sec. 657, 480, 481, 499; Couch v. Steel, 3 El. & Bl. 402; Rowing v. Goodcliild, 2 W. Bl. 906; Robinson v. Chamberlain, 34 N. Y. 389; Crone v. Stinde, 156 Mo. 268; St. Louis to use v. Yon Phul, 133 Mo. 561; Devers v. Howard, 144 Mo. 671; City of Bethany v. Howard, 149 Mo. 504; Lane v. Colton, 12 Mod. 488; Whitaker’s Smith on Negligence, 10; 1 Thompson on Negligence, 234; 2 Sutherland on Damages, p.. 435; Roddy v. Railroad, 104 Mo. 350; P'arnay v. Canal Company, 11 Ad. & El. 223; Johannes v. Ins. Co., 66 Wis. 50; Hann v. Burrell, 119 N. C. 548; Sams v. Price, 119 N. C. 572; Burton v. Larkin, 36 Kan. 246; Houseman v. Trenton Water Co., 119 Mo. 315 ,- Thomas v. Whinchester, 2 Ltd. 397; Davidson v. Nichols, 11 Allen 519; McDonald v. Snelling, 14 Allen 290; Eaton v. Avery, 83 N. Y. 31; Bank v. Mich. Barge Co., 52 Mich. 164; State v. Pierce, 35 Wis. 186; Willey v. Mulledy, 78 N. Y. 310; Weet v. Brockford, 16 N. Y. 168; Sawyer v. Corse, 17 G-ratt. 30; Burnett v. Whitney, 94 N. Y. 302; Robinson v. Rohr, 73 Wis. 435. (b) The ordinance under which respondent operates was passed for the benefit of the tax-payers and property owners of Cape Girardeau, and the doctrine is fully established that a third party, for whose benefit a promise is made, may sue directly upon this promise, and this is especially so where there is a breach of duty also involved. Fitzgerald v. Barker, 13 Mo. App. 192, 70 Mo. 685; Heim v. Yogel, 69' Mo. 529; Duncan v. Baker, 72 Mo. 667; Ellis v. Harrison, 104 Mo. 270; Weinreich v. Weinredch, 18 Mo. App. 364; School Board v. Woods, 6 Mo1. App. 590; Rogers v. Gosnell, 51 Mo. 466; Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Cloustv v. McKee, 94 Mo. 241; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo-. 60; School District of Kansas City v. Levers, 147 Mo. 580; Porter v. Woods, 138 Mo. 539; Lawson on Contracts, sec. 241; Langridge v. Levy, 2 Mees. & Weis. 519; Houseman v. Girard, etc., 81 Pa. 256; Mc-Caraher v. Commonwealth, 5 Watts 25; Commonwealth v. Planner, 6 Phila. 90; Adsit v. Brady, 4 Hill 639; Ins. Co. v. Baldwin, 37 N. Y. 648; Robertson v. Chamberlin, 34 N. Y. 389; Conroy v. Gale, 5 Lans. 344; Stack v. Bangs, 6 Lans. 262; Johnson v. Belden, 2 Lans. 433; Ransom v. Railroad, 62 Wis. 178; Raynsford v. Phelps, 43 Mich. 342; Rowing v. Goodchild, 2 W. Bl. 906; Teal v. Felton, 1 N. Y. 537; Ashby v. White, Ld. Raym. 938; Lincoln v. Hapgood, 11 Mass. 350; Jeffries v. Ankeny, 11 Ohio 372; Hoover v. Barkhoof, 44 N. Y. 113; Hathaway v. Hinton, 1 Jones (N. C.) 243; Hayes v. Porter, 22 Me. 371; Nickerson v. Thomson, 33 Id. 433; Lardos v. Bezant; 1 La. Ann. 199; Amy v. Supervisors, 11 Wall. 136; Tracy v. Swartwout, 10 Pet. 80; Brown v. Lester, 21 Miss. 392; Bolán v. Williamson, 1 Brev. 181. (4) Where a water company contracts to furnish a city and its inhabitants with an adequate amount of water for fire protection, a taxpayer whose property is destroyed by fire through the failure of the company to supply sufficient water for its extinguishment, being a beneficiary of the contract, may in in his own name sue the company for damages sustained. Paducah Lumber Company v. Paducah Water Supply Company, 89 Ky. 340; Duncan v. Water Company (Ky.), 12 S. W. 557; Duncan’s Exrs. v. Water Company (Ky.), 15 S. W. 523'; Gorrell v. Greensboro Water Company (N. C.), 32 S. E. 720; Griffin v. Water Company, 122 N. C. 206; Haughten v. Water Company (Or.), 28 Pac. 244; Railroad v. Meridian Water Works Co., 18 C. C. A. 519.

      Robert L. Wilson for respondent.
    The court did not err in sustaining defendant’s demurrer to the petition of the plaintiff. 1. There was no privity of plaintiff in the contract between the city of Cape Girardeau and the Cape Girardeau Waterworks & Electric Light Company. 2. Nor was defendant under any contract to supply water for the extinguishment of said fire, for the breach of which contract plaintiff had any right of action. 3. It does not appear that plaintiff was a party to the alleged contract between defendant and the city of Cape Girardeau, or that said contract inured to plaintiff’s benefit so that he can maintain an action against defendant for the breach thereof. 4. No facts are alleged from which it appears that defendant was under any contract or duty to supply water for the fire plugs of the city of Cape Girardeau for extinguishing fires. 5. It does not appear that defendant owed plaintiff any duty to supply water for the use of the fire department for the extinguishment of the fire which it is alleged destroyed plaintiff’s property. 6. It does not appear from the petition or ordinance filed with the petition that defendant corporation was, by reason of the contract between said city and defendant, to be a policeman of said city. Lovejoy v. Bessemer Waterworks Co. (Ala.), 41 So. 76; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 33; Foster v. Lookout Water Co., 3 Lea (Tenn.) 42; Davis v. Waterworks Co:, 54 Iowa 59; Fowler v. Waterworks Co., 83 Gu. 219'; Ferris v. Water Co., 16 Nev. 44; Becker v. Waterworks, 79 Iowa 419; Howsmon v. Trenton Water Co., 119 Mo. 304; Fitch v. Seymour Water Co., 139 Ind. 214; Britton v. Green Bay Water Co., 81 Wis. 48; House v. Houston Water Co. (Tex. Civ. App.), 22 S. W. 277, affirmed by Supreme Court of Texas in 88 Tex. 233; Beck v. K. Water Co. (Pa.), 11 Atl. 300; Wilkinson v. Light, Heat & Water Co. (Miss.), 28 So. 877; Mott v. Cherryvale Water Co., 48 Kan. 12; Bush v. Artesian Water C'o. (Idaho.), 43 Pac. 69; Eaton v. Fairbury Waterworks Co., 37 Neb. 546; Allen & Currey Mfg. Co. v. Shreveport Waterworks Co. (La.), 37 So>. 980; Boston Safe Deposit & Trust Co. v. Salem Water Co. (C. C.), 94 Fed. 238; Metropolitan Trust Co. v. Topeka Water Co. (C. C.), 132 Fed. 702.
   FOX, P. J.

This cause is now1 in this court upon appeal by plaintiff from a judgment of the Cape Girardeau Court of Common Pleas, Cape Girardeau county, Missouri, sustaining a demurrer interposed by defendant to the petition filed by plaintiff. As the sufficiency of the petition is the only legal proposition before us, it is well to reproduce it. Omitting formal parts it is as follows:

“Now comes plaintiff and with leave of court files his amended petition.

“Plaintiff states that he is a resident of the city of Cape Girardeau, county of Cape Girardeau, and State of Missouri; that he is a large taxpayer to the city of Cape Girardeau and that he has paid all his taxes for the year last past.

“Plaintiff sues the defendant and for his first cause of action states that on the 22d day of October, 1903,he was the owner of a hotel building located on the south part of lot No. 15, block No. 7, of First Giboney-Houck subdivision to the city of Cape Girardeau; that the value of said building was thirty-seven hundred dollars, and that on said day the said building was destroyed by fire through the careless, wanton and negligent conduct of the defendant as hereinafter set out.

“Plaintiff sues the defendant and for his second cause of action states that on the said 22nd day of October, 1903, he was the owner of a dwelling on the north part of aforesaid lot No. 15, about fifteen feet from the hotel building; that the value of said building was seven hundred dollars and that on the aforesaid day it took fire from sparks issuing from the afore>said hotel building and was destroyed through the careless, wanton and negligent conduct of the defendant as hereinafter set out.

“Plaintiff sues the defendant and for Ms third cause of action states that on the said 22nd day of October, 1903, he was the owner of a dwelling situated on lot No. 16, block No. 7, of First Gibomey-Houek subdivision to the city of Cape Girardeau and that the value of said building was eight hundred dollars; that said building took fire and was destroyed through the careless, wanton and negligent conduct of the defendant as hereinafter set out.

“Plaintiff sues the defendant and for Ms fourth cause of action states that on the said 22nd day of October, 1903, he was the owner of a bam located on the rear part of the aforesaid lot 15, block 7, of First Giboney-Houck subdivision of the city of Cape Girardeau, and that the value of said bam was two hundred dollars; that the said bam took fire and was destroyed through the careless, wanton and negligent conduct of the defendant as hereinafter set out.

“That the defendant is a corporation organized under the laws of the State of Missouri, is the assignee of a contract with the city of Cape Girardeau, which is made a part of this petition, entitled: ‘An ordinance to provide a system of waterworks in the 'City of Cape Girardeau, Missouri, and granting to Ad’olph W. Gilbert, his associates, successors or assigns the right to construct and operate the same, giving the rights to streets, alleys, avenues and public places, to him, his associates, successors or assigns and agreeing to contract with the said Adolph W. Gilbert', his associates or assignees, for fire protection and other purposes for a period of twenty years, from the date of the passage of this ordinance.’ Plaintiff alleges that sáid ordinance was passed March 12, 1894, accepted by the aforesaid Adolph W. Gilbert, offered on his behalf to the people of the city of Cape Girardeau, and accepted April 17, 1894, and a contract created. That the aforesaid contract is still in force.

“That under the aforesaid contract, the said Adolph W. Gilbert, his associates, and assigns, assumed the duty of police officers to protect the said city against fire.

“That for and in the consideration of the benefit to be derived by constructing and operating the system of waterworks and furnishing a sufficient quantity of pure and wholesome water, suitable for all domestic, manufacturing and fire purposes the said Adolph W. Gilbert, his associates, successors and assigns were granted the right to establish and operate, a system of waterworks and the right to enter upon all the streets, avenues and public grounds ‘as they now exist or hereafter may be extended’ for' the purpose of laying mains, conduits and pipes for a period of twenty years; and that by said ordinance the city of Cape Girardeau was divided into different divisions by proper valves so that at no time said system should be disabled entirely in case of accident. That by said ordinance the said Gilbert, his associates, successors and assigns for services as such police officers to furnish the city of Cape Girardeau water in case of fire with such pressure as in said ordinance specifically provided, were to have and receive an annual rental for such services of three thousand dollars per annum.

“That said ordinance further provided for the location of hydrants at such points as may be- designated by the city council and as indicated on the plans and specifications and map providing for the construction of said waterworks, and that said ordinance also provides for the extension of the pipe system as provided in said ordinance whenever on such extension to be paid for pro rata at, the same rate as provided for hydrants originally located under said ordinance; that said ordinance specifically provides that said Adolph W. Gilbert, his associates, successors or assigns, shall keep such hydrants in repair and ready for use at all times.

“That said ordinance provides that said Gilbert', his associates, successors and assigns shall distribute the water through the pipe system, so to be constructed by them, by pumps and from the reservoir which shall be of a capacity of not less than seven hundred thousand gallons.

“That said ordinance with the view of fully protecting the property of the city of Cape Girardeau from fire further specifically provides that the said Adolph W. Gilbert, his associates, successors and assigns as such police officers created and established for the purpose of furnishing water in case of fire and such pressure as may be hereafter set out ‘ shall at all times keep their waterworks in good and efficient working order to the end that the said Gilbert, Ms associates, successors and assigns as such police officers for the purpose of supplying water should always be prepared to furnish the pressure adequate for fire protection without the aid of city fire engines.’

‘ ‘ That said Adolph W. Gilbert, his associates, successors and assigns, were also by said ordinance authorized and given power as such police officers for the purpose of supplying water with adequate pressure to extend their system of waterworks and to make such alterations and improvements of the same as might be deemed expedient for the good of both the city and the said Adolph W. Gilbert, his associates, successors and assigns, to-wit, the Cape Girardeau Electric Light and Waterworks Company.

‘ ‘ That after the said contract was entered into by the said city of Cape Girardeau, said defendant being successor to the said Adolph W. Gilbert, induced the city of Cape Girardeau to accept the waterworks system so constructed by pretending to have established, built and constructed a system of waterworks which without the aid of fire engines would throw from separate hydrants through a 2 1-2 inch rubber hose with a seven-eighths inch nozzle four streams of water on Main street ninety feet high, on Spanish and Morgan Oak street sixty feet high, on Broadway and Pacific streets four streams^ seventy feet high, and on Spring street and Good Hope street four streams sixty feet high, as provided in section 12 of said ordinance, and plaintiff avers and charges that the said waterworks system was not constructed as provided in said section and was never capable of throwing said streams of water as provided in said ordinance, and that the defendant wilfully, intentionally, wrongfully and fraudulently failed and neglected to provide a waterworks as such police officer, with the power and capacity as provided in section 12 of said ordinance, and capable of furnishing the streams of water as required in and by said section, and avers that since 1891 wrongfully and fraudulently collected the annual rental for and on account of system of waterworks provided' in said ordinance, but which said defendant wilfully, negligently and wrongfully did not supply as such police officer, to supply water to the great injury of this plaintiff.

“Plaintiff further avers that said ordinance and contract with Adolph W. Gilbert, his successors and assigns, provides that with the reservoir cut out of the system of waterworks and which defendant as the assignees of the said Adolph W. Gilbert, as such police officer, undertook and promised to supply must be capable of putting a direct pressure on the mains' on Main street of 85 pounds to the square inch, and that plaintiff’s property was on the Main street level in the city of Cape Girardeau.

“Plaintiff alleges that there was a hydrant at the northwest corner of Fountain and Elm streets, in the immediate vicinity of the aforesaid buildings owned by the plaintiff and attached to the mains or pipes or conduits of the said defendant.

“That before the 22d day of October, 1903, this hydrant had been accepted by the city of Cape Girardeau and that additional rent had been collected by defendant; that it was located in a suitable place to have saved property of plaintiff, if supplied with water according to the terms of the contract above named.

“Plaintiff avers that these buildings were located on the Main street level of an extension of said waterworks and that he did believe and had good reason to believe that the defendant as such police officer had done and performed what was by it to be performed, to-wit: provide a system of waterworks with the reservoir cut out capable of putting a direct pressure on the mains, pipes or conduits at the Fountain and Elm streets of eighty-five pounds to the square inch, but plaintiff avers and charges that defendant did not supply as such police officer water under a direct pressure of eighty-five pounds to the square inch at the said point and that their said, system of waterworks and their mains, conduits or pipes at the said corner of Fountain and Elm streets, were not in repair and ready for the use to extinguish fire without the use of fire engines as provided.

“Plaintiff alleges that immediately after hotel building above described took fire the fire department of the city of Cape Girardeau was present with hose and the necessary appliances to have extinguished the fire before it had damaged plaintiff’s property beyond the value or to the amount of one hundred dollars, but when said hose was attached to the aforesaid hydrant the aforesaid fire department of the city of Cape Girardeau was unable to protect plaintiff’s property, or buildings by reason of the waterworks company negligently failing and refusing to supply them with water and pressure on said water as in said ordinance provided.

“Plaintiff alleges that defendant was immediately notified that there was a fire and that the engineer of the said waterworks company, after having been notified of the fire at the intersection of Fountain and Elm streets, and that the pressure was not great enough, then and there neglected and refused to set the machinery of said waterworks company in action in order to produce a greater pressure or force enough to give a pressure of eighty-five pounds to the square inch as provided.

“Plaintiff alleges that the waterworks company carelessly and negligently failed to keep- the system in repair to furnish the adequate fire protection as in said ordinance provided, but wantonly so allowed its mains and other pipes furnished to fill up with mud or some other substance, and to keep its engines, pumping machinery and reservoir in a condition to provide an adequate pressure for fire protection, or to use them; that it wholly failed to perform its duty as a police officer; that when a two and-one-half inch hose was attached to the hydrant, above named, the pressure was not strong enough to throw a stream of water ten feet high through a seven-eighths inch nozzle; and that the careless and negligent conduct of the defendant as above set out was the proximate cause of the destruction of plaintiff’s property.

“Plaintiff alleg’es that the engineer of the said waterworks company was notified of the fire in the neighborhood of plaintiff’s property as above described, immediately after the fire originated in said hotel building when but very little damage had been done to said hotel building, and long before said dwellings and bam took fire, and of the insufficient pressure, and insufficient supply of water, and that he failed and maliciously neglected to put on the pumps to supply the necessary pressure on said hydrant near the property .of the plaintiff, and to which the hose of the fire department was attached; that it was his duty so to do, and in failing to do so plaintiff’s property,' as above described, was destroyed by fire.

“Wherefore your petitioner prays judgment in • the sum of five thousand four hundred dollars actual damages and the sum .of two thousand dollars as punitive damages, together with the costs in this case. ’ ’

We deem it unnecessary to burden this statement by the insertion of the ordinance attached to the petition, as it is sufficiently referred to in the body of the petition.

To this petition the defendant, the Cape G-irardeau Waterworks, and Electric Light Company, interposed a demurrer, on the ground that the petition failed to state facts sufficient to constitute a cause of action. This demurrer was sustained by the court and plaintiff refusing to further plead judgment was rendered upon the demurrer, and from this judgment the plaintiff prosecuted this appeal, and the record is now before us for consideration.

OPINION.’

The record in this cause discloses hut one legal proposition in which the propriety of the action of the trial court in sustaining the demurrer to the plaintiff’s petition is challenged. We have read and carefully analyzed all the allegations embraced in the petition, and in our opinion the action of the trial court in sustaining the demurrer was manifestly correct.

It is sufficient to say that the proposition presented by learned counsel for appellant is no longer an open question in this State. It is sought by this action to recover from the defendant upon substantially the following state of facts: That is, that the defendant operated the waterworks system for supplying water to the city of Cape Girardeau, Missouri, which was done in pursuance of an ordinance of the city of Cape Girardeau, passed on March 12, 1894, and approved by the mayor on the 13th day of March, the same year. By the provisions of said ordinance the said defendant was to provide mains and hydrants and provide a system of waterworks to furnish a sufficient quantity of pure, wholesome water, suitable for all domestic and fire purposes, and to keep a full and sufficient quantity at all times available for such purposes. That on the 3rd day of October, 1903, the plaintiff owned the property designated in the petition, located in the limits of said city, which was destroyed by fire, and it is averred that such destruction by fire was because said defendant had no proper supply of water to extingmish said fire, which could have been extinguished if defendant had provided an available supply of water for that purpose, and the petition proceeds upon the theory that this failure constituted negligence on the part of the defendant and was the proximate cause of plaintiff’s property being destroyed.

The precise question involved in this controversy had the careful consideration of this court in Howsmon v. Trenton Water Co., 119 Mo. 304. The plaintiff in that case undertook to- recover from the water company upon similar grounds to those alleged in the petition in the ease at bar. The proposition as to the liability of the defendant upon the state of facts alleged in the petition was thoroughly discussed and exhaustively treated in the opinion in that case, and it was expressly ruled that there was no liability, and the judgment upon the demurrer to the petition (similar to the judgment in the presea t case) was affirmed. The authorities were all reviewed and ably and thoroughly discussed by Brace, J., and it can serve no good purpose and can be of no special interest either to the Bench or Bar to again review and discuss the authorities upon that subject; hence it must be ruled that the conclusions reached in that case are decisive of the proposition disclosed by the record in the case at bar.

■ The Supreme Court of Alabama in the recent case of Love joy v. Bessemer Waterworks Company, 41 So. 76, had in judgment this identical question, and it was thoroughly considered and exhaustively treated by that court, and the same conclusion was readied as in the case of Howsmon v. Trenton Water Company, supra, and that case was cited and unqualifiedly approved. Weakley, C. J., speaking for the Alabama Court, said: ‘ ‘ The overwhelming weight of authority is against the right of the plaintiff to maintain this action. ’ ’ Then follows' a citation of all the authorities supporting the conclusions reached.

Learned counse] for appellant direct our attention to the case of Crone v. Stinde, 156 Mo. 262, and insist that the case of Howsmon v. Trenton Water Company is in conflict with that case. ■ We have carefully considered Crone v. Stinde and we are unable to discover any conflict in the two cases as applicable to the proposition involved in the case at bar. Judge Burgess tried the Ilowsmon case on the circuit bench and sustained the demurrer to the petition. He wrote the opinion in Crone v. Stinde, and there is nothing said in Crone v. Stinde that would indicate that there had been any change of views upon the legal propositions presented in the Howsmon case. In fact, it is only necessary to read both cases and the conclusion will be readily reached that they are in perfect harmony so far as ap^plicable to the legal propositions disclosed by the record in the case at bar.

"We see no necessity for further extending the discussion of this question. It has been settled by this court and correctly settled, and must be held decisive of this controversy. The action of the trial court in sustaining the demurrer to the petition was manifestly proper, and the plaintiff refusing to plead further the judgment upon the demurrer would necessarily follow, and such judgment should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    SHELL v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    March 19, 1907.
    APPELLATE JURISDICTION: Constitutional Question: Eliminated From Case. Where all the constitutional questions raised in the pleadings were entirely eliminated from the case at the trial and there was no constitutional question to pass upon and none was passed upon, and none was raised in the motion for new trial, the raising of such questions in the pleadings alone will not give the Supreme Court jurisdiction over the appeal.
    Transferred from Kansas City Court of Appeals.
    Remanded to Kansas Citt Court oe Appeals.

      Jno. A. Davis with R. I. Bailey for appellant.

      Cole, Burnett & Moore for respondent.
   GANTT, J.

This appeal has been certified to this court by the Kansas' City Court of Appeals. The action was commenced in the circuit court of Barton county by the plaintiff for damages resulting from the loss of a bay mare, which had strayed upon the defendant’s right of way on account of a defective cattle-guard, and was injured and died under the following circumstances: While said mare was on said right of way, which was fenced, the defendant’s servants while operating a hand-car, and by exertions and noise intentionally made by them for the purpose, frightened said mare and caused her to run against the right of way fence, by reason of which she was injured and died from her injuries.

The animal was valued at one hundred and twenty-five dollars. The petition prayed for double damages together with a reasonable attorney’s fee.

The answer of the defendant contains, first, a general denial, and then proceeds as follows: “Defendant for further defense states, that sections 1105, 1106, 1107, 1108 and 1109, Revised Statutes of Missouri of 1899, under which this suit is attempted to be brought, are in conflict with the Constitution of Missouri, as well as the Constitution of the United States, in that, first, said sections are in conflict with section 10, article 2, of the Constitution of the State of Missouri, 1875, in this, that ‘ right and justice should be administered without sale, denial or delay.’ Second, said sections are likewise in conflict with section 20' of article 2 of the Constitution of Missouri, 1875', in this, that they authorize the taking of private property for private use, without the consent of the owner. Third, said sections are in conflict with section 21 of article 2 of said Constitution, in that, they authorize the taking of private property for public use without compensation. Fourth, said sections are in conflict with article 5 of the amendments to the Constitution of the United States, in this, that they deprive said defendant .of its property without due process of law. Fifth, said sections are in conflict with article 5 of the amendments to the Constitution of the United States, in this, that they authorize the taking of private property for public use without compensation. Sixth, said sections are in conflict with article 8 of the amendments of the Constitution of the United States, in this, that they impose a cruel and unusual punishment upon the defendant herein. Seventh, said sections in allowing double damages and attorney’s fees, are unjust, oppressive and contrary to public policy, constitute class legislation and discriminate against railway companies.”

To this answer there was a reply consisting of a denial of the new matter. The cause was tried at the January term, 1903, and resulted in a verdict in favor of the plaintiff for one hundred and twenty-five dollars, and judgment accordingly. Motions for new trial and in arrest of judgment were filed in due time and overruled and exceptions saved.

The following facts, we are advised by the appellant, the defendant in this case, stand uncontradicted in the record: Plaintiff was the owner of the mare in controversy, and she was worth one hundred and twenty-five dollars at the time of the injury. The defendant at the time of said injury and for several years prior thereto, was operating a railroad through Barton county, Missouri. Said road passed through the northwest corner of section 24 of LeBoy township, in said county, and through section 23 of said township in a southwesterly direction. During the period aforesaid, there was a public road running along the east side of said section 23, and defendant’s road crossed this public road, and at the place where it crossed it had for some time previous attempted to maintain a cattle-guard hereinafter mentioned. For some time prior to April, 1902, defendant had its right of way through said section 23 fenced with a good barbed-wire fence, with sufficient posts, etc., so that it became a lawful fence. Some distance south of said cattle-guard the defendant maintained a culvert over which its road passed, which was several feet deep. It likewise maintained fences on each side of said culvert running from the parallel fence on each side of said culvert, so that stock could not get through the same. There was likewise a fence from the parallel fence on each side running up close to said cattle-guard. The evidence tends to show that this cattle-guard was built on the surface of the ground, without any pit having been dug under it, and was constructed by eight strips being laid lengthwise between the rails and by four strips put down the same way outside of each rail. The evidence further tends to show that horses could pass over said cattle-guard, and that for several months prior to the accident one of the strips on the outside of the rail had been broken, was unsound and had been removed so that there was a space of twelve or fourteen inches without any strips, and over which space horses could travel without any inconvenience on to the defendant’s right of way. That plaintiff’s mare had been in a pasture west of and adjoining defendant’s right of way along said section 23, and had been seen in said pasture by plaintiff about one week before the accident, with his other horses in said pasture, but had not been seen any more until after the accident. The evidence does not show how, where or when plaintiff’s mare escaped from said pasture, but she was running at large the time she passed over the cattle-guard aforesaid. On the 14th of April, 1902, plaintiff’s mare passed over the cattle-guard aforesaid, and started down the defendant’s track toward said culvert. Some of the defendant’s section men came along with a' handcar traveling south, some distance behind said mare. After the section men got about half way between said cattle-guard and the culvert, said car was stopped and the men alighted therefrom. One of them stood on each side of said embankment while the other two passed south along the east side of the embankment where they were cut off from the view of the said animal until they came to the culvert, and then came in on the so'uth side of the right of way for. the purpose of driving the mare back over the cattle-guard through which she had passed in coming onto said right of way. After these section men had gotten behind the animal and while she was trotting along, she suddenly stopped when about one hundred feet from the culvert, and about three hundred feet from the hand car, and on seeing the horses in the adjoining pasture with which she had been in the habit of running,- she plunged through the barbed-wire fence, and her throat was cut and she shortly afterwards died from the effect of her injuries thus received. The circuit court at the trial ruled that there was no evidence that the defendant’s servants, the section men, were guilty of any negligence in handling said handcar or in attempting to drive said animal out. The case was submitted to a jury under the following instruction:

' ‘ ‘If you shall believe from the evidence that the cattle-guard referred to in the testimony was not. reasonably or ordinarily sufficient to prevent horses from passing over or through the same onto defendant’s railroad and right of way, and that by reason thereof plaintiff’s mare did pass over and through the same onto defendant’s railroad and right of way, and that said railroad and right of way were then enclosed with wire fences so that said mare could not safely escape therefrom except by returning to and over said cattle-guard, and that, while said mare was so enclosed on said railroad and right of way, she became frightened at the appearance of and the noise ordinarily made by the defendant’s handcar while the same was being operated and run by defendant’s section hands on said railroad, and that while so frightened, and by reason thereof, said mare threw herself upon or against one of defendant’s said wire fences and that she was thereby killed, then you should return a verdict in favor of the plaintiff. Unless you do so believe, you should return a verdict in favor of the defendant. ’ ’

The defendant offered no evidence and asked no instructions, except a demurrer to the evidence. In his brief filed in the Kansas City Court of Appeals, and upon which the case was argued in this court, the learned and industrious counsel for the defendant makes not the slightest reference to any constitutional question and makes no complaint of any ruling of the circuit court wherein the circuit court decided any constitutional question against him. The circuit court was 'not called upon to pass upon the constitutionality of either section 3105 or 1106, Revised Statutes 1899. The plaintiff on his part did not ask the court to hold either of said sections constitutional, nor did the court do so, either at his request or of its own motion. The court in its instruction did not permit the jury to double the damages, nor did it do so in its own judgment, and upon the reading of the judgment of the court and its instruction, it cannot be said that the court treated the petition of the plaintiff as one stating a cause of action either under section 1105 or section 1106. Moreover, in his motion for new trial no reference whatever is made to the constitutionality or unconstitutionality of either of said sections. In a word, it seems perfectly obvious to us that all the constitutional questions raised in the answer of the defendant were entirely eliminated on the trial of this cause and there was no constitutional question to pass upon. This court has repeatedly ruled that in order to give this, court jurisdiction of an appeal on the ground that a constitutional question is involved, it must appear that such question was raised in the trial court and ruled to the disadvantage of the party appealing. [Bennett v. Railroad, 105 Mo. 642; Ash v. Independence, 145 Mo. 120; Shewalter v. Railroad, 152 Mo. 544; Hardin v. Carthage, 171 Mo. 442, and numerous other eases to- the same effect.] Accordingly, it must he held that this court has no jurisdiction of this appeal and it is ordered that the record herein be transferred to the Kansas City Court of Appeals.

Fox, P. J., and Burgess, J., concur.