source: Caselaw Access Project

author: BRACE, C. J.

license: Public Domain

text:
    RAPP v. ST. LOUIS TRANSIT COMPANY, Appellant.
    In Banc,
    June 28, 1905.
    1. NEGLIGENCE: Action at Common Law and Under Vigilant Watch Ordinance: Election. Where the petition charges common law negligence and a violation of the Vigilant Watch Ordinance as the cause of the personal injuries, it is not error to refuse to require the plaintiff to elect on which charge he will stand. The petition does not combine in one count a cause of action ex contractu with a cause of action ex delicto. (Following Sluder v. Transit Company, 189 Mo. 107.)
    2. -: -: Evidence. Nor was it error under such petition to admit in evidence the Vigilant Watch Ordinance, which was that motormen in charge of street cars should keep a vigilant watch for vehicles and persons on or approaching the track, and on the first appearance of danger to either, stop the car in the shortest time and space possible.
    3.--: Wagon on Track: Looking For Car. Plaintiff’s wagon Wheel fell into a hole near the track, and stalled, and in order to get it out it was necessary for him to swing the horses around on the track. As he did this he saw no car coming, and thereafter he was busily engaged in trying to extricate the wagon, looking at the horses and wagon until it was struck by a car. The view of the motorman was unobstructed, and he saw the wagon a block away, but did not try to stop. Held, that plaintiff cannot be charged with negligence because while trying to extricate his wagon he did not keep a continuous watch for the car, and jump when he saw it was about to strike the wagon, but had a right to expect that he would not be run down by the car, and the court did not err in refusing to give a demurrer to the evidence.
    4. -: -: Contributory Evidence: Wantonness. Even though the driver may be guilty of negligence in being on the track with his team and wagon, a motorman, who sees him there two or three hundred feet away and, without attempting to" stop the car, runs it against the wagon or team, shows such a reckless disregard of human life as authorizes a recovery of damages against the company.
    5. -: -: -: Looking. A traveler on a street railway track is not required, at all times, to keep a continuous watch for an approaching car at the peril of life or limb; he has the right to assume that those in charge of cars will, so far as they can by the exercise of ordinary care, refrain from injuring him, and that, if they discover him in a dangerous place on or near the track, they will use ordinary' care to avoid running over him.
    6. -: —>-: -: Duty of Company. It is thfe duty of those in charge of street railway cars to use ordinary care to avoid injuring persons on the tracks, whether they are negligently there are not; and for a failure to observe that duty, that is, to stop the car after discovering them thereon, if by the exercise of ordinary care after such discovery it can be stopped in time to avoid the injury, the company is liable.
    7. -: Excessive Verdict: $6,000. Plaintiff, a driver of a wagon, twenty-four, years old, was rendered unconscious by the striking of his wagon by the defendant’s car, and one of his feet was mashed and crushed. Prom the injury to the foot he suffered great pain, blood poisoning set in, the tissues sloughed off, the big toe was amputated, he was confined to his bed five months, .afterwards used crutches for six months, and will always be more or less a cripple. Held, that a verdict for $6,000, though liberal, is not excessive.
    Appeal from St. Charles Circuit Court. — Hon. E..M. Hughes, Judge.
    Affirmed.

      Boyle, Priest & Lehmcmn and Geo. W. Easley for appellant.
    (1) The motions to elect should have been sustained. The petition blends causes of action arising ex delicto with causes of action arising ex contractu. The Vigilant Watch Ordinance could only be passed under the power of the city to contract. City charter, art. 10, secs. 1,2. It could not be passed under its power to legislate. City charter, art. 3, sec. 26; Fath v. Eailroad, 39 Mo. App. 452; Fath v. Eailroad, 105 Mo. 537; Senn v. Eailroad, 106 Mo. 152; Moran v. Car Co., 134 Mo. 641; Byington v. Eailroad, 147 Mo. 673; Murpky v. Railroad, 153 Mo. 253; Saunders v. Railroad, 153 Mo. 253; Holwerson v. Railroad, 157 Mo. 245; Anderson v. Railroad, 161 Mo. 411; Nellis on St. Rys. 306, sec. 10. The cases of Jackson v. Railroad, 157 Mo. 621, and Weller v. Railroad, 164 Mo. 180 (s. c. 120 Mo. 655),were cases under a speed ordinance and cannot be decisive of the principle here involved, and cannot be held to overrule the long line of cases specially decided on the Vigilant Watch Ordinance. A rule established and followed for a long series of years cannot be fairly overruled by inference or construction from rulings on questions involving entirely different propositions. There is a very broad distinction in the exercise of these two powers. One is public and general, the exercise of sovereignty; the other, private and proprietary. One legislative, the other contractual. State, ex rel. v. St. Louis, 145 Mo. 572: Illinois Trust Co. v. Arkansas City, 76 Fed. 282; Pike’s Peak Powder Co. v. Colorado Spring, 105 Fed. 1; Seltzenger v. Tamaqua, 187 Pa. St. 539; Schaub v. Lancaster City, 156 Pa. St. 362; Weston v. Syracuse, 158 N. T. 274, 43 L. R. A. 678. If these positions are correct, then the plaintiff has joined in the same count a cause of action arising out of contract with two causes of action arising out of tort for common law negligence. The common law distinctions between actions ex contractu and ex delicto are in substance retained by our code. Summer v. Rogers, 90 Mo. 329. The rule in this State is that such actions cannot be blended in the same count. Kendrick v. Railroad, 81 Mo. 521; Harris v. Railroad, 51 Mo. App. 128; Linnville v. Harrison, 30 Mo. 228; Jamison v. Copher, 35 Mo. 351; Ederlin v. Judge, 36 Mo. 483; Southworth Co. v. Lamb, 82 Mo. 242. (2) The demurrer to the plaintiff’s evidence should have been sustained. The whole of the plaintiff’s case is that Ms wagon was stalled by the side of the track, but sufficiently removed therefrom to permit the car to pass without danger of collision. The plaintiff, well knowing how cars were operated over the tracks, and of the certainty that a car would soon come, turned his horses directly across the track, without looking or listening to see whether a car was approaching or not. Instead of looking or listening, he deliberately turned his back upon the car and disabled himself from seeing its approach. He continued in that position till the shying of one of the horses caused him to look around when the car was almost upon him. There was nothing, during the whole five minutes he says he stood there after swinging his horses eastward across the track, to have prevented his seeing the car, if he had looked, or to prevent his swinging the horses back to their original position, where they would have been out of danger. It can no longer be doubted in this State that it is the duty of a person, situated as the plaintiff was, to exercise reasonable care to avoid injury from the negligence of another. Zumault v. Eailroads, 175 Mo. 288; Cooley on Torts (2 Ed.), 674; Little v. Hackett, 116 H. S. 371; Moore v. Eailroad, 176 Mo. -528. (3) The court erred in giving the first and second instructions on behalf of plaintiff. It was not only the duty of plaintiff to look and listen before.swinging'his horses across the track, but it was a continuous duty to look out and swing them back and let the ear pass without being delayed. Kelsay v. Eailroad, 129 Mo. 372; Hook v. Eailroad, 162 Mo. 382; Gahagan v. Eailroad, 55 L. E. A. 446, note. Each of these instructions should have added to it “the logical and necessary corollary” that if the failure to look and ascertain that the car was coming, when by so doing the plaintiff might have turned his horses back off the track in time to have avoided the collision, contributed to the collision, the plaintiff cannot recover. Holwerson v. Eailroad, 157 Mo. 216; Nellis on Street E’ys, pp. 383-4; Cooley on Torts (2 Ed.), sec. 812; Beach on Cont. Neg. (3 Eev. Ed.), sec. 25; Eswin v. Eailroad, 96-Mo. 297.

      A. R. Taylor for respondent.
    (1) Appellant’s first contention is, that the trial court erred in overruling its motion to require the plaintiff to elect on which assignment of negligence he would proceed. This proposition is made in the Supreme Court, urging that a court should require a party to elect on what part of his case he should proceed to trial. There may he a great number of acts of negligence causing an injury and making the cause of action. Yet the plaintiff must choose which of these he will rely upon. This would be a new code of practice — and one that is wanting in those essential elements of the law, reason and justice. Counsel abstains, as might be expected, from offering a substantial reason for his departure from the old and honored code of practice. In enumerating the essentials of a petition the code prescribes that it shall contain “a plain and concise statement of the facts constituting a cause of action without unnecessary repetition,” etc. Now, one of the facts constituting this cause of action was the alleged failure of the motorman to keep a vigilant watch and to stop the car within the shortest time and space possible. This, the petition alleges, “Directly contributed to cause said collision and plaintiff’s said injuries.” Yet counsel says this is a separate cause of action. If so, then of course the plaintiff could recover on it. For it is a principle of law that a party may have as many recoveries as he has causes of action. If counsel could establish that every act of negligence that contributes to cause an injury is a separate cause of action upon which a recovery might be had, he would set in force a rule disastrous to wrongdoers. A suit could in this case, then, if he be taken as a prophet of the law, be maintained for the common law negligence and injury. And then again foi\,the violation of the ordinance and injury to which it contributed. And in reply to Ms plea of res adjudicate, we could prove by him that the two causes of action were distinct and the plea res adjudicate not good, for a judgment in one cause of action could have no effect in another. We do not think this contention serious. As to his contention that one ground is founded in tort, the other in contract, he goes back to the graveyard where repose the remams of the Fath case, and calls up its ghost to prove that' a law can not be a law unless his client agrees to obey it, and thus he says that a duty imposed by an ordinance depends not on the sovereign will, which declares the law, but upon the agreement of his client to obey the law. Should his client not agree to obey the law, then it is no law. This, we think, this court has in recent years held to be not a sound or correct interpretation of what a law is. There is no necessity that the appellant should have agreed to obey the Vigilant Watch Ordinance. It was passed by the Municipal Assembly of the city of St. Louis for the protection of the lives and limbs of citizens on the streets. There is nothing contractual about it. It is a police regulation, and the Legislature itself could not surrender to a corporation the power of the people to make useful laws for the protection of life and health of citizens. Constitution, art. 12, sec. 5; Matthews v. Railroad, 121 Mo. 316; Hutchinson v. Railroad, 161 Mo. 253; Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 79 S. W. 449. (2) There was nothing in the evidence to warrant the plaintiff to believe that appellant would violate the law.He swears that he did not expect a car would run into him while he was trying to get out of the way. In this state of the record, under all authorities, he had the clear right to assume that the law would be obeyed and to act on that assumption. Petty v. Railroad, 88 Mo. 319; Crempley v. Railroad, 111 Mo. 158; Jennings v. Railroad, 112 Mo. 276; Hutchinson v. Railroad, 161 Mo. 254; Weller v. Railroad, 164 Mo. 199 ; Riska v. Railroad, 79 S. W. 449.
   BRACE, C. J.

This is an appeal by the defendant from judgment in favor of the plaintiff for the sum of six thousand dollars in an action for personal injuries.

The cause of action stated in the petition is as follows :

‘ ‘ That on the 1st day of February, 1901, the plaintiff was lawfully driving a team of horses attached to a loaded wagon northward on Broadway at its intersection with Buchanan street, when the wheels of the wagon he was so driving went into a hole in said streets at their intersection, and said team were unable to pull the wagon further and became stalled, and in endeavoring to get said wagon pulled out of said hole, said team were upon the track of the defendant St. Louis Transit Company, and whilst said team were so on the track of said St. Louis Transit Company on said streets at said place, and whilst said wagon and the wheels thereof were at and near said defendant’s track, the defendant St. Louis Transit Company’s motorman and conductor in charge of its south-bound car carelessly and negligently and without using ordinary care to control or stop said car, caused and suffered said car to collide with said team and a part of said wagon whereby plaintiff was thrown from said wagon to the street, and one of the horses of said team was thrown and fell upon the plaintiff, greatly and permanently injuring plaintiff upon his body, legs and feet, causing a concussion of the brain which rendered him unconscious. His foot was thereby crushed, bruised and injured, and the bones thereof and the ligaments, tendons, muscles and flesh thereof were fractured, ruptured, displaced and torn and plaintiff was permanently injured thereby.
“And for another and further assignment of negligence of defendant St. Louis Transit Company the plaintiff avers that at the time of his said injuries, there was in force in the city of St. Louis, an ordinance of said city, whereby it was provided that motormen and conductors of street cars should keep a vigilant watch for vehicles and persons either on its track or moving towards it and upon the first appearance of danger to such vehicle or person, the car should he stopped within the shortest time and space possible, and plaintiff avers that at the time of said collision and his injuries defendant’s motorman and conductor in charge of its said car failed to keep such vigilant watch and failed to stop said car within the shortest time and space possible upon the first appearance of danger to said vehicle and plaintiff, which violation of said ordinance directly contributed to cause said collision and plaintiff’s said injuries. ’ ’

The answer was a general denial and the following plea:

‘‘ For another and further defense to said petition, defendant avers that whatever injuries the plaintiff sustained were occasioned by his own carelessness and negligence in driving in front of defendant’s moving car while the same was in close proximity to him.”

The facts in the case disclosed by the evidence are substantially as follows:

The plaintiff, a young man aged about twenty-four years, in the employ of one Merten as driver of a coal wagon, at ten dollars and fifty cents per week, was, on the first day of February, 1901, driving a two-horse team and wagon, loaded with coal, on Broadway in the city of St. Louis, on which street the defendant operates its street cars upon two tracks: north-bound ears going on the east track, and south-bound cars on the west track. The plaintiff was driving north on the west side of Broadway, parallel with and distant from the west track about three feet, when near the intersection of Broadway with Buchanan street the front wheels of his wagon went into a hole in the street and his team stalled; he succeeded in getting the front wheels out, but when the hind wheels went into the hole, in order to extricate them he had to swing his hor-ses towards the east across the west track, which brought the fore wheels against or very near the west rail of that track, and when he had done so and the wagon and team were in this position, the plaintiff standing on the double-trees urging his horse to the pull,' the team was struck by one of defendant’s south-bound cars, the wagon turned around, the plaintiff thrown under one of the horses, rendered unconscious, one of his feet mashed and his body otherwise bruised. Prom the injury to his foot he suffered great pain, was confined to his bed for five months, afterward used crutches for about six weeks, and then a cane for about two weeks, and since has been able to walk without either, but when the foot touches anything hard it hurts. He was under surgical treatment eight months. The surgeon who attended him testified that the foot had been crushed and laid open, that there'was a cut extending from the tip of the large toe to the upper part of the foot, that blood poisoning set in, the tissues sloughed off and amputation of the big toe became necessary; that in cutting off the toe it became necessary to clip one of the phalanges or end bones that protruded, and that he will always be crippled more or less; that the charges for his services are between four and five hundred dollars and that they are reasonable.

It was daylight when the accident happened — the track was level — the view north for three or four blocks • was unobstructed.

The evidence for the plaintiff tended to prove that the defendant’s car was going at the rate of twenty miles an hour, that no effort was made to stop the car or check its speed before the team was struck, and that it went thirty or forty feet after the team was struck before it was stopped — that the team was on the track some time before it was struck, plaintiff says four or five minutes. Three other witnesses testify that the plaintiff’s team was on the track when they saw the defendant’s car approaching at a distance of from two hundred and fifty to three hundred feet — that no effort was made to stop the ear and that its speed was not cheeked until after the collision. The plaintiff’s evidence further tended to prove that the car going at the rate of twenty miles an hour could have been stopped, with the brakes, in about 130 feet, and with the reverse in about 100 feet, and when going at the rate of fifteen miles an hour could have been stopped with the brake in 90 to 100 feet and with the reverse in about 75 feet.

The only witness called for the defendant was the motorman, who testified that he first saw the plaintiff and his team when he was one block north of where the team stood, that the horses were not then on the track hut standing still beside it, that his car was going about ten miles an hour and that when the car was about fifty or sixty feet from the horses they swung across the west rail, were struck, and the car ran about thirty feet further.

1. At the inception of the trial the defendant moved the court to require the plaintiff to elect on which one of the causes of action stated in the petition he will stand, upon the grounds: “First, that said petition attempts to combine in one count both alleged common-law negligence and the alleged violation of an ordinance commonly called the vigilant watch ordinance; second, said petition attempts to combine in one'count a cause of action ex contractu and a cause of action ex delicto” — and in the course of the trial the plaintiff was permitted to introduce said ordinance in evidence over the objections of the defendant. The overruling of the motion to elect, and the admission of the ordinance in evidence is assigned as error. These assignments of, error were argued and considered in the case of Sluder v. Transit Co., 189 Mo. 107, in which the whole question is exhaustively treated in the opinions in that case, delivered at the last sitting of the Court in Banc on the first of June, 1905 — and in which the ruling was adverse to the contention of defendant. Hence, we hold in this, as we did in that case, which is on all-fours with this on these points, and for the reasons stated in the majority opinion therein, that the court committed,no error in overruling the motion to elect, nor in admitting the ordinance in evidence.

2. At the close of plaintiff’s evidence and at the close of all the evidence the defendant interposed a demurrer thereto, and the overruling of these demurrers is assigned as error.

On the main issue the case was submitted to the jury upon the following instructions:

For plaintiff:

‘ ‘ 1. Although the jury should believe and find from the evidence that the plaintiff whilst trying to get his wagon out of a hole in the street (if the jury find that the wagon was so in a hole) and that in driving his horses attached to the wagon, got them upon defendant’s track in Broadway, yet if the jury find from the evidence that after said horses were so upon said track they were in danger of being struck by defendant’s south-bound car and that defendant’s motorman saw said team on said track, and in danger of being struck by said car, and that after said motorman saw said team on said track and in such danger he could by the exercise of ordinary care have stopped said car and prevented said car from striking said team and neglected to do so and caused said car to strike said team and injure the plaintiff, then plaintiff is entitled to recover even if the jury should believe that he did not exercise ordinary care in pulling his horses on said track.
“2. If the jury find from the evidence in this case that on the 1st day of February, 1901, the defendant was operating the railway and car mentioned in the evidence for the purpose of transporting persons for hire from one point to another in the city of St. Louis, and if the jury find from the evidence that at said time Broadway and Buchanan streets at the places mentioned in the evidence wére open public streets within the city of St. Louis, and if the jury find from the evidence that on said day the plaintiff was driving a team attached to a wagon northward on Broadway, at its intersection with Buchanan street in the city of St. Louis, and that whilst doing so the wagon was stalled and in attempting to get his wagon away from the place where stalled, the plaintiff pulled the horses on the track of the defendant in said street, and if the jury find from the evidence in this case that whilst said horses were on defendant’s track, defendant’s motorman in charge of its car saw said horses on said track and in danger of being’ struck by said car as it moved along defendant’s track, and if the jury further find from the evidence that said motorman after he saw said horses on said track and in danger of being struck and injured by said car, could by the exercise of ordinary care have stopped said car and averted striking said team and neglected to do so; and if the jury find from the evidence in this case that whilst said team was so upon defendant’s track and in such danger, defendant’s motorman in charge of its south-bound car caused or suffered said car to strike one of said horses, throw him down upon plaintiff and injure the plaintiff, and if the jury find from the evidence that defendant’s said motorman did not exercise ordinary care in thus causing said car to strike said horse and injure the plaintiff, then the plaintiff is entitled to recover if he was exercising ordinary care at the time of his injury. ’ ’

For defendant:

“2. It was the duty of the plaintiff while approaching defendant’s track in the street to look'and listen, for the purpose of ascertaining'whether a car was coming or not; and if you find from the evidence that plaintiff could have known of the approach of the car on the track by either looking or listening in time to have avoided a collision with the car, and that he either failed to look or listen, or, if he looked or listened, to heed what he saw or to take any precaution to avoid a collision with the car when he might have done so by the exercise of ordinary care, then he was guilty of such negligence as defeats his recovery in this action, and your verdict must be for the defendant; provided you further find that the defendant, by the exercise of ordinary care and prudence, could not have avoided the collision after it discovered the plaintiff’s perilous position.
“3. Ton are further instructed that while the rights of plaintiff and defendant to the use of the street were equal, mutual and reciprocal, yet, if you find from the evidence that defendant’s car moved upon a fixed track and was propelled by a power less easily controlled than a driver’s control of his team, and was under such a momentum as to render it more difficult to stop than for the team to have stopped, then it became the duty of the plaintiff not to attempt to cross in close proximity to the approaching car, but to stop temporarily and let the car pass, and if you find.from the evidence that by so doing the plaintiff could have avoided the collision and that he failed so to do, then you should find that the plaintiff was guilty of negligence, which defeats the plaintiff’s right to recovery in this action, and your verdict must be for the defendant; provided you further find the defendant, by the exercise of ordinary care and prudence, could not have avoided the collision after it discovered the perilous position of the plaintiff.
“4. The court instructs the jury that if they believe from'the evidence that plaintiff saw said car coming, or in the exercise of ordinary care could have seen said ear coming, and that he was then standing on the double-tree of his wagon and that he could have avoided said accident by jumping from said wagon, and that in the exercise of ordinary care he would have jumped and that he failed to do so and thereby directly contributed to his injuries, he cannot recover and your verdict must "be for the defendant; provided you further find that the defendant, in the exercise of ordinary care and prudence, could not have avoided the collision.
“5. The court instructs the jury that if from the evidence the jury "believe that defendant’s motorman operating the said car saw plaintiff’s wagon and horses resting near defendant’s track, but "so far away from said track as not to be in danger of being struck by said moving car, defendant’s motorman had the right to assume that plaintiff’s horses would remain in said position and had the right to move his car forward and if the jury further believe from the evidence that thereafter plaintiff’s horses changed their position and got in front of said car and thereby caused or directly contributed to plaintiff’s alleged injuries and that the motorman in charge thereof could not then stop his ear and avoid said accident, plaintiff cannot recover and your verdict must be for the defendant.”

Instructions numbered 2, 3 and A, as asked for by the defendant, were modified by the court by adding the proviso in each, in italics. The modification of these instructions and the giving of the two instructions aforesaid for the plaintiff is assigned as error.

3. It is contended for the defendant that the demurrer to the evidence ought to have been sustained because the plaintiff turned-his horses directly across the track without looking or listening for an approaching car and continued in that position when there was nothing to prevent his swinging his horses to. their original position where they would have been out of danger from the approaching car which he might have seen if he had looked. This contention is not well grounded. Plaintiff testified that when he swung the horses across the track he looked and there was no coming ear in view; that he did not look again because he was busy getting out of the hole; that the horses were on the track slipping and one of them was shying; that he was holding himself on the wagon with one hand and holding the horses np with the other; that he was on the double-tree urging and watching both his horses and the hind wheels of the wagon to see if he was making any headway, and the horses were just stretched out to make the pull that would have drawn him out when they were struck by the car. He also says that he did not look again because he thought that if a car was coming the man would have sense enough not to run him down. His evidence and the evidence of three other witnesses who saw the collision tend strongly to prove that when he swung his horses across the track it was necessary for him to do so in order to extricate his wagon from the hole in the street in which he was stalled and that when he did so the car was not in such close proximity as to render the movement apparently dangerous and that thereafter he made every reasonable exertion to clear the track and go his way as he had a right to do either over, the track or beside it. In order that he might do so it was necessary that his attention should be directed to the management and movement of his team and wagon, and he cannot be charged with negligence because while doing so bo did not keep continuous watch for an approaching car. He could not be reasonably expected to do so considering his situation and the nature of his engagements, and as the view of the track was unobstructed for a distance of at least a block and his situation was plainly observable for that distance, he had a right to expect that he would not be run down by an approaching car. The only evidence in the case tending to prove negligence on the part of the plaintiff, contributing to his injury, was that of the defendant’s motorman, who testified that he saw the plaintiff and his team when he was a block north of where the team stood, that at that time the team was standing beside the track a sufficient distance therefrom to be in a place of safety, and that it remained in that position until the car was about fifty or sixty feet from the horses, when they were turned across the track in front of the car. This evidence of the motorman was flatly contradicted, not only by the plaintiff himself, whose evidence tended to prove that his horses were on the" track when the car was one block distant and when the motorman says he first saw them, but by three other witnesses who saw the car coming and who testified that they saw the horses on the track when the car was distant from two hundred and fifty to three hundred feet — a distance affording him ample time and space in which to have stopped or checked the car, and avoided the injury, and yet, as all the evidence tended to prove, he did nothing either to stop the car or check its speed, thereby showing, if the evidence for the plaintiff is to be taken as true, as upon demurrer it must, such a reckless disregard of human life as to authorize a recovery, even though the plaintiff may have been negligent in some respect in being on the track at the time. The evidence for the plaintiff tended to prove the cause of action set up in the petition; and that of the defendant, the defense set up in the answer, and there never was a clearer case for a jury, and the court committed no error in overruling the demurrers to the evidence.

4. The instructions given for the plaintiff, the modification of the defendant’s instructions as asked, and the refusal of the court to give three other instructions asked by the defendant are attacked upon the ground that the effect thereof was to eliminate from the consideration of the jury any contributory negligence of the defendant; and the argument in support thereof is on the same line with that made in support of the demurrer to the evidence.

The issues to be submitted to the jury under the pleadingá and on the evidence in this case were plain and simple. The charge in the petition is that while the plaintiff’s horses were on the defendant’s track and his wagon at or near it, the defendant’s servants carelessly and negligently caused the defendant’s car to collide therewith without using ordinary care to prevent the collision. Plaintiff’s evidence tended to prove the cause of action stated in the petition. The defense was that the plaintiff negligently assumed this position with his wagon and team when defendant’s car was in such close proximity thereto as that the collision could not have heen avoided by the exercise of ordinary care; and the evidence for the defendant tended to prove this defense. These issues were submitted to the jury by instruction 1 for the plaintiff and instruction 5 for the defendant, and when read together these instructions presented the main issues of the whole ease so fairly and squarely to the jury as to point the way to a correct verdict upon the weight of the evidence. While the other instructions given were not inconsistent with these two, the case would have been better and more clearly presented had the additional instructions been omitted, which, while they did not change, may have to some extent obscured the meaning of the instructions as a whole; but when these instructions are read as a whole, it will be seen that the only negligence of the plaintiff pleaded in the answer, of which there was proof, and which could avail as a defense to his action, was duly presented to the jury as sufficient ground to defeat a recovery and authorize a verdict for the defendant — and that no negligence of the plaintiff of which there was any proof and which could have been of any service as a defense to the plaintiff’s action was withdrawn from the consideration of the jury, unless we are prepared to hold that a traveler upon the street must at all times, when he happens to be on a railroad track therein, keep a continuous watch for an approaching car at the peril of his life or limb, and that a failure to do so will exempt the railroad company from any liability for failure to use ordinary care to prevent injury to him — and as a necessary corollary, that such traveler has no right to assume that the servants of a street railway company will not, so far as they can, by the exercise of ordinary care, refrain from injuring him — a duty imposed upon them not only by ordinance but by the ordinary instincts of humanity. We are not willing to so hold, and such is not the law in this State, in which the doctrine is well established, that although an injured party may have been guilty of negligence contributory to his injury in being on a railroad track, the company is still liable for the injury if it could have been prevented by the exercise of ordinary care on the part of the company after the discovery of the danger in which the injured party stood. [Isabel v. Railroad, 60 Mo. 475; Harlan v. Railroad, 65 Mo. 22; Zimmerman v. Railroad, 71 Mo. 476; Kelley v. Railroad, 75 Mo. 138; Werner v. Railroad, 81 Mo. 368; Scoville v. Railroad, 81 Mo. 434; Dunkman v. Railroad, 95 Mo. 232; Guenther v. Railroad, 95 Mo. 286, 108 Mo. 18; Kellny v. Railroad, 101 Mo. 67; Hanlon v. Railroad, 104 Mo. 381; Fiedler v. Railroad, 107 Mo. 645; Sullivan v. Railroad, 117 Mo. 214; Sinclair v. Railroad, 133 Mo. 233; Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678; Roenfeldt v. Railroad, 180 Mu. 554; Scullin v. Railroad, 184 Mo. 695.]

Plaintiff had as much right on the street as did defendant, and in pursuing his way to be on that part of the street over which the defendant’s track was laid. It was his duty to pursue his way with due care for his own safety, and the safety of others, and if, negligent of the former, he went in the way of defendant’s car in such close proximity thereto as that the servants of the defendant could not by the exercise of ordinary care prevent injury to him, he has himself only to blame for his injuries, and he ought not to recover, and so the court in effect instructed the jury. On the other hand, it was the duty of the servants of the defendant to pursue their way on defendant’s track in the street with due care for the safety of all persons that might be on the track and not to injure them if within their power to prevent it by the use of ordinary care, and if disregarding this duty they did thereby injure the plaintiff, he ought to recover for those injuries, and the court in effect so instructed the jury, and this is all there was to the case. The verdict was the legitimate fruit of such instructions and of the weight of the evidence, which, as a whole, tended to prove that after defendant’s motorman discovered plaintiff’s team upon the track at a distance within which he could easily have stopped his car or checked its speed so .as to have prevented the collision, he took no steps whatever to do so, but recklessly pursued his way at a high rate of speed, thereby causing his car to collide with the team and wagon and to inflict the injuries of which the plaintiff complains.

The verdict was for the right party, and we find no error in the action of the court on the instructions, either given or refused, that calls for a reversal.

5. No error is assigned upon the instructions on the measure of damages, hut it is contended that the verdict is so excessive as to evince passion and prejudice on the part of the jury. We do not think so, in view of the plaintiff’s serious injuries which have been fully set out. While the verdict is a liberal one, it does not shock our sense of justice or furnish any reasonable ground for the assumption that it was the product of partiality or prejudice on the part of the jury. On the whole record, finding no substantial error in the trial affecting the merits of the case, the judgment of the circuit court will be affirmed.

All concur except that Marshall, J., does not concur in the rulings in the Sluder case referred to in the opinion.


author: BURGESS, J. MARSPIALL, J.

text:
    ISENHOUR v. BARTON COUNTY, Appellant.
    In Banc,
    June 28, 1905.
    1. COUNTY WARRANTS: Assignment. County warrants, issued inaccordance with the statute, are mere creatures of the statute are merely evidences 'of indebtedness, are non-negotiable, and the Legislature had the power- to prohibit their payment unless presented for payment to the treasurer of the county issuing them by the person in whose favor drawn or by his assignee, executor or administrator. The Legislature also had the authority to provide that such warrants shall be assignable, to prescribe the form thereof, and to provide that “no blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.”
    2. -: -: Interest. The county is not liable for interest on warrants assigned in blank and in that condition presented by the holder to the treasurer for payment. (Brace, C. J., Marshall and Fox., JJ., dissenting.)
    3. -: -: -: Statute: Liability of Treasurer. The statute provides that “no county treasurer in this State shall pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn or by his assignee, executor or administrator; and when presented for payment, if there be no money in the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same;” and that “all warrants shall be assignable, and every assignment shall be in the following form: For value received, -I assign the within warrant to A B, this - day of -•. (Signed) CD;” and that “no blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to All up the same.” The warrant in suit was issued on February 8th to Livingston, and contained the blank form prescribed by the statute, and he attempted to assign it to plaintiff by simply writing his name under the blank form, not filing out the blank spaces, and in that condition it was presented to the treasurer by plaintiff on February 11th, and on the back thereof the county treasurer wrote: “The within warrant presented for payment, and no money in the county treasury for that purpose, this 11th day of February, 1898,” and signed his name and oAicial title. Held, that, the assignment being in blank, the plaintiff was not its assignee, the legal title still being in the, payee, Livingston, and the plaintiff is not entitled to interest thereon. Held, also, that the indorsement thereon by the county treasurer was an express violation of the statute, and under another statute providing that “any county treasurer violating any provisions of this article shall be guilty of a misdemeanor, and shall, on conviction, be punished,” etc., he was guilty of a misdemeanor, and hence his indorsement could not in the remotest degree affect the rights of the plaintiff or of the county. Held, also, that the action is one at law, as distinguished from a suit in equity.

      Held, by Marshall, J., in a dissenting opinion, in which Brace, C. J., and Fox, J., concur, that the warrant drew interest from the date of its presentation to the county treasurer, recoverable by the plaintiff; that after plaintiff bought the warrant from Livingston and paid for it, he became the equitable owner, that he thereafter had the right to use the name of the assignor in demanding payment, and that the purpose of demand is to start interest to running; that interest on county warrants is governed by the general statute concerning interest, and the statutes concerning county warrants being silent about interest thereon, the right of the holder of warrants to interest is the same as if the county were a private citizen.
    Appeal from Barton Circuit Court. — No». IS. C. Timmonds, Judge.
    Reversed and remanded (with directions).

      Thos. W. Martin and Edwin L. Moore for appellant.
    (1) It was originally a question whether county warrants ever drew interest or not. And the authorities are not now unanimous that they do. 1 Dillon’s Mun. Corp. (4 Ed.), sec. 506; 4 Am. and Eng. Ency. Law (1 Ed.), 362. (2) But it was early ruled in Missouri that they do draw interest, hut only after presentation for payment and failure to pay for lack of funds (and even then the claim for interest must he presented to the county court for allowance, which point was sought to he made in defendant’s original answer in this case, as will be seen by reference to the record.) Robbins v. Lincoln County Court, 3 Mo. 57; Skinner v. Platte County, 22 Mo. 438; State ex rel. v. Trustees, 61 Mo. 158. (3) But in drawing interest at all, county warrants do so upon the theory that they have been presented for payment and paymént refused, just as an ordinary debt will draw interest under such circumstances. But this presupposes that the man who makes the demand has the right to receive payment; otherwise his demand is a nullity, and would create no right against the county. It should receive no attention by the treasurer, because a man to whom a county warrant is assigned in blank has no right to receive payment on it. R. S. 1899, secs. 6798 and 6799; Bank v. Franklin County, 65 Mo. 110; Craig v. Mason, 64 Mo. App. 347. (4) It will not do to say that, since the treasurer has seen fit to recognize a blank indorsee’s demand for payment and to protest the warrant on its back, the county should be bound by that protest and be liable for interest thereafter. In the first place this would be creating a right by the treasurer ’s violation of the law under section 6808. And in the next place, nobody wonld have any right to be misled by that protest into believing that the paper was drawing interest, for county warrants are not negotiable, and everybody is bound to know the law relating to them and the equities going with them. R. S. 1899, sec.- 6799; Sears v. Stone County, 105 Mo. 236; 1 Dillon’s Mun. Corp., sec. 503; 4 Am. and Eng. Ency. Law (1 Ed.), 363.
    Thurman, Wray é Timmonds for respondent.
    (1) County warrants, like all written evidences of debt, bear six per cent interest after demand for payment. R. S. 1899, sec. 3705. The Supreme Court, as early as 1831, held that the foregoing section of our statute applied to county warrants. Robbins v. Lincoln Connty, 3 Mo. 57. (2) - Statutes ought to be construed in the light of reason and common sense. “It is the recognized law in this State that the letter of the statute may be enlarged or restrained according to. the true intent of the framers of the law. In such cases, the reason of the law prevails over the letter.” Ex parte Marmaduke, 91 Mo. 254; Andrew County v. Schell, 135 Mo. 42. It is apparent that the first clause of section 6798 is intended to avoid payment of warrants to persons who may have become possessed of them without right, in which event the county would be compelled to pay a second time. This is the object and purpose of the section, but we insist it does not mean that the person to whom it is drawn, or the assignee, is required to present the warrant in person; in other words, the statute never intended that the owner of a warrant could not collect it by agent or attorney, or present it for collection by agent or attorney or by any other person that he might authorize to receive it. (3) Counsel for appellant says that because Isenhour was the equitable owner of the warrants, such fact raises a presumption that he had no authority from the legal owner to present them for protest. The very converse is true; it is a matter of common knowledge that warrants are not sold in country towns when the money is in the treasury with which to pay them. The purchaser invariably buys as an investment. The first thing a purchaser would say, when about to purchase a warrant, is, “This warrant has not been presented for payment, therefore does not draw interest, ’ ’ The seller replies, ‘ ‘ I will go and have it protested, ’’ or, “You go and have it protested. ’’ This of itself would be ample authority for the purchaser of the warrant to act for the legal owner in presenting the warrant for payment and protest, on appellant’s view of the law.
   BURGESS, J.

This is an action upon ninety-five warrants issued by the county of Barton to different persons, and sold and delivered to the plaintiff.

The petition was filed on the 5th day of April, 1902, and contained a separate count upon each warrant. In its answer defendant offered to let judgment go for principal and interest upon all counts except the 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 42. As to these, defendant offered to let plaintiff take judgment on each of them for the amount of the principal of the warrants, but denied defendant’s liability for any interest thereon. The court, however, rendered judgment upon all the warrants, including interest from the time of their presentation and demand of the county treasurer of payment of the warrants; so that the only question for this court to determine on this appeal, under the facts, is as to whether the trial court erred in rendering judgment against the county for the interest of the warrants sued on in the counts numbered as before stated.

As the same questions are involved with respect to all the warrants mentioned in these counts of the petition, any one of them may be taken as an illustration. "We will, therefore, take the warrant sued upon in the 12th count, which is numbered 1,699. It was issued to Lee Livingston by the county court of said county on February 8, 1898. This "warrant was presented to the county treasurer for payment, as shown by his warrant register and his indorsement on the back of the warrant, on the 11th day of February, 1898, by the plaintiff, Simeon Isenhour, and was by the treasurer protested for the want of funds with which to pay it. When this warrant was presented to the treasurer by Isenhour there were two blank printed assignments (so called for convenience) on the back of it, the first of which was signed by Livingston, the payee, as follows:

“For value received................ assign the within warrant to..............this........day of ............,1......
“Lee Livingston.”

After the institution of this suit and after the warrant was presented to the treasurer by Isenhour, on the 11th day of February, 1898, for payment, this blank form was filled out by the payee Livingston so as to read, at the time of trial, as follows:

“For value received I assign the within warrant to Simeon Isenhour, this 11th day of February, 1898.
“Lee Livingston.”

Plaintiff’s contention is that the warrant drew interest from the date of its presentation and demand of payment, on the 11th day of February, 1898. Defendant contends that under sections 6798 and 6799, Revised Statutes 1899, the warrant never commenced to draw interest, because it was never presented for payment by the payee, or by any other person to whom it had been assigned by him, in accordance with the requirement of the statute; in other words, it had never been presented for payment by any person who had the right to demand and receive payment. No question is raised respecting the pleadings.

'

The warrant now under consideration, and which was introduced in evidence by plaintiff, is as follows:

“State of Missouri.
“$172.40. No. 1699.
“ The Treasurer of the county of Barton.
“Pay to Lee Livingston one hundred and seventy-two and forty one-hundredths dollars out of any 'money in the treasury belonging to the County Revenue Fund. Given at the courthouse in Lamar, Mo., this 8th day of February, A. D., 1898.
“By order of the County Court.
“Wm. P. Scott, President.
“Attest: Chas. H. Smith, Clerk.
“By Geo. Rumsey, Deputy.”

The indorsements on the back of said warrant at the time of trial were as follows:

“The within warrant presented for payment, and no money in the treasury for that purpose, this 11th day of February, 1898.
“Douglass Inglish, County Treasurer.”
“For value received I assign the within warrant to Simeon Isenhour, this 11th day of February, 1898.
“Lee Livingston.
“For value received..........assign the within warrant to..................this..........day of ,1

Upon these facts the court rendered judgment on the 12th count in the petition, being on warrant numbered 1,699, in favor of plaintiff and against the defendant, for the sum of $216.51, which included interest from the date of presentation at the rate of six per cent per annum. There was embraced in the same judgment, as shown by the record, the same kind of judgment respecting all the other warrants described in the petition; that is, judgment was rendered in favor of the plaintiff for the amount of all the warrants, with interest at six per cent per annum, from the time of their presentation for payment up to the time of rendition of the judgment.

The only error complained of is as to the action of the trial court in allowing interest upon said contested warrants, which had been sold and assigned to plaintiff by blank indorsements.

In support of its contention defendant relies on sections 6798, 6799 and 6808, Revised Statutes 1899, which read as follows :

See. 6798. No county treasurer in this State sb all pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator ; and when presented for payment, if there be no money in >the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same.
“Sec. 6799. All warrants drawn on the treasurer of any county shall be assignable, and every assignment of any such warrant shall be in the following form: For value received, I assign the within warrant to A B, this........day of............, 19..... (Signed) CD. No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.”
“Sec. 6808. Any county treasurer violating any provisions of this article shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished,” etc.

Plaintiff, in support of the judgment of the court, relies on section 6771, Revised Statutes 1899, which is as follows:

“Sec. 6771. He shall procure and keep a well-bound book, in which he shall make an entry of all warrants presented to him for payment, which shall have been legally drawn for money by the county court . . . stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented'; • and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for payment.”

County warrants are creatures of the statute, and can only be issued in accordance therewith, but when no rate of interest is prescribed upon their face, they bear interest at the rate of six per cent per annum, as provided by section 3705, Revised Statutes 1899, after presentation to the treasurer of the county by which issued, •and failure to pay because of there being no money in the treasury for their payment. [Robbins v. Lincoln County Court, 3 Mo. 57; Skinner v. Platte County, 22 Mo. 438; State ex rel. v. Trustees, 61 Mo. 155.] Such warrants are merely evidences of indebtedness, nonnegotiable, and the Legislature had the power and authority to prescribe their form, by whom they should be signed and attested, prohibit “their payment by the county treasurer of the county issuing them, unless presented for payment by the person in whose favor drawn or by his assignee, executor or administrator, as well as also to provide that when any such warrant be presented for payment, if there be no money in the treasury for the purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same. It also had the power and authority to provide that such warrants should be assignable, to prescribe the form thereof, and to provide that “no blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same. ’ ’ All of these things the Legislature did, as is shown by sections 6797, 6798 and 6799, Revised Statutes 1899, and upon the theory that these statutory provisions are valid, and the act of the Legislature with respect to said warrants exclusive, defendant asked the court, sitting as a jury, to declare the law to be as follows:

‘ ‘ The court declares the law to be that, if the court finds from the evidence that the warrants in question were not presented to the treasurer of the county for payment by the original payee therein, but that they were sold, transferred and delivered by such payees to plaintiff by blank assignment, that is, by -writing their names on the back of such warrants, but not filling in the name of the plaintiff or the dates of such transfers, and were then in that condition produced by the plaintiff to the treasurer for payment, then such warrants did not commence to draw interest, and the finding -will be for the defendant upon the issue involved.”

This declaration of law was refused, which defendant insists was error.

That a county warrant only draws interest from the time of its presentation to the county treasurer for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator, agent or clerk, and payment refused because of there being no money in the treasury with which to pay it, is too clear for argument; but in the case at bar the plaintiff Isenhour presented the warrant and demanded its payment in person, when, although the equitable holder of the warrant, he was not its assignee, as the assignment was in blank, and the legal title to the warrant was still in the payee, Lee Livingston. Under such circumstances, plaintiff had no legal title to the warrant or authority to even fill the blank, by inserting his name therein, because the statute, section 6799, expressly provides that “no blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.”

The indorsement on the back of the warrant by the county treasurer, as follows: “The within warrant presented for payment, and no money in the treasury for that purpose, this 11th day of February, 1898,” was in express violation of the statute, and void, and for which he was guilty of a misdemeanor and liable, on conviction, to be punished according to law, and to be removed from office. [Sec. 6808, R. S. 1899.] This could not, therefore, in the remotest degree affect in any way the rights of the parties to this action.

Plaintiff contends that it is apparent that the first clause of section 6798 is intended to avoid payment of warrants to persons who may have become possessed of them without right, in which event the county would be compelled to pay a second time; to which we may be permitted to add: and to prevent county officials from receiving in payment of the revenues due the counties such warrants at their face value, holding them, and thereafter turning them over to the counties upon their settlements therewith of such revenues, with the accumulated interest thereon, which could not well be done in case the warrants bé presented by the payee, his legal representative, or assignee. We do not see that section 6771, Revised Statutes 1899, which provides that the treasurer shall keep a book'“in which he shall make an entry of all warrants presented to him for, payment, which shall have been legally drawn . . . stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented; and that all warrants so presented shall be paid out of the funds mentioned in such warrants, -and in the order in which they shall be presented for payment,” is in any way out of harmony with what we have said.

With respect to the contention of plaintiff that there was no evidence that he was not authorized by the legal owner of the warrant to present it for payment, and in the absence of such evidence the presumption prevails that he was authorized to present it for such purpose, or the treasurer would not have protested it, as the law presumes the treasurer did his duty, we are unable, to agree, for the following reasons:

In the first place, the treasurer violated his duty in recognizing the warrant under the circumstances, and indorsing upon it “presented for payment, and no money in the treasury for that purpose. ’ ’

In the second place, as plaintiff wa,s in possession of the warrant at the time, and in person presented it for payment, it will be presumed that he was its owner and acting for himself and not for some other person; besides, he is prosecuting this suit as owner, which fact would seem to be inconsistent with the idea or presumption that another person was the owner and he was acting for him.

The statute with respect to the county warrant under consideration is in all of its material provisions as” much part thereof as if it were written or printed upon the face of it, and is as binding upon the payee therein and the plaintiff, as its holder, as if they had expressly agreed to all of its provisions. [State to use of Wolff v. Berning, 74 Mo. 87; Wanschaff v. Benefit Society, 41 Mo. App. 206; Reed v. Painter, 129 Mo. 674.] And as a condition to plaintiff’s recovery of interest upon such warrant, and the others in contest, it devolves upon him to show that he had complied with the terms of the statute in regard thereto. This is an action at law, as distinguished from one in equity, and is, of course, governed by the law in such cases.

Our conclusion is that the judgment should be reversed and the cause remanded, with directions to the trial court to enter up judgment in favor of plaintiff for the amount of the face of the warrants only.

Gantt, Valliant and Lamm, JJ., concur: Brace, C. J., Marshall and Fox, JJ., dissent.

DISSENTING OPINION.

MARSPIALL, J.

This is an action to recover on ninety-five county warrants* jury scrips, etc., issued by the defendant county. The petition contains ninety-five counts, one for each of the demands sued for. Demand and protest for non-payment is alleged on February 11th, 1898, and interest, at six per cent, is asked from that date. An assignment is also alleged of said demands to the plaintiff. The answer consents to judgment, for plaintiff, as prayed, upon all the counts except the 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 42, and as to these the defendant consents to judgment for the principal of the demands, but denies that it is liable for interest thereon. During the trial the parties admitted that the warrants sued upon in said counts were all presented by the plaintiff to the county treasurer, at the date alleged, for payment; that at said time said warrants were endorsed in blank by the original payees, and .had been by the payees previously sold to the plaintiff, but the name of the plaintiff as assignee was not written in the blank assignment, which was in the form prescribed by the statute and printed on the back of the warrant, nor was the date of the assignment filled in the space left therefor; that after the institution of this suit, the original payees wrote in the blank spaces in said printed assignments, the plaintiff’s name, as the assignee, and the 11th of February, 1898, as the date of the assignment. It was also shown by the evidence that such warrants were presented by the plaintiff to the county treasurer, on the 11th of February, 1898, and the treasurer indorsed on each, “within warrant presented for payment, and no money in treasury for that purpose, this 11th day of February, 1898.”

The circuit court entered judgment for the plaintiff for the principal of each of said demands, with six per cent interest thereon, from the 11th day of February, 1898. From this judgment the defendant appealed.

I.

The only error assigned is the action of the trial court in allowing interest upon the warrants that had been assigned to plaintiff by blank indorsements.

In support of its contention defendant invokes sections 6798, 6799 and 6808, Revised Statutes 1899, which provide, respectively, as follows:

“Sec. 6798. No county, treasurer in this State shall pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator ; and when presented for payment, if there be no money in the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same.
“Sec. 6799. All warrants drawn on the treasurer of any county shall be assignable, and every assignment of any such warrant shall be in the following form: for value received, I assign the within warrant to A B, this — — day of---19--. (Signed) C D. No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same. ’ ’

“Sec. 6808. Any county treasurer violating any provisions of this article shall be deemed guilty of a misdemeanor, and shall,-on conviction, be punished,” etc.

The plaintiff supplements these references by section 6771, Revised Statutes 1899, which is as follows: “The treasurer shall keep a well-bound book in which he shall make an entry of all warrants presented to him for payment . . . stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented; and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for payment.”

It is conceded by the parties that the rule has been, in this State, since 1831, that county warrants bear interest from the date of their presentment for' payment and refusal to pay because of no money applicable thereto. [Robbins v. Co. Court, 3 Mo. 57; Skinner v. Platte Co., 22 Mo. 438; State ex rel. v. Trustees, 61 Mo. 158.]

The defendant contends that as a blank indorsement does not transfer any right to a warrant under the statute, and as the indorsement of these warrants was in blank when they were presented for payment, and as they were presented by the plaintiff and not by the original payees, therefore, there was no such presentment as would have authorized the treasurer to pay them, and hence, the transfer and presentation being void, no interest can be recovered on such warrants. Counsel for defendant admit that warrants need not be presented for payment by the original payee in person, but may be presented by a clerk, agent, or attorney of the payee, and this is also clearly contemplated by section 6771, Revised Statutes 1899, which requires the treasurer to note “by whom presented.”

In other words, defendant claims that the presentation of these warrants to the treasurer by. the plaintiff, did not enure to his benefit, and could not start the running of interest in either his favor or that of the original payee — not in his favor, because, the indorsement being in blank, it conferred no right in him to the warrant or to demand payment thereof in his own favor, and not in favor of the original payee, because no presentation in his favor by the plaintiff was made or authorized to be made.

Whatever the purpose of the lawmakers may have been in enacting the provisions of the law quoted, it is clear that they did not have in mind any regulation as to interest upon such warrants. Such warrants are evidences of county indebtedness, and bear interest at the rate of six per cent from demand of payment, under the general statute, section 3706, Revised Statutes 1899. Under this statute a demand may be made by the owner of the debt, whether he be the original creditor, or his assignee, or legal representative, or the agent of any of them as such owner. And there is no difference as to county warrants.

There was, concededly, a demand made upon the treasurer, for the payment of these warrants on the llth day of February, 1898. That demand was made by the plaintiff. The blank indorsement was insufficient to vest a legal title to the warrants in the plaintiff. Therefore the legal title was then in the original payees.

But although the legal title was in the original payees, it was a mere naked legal title, for the plaintiff had paid his money to the original payees for the warrants, and therefore was the owner thereof in equity, and could have maintained a suit in equity to compel the original payees to transfer the legal title to him. [Craig v. Mason, 64 Mo. App. l. c. 347.] In making the demand, therefore, the plaintiff was not a mere volunteer or intermeddler.

It has already-been pointed out that the statutes relating to county warrants make no provision whatever for the payment of interest thereon, but that this court has held that they do bear interest and that the general statute in reference to interest is as applicable to such warrants or the debts they evidence, as to any other character of debts. The Legislature evidently intended that such should be the case, and the failure to provide specially for interest was not a mere casus omissus. For ever since 1865 there has been a provision upon the statutes of this State in reference to city warrants, similar to the provisions herein set out as to county warrants and the protesting of the same when there was no money to pay them, except that it was further, provided that such warrants so protested should draw legal interest until funds for the payment thereof should he set apart therefor. [Revised Statutes 1865, ch. 42, sec. 11; Wagner’s Stats. 1872, p. 1325, sec. 11; Revised Statutes 1879, p. 1002, sec. 5072; Revised Statutes 1889, p. 514, sec. 1931; Revised Statutes 1899, p. 1441, sec. 6157.]

It is obvious, therefore, that the Legislature intended that the general statute in reference to interest should govern such cases. The statute in referring to interest (sec. 3705, R. S. 1899) provides that in the absence of an agreement between the parties, interest shall begin to run after the debt becomes due and demand shall have been made. But the statute contains no provision or regulation as to the demand. Hence the general rules of the common law as to demand apply, for the common law is the law in this State except so far as it has been modified by statute. [Sec. 4151, R. S. 1899.]

The general rule of the common law is that a demand must be made by the party to be benefited ' thereby or by his duly authorized agent. [9 Am. and Eng. Ency. Law (2 Ed.), 213; 16 Ibid, 1022.]

To this general rule there are well-recognized exceptions, for instance, if the demand is made by a third' person, the debtor has a right to require reasonable evidence of the authority to make it, and if he fails to do so at the time the demand is made he cannot be heard afterwards to defend on the ground that such person had no authority to make the demand. [Ibid, 213.] Or if the refusal to pay is based upon some other ground than the right of the person making the demand to do so, he cannot be heard afterwards to defend upon such want of authority. [Spence v. Mitchell, 9 Ala. 744; Connah v. Hale, 23 Wend. 462; West v. Tapper, 1 Bailey L. (S. C.) 193; Railroad v. Jewett, 16 Ind. 274; Robertson v. Crane, 27 Miss. 362; Thompson v. Rose, 16 Conn. 71; Baxter v. McKinlay, 16 Cal. 76; Payne v. Smith, 12 N. H. 34; Grafton v. Follansbee, 16 N. H. 450.] Or if the debtor acknowledges in writing that a demand has been made upon him, he cannot afterwards object that the person making the demand had no authority to do so. [Levistones v. Marigny, 13 La. Ann. 353; Barnard v. Bartholomew, 22 Pick. (Mass.) 291.]

The main object of a demand is to give the debtor an opportunity to pay the debt and thereby save the costs of a suit that might be brought against him or to save the payment of interest. The debtor can refuse to pay to one who is not the original creditor or who is not authorized by the creditor to make demand therefor, but he must put his refusal upon that ground, because if he does, the defective demand could then be remedied at once or the authority be shown to act for the creditor.

These principles of law apply as well to county warrants as to debts due by one citizen to another, for the Legislature has not seen fit to make any other rule, but has left the matter subject to the general law, and it is plain that they so intended, for they expressly changed the law as to the blank assignment of such warrants, and did not change it in any other respect, and hence, upon the principle of “Expressio unius, est exclusio alterius,” it follows that they did not intend to change the law in any other respect, and, therefore, the courts have no power to do so by construction.

But aside from this, the demand in this case was good at common law. It was good as to the.plaintiff, because he was the equitable owner of the warrants, and therefore had a right to make the demand. When he paid his money to the payees for the warrants he had a right to use their names both for the purpose of making a demand and of bringing snit to recover the debt. At common law a suit upon an assigned chose in action ran in the name of the assignor to the use of the assignee. In other words, as choses in action were not assignable at common law, only the person who had the legal right was originally entitled to sue and the person who had only an equitable right could not do so. [Enc. Pl. and Pr., col. 15, p. 484.] This rule did not obtain in equity, however. Therefore, “At an early day courts of law began to recognize the equitable rights of assignees and others; and to obviate the injustice to them resulting from a rule that only the person having the legal title can sue, the practice obtained by allowing the person equitably entitled to sue in the name of the person legally entitled. In such cases the person in whose name the suit is brought is called the record, nominal, or legal plaintiff, and the person for whose benefit the action is prosecuted is called the equitable, beneficial, or use plaintiff.” [15 Enc. Pl. and Pr., p. 487.] And this rule obtains in sister States. [Skinner v. Somes, 14 Mass. 107; Taylor v. Reese, 44 Miss. 93; Page v. Thompson, 43 N. H. 373; Caldwell v. Hartupee, 70 Pa. St. 74.]

At common law the court dealt only with the record plaintiff, who was liable for costs and who alone could appeal, and if he died the suit abated, and the death of the use plaintiff had no effect upon the action, nor was his interest deemed necessary to be shown, it being held sufficient to show a right to recover in the record plaintiff. [15 Enc. Pl. and Pr., pp. 488-489.] But the modern doctrine is that the use plaintiff controls the litigation and'the record plaintiff cannot interfere, or dismiss the suit, or release the cause of action, or receive satisfaction of the judgment. [Ibid, pp. 491-492.]

“Whenever it is necessary to the assertion of the rights of the real party in interest, he may bring suit for his own benefit in the name of the person having the legal title and right to sne. And he may do this even without the latter’s authority and against his consent, upon indemnifying him against costs. It is well established that an assignee may sue in the name of his assignor, it being held that the assignor, by the fact of the assignment, authorizes the assignee to use his name in any legal proceedings that, may become necessary to give full effect to the assignment,” [15 Enc. Pl. and Pr., p. 493 et seq., and cas. cit.]

These principles have also received the approval of this "court. [Chauvin v Labarge, 1 Mo. 557; Thomas v. Cox, 6 Mo. 506; Wooden v. Butler, 10 Mo. 716; Alexander v. Schreiber, 13 Mo. 271.]

The inevitable and logical consequence flowing from these rules is that the assignee of an unassignable chose in action or of an imperfectly executed assignment of a chose in action, has a right to use the assignor’s name in any steps that may be necessary to give full effect to the assignment. One of such steps is to demand and receive payment in the name of the assignor. Another step is to make a demand so as to start the running of the interest.

The abstract of the record in this case shows that it was admitted, in open court, during the progress of the trial, that the.warrants were presented for payment by the plaintiff and further shows that they were indorsed by the county treasurer, “Within warrant presented for payment, and no money in treasury for that purpose. ’ ’ It does not appear whether the plaintiff demanded payment in his own name and right or in the name of the original payee. But no objection was made at the time to the authority of the plaintiff to make demand. On the contrary, it appears affirmatively that the demand was admitted, and that payment was refused solely on the ground that there was no money in the treasury to pay them.

There can he no doubt that if the defendant was a private citizen he could not be heard now to say that no sufficient or legal demand liad been made. And as hereinbefore shown the Legislature has left counties to be governed by all the rules of law that apply to private persons, except as to blank assignments of warrants.

The provision of the statute in this respect places blank assignments pf warrants in exactly the same position that choses in action were at common law, that is, prohibits such assignments. It has been above pointed out that even according to the original, strict common law, an assignee of a chose in' action had a right to use the name of the assignor for all the purposes that were necessary to fully carry the assignment into effect. This being true, a county warrant that has been assigned in blank stands upon the same footing and is governed by the same rules.

The result is, that the defendant here cannot be heard to now say that no sufficient or legal demand was made upon it, and that the interest began to run from the date the warrants were protested for nonpayment.

For these reasons I think the judgment of the circuit court should be affirmed, and, therefore, dissent from the opinion of the majority in this case.

Brace, C. J., and Fox, J., concur in what is here said.


author: BURGESS, J.

text:
    FINK v. BARTON COUNTY, Appellant.
    In Banc,
    June 28, 1905.
    Appeal from Barton Circuit Court. — Now. N. G. Timmonds, Judge.
    Reversed and remanded {with directions).

   BURGESS, J.

This is a companion suit to that of Isenhour v. Barton County, just decided, on scrips issued by defendant county.

The petition in this case contains fifty-three counts, one upon each of the warrants or scrips. The answer consents to judgment for the principal and interest upon all counts except 1, 5, 8, 14, 15, 16, 17, 18, 23 and 43, and consents to judgment for the amount of the principal of warrants named in said counts but denies liability for the interest thereon.

There is no substantial difference between this case and the case above referred to, and for the reasons therein stated the judgment is reversed and the cause remanded, with directions to the court below to enter judgment in favor of the plaintiff for the amount only of the principal of the warrants and scrips mentioned in said contested counts.

Gantt, Valliant and Lamm, JJ., concur; Brace, G. J., and Marshall and Fox, JJ., dissent, for the reasons stated in dissenting opinion of Marshall, J., in Isenhour v. Barton County, ante, p. 174.