author: BLAIR, J.

text:
    THE STATE ex rel. G. W. Hill et al. v. H. M. PETTINGILL, Judge of Circuit Court, et al.
    In Banc,
    June 25, 1919.
    1. LEVEE DISTRICT: 'Organized in 1903: Rights Under Amended Act of 1913: Condemnation: Reorganization. Notwithstanding a levee district organized in 1903 under Art. 7, Chap. 122, R. S. 1909, has never reorganized under the Act of 1913, Laws 1913, p. 290, it may proceed under that act to condemn land for rights-of-way necessary for ditches, because Section 53 of the Act of 1913 provides that “all rights, powers, liens and remedies” then existent might be enforced by the mode provided by the existing law or under the provisions of the act.
    2. -: -: Amended Section 5703: Reorganization: Condemnation. The Act of 1911, repealing Sec. 5703, R. S. 1909, and substituting amended Section 5703 (Laws 1911, p. 23.1), did not destroy the power of a levee district organized in 1903 to adopt a plan for the reclamation of swamp and wet lands within its boundaries and to condemn rights-of-way for drains and ditches necessary to accomplish such reclamation. As to districts already organized amended Section 5703 merely carried forward the power already conferred by old Section 5703 to drain swamp and wet lands and to secure rights-of-way for ditches, and Section 5713 authorized such a district to “proceed under the article as amended herein,” which means that it was not necessary that the district reorganize under the Act of 1911. ■
    3. -: -: Reorganization Under Act of 1913. Section 47 of the Levee Act of 1913 was not intended to repeal all previous acts, and leave a levee district previously organized without legal authority to proceed further in the exercise of the powers conferred on it by said previous acts.
    Prohibition.
    Preliminary rule discharged.

      B. L. Gridley, T. L. Montgomery and John M. Dawson for relators.
    (1) The right to condemn real estate must be strictly-construed and the right of the citizen sacredly preserved under the constitution, and laws of the State, City of Tarkio v. Clark, 186 Mo. 285; Orrick School District v. Dorton, 125 Mo. 444; Railroad v. Schweitzer, 243 Mo. 122,1. c. 126. (2) Section 52 of the drainage act and Section 47 of the levee act, contain the words “may elect,” with reference to the organization specified in the act. These words as used in this connection are mandatory and not directory. They provide the only authority for the district to avail itself of the act, of the conditions named in the sections. Deming v. Engineering & Const. Co., 154 Mo. App. 540; Hope v. Flentge, 140 Mo. 400; State ex rel. v. King, 136 Mo. 309; Steines v. Franklin County, 48 Mo. 178. (3) The circuit court has no jurisdiction to hear, try and determine the case, because the levee district has never reorganized under the law passed and approved April 7, 1913, entitled Drains and Levees, as approved by Section 47 to 52 of the act under which respondents are proceeding, and all acts are coram non judice, Laws 1913, p. 290 and 232; State ex rel. McWilliams v. Little River Drain. Dist., 269 Mo. 459; State ex rel. Caruthers v. Little River Drain. Dist., 196 S. W. 1117; State ex rel. McWilliams v. Bates, 235 Mo. 275; Sutherland on Statutory Construction, sec. 325, p. 412; Felt v. Felt, 19 Wis. 196; State v. Trenton, 38 N. J. L. 64; McCartee v. Orphan Asylum, 9 Cow. 437; McGrew v. Railroad, 230 Mo. 496.

      C. T. Llewellyn and Hazen I. Sauyer for respondents.
    (1) The right of respondent levee district to condemn real estate for rights of way for levees, ditches, etc., is expressly granted by Sec. 8364, R. S. 1899, which section adopts Sec. 8261, R. S. 1899, and makes it a part of the levee district laws of this State. The right of condemnation is further granted to levee districts by the Act of 1907, Laws 1907, p. 337. And it is further granted by Sec. 5706, R. S. 1909, and Sec. 26, Act of 1913, Laws 1913, p. 306. (2) Whether the word “may” as used in Sec. 47, Act of 1913, p. 318, is to be construed as “shall”, is settled by the intention of the statute as gathered by the context and by reading the whole act as one scheme and code. Section 53 makes its provisions available and enforceable at the election of the board of supervisors. Section 47 only applies and was only intended to apply to districts other than those organized under the general levee laws. Art. 7, Chap. 122, E. S. 1899, and Art. 9, Chap. 41, E. S. 1909. The proper construction of this Act of 1913 will harmonize all its sections and carry into effect the intention of the Legislature. Easton v. Courtwright, 84 Mo. 27; State v. Ebbs, 89 Mo. App. 95; Epperson v. N. Y. Life Insurance Co., 90 Mo. App. 432; King’s Lake Dr. and Levee District v. Jamison, 176. Mo. 557; State ex rel. Kyger v. Holt Co. Ct., 39 Mo. 521. The Levee Laws of 1913 are in express terms declared to be “Eemedial in character and purpose.” Such statutes must be liberally construed. Pulitzer Publishing Co. v. McNichols, 170 Mo. App. 709; Abbott v. Marion Mining Co., 255 Mo. 378; Co-Op. L. S. Com. Co. v. Browning, 260° Mo. 324; Armor v. Lewis, 252 Mo. 568. (3) The cases of State ex rel. McWilliams v. Little Eiver Drainage District, 269 Mo. 459, and State ex rel. Caruthers v. Little Eiver Drainage District, 196 S. W. 1115, cited by relators, are mere obiter and were not at all necessary to the decision of the case in which the remarks were made. As to these Little Eiver Drainage District cases they were both drainage, not levee cases. The drainage district acts and levee districts acts are separate, distinct and different statutes. However such provisions as are contained in Section 47 have never been passed upon by any court of last resort in this State. Section 43 contains this language: “and its provisions shall be construed to apply to levee districts already organized or in process of organization.” The provisions of Eevised S atutes so far -as they are the same as those of prior laws, are construed as a continuation of such laws and not as new enactments. Kamerick v. Castleman, 21 Mo. App. 587; Dart v. Bagley, 110 Mo. 42; St. Louis v. Tiefel, 42 Mo. 578; Cape Girardeau v. Riley, 52 Mo. 424; State ex rel. v. Heidorn, 74 Mo. 410.
   BLAIR, J.

The Des Moines & Mississippi Levee District No. 1 was proceeding to condemn and appropriate lands of Ellen Hill and others for the purpose of draining swamp and wet lands within the district when application was made for a rule in prohibition to restrain the judge of the Clark Circuit Court from further action in the premises. Mrs. Hill, the original relator, has died and her heirs have been substituted as parties.

The levee district was organized December 28, 1903, under Article 7, Chapter 122, Revised Statutes 1899. The return admits that the district “has never reorganized under Sections 47, 48, 49, 50, 51 and 52 of the” Act of April 7, 1913, Laws 1913, pp. 290-321; admits that an application was made to the Clark County Circuit Court “to amend its original plan of reclamation and to authorize said district to construct drains and ditches over and upon” relator’s land within the district “under and by virtue of . Section 39” óf the Act of March 23,1915, Laws 1915, p. 275, and that relators herein filed their exceptions and objections thereto, and that, after a hearing, the court, granted the prayer of the district’s petition. It is then admitted that the -“district by its board of supervisors filed a petition in condemnation under . . . Article 2, Chapter 22, Revised Statutes 1909,” praying the condemnation of “rights of way over relators’ lands; that commissioners were appointed, duly qualified and assessed damages and compensation to relators therefor, and aver the sums assessed have been paid into the court. It is also admitted relators filed exceptions to the report and a plea to the jurisdiction and that this plea was overruled, and that the cause is docketed and pending for tria-l.” Respondents then aver that the district “was not required to reorganize under the Act of 1913.” Other facts appear in the opinion.

I. By the admission of the return it is disclosed the levee district was organized in 1903, under Article 7, Chapter 122, Revised Statutes 1899; has never reorganized under the Act of 1913 (Laws 1913, P- 290, et seq.); but, nevertheless, is proceeding, by the method prescribed by that act, against relators for the purpose of condemning portions of their land for rights-of-way for ditches necessary to reclaim swamp or wet lands within the district.

Since the district has not reorganized under the Act of 1913, let it be conceded that the rule contended for (State ex rel. v. Drainage Dist., 269 Mo. l. c. 459) is applicable, i. e., that the Act of 1913 did not affect the rights, powers or duties of levee districts previously organized. It is nevertheless true, as it was held, in the case cited, to be true of drainage districts in like condition, that the district “continues to operate and proceed under the original act and the applicable amendments,” including that of 1911. It is to be noted that the case cited dealt only with the question whether a stated legal duty was imposed upon the drainage district. As to that question it was held the Drainage Act of 1913 had no application, in the absence of reorganization under that act. The rule of that case is subject to the same limitation when applied in this. Section 53 of the Act of 1913 affecting levees (Laws 1913, pp. 320, 321) is, in every respect affecting the question we now propose to consider, legally (and almost literally) identical with Section 62 of the Act of 1913 (Laws 1913, pp. 266, 267) concerning drainage districts. Section 53, after providing that no right, power, remedy or lien conferred upon a levee district, previously organized, shall be impaired by the repeal of previous laws and that pending proceedings should not be affected thereby and that no obligation, contract or undertaking should be held changed, modified or invalidated by such repeal, but should remain inviolate, added the following: “All rights, powers, liens and remedies now existing in behalf of such levee districts of this State, may be enforced and made available in tbe manner and by tbe means and mode now provided by law, or sncb rights, powers, liens and remedies may be enforced and made available under tbe provisions of this act, if applicable, at tbe election of tbe board of supervisors of tbe levee district.” It is apparent tbe section carefully protects tbe rights, powers, liens and remedies from impairment by tbe new act. Section 52 as fully provides against the invalidation of obligations by tbe repeal of old laws and tbe imposition of new obligations by the mere passage of tbe new act. Tbe quoted clause does not concern itself with tbe rights, powers, liens or obligations of tbe district, but has to do solely with tbe procedure for their enforcement. In tbe case of a district which was organized prior to 1913 and which has not reorganized under tbe act of that year, the new law left its rights, powers, liens and obligations and remedies unaffected, but gave tbe board of supervisors of such a district a right to employ, as they might choose, tbe machinery of tbe old law or tbe new act in tbe enforcement thereof. This provision is express, is within legislative power and must be construed according to its plain meaning. Tbe word “remedies” casts no doubt upon this meaning. Tbe only doubt it raises is as to tbe sense in which it is employed. Tbe words “if applicable” cannot well, mean “if tbe district has reorganized under tbe Act of 1913,” since tbe section, including tbe quoted sentence, expressly deals with districts which have not so reorganized. These words doubtless mean “if appropriate;” “if effective for tbe purpose in band,” i. e., if they can reasonably be applied to tbe enforcement of tbe rights, powers, etc., with which tbe sentence deals. This view of tbe act is in full harmony with tbe bolding in tbe case cited, conceding its applicability as contended for by relator. Tbe only question concerning its applicability is one based upon language in Sections 47 and 53, which respondents suggest make tbe whole Act of 1913, as amended in 1915, applicable to respondent district without reorganization — a view which could not aid relator and need not be discussed.

II. Article 7, Chapter 122, Revised Statutes 1899, under which respondent district was organized, authorized organization for the sole purpose of constructing “levees and other works that may be deemed practicable and necessary” to protect lands subject, to overflow from rivers of the State. LSection 8361, R. S. 1899.] Section 8363 empowered the district to secure rights-of-way by proceeding as provided in Section 8261, Revised Statutes 1899, i. e. by condemnation. In 1907 (Laws 1907, pp. 335, 336) Section 8361, Revised Statutes 1899, was amended so as to authorize levee districts “now or hereafter organized” to drain and ditch swamp or wet lands within the district. Sections 8259 and 8262, Revised Statutes 1899, were referred to for the method. In the same year (Laws 1907, p. 337) Section 8364 was so amended as to provide a detailed scheme for condemning rights of way for levees, ditches, drains, etc. Article 7, Chapter 122, Revised Statutes 1899, as amended in 1907, became Article 9, Chapter 41, Revised Statutes '1909. Sections 8361-8370, Revised Statutes 1899, with amendments, became Sections 5703-5713, Revised Statutes 1909. In 1911 (Laws 1911, p. 230, et seq.) an act was passed repealing Sections 5703-5713 (Art. 9, Chap. 41, R. S. 1909) and- enacting- sixteen sections in lieu thereof. Section 5703 of this act authorized the organization of levee districts for the purposes expressed in Article 7, Chapter 122,- Revised Statutes 1899, but instead of carrying forward the provision of Section 8361, Revised Statutes 1899, as amended in 1907, concerning- the drainage of swamp and wet lands within the district, as a proviso, it made such drainage one of the purposes for which a levee district might be organized under the Act of 1911. The conditions and methods of organization were appreciably changed. The adoption of a “plan for reclamation” was authorized. No method for changing such a plan was provided. Section 5713 of the Act of 1911, (Laws 1911, p. 238) provided that in existing districts “the landowners may proceed under the provisions of the article as amended herein, and by doing so no contract, obligation, assessment or lien of the district shall be abated.” Section 5704 of the Act of 1911 (Laws 1911, p. 232) was intended to incorporate in the act, by reference, certain sections of other acts.

Under the law as it existed in 1909 (Art. 9, Chap. 41, R. S. 1909) respondent district had full power to adopt plans for the reclamation of swamp and wet lands within its boundaries, and for that purpose was authorized to condemn rights-of-way for ditches and drains necessary to accomplish such reclamation. Did the Act of 1911, in repealing Section 5703, Revised Statutes 1909, and substituting amended Section 5703 (Laws 1911, p. 231) destroy that power? We think not. The amended Section 5703 empowers levee districts organized thereafter to include such a purpose in its articles. of incorporation. The Act of 1911, as well as Article 9, Chapter 41, Revised Statutes 1909, authorized levee districts to drain swamp or wet land within the district. So far as concerned districts then already organized this provision of the Act of 1911 constituted merely a carrying forward into the new act of a power- existing under the old. To hold otherwise would result in the conclusion that the Legislature intended to discriminate in a very material respect between the old and new districts. It would mean that new districts might proceed to the complete reclamation of lands within their boundaries, while districts organized prior to the taking-effect of the Act of 1911 must content themselves with permitting- swamp and wet lands within their boundaries to remain unreclaimed. Districts formed or in process of organization prior to 1911 were not authorized to incorporate for the express purpose of reclaiming such swamp and wet lands. The power was one given these districts in the manner already pointed out, and the duty to exercise it was imposed upon the boards of supervisors. If the Legislature meant to deprive such districts of this power and did not intend it to remain in them by force of the amended provision, it would have been easy to have made such purpose clear. Sections 5704 and 5705 of the Act of 1911 expressly gives the board of supervisors power to “construct or maintain” ditches necessary to the reclamation of any land in the district and condemn rights of way therefor. Section 5713 of the same act clearly states that districts already organized “may proceed under the article as amended herein.” This does not require reincorporation. It enabled the district already incorporated to avail itself of the machinery of the act for carrying out its purposes and exerting its powers. There is no provision for the reorganization of old districts under the new Act of 1911. We think the act left in districts then organized the power to reclaim swamp and wet lands within their boundaries and condemn rights of way for ditches, etc., necessary to that end.

Since the district had the power to act, it was and is, on relator’s own theory, authorized (Par. I, supra) to employ, in the exertion of that power, the procedure provided by the Act of 1913. As already pointed out, this renders unnecessary discussion of respondents’ contention that Sections 47 and 53 of the Act of 1913 render that act, in every respect, applicable to respondent district, without reorganization.

III. The argument that Section 47 of the Act of 1913 was intended to repeal absolutely all previous acts, so far as districts organized prior to 1909 are concerned and leave such districts without legal authority to proceed further unless they reorganized under the Act of 1913, is unsound. It runs counter to the principle approved in State ex rel. v. Drainage District, supra, and applied in a like situation to drainage districts. It also attributes to the Legislature an intent not in accord with the announced spirit of the act itself. [Sec. 53, Act of 1913, Laws 1913.] This disposes of the question raised. The preliminary rule is discharged.

All concur; Bond, C. J., in result; Woodson, J., not sitting.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM.:

license: Public Domain

text:
    MISSOURI STATE LIFE INSURANCE COMPANY, Appellant, v. ELIJAH H. SALISBURY.
    Division Two,
    July 5, 1919.
    1. INSURANCE POLIO S': Acceptance. Inconclusive negotiations concerning an insurance policy, which, contains a clause that the insurance shall not take effect until the first premium is paid and the policy delivered to and accepted by the insured during lifetime and in good health, do not constitute an insurance contract. The facts of this case are reviewed, and it is held that the policy tendered by the company was never unconditionally accepted during the good health of the insured, or that the company understood that the policy sent and received was accepted, or was acceptable except upon a condition which could not be met, and that therefore there was no completed contract.
    2. -: Non-Payment of First Premium.. A stipulation in an insurance policy requiring the first premium to be paid in advance and during the good health of the insured as a condition upon which it is to take effect is enforcible, and if the first premium was neither paid nor tendered during the insured’s good health the policy did not become effective, and there is no enforcible insurance contract.
    3. -: Payment Recited in Policy. The payment of the first premium, where the policy itself recites that such first premium was made, cannot be disputed for the purpose of invalidating the policy; but where the recital is that “the insurance is granted in consideration of the payment in advance” of a named sum of money, “being the premium for the first year’s insurance under this policy,” the recital is not a specific recital of payment, but a mere statement that the first payment shall be the consideration for the issuance of the policy.
    Appeal from Sullivan Circuit Court — Eon. Nat M. Shelton, Judge.
    Reversed and remanded (with directions).

      Jones, Hocker, Sullivan & Angert and Vincent L. Boisaubin for appellant.
    (1) The policy on the life of Alpha O. Salisbury was only conditionally delivered for the purpose of inspection and comparison, and therefore the contract was never completed. Eey v. Equitable Life Assur. Soc., 44 N. Y. 745; New v. Germania Fire Ins. Co., 171 Ind. 33; Amos-Eichia v. Northwestern Mut. Life, 152 Fed. 192; Coffin v. New York Life Ins. Co., 127 Fed. 555; Gordon v. Prudential Ins. Co., 231 Pa. St. 404; Harnickell v. N. Y. Life Ins. Co., Ill N. Y. 390. (2) The application, which was a part of the policy, provided that the insurance applied for should not take effect unless the first premium was paid and the policy delivered to and accepted by the assured during her lifetime and good health. The delivery of the policy was therefore conditional and payment of the premium during good health was a condition precedent, which not being performed, the policy was never in force. Wallingford v. Home Mut. F. & M. Ins. Co., 30 Mo. 46; Yount v. Prudential Life Ins. Co., 179 S. W. 749; Bowen v. Mutual Life Ins. Co., 104 N. W. 1940; Ormond v. Assn., 96 N. C. 158; Amos-Eichia v. Northwestern Mut. Life Ins. Co., 152 Fed. 192; Lyke v. Am. Nat. Ins. Co., 187 S. W. 265. (3) The policy contained no formal acknowledgment of receipt- of the premium, and therefore the mere description of the amount and nature of the consideration contained in the consideration clause did not operate as an estoppel to prevent the company from denying that the policy was a completed contract. Dobyns v. Bay State Ben Assn., 144 Mo. 95; Bush v. Ins. Co., 35 N. J. L. 429; Dircks v. German Ins. Co., 34 Mo. App. 31; Lyke v. American Natl. Ins. Co., 187 S. W. 265; Amos-Eichia. v. Northwestern Mut. .Life Ins. Co., 152 Fed. 195. (4) The premium was not paid or tendered during the good health of Mrs. Salisbury, and therefore the policy was not in force, Perry v. Security Life & Ins. Co., 150 N. C. 143; American Home Life Ins. Co. v. Melton, 144 S. W. 362 ; Kilcullen v. Metropolitan Life Ins. Co., 108 Mo. App. 61; Gordon v. Prudential Ins. Co., 231 Pa. St. 404; Harrimán v. N- Y. Life Ins. Co., 43 Wash. 398; 5 Elliott on Contracts, sec. 4358.

      W. C. Irwin, J. W. Bingham and Higbee & Mills for respondent.
    (1) Mrs. Salisbury unconditionally accepted- the policy in suit on December 23,1914 and signed and mailed the receipt evidencing that fact to Carson. He received this and on December 28th wrote Salisbury, congratulating them on accepting the policy. The pencil writing on this receipt, “For Inspection only,” was written thereon by Carson at a later date. Four witnesses testify it was not on the receipt while Salisbury had it. (2) The policy acknowledges the payment of the premium in advance. That fact may not be disproved to invalidate the’policy. Dobyns v. Bay State Ben. Ássn., 144 Mo. 95. (3) Carson was authorized to take application and deliver the policy. He expressly extended credit for the premium. He agreed to take Salisbury’s note for the premium due in April, 1916, and that it might be paid out of commissions on insurance Salisbury might write. Prepayment was waived by unconditional delivery of the policy, and by refusal to accept payment when duly tendered. 25 Cyd. 726, (3); Halsey v. Ins. Co., 258 Mo. 659. (4) Carson was the agent, the alter ego, of the Company, and authorized to waive prepayment of the premium. R. S.1909, sec. 6938; Madison v. Ins. Co., 180 S. W. 1169. (5) The policy was delivered and accepted and credit extended for the payment of the premium during good health. It was then in force. The answers that Salisbury had no other insurance and no, other applications for insurance pending were made at the instance of Carson and furnish no ground to defeat payment of the policy. 25 Cyc. 800, D; Modern Woodmen v. Angle, 127 Mo. App. 95, 112; Ins. Co. v. Mullen, 197 Fed. 299. (6) The provision that premium must be paid and the policy delivered while insured is in good health is for the benefit of the insurer and may be waived. Bell v. Mo. Life Ins. Co., 166 Mo. App. 399. And once waived cannot be recalled. Ib. ■ p. 402; Brix v. Fidélity Co., 171 Mo. App. 518, 526. Mrs. Salisbury’s recovery was extremely probable, says tbe petition. It further appears from the petition her gunshot wound was not the cause of her death. “She either fell or threw herself to the ground.” If she “fell” then the condition of her health is immaterial. Coscarella v. Ins. Co., 175 Mo. App. 130, 136. (7) The policy recites that it and the application constitute the entire contract. It was therefore inadmissible to offer proof of a verbal agreement that neither policy would be accepted unless both were issued. Such a condition could be waived.
   WHITE, C.

The plaintiff brought this suit for the purpose of canceling a policy of insurance written by the defendant upon the life of Alpha O. Salisbury, wife of the defendant. The petition alleged several reasons why the policy should' be canceled, and among them those which are urged here and which we will consider: First, that the policy was never delivered unconditionally to the insured and there was no completed contract upon which the minds of the parties met prior to the death of Alpha O. Salisbury; and, second, that the first premium was not paid during the good health of the insured, as required by the terms of the policy.

The defendant filed an answer and counterclaim. The counterclaim alleged the policy under consideration insured the life of Alpha O. Salisbury, in the sum of ten thousand dollars for the benefit of the defendant, and that Alpha O. Salisbury died on the 10th day of February, 1915, and prayed judgment for ten thousand dollars. The plaintiff replied to the counterclaim denying the execution and delivery of the policy sued on, alleging its invalidity as a contract on account of the same matters set up in the petition, and praying for its cancellation, as prayed in the petition.

On a trial in the Circuit Court of Sullivan County judgment was rendered against the plaintiff on its petition, and for the defendant on his counterclaim for ten thousand dollars and interest, less the amount of the first premium. The plaintiff appealed from that judgment.

The defendant Salisbury was a school teacher and at some time early in October, 1914, he and his wife Alpha decided that they would take out insurance, each in favor of the other. They went at the matter cautiously, desiring to secure the best possible contract, and let it be known to various insurance agents what they contemplated in that respect. The result was that they were solicited by various agents and sent in applications to a number of companies with the understanding that they should receive the policies for the purpose of inspection and after a comparison would make their selection. Salisbury testified, in speaking of the agents: '‘I told them I thought of taking out some "insurance; that I thought I was able to carry it; that I had decided on buying it about the same as I would a horse; that is, to examine two or three good policies and decide which one I would take.” It was his intention to take a policy out upon his own life and that of his wife in the same company; the one he should-find to be satisfactory.

Pursuant to his applications several policies upon himself and his wife were issued and delivered to him for the purpose of inspection; among them was a policy of the American Central Life Insurance Company, and a policy of the Central Life Insurance Company of Illinois. The New Tork Life and the Iowa National Insurance Company also submitted policies for inspection. This occurred about the 20th of October, 1914.

Matters were in this posture when C. M. Carson, agent of the plaintiff, Missouri State Life Insurance Company, heard of the contest and desired to enter the competition for his company. Salisbury at first indicated that he had enough policies from which to make his selection, but finally consented to let Carson in on the competition. Applications for Salisbury and for his wife were filled out; his, it appears, was dated on the 22nd day of October, bnt that of his wife was dated the 28th of October. This is explained by both Salisbury and Carson to be on account of. having to take the application to his wife and have her sign it in person, which was required by Mr. Carson; it caused a delay of a few days. There applications were sent in to the plaintiff. About the 14th of November a policy on the life of Mrs. Salisbury was sent to Carson somewhere in Illinois, and he in turn sent it to Salisbury about November 29th. On the application of Elijah Salisbury no policy was issued, because of an unfavorable result in the analysis of his urine. The matter was held up for further examination. It appears that his application was not definitely declined, but subsequently he Avas urged to submit to further examinations and undergo a special diet for the purpose of making a proper test. This delay and uncertainty in his application figured very materially in the subsequent negotiations between the parties.

On the 22nd of November Salisbury and his wife, having policies of the several insurance companies before them, went over the entire matter for the purpose of deciding the contest, and finally, on the 23rd of November, they decided to accept the policies of the Central Life Insurance Company of Illinois. In the meantime, however, Salisbury had so far committed himself Avith reference to the American Central that that company treated the policy as delivered and the contract as closed. It was said by respondent’s counsel in oral argument before the court that each of these companies had recognized its liability and had paid ten thousand dollars on the life of Mrs. Salisbury.

On the 8th of December, Carson had a telephone conversation with Salisbury, telephoning from Quincy, Illinois. He testified that he then urged' Salisbury to go before certain doctors whom he named for the purpose of further examination, and Salisbury promised to do so. Salisbury testified that he told Carson at that time he had not accepted the policy on his wife and that Carson requested Salisbury to give bim another chance and urged him to send another sample of urine for examination, -which he agreed to do. Carson swore he had no conversation with Salisbury after the applications were received except the telephone conversation of December 8th, until January 14, 1915. Salisbury swore that he had two other conversations with Carson — one between November 23rd and December 8th, and the other between December 8 and December 23.

When the policy on the life of Mrs. Salisbury was sent to Salisbury on November 20th, Carson enclosed a receipt for her to sign. This receipt was retained by Salisbury until December 2'3rd, when he mailed it to Carson at St. Louis, with a letter. Several letters between the parties appear in the record.

On the 31st day of December Mrs. Salisbury was shot through the chest. All the evidence in relation to it indicates that the shooting was accidental. She died February 10th, following. There is some evidence tending to show that she improved for a -while after she was wounded, and that her death -was immediately caused by a fall from a window, while walking in her sleep, but while she was still suffering from her wound.

After Mrs. Salisbury was shot the only conversations between the principal witnesses, Carson and Salisbury, relate to an endeavor on the part of the company to recover the policy on her life which was in the possession of Salisbury. Carson was ordered to recover the policy and cancel it, and Salisbury, after putting him off with several excuses, finally refused to give it up. Salisbury and Carson agreed that they had a conference on January 14th, and again on January 21st or 27th, or probably on both of these dates. The letters mentioned and these various conversations will be considered more fully in discussing the question whether the minds of the parties met.

I. Appellant claims it was never the intention of Salisbury to accept the policy of his wife unless he should- also receive a policy on his own life; it was upon that condition that he received a policy f° examination and such condition was never complied with. Also, a contemplated agency for the company on the part of Salisbury entered into the negotiations; it Avill he necessary to inquire how far his appointment as an agent was conditioned on his taking the policy. Mrs. Salisbury had nothing to do with any of the negotiations at any time, and all of the conversations and negotitations relating to the matter which took place were between Salisbury and Carson.

It is certain that in the beginning Salisbury' had determined to take out only one policy on his own life and one on the life of his wife, both to be in one company. He began his investigations with that intention, and that was the understanding he had with all the agents, including Mr. Carson, agent for the plaintiff here. It remains to determine whether there was a change in that intention communicated to the plaintiff’s agent.

It is certain that on November 23rd he accepted the policy of the Central Life of Illinois and never at any time rescinded or attempted to rescind that acceptance. There is no evidence in the record to show that he ever attempted to deny a completion of the contract with that company. He did have a dispute with the agent of the American Central and refused to accept the policy which had been delivered to him for inspection, when the agent threw it down on the table and said it was Salisbury’s policy and walked out. Salisbury afterwards retained that policy, but whether he reconsidered his determination to decline it before his wife was shot is not shown. So he was bound by two policies of $10,000 each on the life of his wife before he claims to have accepted plaintiff’s policy.

Carson swore positively that Salisbury “said he thought he and his wife would like to take ten thousand dollars each, but that he was not going to take ten thousand dollars on his wife unless he taken that much on himself and he was not going to take that much on himself unless he taken the same amount on his wife, but that if I eared to take his application and submit it with the understanding that he would not have to take either policy, the one issued on his own life and the one issued on his wife’s life, unless both his wife’s policy and his policy were issued, or in other words he would not take either policy unless both were issued.”

Carson, mn acknowledging the receipt of the application on October 28, wrote Salisbury calling attention to the desirability of an agency for Salisbury and said: “Shall be pleased to go into that proposition with you when your’policies are issued, and shall then bring them over myself and talk things over.”

Salisbury said his first interview with Carson was on the 29th of October; that with some reluctance, after Carson had urged the matter of agency on him, he finally, on the 22nd of October, decided to “let him in on the contest as I had the others.” In answer to the question, “What was said about your wife’s policy?” he testified that there was some question about his insurability on account of a weak ankle and he said to Carson, “Now, in case my application was turned down on that it would be a serious point against them because I was not going to take the policies in two companies.” Salisbury again testified in speaking of the conversation he had with Carson between the 23rd of November and the 8th of December, that he told Carson if he decided to take his policy, “that I was not going to consider writing insurance when I decided on the policy,” definitely eliminating at that time all question of the agency as a part of the agreement.

In Salisbury’s mind, his possession of the policy on the life of his wife was for inspection only, for in speaking of the telephone conversation of the 8th of December when Carson called him up from Quincy, 111., he says: “I told him [Carson] I had not accepted the policy, but that it was a pretty close decision between the Central Life and the Missouri State.” Then he added that Carson asked him to reconsider and give him another chance, and continued: “And I finally agreed to give him another chance, and he said for me to send another sample of urine to the home office, he Avanted them to have another chance, they were holding it up on that account, and he told me they had requested several samples and none had come.”

This indicates that in Salisbury.’s mind the two policies should go together in one company; that his own physical eligibility must first be determined .and his insurability approved by the company before he decided on a policy for his wife. He then relates another conversation he had with Carson about the 15th of December (Carson denies that they had any conversation at that time), and says Carson drove over from Greencastle in a car and again urged Salisbury to take an agency for the company, painting in rosy hues the profits which he might earn in that way. He told Carson that he was getting eight hundred dollars a year in teaching school and that he could get twelve hundred dollars away from home. Carson attempted to show him how he could earn enough money in the insurance business to pay his premiums with ease; he told Carson at that time he was not sure he would take his insurance, and Carson says: “How can you take this job?” “I had told him I would have all the insurance I wanted. He -says, ‘You cannot write life insurance for our company and hold your insurance in another company,’ and I told him I would have to tell him ‘ no. ’ ’ ’ He said further to Carson, “Your company is not issuing my policy.” Then followed some discussion about the sample that should be sent for examination. Carson at that time, Salisbury says, attempted to show him that he could carry more than ten thousand dollars by taking an agency for the company. The conversation ended by his saying that he would talk it over with' his wife and write Carson what he decided. This conversation about December 15th which Salisbury relates and which Carson denies took place shows that he had not abandoned his determination to have two policies in the same company, one for himself and one for his wife; there is nothing there to indicate that the two policies conld be separated. At this conversation the prospective agency definitely entered into the consideration, and what he was going to see his wife about was whether he should take the insurance and acquire the agency. He testified that then he decided to take the agency, and begin the first day of May. He says that Carson urged him to go into the life insurance business and he would be able to carry twenty thousand dollars instead of ten. At this time,- according to his story, Carson was endeavoring to have • him take the one on his Avife, whether he succeeded in getting his own policy through or not, showing how he could make an argument to a prospective customer, that he had a policy on his Avife, but the company would not write one on him, because he was not a sufficient risk. There was nothing said at that time to indicate that he was Avilling to accept the policy on his wife’s life without one on himself. It is certain that up to that time the minds of the parties had not met on the contract.

Salisbury swore that he definitely accepted the-policy by sending in the receipt for it on December 23rd. It will be remembered that when the policy was sent to him on the 20th of November a receipt was enclosed Avhich his wife was to sign for the policy. The receipt was returned December 23rd, with a letter. The argument here is' that, that was the time when he decided to accept unconditionally the policy on his wife’s life, and that letter the means by which he communicated that decision to the company. The letter is as follows:

Green Castle, Mo., Dec. 23, 1914.
Mr. C. M. Carson, St. Louis, Mo.
Friend Carson: Just received your letter to-day and am wondering what is the matter that we can’t get things together. Dr. Parsons tells me he sent that sample to you as I agreed by phone to have him do. I don’t understand this failure.
I am inclosing receipts for the policy already issued and if you will make settlement with the Co. and let me buy that one and mine, on the terms offered me when you were here, it will be all right with me and we can fix our deal up when you bring my policy to me.
If you don’t get that sample from Parsons very soon I will bave Dr. Taylor try bis band at it as I want it to go sure, and very mueb oblige,
Yours very respectfully, E. H. Salisbury.
12-28-14

If Salisbury intended to accept tbe policy of bis wife unconditionally he not only did not say so, but his letter shows that two conditions were still in his mind which must be complied with before it would be accepted. He wondered why “we can’t get things together, ’ ’ indicating there was no agreement on anything; this is said in connection with the mention of his efforts to get his own application acceptable. He mentions the enclosed receipt for his wife’s policy and speaks of a settlement so that it would let him “buy that one and mine.” This negatives the idea that he had already bought “that one” and shows he still associates the two together, that he did not want “that one” without “mine.” Then he added another condition: “on the terms offered me when you were here.” That refers to insurance agency. On those two conditions “we can fix our deal up when you bring my policy to me.” The letter is filled with concern about the tests in his own case, and he hardly could have used language to make clearer his determination to have two policies and the agency or none.

On cross-examination Salisbury had this to say about that letter and his intention at the time:

“Q. Now, you declined, did you not, to fix up the deal with him until he brought your policy; I mean the policy issued payable to you as the insured? A. I did not decline that exactly. We could not very handy arrange an agreement of that kind, because there was a double agreement. .My policy and the settlement was going to be a little different, according to his proposition, and I wanted to wait and have it fixed up right. I wanted to wait until we found out what was going to become finally of my policy, and then we would know which policy to take.”

This shows conclusively that in his own mind he did. not definitely or unconditionally accept his wife’s policy when he sent in the receipt.

On December 28th Carson acknowledged the receipt of Salisbury’s letter of the 23rd, in a letter as follows:

12-28-14
Mr. E. H. Salisbury, Green Castle, Mo.
Dear Mr. Salisbury: Yours of Dec. 23 — just this date reached me here.
Hustle up and go before Dr. Taylor, as that other sample must have not reached Company. Take prepared meal of Carmel Candy (prepared by Dr. Taylor) & let him send Company sample of urine.
Please hustle this through as I must get this through by Jan. 1st in time for an. report see?
Am glad you have decided on our policies, for we certainly are placing some big cases recently.
(next ad. Keokuk, Iowa.)
Regards,
C. M. Carson.

It is argued by respondent that Carson’s expression of pleasure because he had “decided on our policies” is conclusive on the plaintiff that the matter had been closed.

There is no warrant for that inference from the letter. That expression merely indicates that Carson thinks Salisbury has decided that the form of policies in his company are what he wants in preference to policies in other companies, but the conditions on which he would accept the one had not been met. His own must be issued. In that letter Carson is trying to hurry Salisbury with his test, so that he could pass the examination.

On the same day Carson wrote a letter to Mr. Donnelly, assistant secretary of the company, to which he added a post script referring probably to the receipt, saying: “P. S. Please see that this & her husband’s policies are issued at earliest possible moment & mail to me — as this was written in strongest competition and it means other bis. C. M. C.” This indicates still that Carson understood that Salisbury would not accept the policy on his wife’s life unless he received one on his own also, and he was trying to get Salisbury’s application through.

There was no further conversation or communication between the parties in relation to the matter until after Mrs. Salisbury was shot, December 31st. There is nothing here to show that Salisbury had ever receded from his first intention to have a policy on his own life and on that of his wife in the same company. Carson evidently so understood it.

Salisbury testified quite volubly about the agency matter, about the different propositions which Carson made him with reference to it, and it might be inferred from his testimony of those different conversations that he intended to accept the agency on the terms mentioned by Carson, but it does not appear anywhere that he intended to take the agency on those terms independent of securing both insurance policies.

After his wife was shot it appears to have entered Salisbury’s mind that he could afford to carry much more insurance than he had thought himself able to shoulder before- that time. He had already concluded his arrangement with the Central Life, and the American Central was so committed that it could not withdraw from the arrangement, and both of' these he seems to have cinched. Now he wanted to carry another ten thousand dollars with the plaintiff. His optimism mounted with his wife’s declining health. But he never did decide to accept the policy on the life of his wife until after the company had decided to withdraw it, and declared the entire negotiation off. Carson made a visit to Salisbury’s home about the 14th of January for the purpose of getting the policy. Both he and Salisbury testified that the conversation was inconclusive. Salisbury offered some excuse; the policy was not there; it was in his trunk and he hadn’t the key. By his own testimony he did not definitely declare then that he intended to retain the policy. He did so declare later.

About the 21st of January, Carson attempted to bring the matter to a conclusion with him, but Salisbury refused to talk except in the presence of witnesses. He had employed counsel by that time. Carson also employed an attorney, and they had a conversation in the presence of witnesses, and their respective attorneys on the 27th of January. At that time Salisbury swore he said to Carson: “I told him if he would give me this office and give me this corps of men and give me a 75 per cent accredited contract, five per cent,on renewals and ten per cent on the new ones that came through this office, that I would surrender the policy at the end of the year.” Carson refused to accept the proposition. Thereupon Salisbury tendered $315, the amount of the first semi-annual premium on his wife’s policy, and Carson refused to receive it.

The policy refers to the application as a part of the contract and contains this stipulation: “This policy and the application herefor constitute the entire contract.” The application has this clause: “6. That the insurance hereby applied for shall not take effect unless the first premium is paid and the policy delivered to and accepted by me during my lifetime and good health.”

This court has held, in the case of State ex rel. v. Robertson, 191 S. W. 989, that inconclusive negotiations, such as this, do not constitute an insurance contract. This court said: “A proposition presented by the one must be accepted by the other in the form tendered; and if the acceptance omits, add to or alters the terms of the proposition made, then neither party to the negotiations is bound. So long as any element of the proposition is left open, the contract is not complete and of course is not binding on anyone,” citing several cases.

On the authority of that case it is impossible to conclude that the policy tendered by the company was ever accepted unconditionally during the good health of Mrs. Salisbury, or that the company understood that it was accepted, or acceptable except upon the condition prescribed by Salisbury, which could not be met.

II. Another reason why the contract was never completed was because the first premium was not paid nor tendered during the good health of Mrs. Salisbury, as required by the stipulation in the application quoted above.

A stipulation of that character, requiring the payment of a first premium in advance as a condition upon which the policy was to take effect, is always recognized and enforced by the courts. The policy, in such case, is not effective until that condition is complied with. [Kilcullen v. Life Ins. Co., 108 Mo. App. 61; Wallingford v. Home Mut. Fire Ins. Co., 30 Mo. 46; Ormond v. Ins. Co., 96 N. C. 158; Bowen v. Mutual Life Ins. Co., 104 N. W. 1040.]

The respondent claims in this connection that the policy itself recites that payment of the first premium was made, and therefore the appellant could not disprove that recital. It is held, where a policy acknowledges the receipt of the first premium, that such receipt might be disputed for some purposes as any other receipt, but that the payment of the first premium, as recited, could not be disputed for the purpose of invalidating the instrument. It is analagous to the recital of the payment of consideration in a deed; such a recital may be proven by parol to be erroneous, but it is not permitted to show a want of consideration for the purposes of controlling the operative words of the instrument, and thereby defeat it as a contract. [Dobyns v. Bay State Ben. Assn., 144 Mo. 95, l. c. 109.] That, however, applies to cases where the receipt of the payment is specifically acknowledged. The policy in this case recites as follows:

“Consideration — This insurance is granted in consideration of the application herefor, a copy of whch is attached hereto and made a part hereof, and of the payment in advance of $312.70, being the premium for the first year’s insurance under this policy ending on the 11th day of November, 1915, which is term insurance. ’ ’

That recital is not a specific acknowledgment of payment; it merely states what the first payment shall be as consideration for the issuance of the policy. A similar recital in an insurance policy was held by the Kansas City Court of Appeals to be not an acknowledgment of payment. [Dircks v. German Ins. Co., 34 Mo. App. l. c. 41.] There was a like holding by the Springfield Court of Appeals in Lyke v. American National Ins. Co., 187 S. W. 265. The'respondent cites the case of Halsey v. Ins. Co., 258 Mo. 659. It is against his contention. The policy in that case was dated May 31, 1906, and purported to go into effect from that date, but the first payment was not paid until June 5th, and it was held that the policy did not go into effect until June 5th.

The policy on the life of Alpha O. Salisbury never went into effect for the reason that the first premium was never paid nor tendered during her good health. It was tendered after she was shot, and when the company was demanding the return of the policy.

There is a suggestion in respondent’s brief that the payment of the first premium in advance was waived. On December 22nd, just the day before the letter of Salisbury was written in which he sent in the receipt, Carson wrote to him urging him to try the special diet prescribed for the purpose of making test as to his condition, and said in that letter that he would try and “get you through,” adding, “if not then it will be necessary to either return your wife’s policy or remit at least 30 per cent of the premium at once as to go in our annual reports.” This was a reference to a reduction of the first premium by 70 per cent if he took the agency. It shows the stipulation was not waived. There is no evidence of a waiver.

The judgment in favor of defendant on plaintiff’s cause of action and the judgment on the defendant’s counterclaim is reversed, and the cause remanded with directions to the trial court to enter judgment in favor. of the plaintiff as prayed in the petition.

PER CURIAM.:

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

All of the judges concur.


author: RAILEY, C. PER CURIAM:

text:
    ELIZABETH WELLS et al. v. JAMES B. WELLS et al.; ORVILLE UPSON, Appellant.
    Division Two,
    July 5, 1919.
    1. JURISDICTION: Collateral Attack: Return in Another Case. In a partition suit a defendant, whose interest in the land was sold upon execution under a default judgment rendered in another circuit court, has the right to offer the sheriff’s return in that case in evidence, for the purpose of showing that the court did not acquire jurisdiction over the persons of the defendants therein, because of insufficient service of the summons.
    2. -: Sheriff’s Return: Words Understood. If the sheriff’s return recites that he left a copy of the writ and petition “with a person family” of said defendants, the words “of the” will be understood between “person” and “family,” so that it would read “with a person of the family” of defendants.
    3. -:-: Service Upon Husband and Wife. If the defendants are husband and wife, and cannot be found in the county, it is proper for the sheriff to leave a copy of the petition and writ, and a copy of the writ, “with a person of the family” of said defendants, at their usual place of abode, over fifteen years of age. One such person, in contemplation of the statute, represents both defendants.
    4. -: -: -: Copies for Each. Where the defendants are husband and wife and cannot be found, the leaving of copies of the petition and writ for one, and a copy of the writ for the other, with some person of the family of said defendants, over fifteen years of age, at their usual place of abode, is all that the statute requires. If it could be construed to require such person to deliver a copy of the petition and writ to the first party served, and a copy of the writ to the other, still, in the absence of evidence to the contrary, it will be presumed that both the sheriff and said person did their duty.

      5. -: The Return. Adjudicated. The sheriff’s return recited: “l hereby certify that I executed the within writ in Lincoln County, Missouri, on 26th day of September, 1907, by leaving a copy of the writ and petition and a copy of the writ with a person family of said Emeline M. Wells and James B. Wells at their usual place of abode over the age of fifteen years.” Held, sufficient to uphold a default judgment.
    Appeal from Montgomery Circuit Court. — Hon. J. D. Barnett, Judge.
    Affirmed.

      Sutton <3 Huston, H. W. Johnson and A. H. Drunert for appellant.
    (1) The sheriff’s return upon the summons in Farmers & Mechanics Savings Bank v. Emeline M. Wells and James B. Wells does not show that a copy of the writ and petition was left at the usual place of abode of the first party summoned with a person of the family of such party, and does not show that a copy of the writ was left at the usual place of abode of the party subsequently summoned with a person of the family of such party, and such return is ’ wholly insufficient to support a default judgment. Gamasche v. Smythe, 60 Mo. App. 163,165; Madison County Bank v. Suman, 79 Mo. 531; Laney v. Garbee, 105 Mo. 359; ■ Blanton v. Jamison, 3 Mo. 53; Stewart v. Stringer, 41 Mo. 404; Colter v. Luke, 129 Mo. App. 706; Rosenherger v. Gibson, 165 Mo. 23; Smith v. Rollins, 25 Mo. 408; Nathan v. Oil Co., 187 Mo. App. 564; Nelson v. Railroad Company, 225 111. 197, 205; Bimeler v. Dawson, 4 Scam. (111.) 431; Bicknell v. Herbert, 20 Hawaii, 132, 233 U. S. 70; Thomas v. Thomas, 96 Mo. 223; Harris v. Hardeman, 14 How. (U. S.) 334; Berry-hill v. Sepp, 106 Minn. 458; Enewold v. Olsen, 39 Neb. 59; Harness v. Cravens, 126 Mo. 247, 249; Real Estate Company v. Catering Company, 175 Mo. App. 684, 267 Mo. 340; State ex rel. Coleman v. Blair, 245 Mo. 680; South Missouri Pine Lumber Co. v. Carroll, 255 Mo. 357; Orchard v. Smith, 193 S. W. (Mo.) 578; Slocomb v. Bowie, 13 La. 10; Fuller v. Caldwell, 3 Minn. 117; Hickman v. Barnes, 1 Mo. 156; Sweet v. Sanderson Brothers Steel Co., 6 Civ. Proc. R. (N. Y.) 69; Taylor v. Pridgen, 3 Wilson, Civ. Cas. Ct. App. sec. 89; Sec. 1760, R. S. 1909. (2) The return not showing actual service upon the first party summoned, hy a delivery to such party in person of a copy of writ and petition, constructive service of the party subsequently summoned was not authorized by the statute except by delivery of a copy of both the writ and petition, and the return is on this ground wholly insufficient to support a default judgment. Sec. 1760, R. S. 1909.

      John L. Burns for respondents.
    (1) The service of writs in ease of Farmers and Mechanics Savings Bank against Emeline M. Wells and James. B. Wells was personal service. Mattocks v. Van Asmus, 180 Mo. App. 404, 406. (2) The return in question clearly shows that a copy of the petition and writ and a copy of the - writ were duly and properly served, and that there was a substantial compliance with the statute. Collier v. Lead Co., 208 Mo. 269; State ex rel. v. Still, 11 Mo. App. 283; Howard v. Still, 14 Mo. App. 583 ; Abies v. Webb, 186 Mo. 246; Scharff v. McGaugh, 205 Mo. 353. (3) The sheriff’s return should be given a reasonable construction. Collier v. Lead Co., 208 Mo. 269; Abies v. Webb, 186 Mo. 246; Dunham v. Wilf ong, 69 Mo. 355; McMillon v. Harrison, 29 L. R. A. (N S.) 946; Keith Bros. v. Stiles, 92 Wis. 19; Davis v. Jacksonville Line, 126 Mo. 76; Phillips v. Evans, 64 Mo. 17; Great Northern Hotel Co. v. Far-rand, 90 111. App. 314; Cloyes v. Phillip, 149 S. W. 549; Bruce v. Cloutman, 45 N. H. 37. (4) It is presumed that public officers perform their duties rightly .and properly. Collier v. Lead Co., 208 Mo. 272; State ex rel. Wilson v. Mastín,-103 Mo. 508; Hammond v. Gordon, 93 Mo. 233; Adams v. Cowles, 95 Mo. 501; Evans v. Robberson, 92 Mo. 198; Owen v. Baker, 101 Mo. 407. (5) Defect, if any, in the sheriff’s return is cured by the Statute of Jeofails. Secs. 2119, 2120, R. S. 1909; Muldrow v. Bates, 5 Mo. 214; Weil v. Simmons, 66 Mo. 619; Blaisdell v. Steamboat, 19 Mo. 157; O ’Toole v. Lowenstein, 177 Mo. App. 662; Crouch-on v. Brown, 57 Mo. 38. (6) The recital in the judgment that both defendants were legally served is conclusive upon the parties in a collateral proceeding. Hardin v. Lee, 51 Mo. 245; Dunham v. Wilfong, 69 Mo. 358; Thompson v. Chicago S. F. Ry. Co., 110 Mo. 147; Freeman on Judgments, sec. 130; Adams v. Cowles, 95 Mo. 501; Draper v. Bryson, 71 Mo. 71; Jones v. Bibb Brick Co., 120 Ga. 321; Leonard v. Sparks, 117 Mo. 103; State ex rel. Kenamore v. Wood, 155 Mo. 470. (7) A broad distinction is drawn between cases where there is no service on defendant and those in which service is in some respect deficient or irregular. In the latter cases jurisdiction attaches subject to be defeated by objections to the irregularity interposed in season in some direct manner. Leonard v. Sparks, 117 Mo. 109; State ex rel. Kenamore v. Wood, 155 Mo. 470; Ellis v. Nuckols, 237 Mo. 290; Conners v. St. Joe, 237 Mo. 612; Jasper Co. v. Wadlow, 82 Mo. 172; State v. Wear, 145 Mo. 194; Cruzen v. Stephens, 123 Mo. 337; Freeman on Judgment, sec. 126.
   RAILEY, C.

This is an action for the partition of 240 acres of land in Montgomery County, Missouri. The original petition was filed March 18, 1914. On January 2, 1915, an amended petition was filed, and upon which the cause was tried. After describing the land, the petition alleges that L. B. R. Wells, deceased, by his last will devised said real estate to his wife, Mary S. Wells, for life, with remainder to his grandchildren, Alice Dothage, W. S. Wyatt, Frank R. Wyatt, Harry D. Wyatt and Mary E. Wyatt, and his children, James B. Wells, John T. Wells, Elizabeth Wyatt, Alice McCune, and Martha Wyatt, subject to advancements, the grandchildren taking one share between them and the children taking each one share; that said James B. Wells conveyed his undivided one-sixth interest in said real estate to James M. McLellan; that said McLellan died testate, and by his will devised said one-sixth interest to Emeline Wells; that on April 25, 1914, Emeline Wells and James B. Wells, her husband, conveyed said undivided one-sixth interest to Orville Upson, said deed being filed for record July 21, 1914; that on May 1, 1914, W. H. Verser, sheriff of said county, conveyed by sheriff’s deed to Charles Martin, trustee, all the right, title and interest of Emeline Wells and James B. Wells in and to said real estate, under an execution against them, which said deed was recorded in said county ; that the plaintiffs and defendants are seized as tenants in common of said real estate; that the latter is not susceptible of partition in kind, and that the plaintiff, Mary S. Wells, consents that the lands be sold for the purposes of partition; and prays that the court will declare and determine the title to said real estate, adjudge partition and sale of same, and order distribution of the proceeds of said sale amongst the parties according to their respective rights and interests.

On January 25, 1915, Charles Martin, trustee, filed an answer to the second count of said amended petition, and after practically admitting the general title as alleged in the petition, except as hereafter stated, claimed to be the owner of said one-sixth interest in said real estate by virtue of the sheriff’s deed aforesaid. He alleges that said deed is predicated upon an execution, which was based on a judgment rendered October 16, 1907, in the Lincoln County Circuit Court, in favor of the Farmers & Mechanics Savings Bank, against Emeline M. Wells and James B. Wells, for $686.50 debt and $8.80 costs,, etc. The answer denied every other allegation in said second count of the petition.

Orville Upson, on April 27, 1915, answered and alleged therein that the interest owned by James B. Wells, in the estate of his deceased father, which is sought to be partitioned in this cause, was by said James B. Wells and wife sold and conveyed to James B. McLellan; that afterwards, the latter, by his will, devised said real estate to Emeline Wells; that the latter and her husband conveyed said property to defendant Orville Upson, who claims to be the owner of same, and denies that said bank, or Charles Martin, as trustee, has any interest therein.

Charles Martin, trustee, at the trial, offered in evidence the sheriff’s deed aforesaid, dated May 1, 1914, purporting to convey to him, as trustee, the interest in said land of Emline M. Wells, and James B. Wells. Orville Upson objected to said deed, on the ground that the Circuit Court of Lincoln County had no jurisdiction or authority to render the judgment upon which execution was issued and said real estate was sold. This objection was overruled and an exception saved.

Orville Upson then introduced in evidence a certified copy of a petition entitled, “Farmers and Mechanics Savings Bank, Plaintiff, v. Emeline M. Wells and James B. Wells, Defendants.” The suit was based on a note for $2500. There was a credit on said note, dated January 14, 1907, fo,r $1450, and a further credit of $600 thereon, dated February 21,1907. The summons offered in evidence, was in usual form, and directed the sheriff to summon Emeline M. Wells and James B. Wells. The sheriff’s return was offered in evidence, and reads as follows:

I hereby certify that I executed the within Writ in Lincoln County Missouri on the 26th day of September, 1907, by leaving a Copy of the Writ and petition and Copy of the Writ with a person family of said Emeline M. Wells and James B. Wells at their usual place of abode over the age of fifteen years.
'J. W. Gentry,
Sheriff of Lincoln County, Mo.

A default judgment was rendered on May 16, 1907, based on the sheriff’s return aforesaid, and in which the bank is named as plaintiff and Emeline M. Wells and James B, Wells are named as defendants.

Orville Upson also introduced in evidence a deed from James B. Wells and Emeline M. Wells, to James M. McLellan for the land aforesaid, dated July 11, 1908. The same defendant also offered in evidence the last will of James M. McLellan in which the above land was devised to his daughter, Emeline M. Wells. He further introduced in evidence the deed of Emeline M. Wells and James B. Wells, her husband, to himself, dated May 7, 1914.

The trial court found the issues against Orville Upson, and in favor of Charles Martin, trustee, and so entered as a part of its decree. Orville Upson filed his motion for a new trial, which was overruled and the cause duly appealed by him to this court.

Charles Martin, trustee, died after the case was appealed to this court, and the action was duly revived in the names of his heirs, administrators and widow, to-wit, R. S. Martin, Charles S. Martin, Wm. C. Martin and Lucy C. Martin, heirs, Willie C. Martin, widow, and Willie C. Martin and Charles S. Martin, as administrators of the Charles Martin estate, who are now respondents and trustees for said bank.

The case before us hinges on the sheriff’s return in the case of Farmers & Mechanics Savings Bank, plaintiff, v. Emeline M. Wells and James B. Wells, defendants, tried in the Circuit Court of Lincoln County, Missouri, on the 16th day of October, 1907, and in which a judgment by default was rendered in favor of the hank. If the return of the sheriff, supra, is held to be valid, it leads to an affirmance of the judgment. If, on the other hand, the return .is held to he void, it will require the cause to be reversed and remanded.

I. As this is a collateral attack, can it he legally held that the return aforesaid is void?

Section 1760, Revised Statutes 1909, which was in force at the time of the rendition of said judgment, and the sheriff’s return aforesaid, as a matter of convenience, are placed in parallel columns:

Section 1760.
“A Summons shall he executed, except as otherwise provided by law, either: First, by reading the writ to defendant and delivering to him a copy of the petition; or, second, by delivering to him a copy of the petition and writ; or, third, by leaving a copy of the petition and writ at his usual place of abode, with some person of his family over the age of fifteen years; ...”
Sheriff’s return.
“I hereby certify that I executed the within Writ in Lincoln County, Missouri on 26th day of September, 1907 by leaving a Copy of the Writ and petition and Copy of the Writ with a person family of said Emeline M. Wells and James B. Wells at their usual place of abode over the age of fifteen years.
“J. W. Gentry,
“Sheriff of Lincoln County, Mo.”

a. It is manifest, that giving a plain and commonsense construction to the language of the return, the words “of the,” should be construed as> understood between “person,” and “family,” [Section 8057, R. S. 1.909; Reid, Murdock & Co. v. Mercurio, 91 Mo. App. l. c. 679; Wolfe v. Dyer, 95 Mo. l. c. 551; Nichols v. Boswell, 103 Mo. 160; Thomson v. Thomson, 115 Mo. l. c. 67-8; Presnell v. Headley, 141 Mo. l. c. 191-2; Johnson v. Bowlware, 149 Mo. 451; Briant v. Garrison, 150 Mo. l. c. 667-8-9; Whitaker v. Whitaker, 175 Mo. l. c. 10-11-12; McMahan v. Hubbard, 217 Mo. l. c. 637-8.]

In discussing the legal effect of a constable’s return, Goode, J., in Reid, Murdock & Co. v. Mercurio, 91 Mo. App. l. c. 679, said: “Appellant’s contention of insufficient service because the word it was left out of the return after the words by reading, will be disregarded as frivolous, the omission being obviously a clerical mistake.”

In Thomson v. Thomson, 115 Mo. l. c. 67, Sherwood, J., speaking for Court in Banc, very clearly stated the principal of law which should apply in cases of this character, as follows: “In relation to supplying words where it is obvious that from the words used and the general tenor and contest of the instrument certain words of their substance have been omitted, such words may be supplied by construction.”

b. Treating the words “of the,” as having been supplied between “person” and “family,” the return in question would read as follows:

I hereby certify that I executed the within writ in Lincoln County, Missouri, on 26th day of September, 1907, by leaving a copy of the writ and petition and copy of the writ with a person of the family of said Emeline M. Wells and James B. Wells at their usual place of abode, over the age of fifteen years.

It is vigorously contended by counsel for appellant that the return, with the words “of the,” inserted as above, is still void, and that the Circuit Court of Lincoln County, Missouri, was without jurisdiction to render the judgment of 1907, in favor of the bank against Wells et al. It is insisted, that the return is void, because it “does not show that a copy of the writ and petition was left at the usual place of abode of the first party summoned with a person of the family of such party, and does not show that a copy of the writ was' left at the usual place of abode of the party subsequently summoned with a person of the family of such party.” . . .

A large number of cases are cited under Proposition 1 of Appellant’s Points and Authorities, in support of above contention. Upon a close analysis of the cases cited, we do not find any of them directly in point, nor do they deal with the facts of this case. We will consider the Missouri cases, quoted from in appellant’s brief:

In Blanton v. Jamison, 3 Mo. l. c. 53, the return read: “I served the within summons on Benjamin Blanton, the defendant, by going to his house and leaving a true and attested copy of the summons and declaration with Lovel Harrison, a white person of said Blanton’s family, above fifteen years of age, on the 23d day of September, 1829, in Hurricane Township, Lincoln County.”

The above return failed to show, that the process was left at defendant’s dwelling house or place of abode, as required by the statute then in existence. In disposing of the subject, Wash, J., said: “Every word of the return may be true, and yet the service may have been made in a manner very different from that prescribed in tbe statute.”

In Stewart v. Stringer, 41 Mo. l. c. 404-5, Wagner, J., in discussing the return under consideration, said: ‘ ‘ The service and return were both plainly irregular and defective. The writ purports to have been delivered, according to the return, to one person, a white member of the family of both defendants at one and the same time. -Now a person cannot be a member of two families at the same time, and it appears that but one writ was left for the two defendants, when the statute, contemplates that a separate writ should be left for each of the defendants last served.” The return shows that one writ was left with William Stringer for two persons of different names. If the two defendants had been husband and wife, and a copy of the writ and petition, and a copy of the writ, had been left with William Stringer, there is nothing in the opinion of the court to indicate that the service would have been held invalid.

In Madison County Bank v. Suman, 79 Mo. l. c. 530, cited by appellant, Philips, J., said: “The return in this case recites: ‘with a member of the family of the within named Elizabeth Suman, administratrix, over fifteen years of age, at her last usual place of abode in the county of Barton,’ etc. This service is not in conformity with the statute. Her last usual place of abode might not be her present place of abode.”

In Laney v. Garbee, 105 Mo. l. c. 359, there was only one defendant. The return did not show that the petition and writ were left “at the usual place of abode” of defendant. Of course it was held the return did not comply with the requirements of the statute.

In Gamasche v. Smythe, 60 Mo. App. l. c. 165-6. a foreign corporation was sued and Smythe was sought, to be charged as garnishee. The service on defendant corporation was challenged, as being insufficient. Rombauér, J., on pages 165-6, in passing upon the return, said: “It fails to show that the defendant had no office in this State, and does not state, either in direct terms or by unavoidable inference, that the summons was served upon an officer or agent of the defendant in charge of any of its offices.”

In Colter v. Luke, 129 Mo. App. 702, cited by appellant, Johnson, J., held that a return of service on a member of the family, instead of on a person of the family, was good.

Upon a careful consideration of all the cases cited by appellant, we do not find a single one, which, in our opinion, sustains appellant’s contention, that the return before us is void, or that .it does not substantially comply with Section 1760, Revised Statutes 1909, heretofore quoted.

c. We have also carefully examined and fully considered the cases cited in the brief of respondents, and aside from the general principles, discussed do not find that any of them in terms fit this case, although the general principles reviewed tend to support the validity of the return before us.

II. While this is a collateral attack on. the judgment of 1907, yet the defendant had the legal right to offer in evidence, as he did, the original return of the sheriff, in that case, for the purpose of determining whether the court acquired jurisdiction over the persons of Emeline M. Wells and James B. Wells, under the service aforesaid, attempted to be made on them.

In Thompson v. Pinnell, 199 S. W. l. c. 1013, Division One, in discussing the question under consideration, said: “It is equally as well settled in this State that in a collateral proceeding the record, judgment, and files of a case in the circuit court may be examined for the purpose of ascertaining whether the court had jurisdiction of the person of defendant in said cause, and notwithstanding the judgment may assert, in general terms, that the defendant has been duly served with process, yet if it should appear from the return, or some other portion of the record of equal dignity, that the service actually had is invalid and no appearance entered, the judgment of said court may be declared void for want of jurisdiction over the person of defendant. [Cloud v. Inhabitants of Pierce City, 86 Mo. 357; Crow v. Meyersieck, 88 Mo. 411; Milner v. Shipley, 94 Mo. 109, 7 S. W. 175; Adams v. Cowles, 95 Mo. 501, 8 S. W. 711, 6 Am. St. Rep. 74; Laney v. Garbee, 105 Mo. 355, 16 S. W. 831, 24 Am. St. Rep. 391; Hutchinson v. Shelley, 133 Mo. 412, 413, 34 S. W. 838; Norton v. Reed, 253 Mo. 251, 252, 161 S. W. 842, and cases cited: Arn v. Am, 264 Mo. 42, 173 S. W. 1062; Williams v. Grudier, 264 Mo. 216, 174 S. W. 387; Levee Dist. v. Securities Co., 268 Mo. 663, 187 S. W. 855.]”

The authorities cited in the above case fully sustain the principles announced by the court. Hence, the default judgment rendered in favor of the bank against Mr. and Mrs. Wells, in 1907, hinges upon the validity of the sheriff’s return aforesaid.

III. As it appears from the record that Emeline M. Wells and James B. Wells were husband and wife, it was proper for the sheriff to leave the writ and petition, and a copy of the'writ, with a person of the family of Emeline M. Wells and James B. Wells, at their usual place of abode, over the age of fifteen years. This he did, as shown by the return before us. The sheriff performed his duty to the extent of his ability. The wife and her husband were to be served with process. He left with the person designated by statute, on whom service could be made, a copy of the writ and petition, for one of the defendants, and a copy of the writ for the other defendant. When this service had been performed, and the sheriff made his return in accordance with the facts, the court acquired jurisdiction over the persons of Emeline M. Wells and James B. Wells, whether they actually received the process or not. It would, in our opinion, be giving Section 1760, Revised Statutes 1909, an impractical and unreasonable construction, to require the sheriff, under the circumstances of this case, to state in his return any additional facts for the purpose of validating same. The person designated by the statute to whom the sheriff was to deliver the process, represented, in contemplation of law, Emeline M. Wells and James B. Wells.

IY. It is evident from the return before us, that a copy of the writ and petition, for one defendant and a copy of the writ for the other defendant, were left with the person designated by the statute on whom service should be made. Even if the statute should be construed to require the person to deliver to the first party served a copy of the writ and petition, and to deliver to the other defendant a copy' of the writ, still, in the absence of evidence to the contrary, it will be presumed, in this collateral proceeding, that both the sheriff and person did their duty. [Elrod v. Carroll, 202 S. W. l. c. 5-6; Hartwell v. Parks, 240 Mo. 543, and cases cited; Chlanda v. Transit Co., 213 Mo. l. c. 200-1; Yarnell v. Railway Co., 113 Mo. l. c. 579; Mathias v. O’Neill, 94 Mo. l. c. 528; Lenox v. Harrison, 88 Mo. 491.]

V. We have carefully considered the questions involved in this action, as well as the authorities cited upon each side. We are of the opinion, that the judgment of- the trial court was for the right • t i « party. It is accordingly affirmed.

ttt7 • / White and Mosl&y, GO., concur.

PER CURIAM:

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

All of the judges concur.


author: WILLIAMS, P. J.

text:
    CELIA CLARK, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY.
    Division Two,
    July 5, 1919.
    1. JOINT TORTFEASORS: Release of One: Effect at Common Law. An instrument releasing one of several joint tortfeasors from liability for a tort, executed prior to the Act of March 23, 1915, Laws 1915, p. 269, is to be construed in the light of the common law as it existed in this Stat° prior to the passage of said act, and under the common law a release of one joint tortfeasor operated to release all of them

      2. -: -: -: Covenant Not To Sue. Where tke plaintiff by written instrument does “hereby release and forever discharge” one joint tortfeasor “only from all suits, actions or causes of action which I have or might have against” said tortfeasor, a subsequent clause by which plaintiff “expressly refuses and declines to release” the other tortfeasor “from any claim for damages which X may have or might have against it” and whereby plaintiff “expressly reserves the right to enforce any and all claims that I may or might have against” said other tortfeasor did not destroy the release thus clearly made, but the instrument operated to release all the joint tortfeasors.
    3. -: -: -: -: Buie. While the courts construe an instrument settling a claim for damages with one tortfeasor as a covenant not to sue wherever its language will permit, it cannot be so construed when it is clear from its unambiguous language that it was not intended as a covenant not to sue.
    Appeal from St. Louis City Circuit Court. — Hon. William A. Kinsey, Judge.
    Aeeirmedi.

      Lashly & Barnett and George E. Egger for appellant.
    (1) Tlie stipulation whereby plaintiff released her claim so far as the telephone company was concerned did not constitute such a technical release as would discharge the defendant, a joint tortfeasor, and should have been construed as a covenant not to sue. Ridenour v. International Harvester Co., 205 S. W. 883; McDonald v. Goddard Grocery Co., 184 Mo. App. 432; Ar-nett v. Railroad Co.,- 64 Mo. App. 368; Lumber Co. v. Dallas, 165 Mo. App. 49; Dennison' v. Aldridge, 114 Mo. App. 700; Laughlin v. Powder Co., 153 Mo. App. 508. (2) The stipulation should have been construed to be a covenant not to sue, and not a technical release such as would discharge a joint tortfeasor. The stipulation contained an express reservation of the right to sue the other joint tortfeasor, the defendant herein. In .the case of such reservation, notwithstanding the fact that the instrument uses the word “release” the instrument is not a release, but is a convenant not to sue the person released. Gilbert v. Finch, 173 N. Y. 455; Feighley v. Milling- Co., 100 Kan.. 430; Eden v. Fletcher, 79 Kan. 139; Nickerson v. Surplee, 174 N. Y. 139; Berry v. Pullman Co., 249 Fed. 816; Kropidlowski v. Pfister & Yogel Leather Co., 149 Wis. 421; Atchison, T. & S. Ry. Co. v. Classin, 134 S. W. 358; J. Rosenbaum Grain Co. v. Mitchell, 142 S. W. 121; El Paso • & S. W. Ry. Co. v. Darr, 93 S. W. 169; Bloss v. Plymale, 3 W. Va. 393; Matthews v. Chicopee Mfg. Co., 3 Rob. (N. Y.) 711; Carey v. Bilby, 129 Fed. 203; 34 Cyc. 1985-1087. (3) It is quite apparent that it was' the intention of the parties that the said stipulation should constitute a covenant not to sue and not a release. The instrument was entitled “covenant not to sue.” In the body • of the instrument is found language to the effect that the plaintiff elected to take under a certain benefit insurance plan in lieu of prosecuting her action for damages against the telephone company and further the instrument contains an express reservation of the right to sue this defendant. This certainly is sufficient- to establish the intention of the parties not to sue and the instrument as not a release.

      Jourdan, Rassieur & Pierce for respondent.
    The writing, though- called a “covenant not to sue,” was a release of a joint tortfeasor, and therefore the release of this defendant. Dulaney v. Buffum, 173 Mo. 1; Hubbard v. Railroad, 173 Mo. 249; Chicago Herald Co. v. Bryan, 195 Mo. 587; McBride v. Scott, 132 Mich. 176.
   WILLIAMS, P. J.

Plaintiff sues for damages in the sum of $10,000 for the death of her husband, Theodore C. Clark, which was alleged to have been caused by the negligence of the plaintiff on the 7th day of November, 1914.

At the close of plaintiff’s evidence at the trial in the Circuit Court of the City of St. Louis, plaintiff took an involuntary nonsuit, with leave to move to set same aside. The court overruled the motion to set aside the nonsuit and plaintiff duly perfected an appeal to this court. The. facts are sufficiently summarized in the following quotations which we take from the respective statements.

From appellant’s statement we quote as follows:

“Deceased was in the employ of the Southwestern Telegraph and Telephone Company (hereinafter called the Telephone Company) as ‘trouble man/ his duties consisting of locating and. remedying wire trouble on the lines of his employer. On this date the defendant, Union Electric Light & Power Company (hereinafter called the Light Company), the Telephone Company and the City of St. Louis were maintaining their respective wires upon poles belonging to the Telephone Company, there being a joint user of said poles on what was known as the Manchester Line, of the Telephone Company^ The Light Company maintained wires upon two cross-arms above the cross-arms and wires of the Light Company. There was a lead cable running from the ground to a cable box in the midst of the wires, which cable ran alongside of and perpendicular with the pole.

“On the date mentioned deceased was ordered by the trouble tester of the Telephone Company to go out on the Manchester Line and locate and correct what appeared to be a ‘ground’ on one of the wires of the Telephone Company. A test at the station with instruments used for that purpose showed that the wire was not crossed with the wires of the Light Company or with any other, but that the line was simply grounded. Deceased went out on the line and was upon the pole located at Taylor and Manchester Avenues of the Manchester Line of the Telephone Company when he was seen to fall from amongst the wires to the ground, a distance of from 30 to 36 feet. He was dead when eyewitnesses reached him. He had an electric bu,rn in the palm of his left hand and his neck was broken. He was wearing canvas gloves at the time. It was necessary for deceased to climb through the wires of the Light Company to get to the wires of the Telephone Company, the space beween the Light Company’s wires being from 32 to 34 inches. The Light Company was maintaining at the time certain wires on both of their cross-arms, which were carrying a heavy current, ranging from 2200 to 4400 volts, sufficiently heavy to be dangerous to human life, and other wires of the Light Company on that pole were neutral, carrying no current at all. The wires of the city and of the Telephone Company were all low-voltage and not carrying a heavy or dangerous current. The insulation on the high-tension wires of the defendant was off the wires near the pole and there were marks on the bare space of one of them, showing' that a foreign body had come in contact with it at that point and that the current of electricity had been diverted from the wire into the foreign body. This mark Avas not upon the wire a short time before, but was there'a short time after Clark was killed.”

One of plaintiff’s witnesses testified as follows: That the Telephone Company had a rule whereby the men were supposed to wear rubber gloves where they were handling wires which are in contact with or in close proximity with high-tension wires, but that it was not the custom of the Telephone employees to observe that rule universally, but that if they were working on high-tension wires they Avould observe the rule. In working with the telephone wires they would not generally use rubber gloves; that when a wire gets crossed with an electric light wire it has the same voltage as the electric light wire, and then the precaution is taken to protect the person from shock.

The following quotations are taken from respondent’s statement:

“At that time the Telephone Company had provide-ed, among other benefits, a death benefit plan for compensation to the widow or dependents of employees killed while in the service of the company. The original fund for the creation of this plan was furnished by the Telephone Company and it obligated itself to make up any deficiency in the fund at the end of the year, providing that such deficiency did not exceed more than a certain percentage of the total wages paid to its em-employees during the previous year. The employees contributed no money, and made no payments to this fund, nor did they pay any premiums or assessments. One of the provisions of the plan was, that in case of accident resulting in the death of an employee, which entitled his beneficiary or beneficiaries to benefits under the regulations, he or they might elect to accept such benefits, or to prosecute such claims at law as he or they might have against the company, but that if an election was made to accept the benefits, such election was required to be in writing; and it was further provided that the company be released from all claims and demands which the beneficiaries might have against the Telephone Company, otherwise than under the regulations, on account of such accident. Under the plan, these benefits were to be paid irrespective of the question of liability, but a.n election had to be made.

“Á demand was made on the employer for damages, and it appears that the Telephone Company denied liability, and thereafter Mrs. Clark, the plaintiff, received from the Telephone Company the sum of $2760, and executed an instrument in writing,, which is as follows:

“ ‘Covenant Not to Sue.

“ ‘Whereas, On or about the 7th day of November, 1914, Theodore C. Clark, a married man of the City of Webster, St. Louis County, Missouri, was in the employ of the Southwestern Telegraph & Telephone Company, as a repairman, and was working at or near the intersection of Taylor and Manchester Avenues, in the City of St. Louis, on a pole owned by the said company on said date; and,

“ ‘Whereas. On said 7th day of November, 1914, while the said Theodore C. Clark was working on said pole at said location, he came in contact with a live wire owned by tbe Union Electric Light & Power Company and sustained injuries which caused his death on the same date; and,

“ ‘Whereas, I claim that my husband, the said Theodore C. Clark, received the injuries aforesaid, and from which he died as aforesaid, under circumstances which I claim renders both the Southwestern Telegraph & Telephone Company and the Union Electric Light & Power Company liable in damages, although such liability is expressly denied by said Telephone Company in so far as it is concerned, and I, being desirous to compromise and settle the matter in so far as it relates to the said Southwestern Telegraph & Telephone Company, do hereby and have elected to accept the provisions of the plan for Employees’ Pension, Disability and Death Benefits of the Southwestern Telegraph & Telephone Company in lieu of any and all actions for damages against the said Southwestern Telegraph & Telephone Company, by reason and on account of the death of the said Theodore C. Clark, my husband.

“ ‘Now, Therefore, In consideration of the sum of $2679, to me paid by the Southwestern Telegraph & Telephone Company, the recéipt whereof is hereby acknowledged, I do. hereby compromise said claim, and do hereby release and forever discharge the said Southwestern Telegraph & Telephone Company only from any and all liabilities for all claims for and on account of. the death of my husband, the said Theodore C. Clark, and do also release and discharge the said Southwestern Telegraph & Telephone Company only from all suits, actions or causes of action, which I have or might have against the said Southwestern Telegraph & Telephone Company, for and on account of the death of my said husband, as aforesaid.

“ ‘ I hereby expressly refuse and decline to release the said Union Electric Light &• Power Company from any claims for damages which I may have or might have against it, and do not intend to hereby waive any claims for damages against the said Union Electric Light & Power Company for and on account of the death of my said husband, caused as aforesaid. I expressly reserve the right to enforce any and all claims that I may or might have against said Union Electric Light & Power Company.

“ ‘In Witness Whereof, I have hereunto set my hand in the City of St. Louis, State of Missouri, this 2nd day of November, 1914.
“ ‘Celia Weisling Clark,
“ ‘Witnesses:
“ ‘George C. Egger.
“ ‘E. H. Painter.’
“Mr. George C. Egger, who appears as one of the witnesses to this instrument, was the attorney for Mrs. Clark at the time, and according to her testimony Mr. Egger had made claim against the Telephone Company and against the Union Electric Light & Power Company for damages, as such attorney, and that was prior to tbe settlement that was made with the Telephone Company.”

It is contended that the court erred in holding that the instrument of November 7, 1914, executed by appellant to the Southwestern Telegraph & Telepbone Company, was a release and was not merely a convenant not to sue said Telephone Company.

The above mentioned instrument was executed prior to the Act of March 23, 1915, Laws 1915, p. 269, which changed the common law rule concerning the legal effect of the release of one joint tortfeasor.

The instrument is therefore to be construed in the light of the common law as it existed in this State prior to the passage of the above statute. Under the common law the release of one joint tortfeasor operated to release all joint tortfeasors. [Dulaney v. Buffum, 173 Mo. l. c. 14; Hubbard v. Railroad, 173 Mo. l. c. 255; Chicago Herald Co. v. Bryan, 195 Mo. l. c. 587.]

If the last paragraph thereof were omitted from the instrument involved in this case, no difficulty would he encountered in determining the case, because the remaining portion of said instrument is a clear and unequivocal settlement in full with, and a release of, one joint tortfeasor from “any and all liabilities” by reason of the injuries suffered, and under all the authorities would operate to release the respondent, the other joint tortfeasor.

But appellant contends that by reason of the last paragraph thereof, whereby appellant attempts to reserve the right to proceed against respondent, the instrument should be construed merely as a. covenant not to sue the Telephone Company and that therefore the instrument should not operate to release respondent.

There appears to be much conflict of authority upon the question and the modern tendency of the courts appears to be along the line of construing an instrument upon this subject to be a convenant not to sue wherever the language of the instrument will permit. A full list of the authorities cited by respective counsel will be found in the Reporter’s notes to this opinion, and- it is unnecessary to copy the citations herein. By a reading of the decisions on the subject it will be found difficult to formulate any definite and fixed rule of construction. Each case no doubt is more or less influnced by the language of the instrument held in review. A vast dissimilarity exists in the wording of the respective instruments.

We have carefully read and reread the instrument now under review and are unable to hold that it was ever intended to be merely a convenant not to sue without doing violence to the clear and unambiguous language found in said instrument.

It may have been the intention of the appellant to avoid the legal effect of a release of one joint tortfeasor, but the proper way to have avoided such a result would have been to have refrained from releasing one joint tortfeasor. The release of one joint tortfeasor stands out clear in the instrument, and we know of no rule of construction that will justify us in destroying the release thus clearly made. It should not' be forgotton that this is not a suit to reform the instrument. The instrument is in this case, to be construed as written.

This court passed upon the legal principle here involved in the case of Dulaney v. Buffum, supra, 1. c. 15, wherein the court said: “When the plaintiffs acknowledge full satisfaction of all the injuries complained of in the petition, any effort to reserve a cause of action against those jointly liable, will not prevent the operation of the bar as to those not included in the release. ’ The above case has not been overruled and we think it announces the rule applicable at the time this instrument was executed, which was, as above mentioned, before the Act of 1915.

For the reasons given in the case of Dulaney v. Buffum, supra, we hold that the judgment of the circuit court was proper and should be affirmed.

It is so ordered.

All concur.