author: WOODSON, P. J. LAMM, J.

text:
    CHRIS NIVERT, Appellant, v. WABASH RAILROAD COMPANY.
    Division One,
    February 28, 1911.
    1. NONSUIT: Involuntary: Upon Objection to Any Evidence. Where, upon the jury being sworn, and the pleadings read, and the placing upon the stand of a witness by plaintiff, defendant objects to the introduction of any evidence, for the reason that the petition does not state facts sufficient to constitute a cause of action, and that objection is sustained, a nonsuit taken by plaintiff with leave to move to set the same aside, is • not voluntary, but involuntary, and an appeal lies.
    2. PLEADING: Common Law Negligence and Humanitarian Doctrine: In Same Count. Held, by Woodson, P. J., that an action bottomed on common law negligence and one bottomed on the humanitarian doctrine, are inconsistent and repugnant and cannot be stated in the same count of the petition, and probably not in the same petition, since the humanitarian doctrine is based on the necessary concession that the- plaintiff was at the time of the injury guilty of contributory negligence, but, notwithstanding such negligence, the defendant, by the exercise of ordinary care, could have prevented the injury, but failed to do so.

      Held, by LAMM, J., that the humanitarian doctrine runs on the theory that the plaintiff was negligent, but avoids the effect of that negligence by showing conditions which bring his case within the humanity rule; but a case under the humanitarian doctrine and one for common law or statutory negligence are not so inconsistent that both cannot be stated in the same count.
    3. -: Negligence: Humanitarian Rule. A petition alleging that plaintiff, at the time of his injury, was not negligent; but was “exercising due care and caution” on his part, fails to state a cause of action under the humanitarian rule. Likewise, where it charges that plaintiff was in a perilous position, and was seen by defendant’s trainmen, “or by the exercise of ordinary care on their part would have been seen by them for the distance of more than one-half mile,” but fails to state plaintiff was at a place where the defendant should have anticipated him, it fails to state a cause of action under the humanitarian doctrine.
    4. -: -: -: Rule to Be On Lookout: Not Pleaded. A failure to plead that plaintiff was at a place where defendant should have anticipated him cannot be avoided by assuming that defendant perchance had a rule or custom requiring its trainmen to be on the lookout for trackmen engaged in repairing the track on trestles, where such rule or custom is not pleaded; for such a rule or custom, if relied upon as a basis of recovery, like other material fact, should be pleaded.
    5. —— : Negligence: Seeing Peril of Trackman. In the absence of any rule or custom to the contrary, trainmen owe no duty to look out for the safety of trackmen and section hands at work on trestles; and in the absence of any allegation of a rule or custom making it obligatory upon defendant’s servants in charge of its train to look out for a switch hand at work in the necessary repair of the track on a long trestle, a petition which charges that defendant’s trainmen saw or by the exercise of ordinary care could have seen the switch-man’s perilous position on the track on the long narrow trestle, but negligently failed to exercise such' care, and in consequence injured him, does not state a cause of action.
    6. -: -: Voluntary Peril. A petition which shows upon its face that the plaintiff switchman voluntarily assumed a perilous position on the trestle, and relied upon the defendant’s trainmen to discover his peril, and to avoid injuring him, does not state a cause of action.

      Appeal from Saline Circuit Court., — Hon. Samuel Dams, Judge.
    Affirmed.

      Fred Lamb and Gilbert Lamb for appellant.
    (1) No objection was made to the pleadings at a reasonable hour, defendant filed answer to the petition of plaintiff, the witnesses were present and all the expense made and labor incident to a trial performed before any objection was made to the pleadings. This practice has been repeatedly condemned by this court as. well as by the courts of appeals. Goldsmith v. Candy Co., 85 Mo. App. 595; Haseltine v. Smith, 154 Mo. 404; Nainn v. Railroad, 126 Mo. App. 707; Smith v. Railroad, 129 Mo. App. 413. Measured by this standard the petition in this case is all the law requires.' Granted that it is not a marvel of good pleading and possibly defective in some respects, yet it cannot be said that it would not be good after judgment. (2) The petition contains all the essential averments to an action for general negligence as well as the necessary averments for a recovery under the humanitarian doctrine. The petition in the case at bar is very like the petition in the case of Degonia v. Railroad, 224 Mo. 568. In that case this court held that the petition was broad enough to allow a recovery for general negligence, and under the humanitarian doctrine. We believe the same is true of the case on trial. While the ruling of the trial court does not indicate the view of the court on the case, we think opposing counsel will agree that the view of the trial court was, that as the petition shows the tracks of defendant at point of injury were unobstructed and the plaintiff. could see the train as far as the trainmen could see him then it became the duty of plaintiff to see the train and remove to a place of safety; that section men are accustomed to work on tracks until the trains are upon them before they move out of harm’s way, and trainmen owe them no-duty to warn them of the approach of trains. This theory is well enough under ordinary conditions. "We concede that the trainmen do not owe section men the duty to warn them when upon the track at a point where it is only a step to a place of safety. We understand this to be the law as declared in Degonia v. Railroad, supra; Cahill v. Railroad, 205 Mo. 411; Evans v. Railroad, 178 Mo. 508; Brocksehmidt v. Railroad, 205 Mo. 444; and Clancy v. Railroad, 192 Mo. 615. Yet in each of these cases the point of injury and the conditions were such that the trainmen might reasonably expect that the injured party could and would step to one side and avert a collision. The trial court in the case at bar overlooked the well defined exception to the rule laid down in the above cases, those cases in which the injured party is in a place of imminent peril and without the means or ability to reach a place of safety in a short time. Under such conditions it is the duty of the company to warn one so in peril and avoid his injury. In the case of Degonia v. Railroad, supra, this exception to the general rule is recognized and in the recent case of Williamson v. Railroad. The petition in the case at bar charges that the plaintiff was engaged in tightening a loose joint in the middle of a 72-foot trestle; that the trestle was twelve feet in width and fifteen feet in length; that in this position he was actually seen by the engineer of defendant’s train when he was yet half a mile away; that the engineer continued to see plaintiff as he approached said trestle until plaintiff was struck and knocked from the trestle, and that at no time did the engineer warn the plaintiff of the presence of the train. ~We submit that the petition brings plaintiff’s case clearly within the exception to the general rule as applied to track repairers and states every essential fact to a recovery under the humanitarian doctrine.

      J. L. Miimis and Robertson & Robertson for respondent.
    (1) The judgment entered does not show an involuntary nonsuit. The correct entry is “and now this trial having been begun, the plaintiff takes a nonsuit with leave to move to set aside said nonsuit.” On the record made by the appellant his nonsuit was voluntary and therefore will not support an appeal. Williams v. Pinks, 156 Mo, 597. (2) The statement of counsel made in open court in the course of the trial is proper matter for consideration by the court in passing upon the merits of plaintiff’s case, and if that statement disclosed no cause of action, then the court was justified in sustaining the defendant’s objection. Pratt v. Conway, 148 Mo. 291; 0 ’Keefe v. Railroad, 124 Mo. App. 613; Oscanyon v. Arms Company, 103 U. S. 261. (3) Plaintiff’s petition failed to state a cause of action. Ring v. Railroad, 112 Mo. 230; Evans v. Railroad, 178 Mo. 517; Cahill v. Railroad, 205' Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435'; Clancy v. Railroad, 192 Mo. 61.5; Sissel v. Railroad, 214 Mo. 515; Sharp v. Railroad, 161 Mo. 214; Kinlen v. Railroad, 216 Mo. 145 ; iSims v. Railroad, 116 Mo. App. 572; Ross v. Railroad, 113 Mo. App. 600; Degonia v. Railroad, 224 Mo. 564; Davies v. Railroad, 159 Mo. 1; Moore v. Railroad, 176 Mo. 544; Van Dyke v. Railroad, 230 Mo. '259;
   WOODSON, P. J.

The plaintiff instituted this suit in the circuit court of Chariton county against the defendant to recover the sum of $20,000 damages for personal injuries sustained by him in consequence of the alleged negligence of the defendant; and a change of venue was taken to the circuit court of Saline county.

The amended petition filed in the cause (formal parts omitted) was as follows:

“Plaintiff states that the defendant is and was at all the dates set forth in this petition a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, with capacity to sue and be sued, and at all of said dates owned and operated a line of railway running west from the city of Salisbury in Chariton county, Missouri, with its engines and cars thereon.
“Plaintiff further states that on the 21st day of November, 1906, he was, and for a long time prior thereto had been, in the employ of the defendant in the capacity of a section hand; that as such employee it became and was the duty of plaintiff to go, under the direction of defendant’s foreman, upon the tracks, trestles and bridges along defendant’s right of way, inspect the same and to make such repairs thereon as might be necessary to'insure the safety and security of the trains of the defendant, the employees and agents in charge and the passengers thereon.
Plaintiff for cause of action -statesi that on said November 21, 1906, while in the employ of defendant as aforesaid, he was ordered and directed by the foreman having charge of that part of defendant’s track extending west from the city of Salisbury (and being that particular foreman under whom plaintiff was assigned to work) to go upon and along the track of defendant extending west from the city of Salisbury and inspect the same and make such repairs as might be necessary to said track and the trestles arid bridges thereunder.
“Plaintiff further states that at a point about three miles west of the city of Salisbury, in said county of Chariton, along the line of defendant’s line of railway, is a long trestle numbered by defendant No. 465, which trestle spans a ravine and is in length about seventy-five feet and in width about ten feet and in height about fifteen feet. That at a point about six hundred feet east of said trestle is a public highway crossing over defendant’s tracks and right of way. That defendant’s track from said trestle extending east for more than a mile is level, straight and the track and right of way free from any and all obstructions that would shut out from the view of defendant’s employees, operating its said cars as they approached said trestle from the east, said trestle or persons who might be thereupon.
“Plaintiff further states that on said November 21, 1906, in the course of his inspection of said track, he reached the trestle aforesaid; that upon said trestle and in about the center thereof he found loose joints 'caused by the bolts and clamps connecting the rails of the track becoming loose, a part of the bolts having fallen out and said track at said ‘point, by reason thereof, in a very dangerous and defective condition. That plaintiff, in his efforts to repair and make safe said defect, while upon and in the middle of said trestle in a dangerous and perilous position, in full view of the servants of defendant in charge of its train approaching from the east at that time, and while in the exercise of due care and caution on his part and relying upon the defendant, its agents and servants in charge of its trains to do and perform the duty they owed him of warning him of the approach of said train, was struck and knocked from said trestle to the ground, the distance of fifteen feet, by the engine and freight cars of defendant composing its train No. 91, westbound. That plaintiff for the distance of more than one-half mile to the east of said trestle was in full view of the servants and agents of defendant in charge of said train, with ample time and opportunity on their part to have warned plaintiff of the approach of said train and put the same under control; that plaintiff in said perilous position was seen by the agents and servants of defendant in charge of said train, or by the exercise of ordinary care .on their part would have been seen by them- for the distance .of more than one-half mile to the east of said trestle.
“Plaintiff- says that notwithstanding the public road crossing immediately east of said trestle and the duty of the defendant to warn plaintiff of the approach of said train, they carelessly and negligently ran over said crossing, onto said trestle and upon and against plaintiff without ringing the bell, sounding the whistle or giving any warning whatever of their approach to said crossing, the trestle or plaintiff.
“Plaintiff says that by reason of being struck by said engine and thrown from said' trestle he was wounded, maimed and mangled; his shoulder, breastbone and several ribs fractured and his shoulder and chest crushed, besides many bruises and cuts in and upon his body; that his injuries were of such a character as to render him unconscious, in which condition he remained several days.
“Plaintiff says that because of the injuries received by him and due solely to the negligence and carelessness of the defendant, its agents and servants as herein alleged, he suffered intense pain for many weeks; that he now suffers and will continue to suffer the same during his natural life; that he was confined to his bed and room for many weeks, thereby entailing upon plaintiff a heavy loss of time and earnings; that because of said injuries plaintiff has expended large sums of money and has contracted to pay large sums of money on account thereof for medicines and medical attention. That prior to said injuries plaintiff was an able-bodied man and capable of doing a man’s work; that since said injuries and because thereof plaintiff’s health has become permanently broken and destroyed, his earning capacity impaired and plaintiff rendered a permanent and helpless invalid and cripple for life.
“Wherefore, plaintiff prays judgment against defendant in the sum of $20,000, and for all proper relief. ’ ’

'The answer was as follows:

“Now comes defendant and for its answer to plaintiff’s first amended petition denies each and every allegation thereof, and further answering defendant says that if the said plaintiff was injured at all it was the result of his own negligence directly contributing thereto in remaining upon and near the tracks of the defendant in close proximity to a rapidly approaching train of cars upon defendant’s railroad, when he saw, or by the exercise of ordinary care could have seen, said train, and, having fully answered, defendant prays to be discharged with, its costs.” '

The reply was a general denial.

On January 16, 1908, after both parties had announced ready for trial, and a jury having been called and qualified to try the cause, the pleading read and statements made, counsel for the defendant objected to the introduction .of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action.

This objection wag by the court sustained, and the following judgment was rendered, to-wit:

“And now this cause coming on to be heard, come both the plaintiff and defendant, and both parties hereto announcing ready for trial, the following jury is called to try this cause, to-wit;
“G. T. Stone, J. M. Durrett, C. C. Young, E. A. Barksdale, A. R. Brightwell, August Rehkop, H. G. White, Geo. T. Lyons, Lenton Yeager, E. B. Hitt, John Yeagle and Ed Hawkins, twelve good and lawful men duly impaneled and sworn to well and truly try the issues of this cause.
“And now this trial having been begun the plaintiff takes a nonsuit with leave to move to set aside said nonsuit.
“It is therefore considered, ordered and adjudged by the court that the plaintiff take nothing by his action herein, and that the defendant have and recover of the plaintiff its costs in this suit expended and that it have execution therefor.”

In due time plaintiff filed a motion to set aside the nonsuit, and prayed the court to grant him a new-trial, which was by the court overruled; and plaintiff appealed.

Thereupon plaintiff filed his affidavit for an appeal to this court, which was by the court granted.

I. The first proposition presented by this record for determination is, did the appellant take an involuntary nonsuit? Counsel for appellant insists that he did, while counsel for respondent insist that his non-suit was voluntary, and, therefore, an appeal will not lie therefrom.

This insistence is predicated upon the following record entry, which constitutes a part of the judgment rendered in the cause, to-wit:

“And now this trial having been begun, the plaintiff takes a nonsuit with leave to move to set aside said nonsuit. ’ ’

If that were all the proceedings that were had in that regard, then there would be great force in respondent’s position; but that is not all.

The record "also shows that after the parties, announced ready for trial, the jury sworn and qualified to try the cause, a witness was placed upon the stand by appellant, and then counsel for respondent objected' to the introduction of any evidence, for the reason that the petition did not state a cause of action. That objection was by the court sustained, and then appellant took the nonsuit before mentioned in the judgment.

If we read the judgment entry regarding the non-suit in the light of the appellant’s objection to the introduction of any testimony, and the court’s action thereon, then it seems to us there is no substantial basis upon which to predicate this insistence. After the ruling of the court that the appellant could not introduce any evidence under the petition, then there was nothing for him to do except to take a nonsuit with leave, or dismiss his case.

. The latter'was not done, but the former was, and that, too, was accompanied by a request for leave to move to set same aside.

There is no other rational conclusion that can be drawn from those record entries, save and except that plaintiff took an involuntary nonsuit with leave to move to set the same aside.

We, therefore, rule this insistence in favor of the appellant.

II. This brings us to' the consideration of the main question involved in this appeal, and that is, does the petition state facts sufficient to constitute a cause of action? Counsel for appellant contends for the affirmative of this proposition, while counsel for respondent denies it.

This question can be better understood if we divide it into two propositions, namely, (a) does the petition state a cause of action under the humanitarian doctrine? and (b) does the petition state a cause of action at common law?

The petition, it should be remembered, contains but one count, and, of course, whatever cause of action, if any, stated, must be found in that court.

If plaintiff relied upon both common-law negligence and’the humanitarian doctrine, then good pleading required that each should have been stated in a separate count in the petition, but that, of course, would be waived by pleading over, as was done here. And in passing, we suggest the point that probably those two causes of action could not be properly stated in the same petition, although stated in separate counts, for the reason that they are inconsistent with and repugnant to each, other. The humanitarian doctrine is bottomed upon the necessary concession that the plaintiff was at the time of the injury guilty of contributory negligence; but notwithstanding such negligence, the defendant by the exercise of ordinary care could have prevented the injury, but failed to do so. While upon the other hand, the common law rule of negligence absolutely bars plaintiff’s right of recovery where his own negligence contributes thereto. In other words, the plaintiff could not at the time of his injury be guilty of negligence.which contributed thereto,, and at the same time be free of negligence in that regard.

(a). As to the proposition, does the petition state a cause of action under the humanitarian doctrine?

With commendable frankness counsel for appellant in open court in the argument of this cause stated that the petition was not bottomed upon the humanitarian doctrine, and virtually concedes that in printed argument. Since, however, this branch of the case was quite elaborately discussed by counsel in trying to distinguish it from the common law branch of the case, "we will give it brief consideration.

We agree with counsel for appellant in stating that this suit is not based upon the last chance or humanitarian doctrine. This is true, for the reason that the petition affirmatively states that the appellant, at the time of.his injury, was not negligent but was “exercising due care and caution” on his part at the time of his injury.

While it may not have been necessary for him to have made that allegation, nevertheless he does state the fact to be that he was not guilty of any negligence which contributed to his injury. This allegation is absolutely inconsistent with the humanitarian doctrine as announced by the text-writers and all the decisions of this State and elsewhere, wherever the rule has been enforced. [Krehmeyer v. Transit Co., 220 Mo. 639.] There is no case to the contrary that we have been able to find, and in the very nature of the rule there could be none such.

In pleading common law negligence, the plaintiff need not state in the petition that he was free from contributory negligence, for the' reason that contributory negligence is a matter of defense and must be pleaded and proven by the defendant to the reasonable satisfaction of the jury before it will bar plaintiff’s right of recovery, except where the plaintiff pleads due care, and his evidence, or that of the defendant, shows that his negligence contributed to his injury. In other words, if in point of fact the plaintiff’s negligence did directly contribute to bis injury, and that fact is pleaded and put in issue and proven by either the plaintiff or defendant, it will bar plaintiff’s right to a recovery. This is elementary, and the citation of authorities in support thereof would almost be a supererogation of labor. [Sissel v. Railroad, 214 Mo. 515.] In the light of the foregoing elementary rules of pleading, we must presume that the learned counsel who drew the petition in this case understood the nature of his cause of action, and attempted to state it' according to those rules.

In order to state a good cause of action under the humanitarian doctrine, the allegation must be that the plaintiff was in a perilous position, and that defendant actually saw his peril in time to have averted the injury, and that it negligently failed to do so, and that in consequence thereof he was injured; or where 'the plaintiff’s perilous position was not actually seen by the defendant, then the additional statement must be made, stating facts which show that the plaintiff was at a place where it was the duty of defendant to expect him to be, and that by the exercise of ordinary care he could have been seen by defendant in time to have prevented the injury; and not simply state conclusions of law. The charge of this petition in that regard is as follows: “The plaintiff for a distance of more than one-half mile to the east of said trestle was in full view of the servants'and agents of defendant in charge of said train, with ample time and opportunity on their part to have warned plaintiff of the approach of said train and put the same under control; that plaintiff in said perilous position was seen by the agents and servants of defendant in charge .of said train, or "by the exercise of ordinary care on their part would have been seen by them for the distance of more thorn one-half mile.”

If the petition had stopped with the allegation that the defendant saw the plaintiff in a perilous position in time to have prevented the injury, by the exercise of ordinary care, and failed to do so, and in consequence thereof he was injured, it would have stated a good cause of action under the humanitarian doctrine; but when the petition went further and charged that, “or by the exercise of ordinary care” the agents of defendant in charge of the train could have seen the plaintiff’s perilous position in time to have prevented the injury, it stated him out of court so far as the humanitarian doctrine is concerned, for the reason that the petition does not state that the plaintiff was at a place where the defendant should have anticipated him, and, consequently, owed him any duty to be on the lookout for him; and in the absence of such duty, there could be no negligence in defendant’s failure to discover plaintiff, even though his perilous position might have been easily and readily seen had the agents and servants in charge of the train been looking down the track toward him. [Frye v. Railroad, 200 Mo. 377; Ayers v. Railroad, 190 Mo. 228; Trigg v. Transit Co., 215 Mo. 521.] There are scores of other cases of like import decided by this court.

Counsel for appellant endeavor to escape the effect of the rule announced in those cases by saying that perchance the respondent has a rule which re-, quires its trainmen to be on the lookout for trackmen and other employees engaged upon bridges and trestles. That may be true in point of fact, but, even if true, it would be unavailing to the appellant in this case, for the reason that no such rule is pleaded or mentioned in the petition. When such a rule, or any custom or usage, is relied upon as a basis of recovery, it must be pleaded, as should any other material fact; otherwise, the court would be in the dark as to the nature of the plaintiff’s cause of action, and the defendant could not know what issues it would be called upon to meet. [Degonia v. Railroad, 224 Mo. 564; Ring v. Railroad, 112 Mo. l. c. 230.]

Viewing this petition, from any standpoint you may, it does not state a cause of action under the humanitarian doctrine.

(b). We now come to. the consideration of the second branch of the case, namely, does the petition state a cause of action under the rule of common-law negligence?

The material charges made in the petition under this branch of the case are as follows: That the appellant at the time of his injury was a trackman in the employ of respondent, whose duty it was to inspect and repair the tracks upon which the latter’s trains ran, and had been so employed for a number of years; that at the time of the injury he was engaged in tightening a bolt in the track on the trestle at a point where the track was straight, from which he could have been seen by the agents and servants in charge of the train for a distance of a half mile from the east in the direction from which the train which struck him came; that the agents in charge of the train saw, or, by the exercise of .ordinary care, could have seen his perilous position in time to have prevented the injury, but negligently failed to do so; that while so engaged in said work he was “relying upon the defendant, its agents and servants in charge of its trains to do 'and perform the duty they owed him of warning him of the approach of said train;” and that while so engaged and so relying upon the defendant, its agents and servants to warn him of the approaching danger, he was struck and injured.

By reading this petition it will he seen that' it charges that the appellant, while performing his services, relied mpon the defendant to perform the duty it owed him to look out for his safety and warn him of the approaching danger in time to have prevented the injury, and that it negligently failed to do so, and that in consequence thereof he was injured. That allegation of the petition is faulty, in that it simply states a conclusion of law, namely, that the defendant owed him the duty to look out for his safety while in the discharge of his duties, and to warn him of his danger.

In the absence of some rule, custom or usage of the company applicable to the appellant requiring it to be on the lookout for appellant and to warn him of his danger, the respondent owed him no such duty as charged in the petition; and as no such rule, custom or usage is pleaded, we must presume that none such existed.

It is the well settled law of this State, as shown by repeated adjudications of this court, that the agents and servants in charge of railway trains owe no duty, to look out for the safety of trackmen and section hands. They are presumed to be familiar with the character of their employment, the schedules and time cards of trains, when due, and the dangers incident to such employment.

In Ring v. The Missouri Pacific Ry. Co., 112 Mo. l. c. 230, this court in considering this question, said: “He [the deceased] had worked on the road for nine or ten years, with trains passing frequently during every day, and was familiar with all the dangers; no rules were shown which absolved the laborers from watching for themselves for passing trains, or that imposed upon the foreman the duty of watching and warning them of the ordinary danger from passing trains. Under these circumstances a rule that would impose upon the master the duty of watching each individual workman, and warning him of the passing of every train, and of keeping him out of danger, would he an abrogation of the well-recognized and necessary rule, that the servant, when engaged in his master’s service, assumes all the risks ordinarily incident to the discharge of the duties he undertakes to perform; and would make the master an insurer of the safety of his servants. It would he most unreasonable to require the master to keep a special watch over every employee, and warn him of every common danger to which he might he subjected in the performance of his ordinary duties, and the law does not require it. [Shearman & Redfield on Negligence, sec. 185; Jackson v. Railroad, 104 Mo. 456.] The judgment is for the right party and is affirmed.”

In the case of Sissel v. St. Louis & San Francisco Ry. Co., 214 Mo. l. c. 528, Judge Graves in speaking for the court, said: “Nor does the plea of the humanitarian doctrine avail the plaintiff in this case. What in our-judgment should he the rule in this class of cases is well expressed by Burgess, J., in Evans v. Railroad, 178- Mo. l. c. 517, whereat he says: ‘But plaintiff claims that even if deceased was guilty of negligence, yet if defendant’s' employees in charge of the train became aware of his peril, or might, by the exercise of ordinary care, have become aware of it, in time to have -enabled them by the exercise of ordinary care to have averted the injury, and they failed to exercise such care, plaintiff was entitled to recover. It will not do to apply this rule in all its strictness to section men whose business it is to work upon and keep in repair railroad tracks, for they are supposed to look after their own personal safety, and to know of the time at which trains pass, to look for them, and see them, and to move out of the way.’ ”

In Degonia v. Railroad, supra, l. c. 591, this court said: “The evidence fails to show such a user by the public of its railroad tracks between the crossing whistling-post and the public crossing, as would justify us in saying that the defendant was not entitled to expect a clear track. On the contrary the defendant had a right to expect a clear track until the - public crossing was reached. Because section hands may be scattered along the railroad tracks from one station to the other, does not deprive defendant of the right to rely upon a clear track, and this for the reason that such employees are bound to look out for their own protection. The rule as to an employee is different from the rule applied to a passenger or stranger. [Cahill v. Railroad Co., 205 Mo. l. c. 408; Evans v. Railroad, 178 Mo. l. c. 517.] ”

Thera are many other decisions of this court .announcing the same rule, and if they are worthy of respect aid are to be followed, then the petition does not state a good cause of action under the common-law rule of negligence.

III. The petition does not state a cause of action for another reason, namely: that it shows upon its face that the appellant voluntarily assumed a perilous position on the trestle, and relied upon the respondent to discover his peril, and avoid injuring him, and that too when, as shown in paragraph two, it owed him no duty in that regard.

In discussing this question, this court, in the case of Davies v. People’s Railway Co., 159 Mo. l. c. 6 and 7, said: ‘ The plaintiff had no right to assume a place of danger upon defendant’s tracks and deliberately engage in an undertaking in such a manner as to deprive himself of the benefit of the sense of sight and hearing, the common avenues through which the approach of danger is communicated, and trust that defendant’s agents in the course of their employment would be more considerate and watchful for his safety than he himself. ’’

In applying the same.rule in the Van Dyke Case, the late Judge Fox, in referring to the Davies Case, said that it was there'“expressly ruled that it was gross negligence for persons to assume a place of danger upon railroad tracks and thereby trust that the agents of the railroad company in the course of their employment will be more watchful of the safety of persons assuming such dangerous positions than themselves.” The same rule is announced in the following cases: Evans v. Railroad, 178 Mo. 517; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Clancy v. Railroad, 192 Mo. 615; Sharp v. Railroad, 161 Mo. 214; Sissel v. Railroad, 214 Mo. 515; Sims v. Railroad, 116 Mo. App. 572; Ross v. Railroad, 113 Mo. App. 600; Degonia v. Railroad, supra; Moore v. Railroad, 176 Mo. 544; Van Dyke v. Railroad, 230 Mo. 259.

"We are, therefore, of the opinion that the petition does not state a cause of action, and that the circuit court properly sustained the demurrer thereto.

Let the judgment be affirmed. It is so ordered.

Lamm, J., concurs in the result in a. separate opinion; Graves, J., concurs in all of the opinion except what is said regarding the pleadings; Valliant, J., absent.

SEPARATE CONCURRING OPINION.

LAMM, J.

I agree to the first paragraph and to the result reached by my learned brother Woodson. but not to the doctrine that a case under the humanity rule and one for “common-law negligence” are inconsistent or cannot be stated in one count of a petition.

It is deemed best to state the grounds of concurrence and dissent.

In the Murphy Case, 228 Mo. l. c. 123, it was said that a plaintiff “must plead his. own negligence in order to invoke this doctrine” — meaning thereby the humanity doctrine — and the Krehmeyer Case, 220 Mo. l. c. 659, was cited as authority for that'proposition. But the proposition announced in the Murphy Case was a blow leveled, arguendo, at the very life of the humanity rule in the minority opinion of my learned brother. It was not intended as in aid of the rule, nor was it intended as a formulation of the scope of the rule in its entirety as announced by this court.

Recurring to the Krehmeyer Case, what was decided by it (as contradistinguished from what was said in the principal or dissenting opinion) must be sought in the guarded language of the concurring opinion of our brother Graves, who cast the deciding vote as umpire and only agreed to the result on the grounds put by him in his concurrence. The crux of the, Krehmeyer Case was in the instructions, not in the pleadings. Therefore, that case is no authority on pleading. The judgment in the Krehmeyer Case was reversed and the cause remanded as to one. defendant, The Transit Company, because of error in ruling on instructions; and the concurring opinion of Graves, J., may be searched in vain for any pronouncement on the question of commingling in one pleading, or count, ‘‘ common-law negligence ’ ’ and facts constituting a cause of action under the humanity rule. His vote was to the effect that plaintiff’s contributory negligence in that case was so well established that' the jury should have been told he was guilty as a matter of law. Further, that the humanity doctrine should have been put to the jury, and, further, that if the court was “going’ to submit the question of contributory negligence at all,” as it did do, then it should have given defendant’s instruction on that head.

A petition may contain allegations so inconsistent and self-destructive that a motion to elect lies. [Jordan v. Transit Co., 202 Mo. 418; Behen v. Railroad, 186 Mo. 430; White v. Railroad, 202 Mo. l. c. 557, et seq.] But to plead common law and statutory negligence and negligence predicated of the violation of an ordinance, and negligence arising from the last chance or humanity doctrine in one count, does not necessarily make a case of felo de se. See the White Case, supra, and authorities cited.

The contrary argument may he summed up in this way:

The humanity doctrine runs on the theory that plaintiff is negligent, hut avoids the effect of his negligence by showing conditions bringing his case within the humanity rule. Therefore, there is such irreconcilable inconsistency between a cause of action based on the latter theory and one based on the theory that plaintiff was not negligent at all, that the two cannot stand together in the same count. But I can see no inconsistency at all in A saying to B, “You were negligent and I was not negligent; you hurt me, therefore I want damages; hut if I were negligent, yet you saw my peril (or in certain cases where you owed a duty to look for me, you should have seen my peril), therefore, you are still liable to me for damages.” There is no more inconsistency there than there is in A saying to B, “I signed no note to you, hut if I did, I paid it off;” yet that was held a good plea. It is believed cases have always been disposed of in this court on the theory that it is good pleading to plead the wrong suffered (that is, the injuria) and then assign as many specifications of negligence as the pleader has — subject always to a motion to elect if they are inconsistent, and subject to a motion in arrest or for a new trial if a general verdict come in on two radically inconsistent grounds.

A fair test of a matter is to put the shoe on the other foot, or see if the other ox is gored. Attending to that: If defendant deny (as this very defendant did) its own negligence and then plead (as it also did) plaintiff’s contributory negligence, shall we also hold that the plea of contributory negligence is bad when coupled with such denial, or that when contributory negligence is pleaded by defendant coupled with a denial of negligence, that those two pleas are inconsistent and cannot stand together? Observe, contributory negligence on the part of plaintiff, ex vi termini, assumes there was negligence on the part of defendant to which plaintiff’s negligence contributed. Therefore, in one sense, although defendant deny its own negligence; yet when it pleads the contributory negligence of plaintiff, it thereby faces the other way and confesses its own negligence. Therefore, if a petition be bad which says plaintiff used due care and then, as another ground of recovery, goes on to state a case under the humanity rule (which proceeds on the theory he may have not used due care) — we say, if such petition be bad for inconsistency, then an answer by the same token is bad when defendant says it used due care and then goes on to say that plaintiff was guilty of contributory negligence. That phase of the matter was considered in the Peterson Case, 211 Mo. l. c. 518. And it was there pointed out that such construction of the stereotyped answer in negligence cases would be novel and perplexing.

I put concurrence on the ground that this plaintiff concedes by brief, and ore tenus at our bar, that his case is not under the humanity rule. When we consider his pleading from the standpoint of “common law negligence,” to use that term as my brother does, it is clear that he places his right to recover on the theory that while he was at work on the trestle he owed no duty to himself to look out for himself, but had a right to rely on the trainmen looking out for him and giving crossing signal at the near-by crossing. He states his cause of action to be a violation of that duty and his own reliance on the performance of'that duty. There is no general rule of law raising such general duty. There might be a case on a long and high trestle where trackmen would be caught in the daytime verily as rats in a trap, where as a matter of humanity and common sense a duty was put on trainmen to look out for them. We can decide such a case when we have it.' . There might be other cases as stated by my brother, where a rule, order or custom obtained to look out for trackmen, working in a hazardous place. Then there is a class of cases where trackmen are seen to be in danger, and seen to be oblivions to it, where an imperative duty arises to warn and if possible stop before running them down (when certain conditions are present). But the case at bar is not a case of any such character. It is one in which the plaintiff says he took no heed for himself at all and the reason he took no heed was that he counted on trainmen looking out for him and he relied on their giving a crossing signal. Now, the crossing signal is not intended for trackmen but for those using the crossing. [Degonia v. Railroad, 224 Mo. l. c. 592, et seq.] A general duty to run a train without negligence becomes a particular duty to no one until he is in a position to complain of the negligence. [Frye v. Railroad, 200. Mo. l. c. 407; Barker v. Railroad, 98 Mo. 54.]

It is quite universally held that on a steam railroad .in the country, away from congested populations and between crossings, there is no general duty to look out for persons on the track and therefore (as a general rule) negligence cannot be predicated of mere failure to look. It arises, if at all, from a failure to act or warn after the peril is seen.

The pleading does not bring the case within that doctrine, and therefore, did not state a cause of action.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    ED J. SHUCK, Appellant, v. A. E. MOORE.
    Division One,
    February 28, 1911.
    1. TAX DEED: Suit by Initials. Where the true name of the non-resident defendant landowner was Anthony S. Wells, as shown by the record of deeds, a tax suit against A. S. Wells brought by constructive summons, and a sheriff’s sale and deed, conveyed no title.
    2. -: -: Constructive Service Assumed. Although the judgment and order of publication in the tax suit were not introduced in evidence in' the suit to cpiiet title, yet if the petition and deed in the tax suit were, and they name A. S. Wells as the defendant, and the deed, record shows the record owner to be Anthony S. Wells, and the suit was tried, as shown by the pleading of the party claiming through the tax deed, and by the instructions, and by the testimony, on the assumption that the defendant in the tax suit was a nonresident and the suit was by constructive service, it will be held that summons was by order of publication, and that defendant did not appear, and the tax deed reciting that the lands of A. S. Wells were sold did not convey the land to the purchaser.
    Appeal from Dent Circuit Court. — Ho». L. B. Wooclside, Judge.
    Reversed and remanded (with directions).

      Ed J. Shuck, A. J. Arthur and Robert Lamar for appellant.
    (1) The true owner’s title to land is not affected by tax proceedings unless they are brought against him and it is necessary that the proceedings, to subject real estate to the payment of delinquent taxes, shall comply with the requirements of the statute, and in this case they do not. The defendant claims title through mesne conveyances from the purchaser at a sheriff’s sale for delinquent taxes for some year between 1880 and 1890, and the taxbill states that the suit is for the delinquent taxes for the year 1880, but the petition in the tax suit nowhere states the year for which the taxes are claimed to be due and this we insist is fatally defective. Bland v. Winsor, 187 Mo. 108; R. S. 1899, sec. 9303. In a proceeding to subject real estate to the discharge of delinquent taxes, the suit must be against the owner of the real estate, and a suit against A. S. Wells is not sufficient to give the court jurisdiction of Anthony S. Wells. Turner v. Gregory, 151 Mo. 100. The defendant’s name, in the delinquent tax proceedings to collect the taxes for some year, is Anthony S. Wells, while in said suit the proceedings are against A. S. Wells. The defendant named in the petition, tax-bill and judgment in said tax suit is A. S. Wells. Therefore we contend that the court never acquired jurisdiction of Anthony S. Wells, whose name appears in the deed conveying the real estate involved in this controversy to him as Anthony S. Wells. Turner v. Gregory, 151 Mo. 100. Constructive service is in derogation of the common law, is a harsh substitute at best, and is always construed strictly. Young v. Downey, 150 Mo. 317.

      Wm. P. Elmer for respondent.
    (1) The sheriff’s deed is prima-facie evidence of title and of the recitals therein. R. S'. 1899, sec. 9035; Cummings v. Brown, Í81 Mo. 711. (2) The sheriff’s deed is not invalid, nor is it affected by the objections made by appellant to the tax petition. There is no proof that the judgment on which this deed is based was a default one, nor that it was rendered only on constructive service. Neither is it shown the judgment and order of publication was against the defendant by initials. Even if the sheriff’s deed is based upon a judgment by default, with constructive service by order of publication against defendant by initials yet it is good under the evidence in this case. (3) Objections were made to the sheriff’s deed on two grounds, only: 1st, because tbe defendant in tbe tax petition was sued by initials, only; 2d, because the petition failed to show tbe year tax was due. This court will not review objections to testimony or defects in deeds, unless special objection is made to tbe trial court. Therefore all objections other than urged above, are not reviewable. Western v. Flannagan, 120 Mo. 61; Haselton v. Haselton, 166 Mo. 182; Bank v. Fesler, 89 Mo. App. .217; Morgan v. Joy, 121 Mo. 677; State ex rel. v. Lounsberry, 125' Mo. 157. (4) Tbe presumption of tbe law is that tbe circuit court had jurisdiction to render tbe judgment on which tbe tax deed is based; that it did render one; that due service of process was bad on defendant. Tbe contrary must be shown. 17 Am. and Eng. Ency. Law (2 Ed.), 1073; Wellshear v. Kelly, 68 Mo. 343; Charley v. Kelley, 120 Mo. 134; McClanaban ,v. West, 100 Mo. 309; Brown v. Walker, 11 Mo. App. 226; Allen v. McCabe, 93 Mo. 138; Gibbs v. Southern, 116 Mo. 204. The same rule applies in actions to enforce tax liens. Wall v. Hollad ay-Klotz Co., 175 Mo. 406; Waring v. Manwaring, 173 Mo. 21; Evarts v. Lumber Co., 193 Mo. 432; Jones v. Driscoll, 95 Mo. 190; Cooper v. Gunter, 215 Mo. 558. ' '
   LAMM, J.

Defendant was sued as a non-resident in tbe Dent Circuit Court to try and determine title to the northeast quarter of section 25; township 32, range 4, in that county, under old section 650, now Revised Statutes 1909, section 2535; as amended. He appeared and filed answer, claiming title, and pleading tbe ten-year and thirty-year Statute of Limitations. In pleading title bis answer bases it on a sheriff’s sale on a judgment for taxes.

Tbe decree vested title in defendant and plaintiff took nothing by bis suit. On due steps, plaintiff came up by appeal.

I. There is a preliminary question, viz.: On the abstract presented, can we go into matter of exception at all?

The point is sufficiently developed when we state that the first twenty-nine pages of plaintiff’s abstract is built on a plan steadily condemned — that is, by commingling in one heterogeneous aggregation matter of record proper and matter of mere exception, so' that we are put to picking, sorting and choosing one kind of matter from the other, and rearranging it, with no guide but a guess tempered by the hazard of guessing wrong. An abstract made on that bad plan is in contravention of statutes, rules, and the very reason of the thing. Its unhappy results are shown in a long list of cases spread in the books and nothing we can say will add vigor or point to warnings already given, writ large and often. The beaten way is safest.

However, in this case, at page 29 of their abstract, counsel, by way of a rather belated revelation, saw the danger and wrote in a long-hand interpolation — a benediction, maybe, reading: “The preceding pages and the following- page contain a full and complete statement of the bill of exceptions, together with the petition and answer.”

Counsel for defendant complains of the abstract as insufficient and briefs the point, but he also files an abstract of his own in which he exploits certain evidence on the theory the bill of exceptions as abstracted by plaintiff omits it. That additional abstract assumes we already have the residue of the bill of exceptions in plaintiff’s abstract. In this fix, plaintiff files a motion to amend his abstract (not by bringing up new matter, but) by rearranging and suitably earmarking matter already abstracted into (1) record proper and (2) matter of exception preserved in a bill. With that motion, and to that end, he tendered a supplemental abstract. The motion was taken with the case, and through, extreme and plenary grace, because of novel and persuasive features existing, the motion will be allowed and the supplemental abstract considered in connection with plaintiff’s original and defendant’s abstract.

H. . The case lies in a nutshell. The matter threshed out below was a certain tax proceeding and sale thereunder, followed by a deed. If that was effective, the title is in defendant — if not, it is in plaintiff. There were no exceptions saved nor are there is-sues raised here making it necessary to set out plaintiff’s chain of title, nor that through which defendant claims. Hence, we omit deeds constituting links in one or the other. It sufficeth to say that the common source of title was Anthony S. Wells. Plaintiff holds through him by mesne conveyances. Defendant holds through him by said tax deed and by mesne conveyances.

The records shows title at one time in “Anthony S. Wells” by a conveyance to him, eo nomine. At.a certain time thereafter a tax suit was brought in the Dent Circuit Court against “A. S. Wells” for a year’s tax — the petition mentioning no year for which the tax was due. The taxbill on which the suit was founded shows the year 1880. The tax judgment is not in the record. The tax deed recites that the judgment was for the tax of 1880, and that “A. S. Wells” was sued and his title levied on, sold and conveyed.

One of plaintiff’s positions is that because the year was not set forth in the tax petition it was fatally defective (E. S. 1909, sec. 11498), and stated no cause of action. Defendant contends that the taxbill must be read into the petition, and; when that is done, it is well enough. But, in any event (he says), absent the judgment and present the recitals in the sheriff’s deed naming the judgment year as 1880; the defect of the petition is cured.

There is a main contention, which, if decided in favor of plaintiff, controls the case without determining the sufficiency of the petition. That proposition is that the court .obtained no jurisdiction over Wells, for that he was sued by the initials, A. S., and not by his given name of Anthony S.

Neither the order of publication in the tax suit nor the judgment appears in the record. Absent both judgment and order, defendant contends there is no proof the tax judgment was rendered on constructive service and without the appearance of Wells. This contention seeks more of the record.

Attending to that, the answer pleads matter without substance or significance except on one theory, and that is that the tax judgment was rendered on constructive service against “A. S. Wells” as a non-resident. Witness the following averments, which being allowed some force, can have no other in a forum of reason, viz.: “Defendant further states that defendant’s title is based upon a tax deed and sale of lands for taxes against one A. S. Wells. That at the said time of the sale for taxes the said A. S. Wells was a non-resident of Missouri and the title to said lands appeared in his name. That said A. S. Wells by such name executed deeds, contracts, signed notes, checks and held himself out to the world in general as A. S. Wells and paid taxes on said lands in the name of A. S. Wells, and was and is well known by the name of A. S. Wells.”

• The petition in the tax suit, put in evidence, has attached an affidavit of the tax attorney that Wells was a non-resident of the State of Missouri. Defendant took the deposition of Wells in the instant case and read it in evidence. Therefrom it appears that he was a resident of the State of Iowa; that he had never been a resident of the State of Missouri; that he usually signed his name “A. S. Wells,” that he answered to either the name of A. S. Wells or Anthony S. Wells; that he used both A. S. and Anthony S., indifferently, in signing his name.

At the trial the court drew up instructions, and gave them. These instructions filled no such office that error in them became reversible, but it does not follow that they might not indicate the theory upon which the case was tried below. In instruction numbered 1, the court elaborately treated of the use of initials in a name and declares the law to be that if the party had been in the habit of using his initials only in his business transactions and was known by such initials, “then the omission to insert his full name in the petition and order of publication, would not make the judgment void, where the petition and order' of publication gave his correct initials,” etc.

There is another record fact, viz., that at the date of the tax suit Wells was not the owner of the land. He had theretofore conveyed it away, but his grantee did not record his deed until after the tax sale. That fact is not mentioned to show the tax suit was brought against the wrong party as record owner, but to raise an inference against the. probability that a man who had parted with his title would appear personally to defend a tax suit in a distant State under sueh circumstances.

The premises, we think, warrant the conclusion that the tax judgment was on constructive service; that the order of publication followed the petition in using merely the initials of Wells’ given name; that such was the trial theory below, not only of counsel on both sides, but of the court itself.

In Matousek v. Catholic Union, 192 Mo. l. c. 596, it was said relating to a plea of res adjudicata: ". . . It is not always by evidence that a fact may be established. Facts may be admitted. A case may be tried on the theory that a fact is assumed to exist, the legal effect of which alone is questioned. [State ex inf. v. Fasse, 189 Mo. l. c. 537.] ... It is true the matter” (the. establishment of the plea of res judicata by a former mandamus suit) “crept into the case sidewise, so to speak, but, nevertheless, it was lodged there and the trial proceeded on the concession and the assumption that the facts constituting res judicata stood confessed. With this admission, why incumber the record with the pleadings, judgment and other impedimenta, mere luggage all, of the mandamus suit? . . . Our conclusion is, therefore, that the record shows by indirection, but conclusively, that the case was tried on the theory below that the former adjudication was conceded.”

So here, no one can read the answer in this case and the record without seeing that the trial proceeded on the admission and assumption there was an order of publication in the tax suit; that the judgment was based on that order; and that'Wells was notified in that order merely by the initials of his Christian name.

In that view of it, the case was wrongly decided; for the tax judgment was void for want of jurisdiction and the tax deed following falls with the judgment.

In Gillingham v. Brown, 187 Mo. 181, the true name of the defendant was Aubrey H. Gillingham. Publication was had against “A. H. Gillingham.” The judgment was held bad for want of jurisdiction. In Spore v. Ozark Land Co., 186 Mo. 656, publication was made against William D. Spore by the name of “W. L. Spore.” The cases were there reviewed and the same conclusion announced. See, also, Burkham v. Manewal, 195 Mo. l. c. 506, et seq.; Turner v. Gregory, 151 Mo. 100; Ohlmann v. Sawmill Co., 222 Mo. 62; Stanton v. Thompson, handed down at this delivery, 231 Mo. 7.

Service of process by publication is in derogation of common law, is a creature of statute, is harsh at best and highly technical; hence must be strictly pursued. Our revenue laws contemplate that tax suits shall be brought against the record owner by his true name. [R. S. 1909, sec. 11498.]

The judgment should be reversed and the cause remanded with directions to enter a decree for plaintiff. It is so ordered.

All concur, except Valliant, J., who is absent.


author: GRAVES, J.

text:
    C. B. BURNHAM et al., Appellants, v. LEWIS B. CLARK.
    Division One,
    February 28, 1911.
    JUDGMENT: Review Within Three Years: Under Thirty-year Limitation Statute. Under Secs. 777 and 779, R. S. 1889, a judgment rendered by default, upon summons by publication ' only, under Sec. 4268, R. S. 1899, may, upon the petition of the defendant, be reviewed within three years. Section 4268, being the thirty-year Statute of' Limitation, is not such a statute of repose that the provisions of Sections 777 and 779, providing for the review of judgments, do not apply to suits in which the title to the land is adjudged to belong to plaintiff.
    Appeal from Dent Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      J. J. Cope for appellant.
   GRAVES, J.

In this case we presumably have an agreed statement of facts in lieu of a bill of exceptions. We say presumably, because the judgment on file in this court is entitled C. B. Burnham et al., plaintiffs, vs. Lewis B. Clark, defendant, whilst the agreed statement of facts and points in dispute is entitled Lewis E. Clark, plaintiff, v. C. B. Burnham et al., defendants. By this judgment on file here, Clark is decreed to be the owner in fee of certain lands in Dent county, Missouri. The decree further adjudges: "That the plaintiffs take nothing by this suit, and they are forever barred and precluded forever from setting up any right, title or interest in and to said real estate, and that the defendant have execution for costs and the same is awarded.”

This trouble as to title of the suit is cleared up by the facts agreed upon in the case. Such facts thus run: February 13, 1904, C. B. Burnham et al. brought suit in the circuit court of Dent county, Missouri, against Lewis E. Clark, then and at all times a nonresident of Missouri. Such suit was under, section 4268, Revised Statutes 1899; section 1884, Revised Statutes 1909.

No personal service was had upon Clark, but publication was taken out and made in the usual form. Judgment went against him by default. Clark made no appearance to such suit until after judgment was entered for the plaintiffs therein. Judgment was entered against Clark at the April term, 1904, of said court, quieting the title to the lands in dispute in Burn-ham et al., and further decreeing that Clark had no right, title or interest therein. October 7, 1905; Clark for the first time appeared and filed a petition for review of such judgment. All parties were duly notified, the issues threshed out, with the result that the judgment of April, 1904, was set aside, and the judgment now pending here was entered.

The statute under which the suit was instituted, reads: "Whenever any real estate, the equitable title to which shall have emanated from the Government more than ten years, shall thereafter, on any date, be in the lawful possession of any person, and which shall or might be claimed by another, and which shall not at such date have been in possession of the said person claiming or who might claim the same, or of any one under whom he claims or might claim, for thirty consecutive years, and on which neither the said person claiming or who might claim the same nor those under whom he claims or might claim has paid any taxes for all that period of time, the said person claiming or who might claim such real estate shall, within .one year from said date, bring his action to recover the same, and in default thereof he shall be forever barred, and his right and title shall, ipso facto, vest in such possessor: Provided, however, that in all cases such action may be brought at any time within one year from the date at which this article takes effect and goes into force.”

Clark, in his petition for review, proceeded under sections 777, 778 and 779, Revised Statutes 1899; sections 2101, 2102 and 2103, Revised Statutes 1909. These sections read:

“Sec. 777. When such-interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit, or has been made a party as the representative of one who shall have been summoned or appeared, such final judgment 'may be set aside, if the defendant shall, within the time hereinafter limited, appear, and by petition for review, show good cause for setting aside such judgment.
“Sec. 778. If the plaintiff shall, at any time after such final judgment, serve the defendant, within any of the United States or the Territories thereof, with notice of the suit and a copy of the judgment thereon, and such defendant shall not, wdthin one year after such service, bring his petition for review, the court, on proof of the service of such notice, shall make an order that the judgment stand absolute.
“Sec. 779. If such petition for review be not filed within three years after such final judgment' is rendered, the same shall stand absolute, whether notice thereof be given or not.”

It is not claimed that any steps were taken under section 778, supra, so that the case turns upon the construction to he given to sections 4268, 777 and 779.

In the present case the sufficiency of the proceedings is. not questioned except in one particular. Counsel for appellants state their question thus: “There is hut one question in this case on which the appellants stand for a reversal of this judgment. Appellants contend that the order of publication which was published against the respondent Lewis B. Clark in.the former suit in favor of the appellants herein was, under said section 4268, Revised Statutes 1899, a complete and. valid service and carried with it such force-as a personal service would have done, and judgment rendered thereunder cannot be reviewed, because this statute is an absolute repose in the premises. All for which .appellants pray a reversal of said judgment.”

Counsel throughout speak of the petition for review as of another ease, but we take it to have been a petition filed in the original case and will so treat it. The point would be the same in cither case.

Such is the case for our determination.

The sufficiency of the petition for review is not questioned in this case. The sufficiency of the proof is not questioned. The only claim is that in suits under section 4268, supra, service by publication is the same as personal service and a judgment entered thereon is not subject to review under sections 777 and 779, supra. Counsel for appellants make the point in the language we have quoted, but do not further elaborate it or cite us to any authority for such position. For the respondent no brief is here to enlighten the court.

In one place in the record (the agreed facts)- counsel couch their contention in this language: “We agree that there is but one question in the case on which Burnham and others stand for a reversal of the judgment which now stands against them. J. J. Cope, who is the attorney for Burnham and others, now contends and argues that the order of publication which was published against the plaintiff herein, Lewis B. Clark, in the first suit in which judgment was rendered against Lewis B. Clark, and in favor of C. B. Burnham and others, was under said section 4268, Revised Statutes 1899, a complete and valid service, and carried with it as much force as a personal service would have done, and a judgment rendered thereunder is a final and lasting judgment, and is not subject, and cannot be reviewed, for the reason that this statute is an absolute repose in the premises just as much so as had there been a personal service in the first suit made on the defendant Lewis B. Clark therein, and it is further agreed by J. J. Cope, attorney for Burnham and others, that if this statute is not a bar to the review of this judgment then he has no standing in this appeal. ’ ’

From this we gather that counsel were of opinion that upon a judgment under section 4268 there could be no petition for review. That because such statute was and is considered a "statute of repose, judgments thereunder had some peculiar efficacy not attached to other judgments wherein there has been no personal service and no appearance of the defendant. In this we think counsel are in error.

It might be granted that, if such judgment became final in its full sense by passing the period for review mentioned in sections 777 and 779, supra, title would be reposed in the parties plaintiff, but this does not cut off the right of the defendant to have such judgment reviewed.'

In Jones v. Driskill, 94 Mo. l. c. 199, this court, through Brace, J., said: “No distinction can be made between the force and effect of a judgment rendered upon actual and constructive service in cases where constructive service is authorized by law, except such as is made by statute. If the court rendering the judgment has jurisdiction of the subject-matter of the action, and acquires jurisdiction of the person of the defendant by notice published as required by law, its judgment is final and conclusive in the one case as in the other, except that the defendant, in an action in which he has not been summoned, but in which he has been served by publication of notice, and in which an interlocutory judgment has been made final, may, within three years after the rendition of such final judgment, appear, and, upon terms, have the same reviewed, and for good cause set aside. [R. S. 1879, secs. 3684, 3690.]” Section 3684, Revised Statutes 1879, is the same as section 777, Revised Statutes 1899. These remarks were made with reference to a tax suit.

Having under consideration another tax proceeding, the same judge, in Tooker v. Leake, 146 Mo. l. c. 429, used the following language: ‘ The statute then provides how such orders shall be published. When so published, and the publication proved, the defendants in such actions are as effectually served with process as if served by summons, and a final judgment rendered on such service is just' as conclusive as a judgment rendered upon service by summons, except that the defendant in the former case may within three years after the rendition thereof have the same reviewed and set aside for good cause, as provided in Revised Statutes 1889, section 2217, et seq.” The italics are ours. The statutes of 1889 referred to are the ones we have under consideration.

In the recent case of Bank v. Kingston, 204 Mo. 687, these statutes were held to apply to a case of attachment wherein real estate had been attached. So,too, they have been discussed a,s applicable to partition suits. [Murray v. Yates, 73 Mo. 13; Schooler v. Patrick, 138 Mo. App. l. c. 104.]

It has been held that these statutes do not apply to condemnation proceedings because such proceedings “ are sui generis and are not comprehended within the scope of the provisions of article 9, chapter 59.” [Swan v. Railroad, 38 Mo. App. l. c. 592.]

We, however, can see no reason why such statutes are not applicable to a judgment procured under section 4268, supra. As stated, this is the sole question. If this first judgment was subject to review, then it is not denied that the subsequent proceedings were duly authorized and properly taken. Such proceedings culminated in the judgment filed in this court. It follows that upon this record there was no error in the trial court sustaining the petition for review, and afterward rehearing the case and entering up the present judgment. Judgment is affirmed.

All concur except Valliant, J., absent.


text:
    IDALIA REALTY & DEVELOPMENT COMPANY, Plaintiff in Error, v. W. W. NORMAN.
    Division One,
    February 28, 1911.
    1. LEASE: Tenancy for'Years. A lease for years must have a certain beginning and. a certain ending. If the end is fixed with certainty, or hy some reference or call to a certainty hy which the period is made to. determine, then it is a lease for a term of years; hut if the end be not certain, or cannot he made certain hy reference to a certainty, then the lease does not create a lease for a term of years.
    2. -: -: Until Sawmill is Removed. Where the owner of land leased it for “the term of five years, free of rent, except taxes, together with the privilege of renting the land at a yearly rent of twenty-five dollars, after the expiration of this contract until the sawmill thereon is removed, this contract to end in five years from this date,” the lease hy its terms did not create a tenancy for years, because of the uncertainty in the end of the term. “Until the sawmill is removed” is neither certain, nor can it he made certain.
    3. -: -: -: Rents Reserved: Tenancy at Will. But courts incline to presume a tenancy from year to year of farm lands, where the parties do not express a contrary intention, especially where an annual rental is reserved; and when that is done they will not apply the doctrine of a tenancy at will to he determined at any time upon notice. And accordingly, since an annual rent was reserved in said lease, it is held that the tenancy created was one from year to year, after the five-year period expired, and it can be terminated only in the way and by the notice provided by statute for terminating, tenancies from year to year.
    4. -; Tenancy at Will. A tenancy at will implies the will of both landlord and tenant. If it can be determined at the will of the landlord, it can also be determined at the will of the tenant.
    Error to Stoddard Circuit Court. — Eon. J. L. Fort, Judge.
    Affirmed.

      N. A. Mozley and Wammack, & Welborn for plaintiff in error.
    (1) Defendants’ holding under the contract, after the expiration of five years, was a mere tenancy at will and was terminated by the notice to quit. Corby v. McSpadden, 63 Mo. App. 648; McClain v. Abshire, 72 Mo. App. 390; Hobart v. Murray, 54 Mo. App. 255. (2) A lease, which does not have a time certain for its termination is void, and a person holding under it is a mere tenant at will. A lease which is to- terminate-upon the removal of a sawmill, there being no time fixed at which the sawmill was to be moved, is such a lease. Corby v. McSpadden, 63 Mo. App-. 648; McClain v. Abshire, 72 Mo. App. 390.

      James F. Green and Ernest A. Green for defendant in error.
    (1) The lease offered in evidence under its terms constituted a tenancy for years and entitled the plaintiff to remain in possession of the premises in controversy until his mill was removed therefrom. Harley v. O’Donnell, 9 Pa. Co. Ct. 56; Hammond v. Barton, 93 Wis. 187; Colclough v. Cárpeles, 89 Wis. 239; Arnot v. Alexander, 44 Mo. 25; Flagg v. Dow, 99 Mass. 18; 24 Cyc. 961b; McClain v. Abshire, 72 Mo. App. 390 ; Clarke v. Spaulding, 20' N. IT. 313; Patterson v. Class Co., 63 Mo. App. 173; Boot & Shoe Co. v. Gannon, 50 Mo. App. 642; Bldg. Co. v. National Bank, 5 Mo. App. 333; s. c., 71 Mo. 58; Conservative Realty Co. v. Brewing Association, 133 Mo. App. 261; 1 McAdam on Landlord and Tenant (3 Ed.), cbap. 19, see. 168, p. 584, also sec. 170, p. 588; Doe v. Miles, 1 Stark, 181, 4 Camp. 373; Crouch v. Parker, 40 Barb. 94. (2) Defendant had a right to renew the lease for a term of one year in any event from the expiration of five years, provided his mill remained there that long, and he thereby became a tenant from year to year and entitled to sixty days’ notice before the beginning of the next year. Dirake v. Board of Education, 208 Mo. 540; Diffenderfer v. Public Schools, 120 Mo. 447; Hammon v. Douglass, 50 Mo. 442; DeLaney v. Flanagan, 41 Mo. App. 651; Blackmore v. Boardman, 28 Mo. 420; Quinette v. Carpenter, 35 Mo. 502; Hunt v. Bailey, 39 Mo. 257; Finney v. St. Louis, 39 Mo. 177. (3) The notice to quit, served on defendant, was not sufficiently explicit and positive to require him to move, even though his tenancy had been only at will. Ayers v. Draper, 11 Mo. 548; Brewing Co. v. Miller, 124 Mo. App. 384; Taylor’s Landlord and Tenant (7 Ed.), sec. 483, pp. 415-416.
   LAMM, J.

Ejectment—the locus, a forty, viz.,, the southeast quarter of the southeast quarter of section 12, township 25, range 11, in Stoddard county. Ouster as of January 2, 1905’. Damages, $100.

The answer was a general denial.

Plaintiff, cast below and adjudged to take nothing by its writ (defendant going hence without day and Recovering his cost), sued out a writ of error and the case is here on that writ.

S. B. Hunter is the common source of title. He owned the property on the 16th day of August, 1899', when he executed a contract under which defendant took, held and now holds possession. That contract has dual features. It is a sale of certain property and a lease of other property and for convenience’s sake will be called a “lease.” That lease was acknowledged at the time and subsequently spread of record on a dispute arising over its terms, viz., April, 1903. Hunger was owner and landlord on the 28th of October, 1904. On that date he served on Norman a written notice to quit. Subsequently plaintiff was incorporated and took over Hunter’s real estate in Stoddard county, including the locus in quo — Hunter owning all the corporate stock except two shares held one each by Mrs. Hunter and a Mr. Harty. There are several buildings on the forty and there is evidence that its monthly rental value is fifty-six dollars. The lease is a contract for the sale of timber on other lands and a privilege to cut, together with a tram road, a right of way for the same on those lands, with certain reservations by Hunter. There is also a letting of the land in question. The lease, omitting signatures, runs as follows:

‘‘ This agreement made and entered into this 16th day of August A. D. 1899, by and between Stephen B. Hunter of the county of Scott, and State of Missouri, party of the first part, and W. W. Norman, of the county of Cape Girardeau, and State of Missouri, party of the second part. Witnesseth, that the said party of the first part, in consideration of the sum of thirteen hundred dollars to him paid by the said party of the second part, has this day sold unto the said party of the second part, does by these presents, sell, assign, and transfer unto the said party of the second part, all timber, tram road, and right of way, on the following lands, to-wit: (Note: Here follows the description of lands in sections 18, 19, 30' and 31 in township 25, range 12 in Stoddard county). The said first party reserves the right to clear and fence lands in said section eighteen, and to deaden timber on all the above lands after August 1, 1902. The said first party also leases unto the said second party for the term of five years, free of rent, except the taxes, all of the southeast quarter of the southeast quarter of section twelve, in township twenty-five, range eleven, in said county and State, except two houses, which are used by tenants, cultivating lands at or near Hunter’s switch, together with the privilege of renting the last named lands at a yearly rent of twenty-five dollars per year, after the expiration of this contract until mill is removed. This contract to end in five years after this date. This contract is subject to a former contract made with J. B. Ldvesay by S. B. Hunter and signed to Piatt B. D. G. Co.
“In testimony whereof, the said parties, to these presents, have hereunto, and also to copy thereof, set their respective hands at - — —, on the day first above written.”

Among other questions raised is one predicated of the terms of the notice to quit. That notice was served by the sheriff, and, omitting signatures, reads:

‘ ‘ To W. W. Norman:
“You are hereby notified that inasmuch as you have had a reasonable time, since the expiration of the lease existing between us, by and under which you have had the possession, and still continue in the possession thereof, after the expiration of said lease aforesaid, of the following described real estate belonging to me, situate in the county of Stoddard and State of Missouri, to-wit: The southeast quarter of the southeast quarter of section twelve, in township twenty-five north, of range eleven east, in which to remove your saw mill, factory, goods, chattels, and other personal property therefrom; to quit the possession of said premises, and to remove your property and effects therefrom, and to deliver the possession of said premises to my agent Mr. A. L. Harty, on or before the 1st day of January, 1905, together with all the messauges and appurtenances-thereunto belonging.
“Dated this 28th day of October, 1904.”

Defendant has a saw mill on the premises, and did have a “veneer plant” there, but the latter burned down. He is running the saw mill occasionally and a little store, and his employees occupy the houses on the land, say, ten in number. Fie cut and used up the timber covered by the terms of his lease, finishing that within the five years prescribed. At the time of executing the lease defendant owned other timber in the neighborhood, but has since sold both the land and the timber. After the contract he bought other timber in the stick, which he is cutting and sawing, claiming possession of the locus under the renewal right in his lease. He has released possession of all the real property except the forty in dispute and the right of way for his tram road. Defendant has paid no rent on the forty after the five-year term expired, but has been ready and willing to pay, has notified Hunter he would pay on demand, but no demand has been made. The saw mill had formerly been located near Sikeston on land mortgaged, to Flunter. On foreclosure of the mortgage Hunter surrendered the mill to Norman and he moved it on the forty in dispute, where it still remains.

At the close of the case, plaintiff asked the following instruction:

“The court instructs that the lease contract under which defendant claims the right to hold the premises sued for began on the 16th day of August, 1899, and ended by force of its own provision five years thereafter, and that the clause contained in said contract which reads: ‘ Together with the privilege of renting the last named lands at a yearly rental of twenty-five dollars per year after the expiration of this contract, until mill is removed,’ is wholly inoperative to create a greater estate or right of possession in defendant than a mere tenancy at will which was terminated by the notice offered in evidence prior to the institution of this suit.”

That instruction was.refused. Plaintiff.saved the point and now assigns error on that refusal. Defendant asked no instructions.

Plaintiff, puts ah eggs in one basket by submitting-the case on the proposition that defendant’s holding, after the expiration of the five-year lease term, was a mere tenancy at will which was terminated by the notice to quit — in other words, that a lease not having a time certain for its termination is void, and the person holding under it is a mere tenant at will; that as there was no time fixed at which the saw mill was to he moved, the lease is void, qua a lease, and the law stamps upon it the character of a tenancy at will.

Contra, for defendant the contentions are three:

First. That the lease constituted a tenancy for years and entitled defendant to possession until he removed his mill.

Second. If that be not so, then under the right to renew defendant had the right to a renewal for at least one year after the expiration of the five-year term, that by remaining in possession he became a tenant from year to year and entitled to sixty days’ notice before the beginning of the next year.

And, third, If that he not so, then the notice to quit was not as explicit and positive as required hv law, even for a tenancy at will; therefore, it was inoperative as a notice to quit and the suit was premature.

Plaintiff does not agree to the foregoing trio, by or large, in whole or part. In a reply brief its counsel develop counter contentions, to he presently considered in the course of this opinion.

The foregoing is sufficient outline statement of the facts and propositions in judgment.

I. The lease reads that, for the payment of taxes as rent, Hunter “leases” to Morro an for the term of five years (that is, commencing on the 16th day of August, 1899') the forty, with certain reservations. Then follows the clause on which the controversy hinges, viz., “Together with the privilege.of renting the last-named lands at a yearly rental of twenty-five dollars . . . after the expiration of this contract until the mill is removed.”

Counsel raise no question whether the clause is a lease or a mere contract for the renewal of a lease. They do not ask the case to ride off on any of the nice distinctions indulged by courts in determining such question. They treat the provision as requiring no new or other lease if it is to be construed, in the light of correct legal principles, as contemplating or agreeing to a tenancy for years. We, therefore, adopt that view of it in disposing of the first question, namely: Are the terms apt and operative to create (or call for) a tenancy for years?

We have come to the conclusion the tenancy is not for years. This, because: The old learning on the matter throws a dry light and remains a live verity of modern law. Attending to that, thus saith Little-ton: “Tenant for term of yeares is where a man letteth land or tenements to another for terme of certaine yeares, and after the number of yeares that is accorded between the lesser and the lessee.” [1 Coke on Littleton (19 London Ed.), sec. 58-43b.] In commenting on the phrase, “of certaine yeares,” Sir Edward says (45b): “For regularly in every lease for yeares the terme must have a certaine beginning and a certaine end. . . . And Littleton is here to be understood, first, that the yeares must be certaine when the lease is to take effect in interest or possession. For before it takes effect in possession or interest, it may depend upon an incertainty, viz., upon a possible con tingent before it begin in possession or interest, or upon a limitation or condition subsequent) Secondly, albeit there appeare no certainty of yeares in the lease, yet if by reference to a certainty it may be made certaine it sufficeth, Quia id cerium est quod cerium reddi potest.” He then proceeds to give many quaint hypothetical cases which would make the term certain and its period determinate, and others having a contrary effect and obnoxious to the certainty of term required in a tenancy for years — of the latter, this: “If the parson of D. make a lease of his glebe for so many yeares as he shall be parson there, this cannot be made eertaine by any meanes.” Flintoff says (2 Flintoff on Real Property, 203): “Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And ' therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited and determined; for every such estate must have a certain beginning and certain end.’’ That author, in commenting, also applies the maxim, That is certain which can be made certain. Preston says (2 Preston on Conveyancing, p. 158 et seq.): “In regard to leases for years, the text-books seem to propound the rule that every lease for years shall have a certain commencement and a certain continuance. It is essential that the time of duration of every lease for years shall be measured by fixed periods, as by years, months, weeks, days, hours, minutes, or the like.” And again (159 et seq.): “When it is said, ... in the language of Lord Coke, ‘regularly in every lease for years, the term must have a certain beginning and a certain end, ’ this is to be understood in its legal and technical sense. The only circumstance required in limitations of terms for years is, that a precise time shall be fixed for the continuance of the terms; so that when the commencement of the term is ascertained, the period of determination, by effluxion of time, may be known with certainty. In the first place a term may be limited to commence from the date of the deed, or from a future period, or upon an event, or upon such one of several events'as shall first happen.” Speaking to the same point, Washburn says (1 Washburn on Real Property [5 Ed.], 470): “The only circumstance required in these limitations of terms for years is, that a precise time shall be fixed for the continuance of the term, so that when the commencement of the term is ascertained, the period of determination by effluxion of time may be known with certainty. ’ ’

In applying the foregoing definitions and principles, the rule seems to be that if the term is to commence on the happening of an event uncertain as to time (for example, the completion of a house), it will be a good tenancy for years when possession has been taken after the event. This, provided the end of the term is fixed with certainty or by some reference or call to a certainty thereby making the period determinate. But if the end be not certain or cannot be made certain by the maxim Id cerium est quod, etc., then a tenancy for years is not created, for the lease violates the definition of such tenancy in essential matter.

In Western Transportation Company v. Lansing, 49 N. Y. 499, it was held that a lease for fifteen years at a yearly rental of $30’ “with privilege of keeping and occupying said lots for such further time, after the expiration of said term, as said party of the second part shall choose or elect, yielding and paying therefor the same rent,” did not create a tenancy for years because of the uncertainty in the end of the term. The same conclusion was reached in Murray v. Cherrington, 99 Mass. 229, where one of the uncertainties was in the duration of the term which arose from a stipulation “that if, after two years from the time when the lessee should move into the house, the lessor should wish to live there, he might do so, and the lessee might then retain, if he should desire, certain rooms, ‘for such a term as may he agreeable to us both.’ ”

In Corby v. McSpadden, 63 Mo. App. 648, the term ran “until the party of the first part is prepared to improve the ground with new buildings. ’ ’ The question to be decided was what kind of a lease that uncertainty created and the lease was held void for any other purpose than a tenancy at will. See Hobart v. Murray, 54 Mo. App. l. c. 255.

Cases .relating to uncertainty in the commencement of a term, which uncertainty has been removed by the happening of an event and where the end of the term is not left at the caprice, whim or will of either party, are not in point. Many of them, may be found. For example: Hammond v. Barton, 93 Wis. 183; Colclough v. Carpeles, 89 Wis. 239; Clarke v. Spaulding, 20 N. H. 313; Western Boot and Shoe Co. v. Cannon, 50 Mo. App. 642; McClain v. Abshire, 72 Mo. App. l. c. 399. Such is the general doctrine (1 McAdam Land, and Ten., sec. 168, p. 646), and that doctrine is bodied forth in the old learning heretofore quoted from Coke and Preston.

In our case nothing could be more uncertain than the end of the term. The uncertainty indulged in is the very sum of the whole brood of uncertainties. What does the phrase, “until the mill.is removed,” mean? By whom is it to be removed? On what contingency is it to be removed? Suppose it be never removed, what then? Does the word “mill” mean merely the physical structure or does it mean a going saw mill? If the former, would it be removed if left lifeless to rot on the ground? If the latter, did the parties contemplate that Norman bought' timber from Hunter and when that timber was cut and manufactured with reasonable diligence into lumber or otherwise, the mill was to be moved, or did they mean that it was to be moved when Norman sawed that timber and other timber he then owned, or timber that he might thereafter own, or when timber that might be -brought to his mill to be sawed for a price or on the shares was-exhausted, or when all the accessible saw-timber in the region was exhausted? But it is idle to speculate when it is out of the question for speculation to result in any sensible working hypothesis. The parties voluntarily left the matter in impenetrable obscurity and uncertainty, without guide-post to a right goal of interpretation. We leave it where they left it.

If the body of the lease had shown the end of the term by the use of language indicating that the lease was for a definite purpose and when that purpose was subserved the lease was at an end, as in Conservative Realty Co. v. St. Louis Brewing Association, 133 Mo. App. 261, cited and relied on by counsel for defendant, we would have a different case to deal with. There the lease was its own interpreter. That case falls within a class dealt with in the books, where the lease tells its own rounded story. For instance, if A, owing B $1000, demises property to him for a term which will produce that amount at a certain named rental, or where the term becomes determinate by using the rental as a divisor and a total sum named as a dividend, thereby resulting in a definite term by way of a quotient, or other-cases where the lease terminates by a collateral and named or implied event, which, when it happens, clearly conserves and fulfills the object of the tenancy.

II. The next question is: Was it a tenancy at will or from year to year?

If we should conclude that the tenancy was at the will of Norman, it would follow as a sequence that it was also at the will of Hunter; for wills run in pairs, in' tenancies at will, by implication of law. Says Coke (supra, 55a, sec. 68): “ ‘Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor,’ etc. It is regularly true, that every lease at will must in law be at the will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implyeth it to be at the will of the lessee also; for it cannot be only at the will of the lessor, but it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the will of the lessee, this must be also at the will of the lessor; and so are all the bookes, that seeme prima facie to differ, cleerly reconciled.”

The rule announced by Sir Edward is the rule-applied in modern law. [1 Wood on Land, and Ten. (2 Ed.), p. 44; Corby v. McSpadden, supra, l. c. 152-3.] Here Hunter, at his own will, assumed to terminate the tenancy. He might do that under Sir Edward’s rule, even although we might well conclude the contract points to the exercise of the will of Norman. We have no difficulty on that score, but the question whether the tenancy is at will or from year to year is not so easily solved. The Corby Case is not conclusive on that matter; for the lease in judgment in that case was a city lease and the statute and the common sense of the thing make a distinction between leases, in the city and leases of farming lands. [R. S. 1909, secs. 7882-7883.] In the case of agricultural lands crops have to be reckoned with: and equities arise the-law undertakes to settle. This is not a case where the-defendant wrongfully entered on the land, nor is it a case where he, in disobedience of the plain terms off his written lease, wrongfully held oyer. The holding; of Norman has at least the grace of holding over on an implied invitation of his landlord extended to him-, in his lease, however ineffectual that invitation may be-in point of strict law to create a tenancy for years. To apply the doctrine of a tenancy at will to be terminated between seasons on notice, would likely result harshly and unjustly. I have read of a rhyming adage on the walls of the Third Provincial Tribunal 'at Berlin, which is applicable here as translated liberally by a scholar, viz.:

“If two opinions split the way,
Hear what your conscience has to say. ’ ’—
{Schwankst zwischen Neigung du und Pflicht,
ITorch auf, was deyn Gewissen Spricht).

But — and somewhat closer to the point — Wood says (1 Wood on Land, and Ten. [2 Ed.], p. 49, et seq.): “In order to convert a tenancy for an uncertain period, into a tenancy from year to year, there must be a reservation of annual rent, and unless there is such a reservation the tenancy is prima facie only a tenancy at will.” And again (pp. 52-3): “It may be said that prima facie leases, indefinite as to the term, merely create a tenancy at will; and only a reservation of annual rent converts them into leases from year to year. . . . And the courts latterly are inclined to construe all leases at will at an annual rent, as leases from year to year” — this latter doctrine, however, in .the absence of an express provision creating only a tenancy at with. “The courts are desirous to presume a tenancy from year to year where the parties do not express a different intention,” says Lord Denman, G. J., in Bartow v. Cox, 11 Q. B. 122. “But,” he continues, “here they have expressed it.” And in Western Transportation Co. v. Lansing, supra, Folger,, J., refers to. the same doctrine in this way: “For the courts do not willingly construe demises, where no certain term is mentioned, to be tenancies at will, and incline to hold them to be from year to year, especially where an annual rent is reserved.” (Citing Jackson v. Bryan, 1 J. R. 332.) In his case an annual rent was reserved. In the case at bar an annual rent was reserved, viz., $25. And‘while the cases are not in accord, yet we think the doctrine announced above is safer and more likely to result in meeting* the rounded ends of justice in such eases as the instant one. It gives time to untie and not cut the knot binding them together, thereby to disentangle their relations in an orderly fashion with as little damage as may be. We have been cited to no case in Missouri, and know of none, in the way of that conclusion. Accordingly, we rule that under the facts in judgment the tenancy created was one from year to year. It follows that it could be terminated only in the way and by the notice provided by statute for terminating tenancies from year to year.

III. Counsel insist the notice was inoperative, in that, though a tenancy at will be held to exist, it was not sufficiently explicit and positive to require defendant to move. They cite us to Ayres v. Draper, 11 Mo. 548; Columbia Brewing Co. v. Miller, 124 Mo. App. 384; Taylor’s Land, and Ten. (7 Ed.), sec. 438. But we need not pursue the matter. The notice somewhat lacks grammatical sequence and coherence in a sentence, for that the latter part does not syntactically correspond with the first part, yet we doubt much if defendant could or did misunderstand it. It takes the trained and analytical mind of a lawyer or grammarian to pick flaws with it. It must be subjected to the acid test to make it bad. But, were we to hold it to verily be that formidable looking and sounding thing yclept (among the ultra learned in college, towns in Missouri) an anacoluthon, yet (to use the venerable language of the law) it has now become functus officio; hence, this court need not meddle with it. If another notice is served it will not be likely to be so rich in mere whereas and recital amidships as to obscure the sense and blunt the point of it.

The premises all considered, the judgment is affirmed.

All concur. Except Valliant, J., who is absent.