author: GRAVES, J. —

text:
    SYLVANUS ARTHUR RILEY v. CITY OF INDEPENDENCE, Appellant.
    Division One,
    June 2, 1914.
    1. NEGLIGENCE: Cities: Operation of Industrial Plant: Liability. A city which undertakes to operate a municipal electric light plant must assume the same responsibilities as private citizens and corporations engaged in a like business.
    2. -: -: Electric Light Plant: Defective Switchboard: Sufficient Evidence. Where plaintiff, employed by the city in the operation of its electric light plant, and charged with the duty of switching the electric load from one engine to another, shows a faulty construction of the switchboard, a faulty insulation in the iron connections between the wires and the switch handle, and that the shock and burning he received when with his hand he undertook to switch the load could have been occasioned by these faults, in conformity with his petition, he makes out a case for the jury against the city.
    3. -: Switchboard: Condition Two Weeks After Accident. Where plaintiff was injured as he touched the handle of an electric switchboard, and there was a wooden switch box, fastened to the back of the marble slab by an iron band, in which were the terminal wires fastened down by little blocks of wood and nailed to the side of the box by brads, and where (1) the blocks with the brads had been taken off and nailed back by the superintendent two days before the accident, (2) the front of the switch was charged with electricity from the time of the accident till an examination made two weeks later, (3) thereafter, after the block, with the brads, was entirely removed the switch worked with safety, and (4) it was" shown that the switch had not been tampered with between the time the brads were changed and their removal, it was not error to permit. a witness to testify as to the condition in which he found the brad when the switch was examined two weeks after the accident. His testimony that “the brad looked as though it had het and burned off and grounded on the end” was not without probative force by reason of the lapse of time.

      4. -: Hypothetical Question: Ail Facts. A hypothetical question which does not embody all the facts will not be error, if the other facts are given in other questions asked.
    5. -: Instruction: General in Terms: Specific Proof. An instruction which is general in its terms is not reversible error, if the proof covers only the specific matters complained of in the petition — and that must be the holding although the rule is that the instructions must be within both the pleadings and the proof.
    6. --: -: No Evidence. It is not error to refuse an instruction to support which there is no foundation in the facts proven. If all the evidence tends to show that whatever defect was in the switch by which plaintiff was injured was there prior to the time he went on duty on the night on which the injury occurred, and there is no evidence tending to show any change in its defective condition after that time, it is not error to refuse an instruction exculpating defendant if the switch was in a safe condition when plaintiff went on duty and thereafter became unsafe.
    7. -: Excessive'Verdict: Two Hands: $10,000. A verdict for ten thousand dollars, where plaintiff was a comparatively young man earning $65 per month, and as a result of the burning by electricity the muscles and tendons are drawn and the condition is permanent and he has practically lost the use of both hands, is not excessive.
    8. -: Jurors: Misconduct. The judgment will not be reversed on the ground of misconduct on the part of two jurors, in that they visited and examined the electric light ■ plant where plaintiff was injured, if they testify that they were out walking and passéd by the. plant and looked in, but did not go in or make an examination, and the question of their misconduct was considered upon evidence by the trial judge, who 'found it not a sufficient ground for a new trial.
    Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.
    Affirmed.

      J. F. Thice and W. S. Flournoy for appellant.
    (1) The testimony failed to show that the alleged defects in the switch caused the injury, and the demurrer to the testimony should have been sustained. Sexton v. Street Railway Co., 245 Mo. 254. (2) The testimony of the witness Ryan as to the condition of the switch two weeks after the accident, .and that after the accident he operated the switch with a stick, was incompetent for the reason that there is no testimony showing that the apparent melted condition of the end of one of the brads was caused at the time of plaintiff’s injury, or was in any way the cause of plaintiff’s injury. (3) Plaintiff’s instruction number one is entirely general as to acts of negligence with reference to the switch in question, makes no mention of, or reference to, the specified acts of negligence alleged in the petition, and permitted the jury to find on any general grounds of negligence they might imagine. This was error. Strode v. Box Co., 250 Mo. 695; Beave v. Transit Co., 212 Mo. 331; Newlin v. Railroad, 222 Mo. Mo. 375; Waldhier v. Railroad; 71 Mo. 514; Abbott v. Railroad, 83 Mo. 271; Gessley v. Railroad, 26 Mo. App. 159; Maynard v. Railroad, 155 Mo. App. 352; Gibler v. Railroad, 148 Mo. App. 475. (4) The court below erred in refusing defendant’s instruction number nine. In view of the fact that the switch had worked properly up to the time of the accident, it is natural to presume that some sudden disarrangement of the mechanism of the switch caused the injury. (5) The verdict was excessive and the lower court committed error in allowing it to stand. Brady v. Railroad, 206 Mo. 509; Newcomb v. Railroad, 182 Mo. 687; Partello v. Railroad, 217 Mo. 645; Clifton v. Railroad, 232 Mo. 708; Norris v. Railroad, 239 Mo. 695; Lessenden v. Railroad, 238 Mo. 247; Briscoe v. Street Railway, 222 Mo. 104; Yost v. Railroad, 245 Mo. 219; Farrar v. Met. Street Railway, 249 Mo. 210; Marriott v. Railroad, 142 Mo. App. 193; O’Flanigan v. Railroad, 145 Mo. App. 276; Burdict v. Railroad, 123 Mo. 221; Stoelze v. Transit Co., 188 Mo. 581. (6) Going to the building of the defendant, where the accident occurred, by two of the jurymen during the trial was such misconduct as to entitle the defendant to a new trial, particularly in view of the fact that there had been an entire change in the particular portion of the machinery in question.

      John W. Clements and Paxton & Rose for respondent.
    ' (1) Ryan’s testimony as to the condition of the switch ten days after the accident was admissible, the switch in the meantime having been kept in place, filled with oil, and not touched by anyone. (2) Plaintiff’s instruction number one was correct, because the evidence supported the allegations of the petition and did not show any negligence beyond it, so that there was no occasion for the instruction to cut out any other theory that may have crept into the case. 13) Plaintiff’s instruction number one at most amounted to mere non-direction, and if defendant wanted further instruction it should have asked for it. Boyd v. Railroad, 249 Mo. 131; Johnson v. Traction Co., 161 S. W. 1193; Meily v. Railroad, 215 Mo. 587; Shroeder v. Transit Co., Ill Mo. App. 77; Althoff v. Transit Co., 204 Mo. 171; Morgan v. Mulhall, 214 Mo. 461. (4) The damages allowed were not excessive. Smith v. Fordyee, 190 Mo. 1; Dougherty v. Railroad, 97 Mo. 647; Waldhier v. Railroad, 87 Mo. 37; Porter v. Railroad, 71 Mo. 71; Chitty v. Railroad, 166 Mo. 443; Hollenbecker v. Railroad, 141 Mo. 113; Lyons v. Railroad, 161 S. W. 726; Henderson v. Kansas City, 177 Mo. 477.
   GRAVES, J. —

The city of Independence is the owner of a municipal light plant. For something-over two years the plaintiff had been one of its employees, and had charge of this light plant at night. Plaintiff was not an expert electrician, but his duties were to fire the boiler and run the engine at night. He was so engaged August 18, 1909. There were three engines, and as the use of lights in the city decreased toward the morning hours, the plaintiff’s duty was to switch the thus lightened load from the larger to the smaller engine. In so doing, at about one a. m. of August 18, 1909, he received a shock and was fearfully burned in and about his hands and other portions of the body. For the damages thus arising he sued the city, and in Ms petition charges negligence in this language:

“About one o’clock a. m. on the said eighteenth day of August, plaintiff was alone in said electric light plant and in the discharge of his duties as such engineer undertook to tMow a switch transferring the arc light from the larger to the smaller engine. To do tMs plaintiff had to take hold of a switch wMch controlled the lamps on the are circuit. When he touched the handle of the switch for the purpose of transferring the load to the other engine he received a powerful shock wMch passed through Ms body, and plaintiff knew no more until about half an hour later he became conscious and found Mmself suffering greatly from severe burns on both hands and wrists and both arms and upon one Mp. Plaintiff says that said current of electricity passed tMough said switch and into Ms body because of the negligence of defendant in the following particulars, to-wit:
“The switch handle furmshed by defendant to be taken hold of by plaintiff was defective and was not properly insulated, the same being an ordinary shovel handle with much iron exposed and no insulation thereon, and to said shovel handle without insulation was attached an iron pointer which rested between and touched iron guides above. Said iron guides were attached to an iron plate wMch rested against an upright marble slab. TMs plate was not bolted to the marble slab, but was held in place by iron bolts wMch passed through the slab and connected with an iron frame which went aronnd a wooden box which formed part of the switch and contained the electric connections of the same. This construction was negligent and defective, because if an electric current passed into the said iron frame then such current would pass from such iron frame through the said bolts attaching it to the said iron plate, and if such iron plate or any of the guides upon it were then touched by said metal pointer the current would pass into the body of anyone who touched the metal on said switch handle; and there was always danger that a current might escape from the live parts of the switch or its connections into the said iron frame. The distance between the said iron frame and the electric connections, contacts and terminals in said switch, which carried the electric current, did not exceed one inch, whereas the distance should have been much greater to prevent the passing of the electric current to said iron frame. Defendant was negligent in so constructing the said switch, since it greatly increased the hazard of an electric current passing into said iron frame and thence into the body of any person who touched the said switch handle; and this would not have been the case if said iron ‘plate had been fastened directly to the marble slab without any metallic connection with said iron frame. The currents used by defendant in said switch were powerful, of high tension, and dangerous, and the switches in the plant were known or should have been known to defendant to be dangerous and to require caution in their construction to prevent danger from electric currents proceeding therefrom. Defendant was therefore under obligations to use great care in insulating said switch and was negligent in not fastening said iron plate directly to said .marble slab, or otherwise insulating the same. A few days before the accident complained of defendant’s superintendent took down the switch upon which plaintiff was injured and took off a wooden block which held in place a flat piece of metal which conveyed the current that went from the north dynamo to the switch. This block was nailed on the inside of the said box over said flat piece of metal. In putting back said wooden block said superintendent negligently fastened it in place by steel nails which he drove into the side of the wooden box toward the iron frame which went around the -outside thereof. Said nails were too long and one or more of them were carelessly and negligently driven so as to touch said flat piece of metal carrying said electric current or so as to be but a short distance from it and so as to pass through said wooden box and to touch or to come close to the said iron frame, so that contact was made by said nail between said flat piece of metal and said iron frame, or else they were thereby brought so close together that a current could leap from the flat piece of metal to one of the nails and from thence to said iron frame on the outside of the said box. - Plaintiff states that he does not know whether the current got to said iron frame by way of one of the nails negligently driven in putting back said wooden block or by jumping from the terminals, contacts or connections of said switch to said iron frame, but believes and alleges that the current got to said iron frame in one of these two ways, and says that in either event the accident complained of and the injuries resulting from it were caused by defendant’s negligence as herein set forth in not properly insulating said switch handle and in leaving a metallic connection between said iron frame and said iron plate which rested against the said marble slab. Said switch was constructed by defendant’s superintendent, and its defects were known to defendant or could have been known to it by the exercise of ordinary care and reasonable inspection on its part in time to have prevented the said accident and the injuries to plaintiff resulting therefrom.”

In the answer of the defendant we find (1) a general denial, (2) assumption of risk, and (3) a plea of contributory negligence.

Reply was a general denial.

There was a judgment for plaintiff in the sum of $10,000, and from this the defendant appeals. The appellant assigns the following errors:

“ The court below erred.
“First. In not sustaining defendant’s demurrer to the testimony.
“Second. In admitting incompetent evidence offered by the plaintiff.
“ Third. In giving plaintiff’s instructions numbers one and two.
‘ ‘ Fourth. In refusing defendant’s instruction number nine.
“Fifth. In permitting the verdict for ten thousand dollars to stand, the same being excessive.
“Sixth. In not granting a new trial on account of the misconduct of the two jurymen who went to the plant during the trial.”

All of these are urged in the brief, some with more vigor than others. Of these in order, together with the pertinent facts.

I. In our judgment the demurrer to the testimony was properly overruled. There was evidence tending to show a negligent construction and maintenance of this switch. It was constructed and maintained by the city, and knowledge of its defects must be assumed.

The switch was thus constructed:

^he front of the switch was an upright marble slab (supposedly a non-conductor of electricity), and on the front side of the marble slab was fastened an iron plate (called in the brief the finger plate), and projecting therefrom were three points, guides or fingers. Beneath this iron plate and through the marble slab was a hole through which came a fiber rod (a non-conductor), and to it was attached a spade handle made mostly of iron, and next to the fiber rod was an iron pointer. Counsel for respondent thus describes the working of the switch.

“ To work the switch, you took hold of the spade handle, pulled out the fiber rod, put the iron pointer between fingers one and two and pushed it down between the fingers, so that the pointer was held firm on the finger plate. This made a certain connection. To change, you took hold of the spade handle, pulled out the fiber rod till the iron pointer cleared the fingers, and then you pushed down the iron point between fingers two and three. This made another connection. Then, finally, to change, you took hold of the spade handle, pulled out the fiber rod and pushed down the iron point between fingers three and four. This made the third connection. Thus we see that the sole object of the finger plate was to support the fingers which held the iron pointer on the fiber rod in place.”

Going to the back of the marble slab for the remainder of the construction, we find that there was a wooden switch box made of about three-fourths inch material, which box was filled with oil. In this box were the terminal wires fastened down by little blocks -of wood about one-fourth of an inch in thickness, and nailed to the inside of the box by nails or brads about one inch in length. This box, with its deadly wires, was fastened to the back of the marble slab by an iron band which was bolted on by two bolts one at either -end. These bolts ran through the iron band, the marble slab, and the iron finger plate in front. The brads •or nails which held the thin blocks of wood over the electric terminals or wires in the box, were very close to the wires, and being an inch in length, either touched or came very near touching the iron band. From this it will be seen that the electricity had but a short jump to make from the terminal wire to the brad, and from the brad to the iron band, and thence through the bolts to the iron finger plate in front, and through it by a full iron connection to the switch handhold, used in switching the current as above described. Some two weeks after the accident the switch was taken down and examined, and it was found that one of those brads or nails in the little block of wood looked like it had been melted off at the end as if by electricity. Plaintiff contended that the evidence shows the accident to have occurred in the manner above described, i. e., that the current jumped from thence to the iron band, and thence through the bolts to the front of the switch, after which it had an easy route to plaintiff’s hand when he undertook to change the load from one engine to another. Plaintiff contends that the walls of the wooden box should have been thicker, and the brads driven in further from the terminal wires. He also contends that had the city used four bolts instead of two, the current could not have gotten from the back of the switch to the front. ■ In other words, he says that the iron plate on the front of the marble slab should have been bolted on with two bolts, and then the iron band, which held the wooden box, should have been bolted on with two other bolts, but so arranged that they would only bolt the band to the marble slab, without touching the iron plate in front.

For the plaintiff the testimony tends to show a faulty construction of the switch in the particulars named, and a faulty insulation, and it further tended to show that the accident could have been thus occasioned. At this point it should also be stated that whilst the evidence shows the switch had been operated for months without trouble, j^et the evidence for the plaintiff further shows that on the Sunday before this accident on Tuesday, this particular switch was taken down by the superintendent, one of these little blocks over the terminal wires was taken off, and then nailed back on, so that there might have been a changed condition to what there had theretofore been. • This evidence the testimony for the defendant contradicts. The evidence further shows that just after the accident the switch front was charged with electricity, and it was this that caused it to be removed and examined some two weeks after the accident, at which time the melted brad was found. It is sufficient to say that the evidence for the plaintiff upon the negligent construction and maintenance of the switch was such as to permit that question to be passed upon by the jury. Not only so, but his evidence was such as to permit the jury to find that the accident was due to the negligence aforesaid. The demurrer was not well taken, and the court committed no error in refusing it. Cities undertaking to run the lighting business must assume the same responsibilities as- private persons and private corporations running like plants. Public agents may not be as careful as those selected by private persons and responsible to private persons, but this does not change the rule of law. The first contention we rule against the defendant.

II. Nor is there substance in the point that the trial court erred in admitting improper evidence for the plaintiff. First, it is said that the court should not have permitted the witness Ryan to testify as to the condition in which he found this nail or brad, when the switch was examined two weeks after the accident. This witness says the brad looked as though it had ‘ ‘ het ’ ’ and “burned off, grounded on the end.” He also testified that after this block with the brads was removed the switch worked with perfect safety. The principal point is that- the condition of the brad two weeks after the accident does not tend to show its condition at the,time of the accident. The evidence was not without probative force by reason of the lapse of time, and such matter was for the jury. We must not overlook the three facts (1) that the block with the brads had been taken off and nailed back the Sunday before the accident, (2) that from the accident up to the examination two weeks later the front of the switch seems to have been charged with electricity, and (3) when the block, with the brads, was entirely removed the difficulty did not again appear. Further, that it was shown that the switch had not been tampered with between these dates. There was no error in Ryan’s testimony.

It is next urged that Henrici, the expert electrician, who testified for the plaintiff, was permitted to state improper matters. Such matters are thus poiñted out in the brief. They point out three questions and three answers and urge error. These are:

“Q. If a nail were driven, a one-inch brad were driven through the block, we call the block ‘1-C,’ into the box surrounding the switch, how near would it have to get to the iron band around the switch to cause a shock or to communicate the current to the iron band? A. The distance that a nail would have to be from this band to communicate a current to it would depend on the condition of the wood and the substances absorbed in the wood. It would arc across over a space in excess of an eighth of an inch. ”

It is obvious that these questions sought expert knowledge. It is urged that all the facts are not embodied in the questions. It must be remembered that these questions are selected from a series of questions propounded to this expert. In other questions the other facts were given. Under the circumstances the questions were proper. The second contention of the defendant must, therefore, fail.

III. One of the serious questions in this case is the giving of instruction numbered one for the plaintiff. Defendant urges that the court erred in giving both instructions one and two for plaintiff. There was no error in instruction numbered two. is a very usual instruction on the „ measure of damages and need not be further noted. Instruction one reads:

“The court instructs the jury that it is conceded in the evidence that defendant employed the plaintiff to work the electric light plant which the defendant was operating, and if you find from the evidence that it was the duty of the defendant, in the course of said employment, to throw a certain switch, transferring the arc lights from one engine to another, then it was the duty of the defendant to so insulate and construct said switch as to make it reasonably safe for the plaintiff to throw the same, and if you find that the defendant negligently failed to so construct and insulate said switch as to make it reasonably safe for the plaintiff to throw, and that the defective condition of said switch was known to defendant, or could have been known to it had it exercised reasonable care in the construction and inspection of said switch, and if you further find that by reason of the failure, if any, to so construct and insulate said switch, the said plaintiff, on August 18, 1909, in the performance of his duties as the employee of defendant, and without negligence on his part, undertook to throw the said switch, and a current of electricity passed into the body of plaintiff, inflicting the injuries complained of, then your verdict must be for the plaintiff.”

The objection urged is that the instruction is too general in its terms, under the pleadings in the ease. It is urged that the petition pleads specific negligent acts, and the instruction is so general in terms as to allow the plaintiff to recover for other negligent acts than those pleaded. We think that the instruction is subject to the criticism made. When the plaintiff relies upon specific acts of negligence, he must recover, if at all, upon these acts of negligence, and none other. This is a rule of long standing in this State. Not only so, but instructions should not be broader than the pleadings — i. e., they should not present matters for determination, not charged in the pleadings. And if, perchance, the pleadings are broader than the proof, the instructions must not be brroader than the proof, although the pleadings would justify broader instructions had the proof fully measured up to the pleadings. The rule is that the instructions must be within both the proof and the pleadings. But does it follow from all this that his ease should be reversed for this defect in the instruction? We think not. The jury could not have been misled by the general terms of the in-' struction, because the proof in the case covered only the specific matters complained of in the petition. Had the proof gone beyond the specific matters mentioned in the petition we would have had a different proposition entirely. But here the proof was confined strictly to the negligent acts charged in the petition, and the jury therefore had before it no other negligent act to consider. Under these circumstances we do not think that this instruction was misleading or in anywise injurious to the defendant. Error without injury is not reversible error. This contention we rule against defendant.

IV. It is next urged that the court erred in refusing defendant’s instruction numbered nine which reads:

“If the jury finds,from the evidence defendant’s switch, its appliances, bearings and equipments were reasonably safe and secure at or about seven p. m. of the day before plaintiff’s injury, and that thereafter on said day while being used by defendant for its purposes, if you find it was so used, said switch, its appliances or equipment or bearings became out of repair, thereby causing parts of said switch to be charged with electricity, and that plaintiff was injured by coming in contact with said charged part of said switch and was thereby injured, still plaintiff, can not recover in this action unless you further find in the evidence that defendant knew of said switch, its bearings, appliances and attachments so becoming- out of repair, or by the exercise of reasonable care might have known thereof in time to have repaired the same before plaintiff sustained the injury.”

It will be sufficient to say that there is no foundation in the facts shown to authorize the giving of this instruction. ' It proceeds upon the theory that the evidence tends to show the safety of this switch at the particular hour of seven p. m. of the day before plaintiff was injured. There is no evidence showing any change in the switch from seven p. m. to one a. m. when the accident occurred. All the evidence tends to show that whatever defect there was in the switch was there prior to the hour named in the instruction. We do not deem the refusal of this instruction error.

V. It is next contended that the verdict is excessive. Under our more recent rulings we do not think so. The plaintiff was, comparatively speaking, a young man and' was earning $65 Per month. Under his evidence and that of the physicians testifying for him, he has practically lost the use of both hands. The tendons and muscles were burned and destroyed, and the doctors say that the condition is a permanent one. We recall no ease where we have passed upon a verdict for the particular loss of both hands, yet the reasoning in the following eases, would sustain this verdict: Smith v. Fordyce, 190 Mo. 1; Dougherty v. Railroad, 97 Mo. 647; Chitty v. Railroad, 166 Mo. l. c. 443; Lyons v. Railroad, 253 Mo. 143; Clifton v. Railroad, 232 Mo. 708; Lessenden v. Railroad, 238 Mo. 247; Waldhier v. Railroad, 87 Mo. 37.

The practical loss of both hands is a serious injury to one required to do manual labor for life’s necessities. The amount of the verdict will not authorize us to disturb it.

VI. Lastly it is urged that there was misconduct upon the. part of two of the jurymen. The misconduct charged was that the two jurymen visited and examined the light plant prior to their verdict. The jurymen say that they were walking and passed by the plant and looked in, but did not go in or make an examination. The whole matter was threshed out upon evidence before the trial court, and we believe the. conclusion reached by the trial court was sustained by the evidence.

From it all we are impressed that there was no serious error in the trial of this cause, and the judgment nisi should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, J. —

license: Public Domain

text:
    MANTON DAVIS, Appellant, v. SAMUEL CARP.
    Division Two,
    June 2, 1914.
    1. LIMITATIONS: Revival of Judgment: Absence from State: Concealment. The fact that for a few months prior to the expiration of ten years from the date of the judgment defendant was in another State for the purpose of testing out the establishment of a business there, and that he intended to establish a residence there if his venture succeeded, did not amount to an absconding or concealment, if his usual place of abode was in the city in which the judgment had been rendered, his family lived there and service upon some member of his family over fifteen years of age could have been had there — even if the statute (Sec. 112, R. S. 1909) could be tolled. Defendant did not abscond or conceal himself in a legal sense by that conduct.
    2. -: -: -: -: Fraud: To Prevent Commencement of Action. In order that Sec. 1905, R. S. 1909, may be applicable, the absconding or concealing must be of such a character as to “prevent the commencement of the .action,” and an “improper act” referred to therein must he one in the nature of a fraud that would likewise prevent the commencement of the action.
    3 -: -: Concealing Name. For a defendant to conceal his name from plaintiff is not to prevent the commencement of an action against him — especially where the misrepresentation has no causal connection with the failure of the officer to find him or the dismissal of the suit when brought.
    4.--: -: Tolled by Non-residence, etc. Whether or not Sec. 1912, R. S. 1909, providing that a judgment shall be presumed to be paid in ten years after its rendition, a partial payment or revival, can be tolled by non-residence, absconding or concealment, is adverted to in the opinion and the history of the statute traced from the time of its first enactment in 1835; but the question is not decided, because to do so would be obiter, since under the facts there was no concealment, absconding or non-residence within the ten years.
    Appeal from Jasper Circuit Court. — Hon. David E. Blair, Judge.
    Affirmed.

      Stanley D. Pearce, James G. McConkey and James A. Potter for appellant.
    (1) The ten-year Statute of Limitations in actions on domestic judgments against residents of the State, prescribed by section 1888 or section 1912 (if constitutional), is tolled by defendants departure from and residence out of the State of Missouri after the cause of action had accrued. See. 1897, R. S. 1909; McMurray v. McMurray, 180 Mo. 526; Sauter v. Leveredge, 103 Mo. 615. (2) Further, “if any person by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time limited after the commencement of such action shall have ceased to be so prevented.” See. 1905, R. S., 1909; Harmon v. Looker, 73 Mo. 622; Butler v. Lawson, 72 Mo. 227. (a) Section 1912, if not considered as a Statute of Limitation, insofar as it attempts legislatively to fix as a conclusive 'presumption of fact of payment by mere lapse of time, is an assumption of a judicial function, in contravention of section 10, article 2, of the Missouri Constitution and unconstitutional and void. Constitution, sec. 10, art. 2; Paving Co. v. Ridge 169 Mo. 387; Shibel v. Merrill, 186 Mo. 546; Paving Co. v. Munn, 185 Mo. 566; Construction Co. v. Coal Co., 205 Mo. 62; Dickey v. Holmes, 208 Mo. 667; Railroad v. Simonson, 57 L. R. A. (Has.) 765; 8 Cye. 820. (b) On the other hand, a legislative act declaring that stated evidence creates a rebuttable, a prima-facie presumption, is proper. State ex inf. v. Goffie, 192 Mo. 670. (4) Section 1912 if not considered as a Statute of Limitations insofar as it attempts to declare that a conclusive presumption of the fact of payment arises from the mere lapse of ten years, is in contravention of the provision of the Constitution declaring “that no person shall be deprived of life, liberty or property without due process of law,” and is unconstitutional and void. Art. 2, sec. 30, Constitution; Construction Co. v. Coal Co., 205 Mo,. 62; Roth v. Gabbert, 123 Mo. 21; Abbott v. Landenbower, 42 Mo. 162; U. S. v. Klein, 80 U. S. 128; Railroad v. Payne, 33 Ark. 816: Meyer v. Berlandi, 39 Minn. 438; Wantlton v. White, 19 Ind. 470; Chicago v. Minn., 144 U. S. 418. The application which the court gave below to section 1912, deprived appellant of his property ‘ ‘without due process of law,” in view of the fact that appellant as an assignee of the Stone judgments was without remedy to revive the same by scire facias. Bick v. Robbins, 131 Mo. App. 670; Bick v. Tansey, 181 Mo. 515. (5) Section 1912 has been construed as a Statute of Limitations, not as a conclusive legislative presumption of payment. Bick v. Robbins, 131 Mo. App. 673. Hence it necessarily follows that the time for the commencement of proceedings thereon is tolled by the general provisions of sections 1897 and 1905, under the citations and authorities above, points one and two.

      H. H. Bloss for respondent.
    (1) Under the provisions of See. 1912, R. S. 1909, a judgment after the expiration of ten years is conclusively presumed to have been paid, if not revived in the interim or a payment endorsed on the record of such judgment. If a payment has been endorsed thereon or a revival had, then the statute begins to run from the date of such payment or revival. Cobb v. Houston, 117 Mo. App. 645; Chiles v. School District, 103 Mo. App. 240; Airy v. Swinford, 154 Mo. App. 587; Wenneker v. Thompson, 96 Mo. App. 67. (2) The statute above mentioned being one of conclusive presumption of payment, the absence of the defendant or judgment debtor from the State or such other facts as might toll a Statute of Limitations, is not arrested by such facts. Cobb v. Houston, 117 Mo. App. 645; Amy v. Watertown, 130 U. S. 320; Airy v. Swinford, 154 Mo. App. 584. (3) There is a strong presumption in favor of the constitutionality of a statute, and it will not be declared void, unless the violation of the Constitution is so palpable as to leave no room for reasonable doubt. State ex rel. v. Fort, 210 Mo. 512; Rodes. v. Warner, 197 Mo. 650; State ex rel. v. Walker, 193, Mo. 693.
   LAMM, J. —

Dates are material. On the 26th of January, 1898, in the circuit court of St. Louis the-receiver of the Mullanphy Savings Bank recovered a small judgment against Rosenberg and two Carps, (Max and Sam). On the next day in the same court he recovered another. On the 4th of August, 1904, he, assigned the judgments on the margin of the record for value received to plaintiff.

(Note: We assume the receiver made a clearance sale of uncollectible or desperate assets in a job lot to clear the way for a settlement of his receivership and his acquittance — the record showing the following, plaintiff loquitur: “A. I do not know what I paid for these judgments, Mr. Bloss. I paid $310 for this and a lot of other paper. Q. Can you give any idea of the amount of claims you received? A. No, sir. Q. No idea at all? A. No. There was a lot of hotchpot stuff barred by the Statute of Limitations and otherwise and I haven’t any idea how much stuff there was.”)

On March 13, 1907, plaintiff, as such assignee, sued the Carps on both said judgments, in the same court. Failing to get service on the present defendant, he dismissed as to him, and took judgment against Max Carp for the rise of $700.

On the 12th of February, 1909, the present suit was brought in the Christian Circuit Court on both of the original judgments and service was had. Presently plaintiff took a change of venue and the case went to the Lawrence Circuit Court. Presently defendant took a change of venue and the case went to the Jasper Circuit Court. There it was tried to the court, without the aid of a jury, and plaintiff (cast on the merits) appeals here in due form — our jurisdiction depending on constitutional questions.

The pleadings.

The case was tried on a third amended petition in two counts containing conventional averments relating to the recovery of the judgments, their assignment and nonpayment. To toll the Statute of Limitations each count alleged, in substance, that having instituted suit on the judgments in the circuit court of the City of St. Louis on the 13th of March, 1907, and issued summons, the sheriff made return that he failed to find “defendant Sam Carp in the city of St. Louis, Missouri”; that said Carp was a resident of said city at the time of the rendition of the original judgments and continued to be such resident until “the — day of May, A. D., 1907”; that he then left the State of Missouri and has continuously resided out of the State thereafter, is now a non-resident and has no usual place of abode in the State where service of process might be had on him. To the-same end the petition makes the following averment:

“And plaintiff further states that prior to his departure from the State of Missouri, as aforesaid, the defendant herein absconded and concealed himself in this State so that the ordinary process of law could not be served upon him, and plaintiff further says that the defendant from and after to-wit, the 11th day of March, A. D., 1907, until to-wit, the— day of May, A.jD., 1907, was guilty of a wrongful and improper act preventing the service of process on him, in this: That he misrepresented his identity to the plaintiff when the said plaintiff was attempting to locate and identify the defendant Sam Carp in order to have process served upon him.”

The answer, excepting therefrom the allegations specially admitted, is a general denial. It then goes on to admit the recovery of the original judgments, but denies they have never been paid as alleged. Contra, it alleges they have been fully paid and settled before suit and that plaintiff has no right to maintain the action. Moreover, as a separate defense, it alleges that more than ten years have intervened since the rendition of the judgments and the bringing of this suit, and, therefore, said judgments are barred by the statute. Denying that he was a non-resident of the State or kept himself concealed for the purpose of preventing the service of process on him, defendant “asks to go hence without delay [sic] and recover his costs herein laid out and expended.”

The replication denied the new matter.

The f acts.

Defendant introduced no evidence. Plaintiff introduced certified exemplifications of the two judgments and marginal assignments, also an exemplification of the files and record of a suit brought on the judgments in the circuit court of St. Louis on the 13th of March, 1907, and a non est return of the sheriff on the summons in that case as to this defendant, the dismissal as to him, and the judgment as to Max. Such documentary-evidence was supplemented by the deposition of one Ingersoll, also the deposition taken by plaintiff of Max Carp, also the oral testimony of Mr. Davis, the plaintiff :

By Ingersoll’s deposition plaintiff showed that he (witness) was a detective; that in September, 1907, he saw defendant in a store at Greenville, Illinois, at work there with his two boys. Later in the same month he saw the boys there again. This detective had a kodak and was there for the purpose of taking, a snap-shot picture of defendant. He took a snap-shot of him, but the negative did not develop well. In October of that year he went back on a like venture, and spying about, saw him busy in the store, but failed to get a snap-shot because defendant didn’t come out. It seems this detective was employed by the Pinkerton Detective Agency to get a picture of defendant for the purpose of some insurance controversy the agency was employed in. This fact was developed in cross-examination, and further that the detective made no inquiry in St. Louis where defendant lived; that on one of his visits to Greenville he talked with defendant, but did not tell him what he came for or that he was a detective, nor did he ask his consent to take his picture, but made several attempts to do so (furtively, as we understand it) while he was in the store, but did not succeed because the light was insufficient. The detective made three trips to Greenville and saw defendant twice — the first and last time. He testified that on the second trip defendant was not in Greenville, but was in St. Lonis. He made no inquiry as to where •defendant’s wife resided and did not know, and did not know where his family was; in fact, the detective was not employed to find defendant’s residence, but was employed to get his picture and “did not care” where he lived.

By the deposition of Max Carp plaintiff showed that he, Max, was defendant’s brother; that in 1897 •defendant went to Aurora, Missouri, with his family,' and worked there for another brother, H. Carp, for about five years. In 1902 defendant returned to St. Louis and there and then opened a cleaning and repair shop under the name of “S. Carp” on Jefferson Avenue, and continued that business at that point and on Broadway until some time in 1907, living in St. Louis (possibly on Missouri Avenue) with his family, consisting of a wife and nine children, all minors. Sometime early in 1907 defendant rented some rooms from witness on Carr street, and took up his residence there, •continuing to live in those rooms with his family until later. In March, 1908, defendant moved his family to Greenville, Illinois, and since then they have lived there. Prior to taking his family to Illinois (i: e. sometime in 1907) defendant went there to try and see if he could establish a business; intending to take his family later if he succeeded, which he did, as said. After the Greenville venture began and up to the time the family was moved, defendant returned once a week to visit them, sometimes on Sundays and sometimes in the middle of the week. This witness further testified that while defendant worked for his brother H. Carp .in Aurora, he went under the name of “S. Carp” and that such was the name he usually went under. It also turns out that his true name is “Sol. Carp” and that Samuel is the father’s name. On cross-examination it was shown that when defendant moved his family to Carr street to the rooms rented of witness, he brought his furniture and kept house there; that the run from St.. Louis to Greenville is about an hour and twenty minutes on a fast train; that when he found out that he could make a living at Greenville, in March, 1908, he moved his family there, telling witness: “Now I am going to live there.”

Plaintiff testified in his own behalf (and over the objection of defendant) that the two judgments remained wholly unpaid; further that two days before he instituted the suit on the judgments in the St. Louis Circuit Court, to-wit, on the 11th of March, 1907, he started out to locate his judgment debtors, the Carps. Having studied the directory and obtained what information he could on inquiry at the houses he visited, he finally found defendant at 2251 Missouri Avenue, in the kitchen in the back part of his house, a residence, and -not a business house, having his lunch. Witness did not know him, but informed him he (witness) was looking for Max and Samuel Carp, asked him if he was either of the two and, if not, to direct him where they1 were. Defendant told him his name was Eagle Carp. Asked to spell it, he spelled it I-e-g-l-e. Let witness tell the balance in his own words: “He further told me he didn’t know exactly where Samuel Carp was, but thought he was in business in Cairo, Illinois; inquired further as to my errand and I told him all about these judgments and thereupon he told me he didn’t think Samuel Carp was worth anything, but as a mere matter of business (elsewhere witness testified that he remembered ‘ his peculiar pronunciation of the word ’) he would give me $15 for the judgments. That was practically the whole of the conversation I had with Mr. Carp at that time.”

Two days later plaintiff instituted his St. Louis suit. It does not appear that he gave the sheriff any directions where to look for the Carps or either of them, and he says he did not assist the sheriff in trying to find defendant, nor does it appear he made inquiry of Max Carp, or gave the sheriff what information he had. Witness never saw Mr. Carp again until the time depositions were taken in his office (presumably the depositions of Max Carp and the detective used in this case.) The recognition came about in this way: “I never,” said witness, “recognized him exactly at the time the deposition was taken until it was over. I had a hazy recollection this was the man. . After the deposition was over Mr. Carp recalled the matter to my mind and I remembered this was the man I had seen under these circumstances at his home on Missouri Avenue. . . . He says, ‘Don’t you remember having called on me on Missouri Avenue?’ I became a little angry then and told him I did remember it, and I likewise remembered he had lied to me.”

Such are substantially the facts.

The instructions and statute in judgment are to-wit :

Section 1912, Revised Statutes 1909, held in judgment, reads:

“Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.”

Defendant asked and received (plaintiff objecting and excepting) an instruction applicable to each count to the effect that the court declares the law to be that under the pleadings and evidence the judgment should be for the defendant.

On his part plaintiff asked instructions, all refused, to-wit: (No. 1) to the effect that section 1912, supra, is inoperative and void in that it is violative of section 1, article-6, of the Constitution of Missouri, in seeking to deprive the courts of a judicial power vested in them; and another (No. 2) to the effect that said section 1912 is unconstitutional in that it denies to plaintiff “certain remedy for defendant’s injury to plaintiff’s property and denies right and justice to the plaintiff” contrary to section 10, article 2, of the Constitution; and another (No. 3) to the effect that section 1912, supra, is violative of section 30, article 2, of the Constitution in that it deprives plaintiff of his property without due process of law; and another (No. 4) that section 1912, supra, is violative of article 3 of the Constitution as an attempt on the part of the Legislature to exercise the powers of the government vested in the judicial department; and, finally,'another one reading:

“5. The court declares the law to be that if defendant, Samuel Carp, prevented the process of service upon himself in an action pending in the circuit court of the city of St. Louis, Missouri, from March 13, 1907, to April 4, 1907, brought by the plaintiff against the defendant on the same cause of action herein sued on, and that if this was done by the defendant misrepresenting his identity to the plaintiff on or about the 11th day of March, 1907, then such act was a wrongful and improper, act on the part of the defendant and the period of the pendency of such action shall not be counted in determining whether or not the plaintiff is precluded from recovery in this case by operation of the provisions of section 1912 of the Revised Statutes of Missouri of 1909.”

On the foregoing record it is apparent three questions arise:

First, conceding (for thé purposes of argument only) that section 1912, Revised Statutes 1909, supra, relating to a conclusive presumption of payment of a judgment in ten years, is so far forth a Statute of Limitations that it may be tolled on proof of non-residence or by proof that the judgment defendant concealed himself or absconded, then the mandatory instruction given for defendant challenges the sufficiency of the proof and the first question relates to such sufficiency.

Second. The next question is: Is section 1912, strictly speaking, such a Statute of Limitations as may be tolled at all? That is, is it subject to the ordinary incidents of Statutes of Limitations relating to the commencement of suits, to-wit, non-residence, concealment, fraud, etc., by improper acts.

Third. The last question is: If it can not be tolled and if it is not subject to the usual incidents of the ordinary Statute of Limitations in other respects, then is it constitutional? Let us attend to them seriatim.

(a) Of the sufficiency of the proof.

In this case (admitting for the purposes of the point that the statute in judgment may be tolled) plaintiff’s proof was insufficient. The petition assumes defendant’s residence in this State until in May, 1907. Now, under plaintiff’s proof, defendant’s residence, his usual place of abode, was in this State until in March, 1908, that is, for more than ten years after the date of the original judgments. True it is that for a few months prior to March, 1908, defendant was temporarily (for the purpose of testing out the establishment of a business) in Greenville, Illinois. True, too, he intended to establish a residence there if his venture succeeded. But his experiments in that way were ordinary ones in business matters — not an absconding or concealment. His absence was casual and temporary. He still had “Ms usual place of abode” in St. LoMs. His family continued to reside in that city. He had not abandoned them and taken up Ms residence separate from them in Illinois. Legal service of a summons on Mm in St. Louis could have been made by serving it on some member of Ms family over fifteen years of age at Ms usual place of abode on Carr Avenue. [Revised Statutes 1909, section 1760.]

Nor does the evidence show an absconding or concealment or any improper act of a certain brand or character, to-wit, one preventing “the commencement of an action” within the purview of section 1905, Revised Statutes 1909. .That section reads:

“If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.”

Obviously, as said, defendant did not abscond or conceal Mmself in a legal sense. Obviously, too, the absconding or concealing, within the intendment of the statute, must be of such character as to prevent the commencement of the action. So, the “improper act” referred to in the statute must be one in the nature of a fraud that would prevent the commencement of the action, in order to bring the act within the statute. TMs defendant did no act of that Mnd, nor did plaintiff tell defendant he desired to commence an action. At most and worst he concealed his name from plaintiff, but that did not prevent the commencement of the action — far from it. Witness the fact that the action was commenced promptly witMn two days. Moreover, whatever moral wrong defendant was guilty of in his talk with plaintiff is not shown to have any causal connection whatever with the failure of the sheriff to End Mm ox to find Ms family and make service on a member of it at Ms usual place of abode two days later, ■or at any time. Tbe sheriff never beard of that conversation. Nor does it appear that tbe conversation bad any causal connection with tbe dismissal of tbe action presently.

In Amy v. Watertown, 130 U. S. 320, tbe Supreme Court, speaking by Mr. Justice Bradley to a situation more sharply emphasized than here (for in tbe Amy case there was inability to serve process upon a defendant “caused by Ms designed elusion of it”), held it was no ■excuse for not commencing an action within the prescribed period. In that case tbe learned justice draws a broad distinguishing line between cases where there is a concealment or fraud that prévents a party from knowing be has been injured and has a cause of action and those cases where a party knows be has a cause of action but from bis own fault does not avail himself of tbe means which tbe law provides for prosecuting bis claim “or instituting such proceedings as tbe law regards sufficient to preserve it.” In Ms discussion be makes observations pertinent to tbe instant case, to-wit:

“Tbe answer made by tbe plaintiffs to tbe plea of tbe statute amounts to nothing more than an allegation that tbe defendant, tbe city of Watertown, by tbe acts of its officers, seeks to evade tbe service of process. 'Their language is, that tbe officers and people have •conspired together for tbe purpose of defrauding tbe plaintiffs, and to prevent them from obtaining service ■of process. Is it fraud in a debtor to endeavor to ■evade tbe service of process? Is it any more fraudulent than it is not to pay tbe debt? Fraud is not tbe proper term to apply to such conduct. It may be morally wrong. It may be dishonest; but it is not fraudulent in tbe legal sense of tbe term.”

Tbe testimony of the Pinkerton detective we lay out of view on tbe question of residence, or usual place of abode. It is instructive and amusing on tbe subject of furtive kodak photography. It certainly tends to prove the personal presence of defendant in Greenville in a store at work for one day in September, 1907, and one in the following October. It tends also to show his presence in St. Louis on a given day in the same September. It also tends to show the personal presence of the detective in Greenville for several days and, observe, also “at work” — in the picture line. But it does not tend to show said detective had his usual abode in Greenville any more than that defendant had his there.

The premises in mind, we are of opinion defendant’s mandatory instructions were well enough from the viewpoint of the insufficiency of the proof to take the case outside of the statute, even if that statute can be tolled in any way except in the ways mentioned in the section itself. It follows, also, that- instruction No. 5 for plaintiff was properly refused as not supported by the proof.

(b) If we had come to a different conclusion on the question discussed in the foregoing paragraph, then the other two questions raised would bespeak attention, but as the case has broken on the sufficiency of the proof it would be in a sense obiter to pass on the question whether section 1912, supra, may be tolled by proof of nonresidence or such concealment or absconding or other improper act (amounting to a fraud) as prevents the commencement of an action. The same is true of' the third question, to-wit, the contention of appellant that section 1912, supra, is unconstitutional. We dismiss the matter with these observations: In material features the section assailed is a very old one, originating in 1835. [R. S. 1835, p. 396.] It was brought forward as live law in all material parts in the revisions of 1845, p. 721; ’55, p. 1053; ’65 p. 749; ’79, and ’89. In 1895 (Laws 1895, p. 221) the existing statute was repealed and a new one enacted. During all this time, barring certain provisions we may call exceptions written into tbe section itself, there was a conclusive presumption. of payment after the lapse of twenty years, agreeing in that respect quite closely with the common law. [Gaines v. Miller, 111 U. S. l. c. 399 et seq.] In 1895, as said, the statute existing up to that time, substantially in the same form, was repealed and a new one enacted cutting down the time to ten years and prescribing a presumption of payment on the lapse of that time, saying nothing about a “conclusive presumption.” However, four years later in 1899 (Laws 1899, pp. 300-301) the Act of 1895 was itself repealed and a new section enacted in lieu of it preserving the limitation at ten years, and reincorporating into itself the conclusive presumption of payment, barring certain exceptions enumerated in the act of which nonresidence, absconding or concealment is not a part; and this Act of 1899 is carried forward into our present revision as section 1912, supra.

The former statutes have been frequently before appellate courts and in no case was their constitutionality (as we see it) assailed from the angle appellant’s learned counsel challenge it, and in no case coming to our attention was it held that non-residence, fraud, concealment, etc., tolled that particular statute. Hence, questions thus presented are both novel and grave? To find a new point of attack on so venerable a statute challenges admiration for the courage and versatility of counsel, but as the case has already ridden off on the sufficiency of the proof, even on appellant’s own theory of those questions, we deem it wiser to reserve them until a case is reached turning on one or the other in some vital aspect, so that what we then say may be necessary exposition and not unnecessary exposition.

The judgment should be affirmed. It is so ordered.

All concur.


author: BOND, J.

text:
    COMMERCE TRUST COMPANY, Appellant, v. SAM W. ELLIS et al.
    Division One,
    June 2, 1914.
    1. DEED OF TRUST: Misdescription in Notice of Sale: Corrected on Appeal. Where there was no claim made in the petition for relief on the ground of a misdescription in the trustee’s notice of sale of a certain eighty acres, and on appeal ' the respondent produces the original newspaper notice which shows no misdescription, the judgment, refusing to set aside the sale, will not be reversed simply because such tract is misdescribed in the hill of exceptions.
    2. -: Non-resident Trustee. A deed of trust which names a non-resident as trustee is not invalid if it also recites that in case of his “disability in any wise” to act the sheriff shall proceed to sell. In such ease the sheriff, upon proper request, is empowered to sell.
    3. -; Notice of Sale: Book and Page of Record Omitted. The trustee's sale under a deed of trust is not invalid for the simple reason that his published notice> of the sale failed to recite the hook and page in the recorder’s office containing the deed of trust. Although the law requires the notice to .contain a statement of the hook and page where the deed of trust was recorded, an omission ih that respect is not calculated to mislead the grantor and will he disregarded in the absence of anything to show it caused any loss or injury to the parties or jfrevented bidding.
    Appeal from Benton Circuit Court. — Hon. C. A. Calvird, Judge.
    Aefiismed.

      T. C. Owen, H. H. McCluer and T. A. Witten for appellant.
    (1) A. C. Mitchell, trustee named in the deed of trust in question, being a non-resident of the State at the time he was named as trustee, and continuing to be such up to and including the time of advertisement and sale, was incompetent to become such trustee by virtue of the provisions of See. 2859, R. S. 1909, and there having been no trustee in the first instance, the contingency upon which the sheriff could become substituted trustee, provided in the deed of trust, never could or did arise. Kelsy v. Bank, 166 Mo. 171; Pallinam v. Reverly, 186 Mo. 622; Guinn v. Pickett, 42 Miss. 77; Hill on Trustees, 251; Stillings v. Thomas, 55 Ark. 326; Trust Co. v. Fisher, 106 111. 189; Guyon v. Pickett, 42 Miss. 77; Ready v. Hamm, 46 Miss. 422; McNeel v. Lee, 79 Miss. 455; Clark v. Nielson, 53 Miss. 119; Beemis v. Williams, 74 S. W. (Tex.) 332. (2) The manner in which real estate may be alienated is a proper subject of statutory regulation by the State. Emmons v. Gordon, 140 Mo. 500; Kerr v. Moon, 9 Wheat. 565; Bennett v. Harms, 51 Wis.. 260; Buffington v. Grosvenor, 46 Kan. 732; Conner v. Elliott, 18 Howard 593. (3) The provision that a non-resident trustee can act only when associated with a domestic corporation or citizen of this State as co-trustee, is not a discrimination against a non-resident, but is a legitimate regulation , of the manner of conveying real estate, and is not in conflict with See. 2, art. 4, U. S. Constitution. Duryea v. Muse, 117 Wis. 406; Van Buskirk v. Fire Ins. Co., 14 Conn. 590; Bennett v. Harms, 51 Wis. 258; Broadwell v. State, 83 U. S. 130; Buffington v. Grosvenor, 46 Kan. 732; Blake v. McClung, 172 U. S. 256.' (4) A trustee in a deed of trust can be substituted only in the' manner provided in the contract where it does provide the manner, and any other substitution is void, and a sale by a trustee improperly substituted is void. 28 Am. & Eng. Ency. Law, 770; Pallinam v. Reverly, 186 Mo. '622; Hill on Trustees,'251; Stillings v. Thomas, 55 Ark. 326; Trust Co. v. Fisher, 106 111. 189; Guyon v. Pickett, 42 Miss. 77; Ready v. Hann, 46 Miss. 422; McNeel v. Lee, 79 Miss. 455; Clark v. Neil-son, 53 Miss. 119; Beemis v. Williams, 74 S. W. (Tex.) 332; Arnett v. Williams, 226 Mo. 109; Feller v. Lee,. 124 S. W. (Mo.) 1129. (5) Where a notice of sale under a trust deed fails to correctly describe property to be sold, and also fails to state the book and page of the record where the deed of trust is recorded, the sale is invalid. Baker v. Cunningham, 162 Mo. 134; Morgan v. Jay, 121 Mo. 684; Colgan v. McNamara, 16 R. I. 554; Hoffman v. Amory, 6 R. I. 282.

      W. S. Jackson and Henry P. Lay for respondents.
    (1) Sec. 2859, R. S. 1909 (Laws 1895, p. 231), is void because in conflict with the provisions of the U. S. Constitution. U. S; Constitution, art. 4, sec. 2; 14th Amendment, sec. 1; Farmers L. & T. Co v. Rah-way, 27 Fed. 146; Shirk v. La Fayette, 52 Fed.'857; Roby v. Smith,. 131 Ind. 342. (2) Omissions or inaccuracies in the notice of a trustee’s sale, not calculated to mislead or to work injury are to be disregarded. Noland v. Bank, 129 Mo. 61; Baker v. Cunningham, 162 Mo. 143; Powers v. Kueckhoff, 41 Mo. 430; Ohusorg v. Turner, 13 Mo. App. 533, 87 Mo. 127; Newman v. Jackson, 12 Wheat. 570; 28 Am. & Eng. Ency. Law (2 Ed.), 791.
    STATEMENT.'
    Plaintiff, as receiver and successor in title to A. M. and C. E. Howard to 1206.79 acres of land in Benton county, Missouri, brought this action to set aside the sale of the land to defendants made by the sheriff of Benton county' under a deed of trust thereon prior to the title of plaintiffs.
    The petition attacks the deed of trust and the sale thereunder for the following reasons: (1) That the conveyance in trust was made to a non-resident of this State, though with a further provision “in case of his disability in anywise” that the sheriff of the county ■might make sale upon proper request. (2) That the notice of sale published by the sheriff omitted to give the book and page of the record of the trust deed.
    The petition also alleges a fraudulent purchase by the defendant on the foreclosure of the trust deed on the second of May, 1910. No evidence was given in support of this allegation on the trial. The answer of the sheriff admitted that under the powers given to him under the trust deed and after declination of the non-resident trustee to act and upon request, he sold the land as prescribed by law to defendants for three thousand dollars and made a deed to them.
    The defendants answered averring the validity of the trust deed under which they purchased, and its .legal enforcement, in that the sheriff acted only on due request and after the refusal of the non-resident trustee to act; and in that the omission in his publication of notice of sale of the book and page of the record of the trust deed, was immaterial to the rights of the parties.
    In addition to these allegations an agreed statement of facts embracing the admissions contained in them, was filed, and after taking evidence as to the value of the land which tended to prove that it had a market value of six thousand dollars, the case was submitted to the trial court who rendered a decree dismissing the petition and plaintiff duly appealed, assigning error in that respect.
   OPINION.

I.

BOND, J.

(After stating the facts as above.)— It is suggested in the brief for appellant that the notice of sale given by the sheriff did not correctly describe eighty acres of the land conveyed in the trust deed. This would seem to appear from an examination of the transcript of the bill of exceptions, but the respondent has produced in this court the agreed statement of facts in its original form which contains a printed slip of the publication made by the sheriff and that shows on its face that there was no error in the description referring to the eighty acres of land in question, but they were correctly described according to the description in the trust deed. Evidently the error in the bill of exceptions resulted solely from negligence in copying therein the contents of the agreed statement of facts. Such a misprision cannot affect the rights of the parties on this appeal. Nor would it justify us in remanding this case for a. reason which does not in fact exist. Moreover, there was no claim made in the petition for any relief on the ground of, misdescription in the notice of sale of the property contained in the trust deed.

II.

It is insisted for appellant that the foreclosure of the deed of trust was a nullity for the reason that the instrument was void perforce the terms of the following statute:

“See. 2859. No foreign corporation or individual shall act as trustee in any deed of trust or other conveyance hereafter made by any person, firm or corporation, whereby any property real or personal, situate or being in this State, is hereafter conveyed in trust for any purpose whatever, unless in such conveyance there shall be named as co-trustee a corporation organized under the laws of this State, and having the power to act as trustee and execute trusts, or an individual citizen of the State of Missouri. No suit shall be brought to foreclose any such deed of trust, unless a resident 'trustee shall be a party plaintiff.” [R. S. 1909, sec. 2859.]

Waiving the suggestion of respondent that the act in question is unconstitutional (Roby, Trustee, v. Smith, 131 Ind. 342; Shirk v. City of La Fayette, 52 Fed. 857), and presuming, as is our duty in the first instance, it to be a valid act (State v. Cantwell, 179 Mo. 245; State v. Distilling Co., 236 Mo. 219), as is also urged by appellant (Emmons v. Gordon, 140 Mo. l. c. 500; In re Mulford, 217 Ill. 242; Duryea v. Muse, 117 Wis. l. c. 406), we see nothing in the terms or provisions of the above act which necessarily defeated the conveyance made in the trust deed or prevented its foreclosure, as that took place.

The only objection made to the otherwise regular and formal deed of trust is that the grantee named as trustee therein was at the time a non-resident of this State. The statute does not prohibit this in terms, it only provides that no such person shall act as trustee. But even if the construction were admissible that the statute also forbids, the naming or appointing of a foreigner as trustee, that would not impair the creation of a trust by the terms of a deed otherwise valid under the laws of this State. For it is an axiom that no trust shall fail for the want of a trustee, and it is always within the power and duty of a competent court on proper application to preserve a trust by the appointment of a person to execute it. But, in the ease at bar, the contract of the parties as expressed in the deed of trust under review, did not leave them in the predicament of having failed to provide a trustee to carry out their agreement. The deed of trust conveyed the property to a non-resident (A. C. Mitchell) and after describing the property and providing for a defeasance and in case of nonpayment that the whole debt should become due and payable,.it contains the following clause: “And this deed shall remain in force, and the party of the second part [the non-resident] or in ease of his absence, death, refusal to act or disability ■ in anywise, the sheriff of Benton county, Missouri, acting at the time of such request, at the request of the legal holder of said note shall proceed to sell the property hereinbefore •described,” etc., reciting the statutory requirements of such sale and execution by the sheriff of the deed of trust.

The fair import and natural meaning and intent of these words was to make the sheriff of Benton county, Missouri, under the circumstances stated in the deed of trust, an alternative trustee by the terms of the contract of the parties to the instrument, and in so' doing they did not contravene any of the provisions of the above-quoted statute. The incompetency of the non-resident to act as trustee, fell within the meaning and purview of the language of the trust deed which expressly empowered the sheriff to act as trustee in case of the “ disability in anywise” of the particular person named. Now a statutory prohibition to act is necessarily a disability in somewise and therefore comes within the strict letter and logic of the language used in the contract between the parties.

We conclude, the power of the sheriff to foreclose the deed of trust was full and ample within the terms and stipulations of the instrument, and since the undisputed evidence showed that he only acted after a formal refusal by the first named trustee and upon proper request of the legal holder of the note secured, the validity of his foreclosure is not subject to attack for the error assigned, as to the primary appointment of a foreigner as trustee.

III.

It is finally urged that the notice of sale published by the sheriff, though in full compliance with the statutes and the terms of the deed in all other respects, failed to recite, as required by law, the book and page in the recorder’s office containing the deed of trust. [R. S. 1909, sec. 2843.] It is conceded that the published notice stated the date of the deed of trust, the names of the parties, the objects of the instrument, the property to be sold and tbe time and place of sale-, and that its- only imperfection was tbe non-recital of tbe book and page containing its record.

We cannot perceive, under the agreed statement of facts in this case, bow any one could bave been misled by this omission. Tbe grantor of plaintiff was fully apprised of tbe published sale, for tbe petition states that be placed a sum of money in tbe bands of bis agent with wbicb to buy in tbe property. Nor do we see bow this omission could bave misled tbe general public. Any one interested in tbe sale, after reading tbe contents of tbe published notice thereof, would become at once informed of tbe nature of tbe deed, tbe property to- be sold, tbe debt to be paid, tbe time when tbe trust was executed and tbe day on wbicb it was proposed to be foreclosed. Being possessed of such data, be could at once ascertain tbe particular book and page wherein tbe trust deed bad been spread of record by simply visiting tbe recorder’s office and making inquiry there or an examination of tbe books kept for tbe information of tbe public.

In an early case in this State it was held by Wagner, J., in reference to such sales, that “tbe notice given by trustees should contain such facts as reasonably to apprise tbe public of tbe place, time and terms of sale and tbe property to be sold. But mere omissions and inaccuracies in these respects, not calculated to mislead and working no prejudice, will not be regarded.” [Powers v. Kueckhoff, 41 Mo. 430. To tbe same effect; Ohnsorg v. Turner, 13 Mo. App. 533; same case, 87 Mo. 127; Noland v. Bank, 129 Mo. l. c. 61; Baker v. Cunningham, 162 Mo. l. c. 143.]

We think this is tbe correct view, and in tbe absence of anything in tbe admitted facts to show tbe neglect to point out the particular book and page whereon tbe deed of trust was spread of record, caused any-loss or injury to tbe parties or prevented any bid-(Tug at the sale which was made according to the agreed statement of the parties, it should not be declared void.

The result is that the judgment is affirmed.

All concur.


author: BLAIR, C. — PEE CURIAM. —

text:
    A. F. POLLMAN, Executor of the Estate of MARY SCHAPER, Appellant, v. JOHN H. SCHAPER et al.
    Division One,
    June 2, 1914.
    CONVEYANCES: Fraud: Dower: Eyidenoe. The evidence in a suit by a. widow to set aside conveyances of lands and avoid gifts of personalty by her husband held to show no concealment or fraud and that the disposition of the property was made by way of advancements to children, with her consent and participation, and not in anticipation of death or to defeat dower.
    Appeal from Lincoln Circuit Court. — Hon. James D. Barnett, Judge.
    Affirmed.

      Taylor B. Young, Willard H. Quest and Avery, Young & Woolf olh for appellant.
    (1) The deeds executed by appellant’s testate were voidable as to her.' Moore v. Moore, 67 Mo. 198. (2) The life estate of appellant’s testate, which turned out to be a phantom (Pollman v. Schaper, 158 Mo. App. 615), not being given in lieu of dower, is no bar to same, and if it had been the consideration has failed. Dudley v. Davenport, 85 Mo. 463; Pollman v. Schaper, 158 Mo. App. 615. (3) The question of estoppel cannot arise in this case. All the facts alleged as grounds for estoppel transpired at a time when the widow’s right was inchoate. Rockwell v. Rockwell, 81 Mich. 493; Appeal of Welso, 102 Pa. St. 7; Creary v. Lewis, 114 Mo. 582; Martien v. Norris, 91 Mo. 465. (4) The disposition of property by a husband in anticipation of death with a view of depriving his wife of her marital rights, no matter what causes impel the act, is fraudu-' lent as to such widow; and the belief of immediate dissolution is not necessary if the act can be said to be a testamentary act. Stone v. Stone, 18 Mo. 392; Tucker v. Tucker, 32 Mo. 464; Tucker v. Tucker, 29 Mo. 350; Dyer v. Smith, 62 Mo. App. 606; Brandon v. Dawson, 51 Mo. App. 237; Stratt v. O’Neil, 84 Mo. 68; Rice v. Waddill, 168 Mo. 118. These rights were not waived in view of the testimony here. “Waiver is where one in possession of any right, whether conferred by law or by contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right and of his or her intention to rely upon it.” Bishop on Contracts, sees. 792, 799. ‘ Even if this were not so, appellant’s testate did not waive her right under the authorities. The rule is laid down in 10 Am. & Eng. Ency. Law, p. 211, see. 16: “In the absence of some statute changing the common law the wife cannot be barred of her dower by an agreement entered into after marriage; and if she does agree to accept a provision in lieu of dower she may, after the death of her husband, elect- to repudiate the agreement and claim her dower.” Dudley v. Davenport, 85 Mo. 463.

      Charles Martin and Jesse H. Schaper for respondents.
    (1) The presumption that the deeds signed and acknowledged by Mrs. Schaper were intended and understood by her is not overcome by the evidence in the case. Engine & Thresher Co. v. Donovan, 147 Mo. 622; Biggers v. Building Co., 9 Mo. 210; Comings v. Leedy, 114 Mo. 477; Riecke v. Westenhoff, 10 Mo. App. 358; Morrison v. McKee, 11 Mo. 594. (a) The presumption was in favor of the defendants that the deeds were honestly made, and not for the purpose of defrauding the plaintiff. (6) However, this question need not rest upon the foregoing presumptions, for the evidence greatly preponderates in favor of the conclusions reached by the trial court — not only upon this branch of the case, but also upon every issue made in the case. Even if the evidence were more evenly balanced, this court adopts the custom, in the decision of this class of cases, to defer to the trial court in its findings of fact because of the advantages possessed by the latter tribunal in observing the manner and demeanor of the witnesses. Mathias v. O’Neil, 94 Mo. 520; Parker v. Roberts, 116 Mo. 667; Loan Co: v. Brown, 177 Mo. 412. (2) To invalidate the disposition of personal property made by the husband in his lifetime, as in fraud of.dower rights of the wife, the disposition should be shown to be testamentary in character, and to have been made with the purpose of defrauding her of her dower. Crecelius v. Horst, 89 Mo. 356; Brandon v. Dawson, 51 Mo. App. 237.
   BLAIR, C. —

This is an appeal from a judgment in a suit begun by Mary Schaper, widow of William Schaper, to set aside certain conveyances of land and avoid certain gifts of personalty on the ground that they were made by her husband with the intent to dispose of the property for the purpose of defeating her rights as his widow in case she survived him.

William and Mary Schaper were married in 1870, each having been married before and each having five children by the previous marriage. Of their marriage two children were born.

Defendants are the children of William Schaper by his first marriage and those born of the union between William and Mary.

Since the appeal was taken Mary Schaper died and A. F. Pollman, her executor, and her son by her first marriage, appears as appellant.

In 1890 William Schaper was seventy years of age and owned four tracts of land, aggregating 910 acres, and was possessed of $12,000, or more, in cash. On June 16, 1890, he and his wife, the original plaintiff, conveyed the four tracts of land mentioned to Charles, Jesse, William and Frank Schaper, the latter being a son of the grantors and the three others being sons of William Schaper by his former marriage.

The tract conveyed to Frank Schaper Contained 440 acres and constituted the home place; and the grantors, William and Mary Schaper, by the deed, retained a life estate therein. The other three tracts were of less extent and value and were conveyed outright. The deed to Frank Schaper was not delivered until some three years after its execution. After its delivery William and Mary Schaper lived with the son Frank on the home place until William Schaper died, in September, 1905, at the age of eighty-five years and four months.

During the period between June 16, 1890, and the death of William Schaper, in 1905, he gave various sums of money to the various children, some to each of them, but comparatively, little to Mary Schaper’s children by her first marriage. These gifts of money aggregated about $12,000, and the last of them was made about 1899 or 1900.

After the delivery of the deed to Frark Schaper in 1893 or 1894, William Schaper, with his wife’s knowledge and consent, entered into an agreement with Frank whereby the latter was to operate the home place of 440 acres, in which William and Mary owned a life estate and Frank owned the remainder, and was to care for and support William and Mary in consideration of the use of the farm as long as they or either of them lived. This agreement was faithfully carried out by Frank during the joint lives of the father and mother, and, after the death of William, his father, Frank continued to carry out the agreement with the mother, earing for and supporting her until she, admittedly without complaint or ground for complaint against Frank or his treatment of or care for her, went to St. Louis to live with A. F. Pollman, her son by her first marriage and now her executor. Soon thereafter a series of suits was begun, of which this seems to be the third.

Appellant contends the evidence shows that William Schaper in 1890 feared he was about to die and executed the conveyances mentioned for the purpose of defrauding his wife, Mary, of her dower, and procured her to execute them by imposing upon her through her ignorance of English and lack of understanding of the effect of the instrument she was signing, and makes a like contention as to the gifts of money made to the defendants.

So far as concerns the contention that William Schaper in June, 1890, anticipated his own early death, the strong preponderance of the evidence is, simply, that he had reached the age of seventy, began to realize that his powers were beginning to fail and that he was growing old and, in the general course of nature, could not expect to live many years. An effort was made to show that he had once or twice had the La Grippe and once had been frightened by a severe storm and rendered nervous thereby, but it does not appear that these things or any other had brought Mm to the belief in 1890 that he was then under the shadow of impending death.

The weight of the evidence is that Mary Schaper had discussed with her husband the matter of distributing some of Ms property among Ms cMldren so that he might be relieved of the burden of caring for it. There is a strong tendency in the testimony to prove that she originated the idea and urged it upon her husband. There is ample evidence that she knew she was signing the instruments which would vest the ownership of the farms in the four sons. She, herself, testifies that she knew that by the papers she signed Erank was to get the place described in his deed and Henry and Charles were to get those described in the deeds to them, but couldn’t tell whether she knew about the effect of the conveyance to William. She said she knew the sons took possession and claimed to own the farms and William and Henry sold theirs. She also admitted, in substance, that she knew the deed to Erank was not delivered for three or four years after June 16, 1890, because William Schaper, the husband, desired first to see whether Erank was a good farmer. It is true she testified through an interpreter and that she said she didn’t know what a deed was or what a will was and that she signed the papers at Mr. Schaper’s request without knowing what they were; but she thought they might have been read over to her, though she didn’t know about that. She also said she didn’t know she was relinquishing her rights.

On the other hand, some of the children testified that the matter was talked of in the family in Mrs. Schaper’s presence and that she referred on such occasions to the fact of the deeds having been made; and one witness, not related to either party, testified that he overheard Mrs. Schaper upbraiding her husband because he had not delivered the deed to Erank when the deeds to the other sons were delivered. There is no doubt that Mrs. Schaper was cognizant of the gifts of money made to the several children, and she herself testifies she was satisfied with them. ,

Her testimony shows she may not have known, technically, what a deed or will was or whether she was signing a deed or will, but it does show she knew the effect of her signing would be that the grantees would get the lands described in the several instruments. Her testimony is somewhat contradictory but a careful examination of it indicates that while she could not define the terms deed and will and consequently could not say which she signed, she had been acquainted with the effect of the instrument she signed before she affixed her signature. We think this explains most of the apparent contradiction in her testimony.

If, however, her testimony is to be literally understood, she flatly contradicts herself as to her knowledge of the contents of the instruments she signed. Whichever view the trial court took of her testimony, the other evidence in the ease fully warranted his finding that Mary Sehaper knew of William Schaper’s intent to rid himself of some of the burdens of looking after his property by distributing it among his children; that she probably suggested and urged this course upon him and, in any event, acquiesced in and agreed to it; that the distribution was talked over in the family and referred to by her and other members of the family in her presence many times after it was made; that she knew of the gifts of money, took part in them, exhibited pleasure that they were made, and testified she was satisfied with what her husband did with respect to them.

She and her husband retained a life estate in the home place of 440 acres, and after his death this life estate became, wholly hers.

This case is unlike those cited in appellant’s brief and relied upon for reversal. The preponderance of the evidence justified the trial court in finding that there was no concealment' or secrecy or fraud in the transactions; that Mary Sehaper knew, or consented to, joined in and, probably, originated the plan which was carried out; that she was well advised of the effect of her participation therein and that the disposition of the property was made by way of advancements to the children, not in anticipation of death or to defeat dower but to relieve an aged couple of the burdens of managing a considerable estate and reserve ample provision for tbeir own support and maintenance, so that they might spend their declining years in peace and ease, unburdened by the annoyances of administering numerous properties they did not need for use. That this was the result of the arrangement is the effect of Mary Schaper’s testimony and no other view of its purpose was taken until she went to St. Louis and fell under the direct influence of the present appellant. The judgment of the trial court was right and is affirmed.

Brown, C., concurs.

PEE CURIAM. —

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.