author: GRAVES, J.

text:
    THE STATE ex rel. T. J. DOUGLAS, Collector of the Revenue, for Benefit of DRAINAGE DISTRICT NUMBER FOUR OF DUNKLIN COUNTY, Appellant, v. C. C. REDMAN.
    Division One,
    March 30, 1917.
    1. DRAINAGE DISTRICT: Additional Assessments to Meet- Bonds: Power of County Court. A drainage district organized under the County Court Act of 1905 and previous acts has no power, even though the benefits reported were in excess of the assessments and the aggregate assessments were less than the bond issue, to subsequently increase the assessments so as to raise enough money to pay the bonds and interest in full as the} accrue, but .under the then statute exhausted its powers when it made its first assessment.
    2. -: -: -: Subsequent Statute Giving Power: Effect on Meaning of Prior Statute: Legislative Construction. Even if it be true that the Act of 1913, Laws 1913, pp, 274, 281, made specific provisions for an additional levy of assessments to pay debts of. a drainage district and such act be considered a legislative construction to the effect that no such power previously existed, that would be only persuasive, and the power to levy additional assessments must still be found in the previous law under which the district was organized, for the Act of 1913 is not retroactive.
    3. -:-: Final Judgment: Reopening. The Act of 1905, Laws 1905, pp. 185, 187, contemplated that the charges against all the tracts of land in the drainage district organized in the county court would be large enough to pay the costs of the improvement, including the bonds; but it also contemplated but one action by the court, and that in said action, after the report of the viewers and engineers and its modification upon exceptions filed by land owners, the court’s order sustaining Lhe report as modified would become a final judgment, unless appealed from and reversed; and being final, whether the amount was too small or 'too large, it was still a finality as to the land owner, and could not be corrected or the assessments increased years afterwards when it was discovered that the assessments were not equal to the bonds issued and will- not yield, enough money to pay the bonds. The, law contemplated but the one action by the county court.
    Appeal from Dunklin Circuit Court. — Hon. W■ 8. C. Walker, Judge. •
    Affirmed.

      Fort & Zimmerman, Ely, Pankey & Ely and Oliver & Oliver for appellant.
    (1) The defendant was not entitled to a separate or special notice of the filing of the petition for the increase of the assessments on his lands as made in the county court order of April 29, 1912. Defendant having been made a party in the beginning, he was in court at all times and for all purposes, so far as this district was concerned. State ex rel. v. Wilson, 216 Mo. 282; State ex rel. v. Bates, 235 Mo. 287; State ex rel. v. Young, 255 Mo. 635; Barnes v. Construction Co., 257 Mo. 195; Page and Jones, Taxation by Assessment, sec. 738, note 9; People v. Chapman, 127 111. 392; Stone v. Drainage Dist., 118 Wis. 399. (2) The county court had ample authority to ihcrease the assessments on the lands within the district. Especially so when the total assessments did not equal the benefit. Sheridan v. Fleming, 93 Mo-. 321; State ex rel. v. Holt County, 135 Mo. 545; State ex rel. v. Bates, 235 Mo. 293; Page and Jones, Taxation by Assessment, secs. 954-955; State ex rel. v.' Holt County, 136 Mo. 474; Morrell v. Drainage Dist., 118 111. 139; Lursk v. Chicago, 211 111. 190. (3) Interest on the assessment is no part of the assessment and should not be considered in determining whether the assessment exceeds the benefit. It is conceded that the assessments, exclusive of interest, do not exceed the benefits in- the case at bar. Sec. 8316, R. S. 1899; Sec. 5622, R. S. 1909; Laws 1905, p. 187; Sec. 5596, R. S. 1909. It is elementary that interest on an obligation is never included in determining whether the obligation is of a sufficient amount to com fer jurisdiction, on any tribunal where that tribunal’s jurisdiction depends upon the amount involved. (4) The drainage statutes of this State must be liberally com strued and the full intent of the Legislature read into them.- State ex rel. v. Bugg, 224 Mo. 554; State ex rel. v. Bates, 235 Mo. 288.

      Bradley & McKay for respondents.
    (1) If the facts as disclosed in the cases cited by appellant in support of-his contention under the first assignment of error were similar to the facts. disclosed by the case at bar, then respondent admits that no additional notice would be necessary before making the order placing additional taxes upon respondent’s lands, but in each of those cases cited the facts are very different from the - facts in the case -at bar. (2) The county court was without jurisdiction to make its order of April -29, 1912, readjusting and raising the amount of taxes against defendant’s lands for said year and all subsequent years thereafter up to and including the year 1924. (a) County courts are creatures of the statutes and have no jurisdiction except such as are delegated to it by the statute. Jefferson County v. Cowan, 54 Mo. 234; Eaton v. St. Charles County, 8 Mo. App. 177; ■ Miller v. Woodward, 8 Mo. App. 167; Shell v. Leían, 45 Mo. 289; Smith v. Haverath, 53 Mo. 88.- (b) -The county court being a creature of the statute with, only such ■ jurisdic7 tion as ’the statute confers on it and there being no statute to warrant it to readjust and reassess the taxes, raising' the amount from $59 to $115.56 for the - year 1912 and succeeding years to and including 1924, its acts are void, even in a collateral attack, where the whole record, as in this case, shows -the court to be without jurisdiction to act., (c) Article-4, chap. 122, R. S. 1899, is a separate scheme within itself for the draim age and reclamation of wet and overflowed lands and is not dependent upon any other portion of the statute. (3)Respondent is an innocent purchaser without notice, so far as it relates to any raise in his taxes over and above the amount as assessed by the viewers and engineer in Drainage District No. 4 and confirmed by the county .court by its approval and confirmation of the final report,' and any attempted raise of said amount of taxes assessed against his land and confirmed as aforesaid, is void. Meir v. Blume, 80 Mo. 179; Plow Co. v. Sullivan, 158 Mo. 440;. Drey v. Doyles, 99 Mo. 459.
   GRAVES, J.

— This case reaches us through a certification from the Springfield Court of Appeals, the grounds for such certification being that the record involves constitutional questions as well as a construction of revenue statutes. It is sufficient to say that constitutional questions were duly lodged in the answer. Judge Sturgis for the Springfield Court of Appeals thus states the case:

“This is a suit for delinquent drainage ditch taxes assessed against land owned by defendant. The suit is brought in the name of the State at the relation of the Collector of the Revenue of Dunklin County, Missouri, for the use and benefit of Drainage District Number Four of that county. The record discloses that such drainage district is one formed under the supervision of the county court as provided by article 4, chapter 122, Revised Statutes 1899, which as amended in 1905, is now article 4, chapter 41 (Secs. 5578-5635), Revised Statutes 1909. The controversy is as to the amount of special taxes properly ’ assessed against this land, the defendant conceding and offering to pay $59, while plaintiff demands $115.56. The amount defendant concedes and is offering to pay is the original (annual) assessment made or confirmed by the county court under section 8288, Revised Statutes 1899 (sec. 5588, R. S. 1909), and apportioned into installments under section 8300, Revised Statutes 1899 (Sec. 5601, R. S. 1909). It appears that the county court some five or six years after the drainage district was formed and the confirmation of the original assessments made by the viewers and engineers appointed for that purpose undertook, hy its order of April 29, 1912, to ‘rearrange’ and increase the amounts of the. annual installments yet to fall due for the years 1912 to 1924 inclusive. The occasion for making this order, as we gather from the record, is that because of some error the county court issued and sold bonds to the amount pf nearly $56,000, hut levied assessments against the lands within the district fer an amount of only about $36,000. The increased assessments are to cover this deficiency of some $20,000, and provide a fund, otherwise insufficient to pay the bonds at maturity. It is agreed that if the county court has power and authority to make this order of April 29, 1912, increasing the annual assessments, then the amount demanded is due; otherwise, only the amount tendered is due. The defendant contends that the county court exhausted its power to make assessments' in its order confirming the report of the yiewers and engineers in connection with the formation of the district and could not at a later date make another order increasing the amounts then assessed.
“The defendant’s answer contains these allegations: ‘And defendant further answering says that plaintiff is attempting to collect from him a second assessment which-was made without notice to defendant, and defendant says that the county court of Dunklin County had no authority to make such second assessment, as was done in this instance, inasmuch as such second assessment was made without any notice and made after the completion of the work to he done in said drainage district and was made without due process of law, and it constituted the taking of private property for public use without compensation in violation of the Federal and State Constitution, to-wit: Section 1 of the Fourteenth Amendment of ‘ the Constitution of the United States, and section 30 of article 2 of the Constitution of Missouri. Wherefore, defendant says that said second assessment or arrangement wherein his taxes were increased from $59 to $115.56, is null and void, and of no effect and he asks judgment cancelling said order of the said co'unty court for the reason that the same is null and void and without authority and in violation of both the Federal and State Constitution and that plaintiff may be compelled’ to accept the said sum of $59, the original amount due under the original assessment made by the viewers and engineer in said drainage district and gonfirmed by the final order of the county court in approving the final report of the said viewers and engineer in said drainage district.’ In this connection the record shows that no notice was. given to the landowners as to the action of the county court in making this order of April 29, 1912, increasing the assessments. The plaintiff’s contention is that the landowners were already in court for this purpose because of receiving notice of the original proceedings.”

Such other matters as may be material can be noted in the course of the opinion. The foregoing outlines the ca$e.

. I. The question involved is single and plain. Whether easy of solution remains to be seen. The validity of the order of the county court of Dunklin County of date April 29, 1912, is the turning point in the case. The surrounding facts are: The county court in fact approved of an amount of benefits as- against the land involved herein, which, exclusive of interest, is more than sufficient to pay all previous amounts, and all assessments to be made under' this order of April 29, 1912. However, at the time of the organization of the district, .and whilst approving the report of the viewers, and approving the assessments of benefits aforesaid against the’land in question, the county court approved and provided for annual assessments, which was discovered would not meet the bond issue which the court had directed to be issued. This bond issue was 'for $55’977.77. They were sold for $56,077.77, and that sum placed to the credit of the district. When- the work had been done it was found that there was a surplus of $8,000 and this was used in the discharge of the obligations and accrued interest. Although the court directed the issuance of bonds in the sum of over $55,000, as stated supra, it only approved and directed assessments against benefits in something over 36,000, leaving a difference between the bond issue and the provision for its payment of more than $19,000.

This difference was reduced, by the application of the surplus aforesaid, to a little over $15,000. In 1912 when the - discrepancy between the bonded debt and this approved assessment was discovered, the order of April 29,1912, for an increased assessment for the remaining years, was made at the instance of the bond-holders. Under the original assessment the amount due from respondents’ land for 1912, wa's $59, but under the order of April 29th, supra, it was $115.56. The difference was the real amount in dispute, defendant having tendered the former sum, and kept his tender good by deposit.

Defendant was not the owner of the land in question at the organization of the district, but' bought it afterward, and prior to the order of April 29th, supra: It is admitted that no notice was given to landowners prior to making this-order of- April 29th, but that the previous owner of the land involved was properly in court at the organization of the district,- is not questioned. The trial court held that the defendant was not liable for more than the $59, and that the order of April 29th, - supra, was invalid. This view is reached from several angles, and these we take in order. •

II. It is first contended that after the county court had made its. original assessment against the lands of the district its power in the premises was fully exhausted, and no further- exercise of the power to levy assessments could be valid. This on the theory that under the county court act there was no' specific grant of power to make a second or additional assessment, even though the benefits found are in excess of the assessment made. Just how the discrepancy between the authorized bond issue and the first assessment of taxes made, occurred, does not clearly appear from the record. It does appear, however, that the reported benefits were some thousands more than the bond issue, and the directed assessments of taxes some $19-^00 less than the bond issue. If the county court exhausted its power, when it made the first assessment of taxes against the lands of this district, then we have an end to this controversy. •

In 1913, the Legislature (Laws 1913, pp. 271 and 281) made specific provisions for additional levies of assessments, and from this it is argued that we have a legislative construction to the effect that no such power previously existed. . If this contention, be true it is at best only persuasive, rather than binding authority. We must go to the previous law, and from its context determine the powers of the county court. This. drainage district was organized under article 4, chapter 122, Be-vised Statutes 1899, as amended by the Act of 1905. We will have to go to the said Act of 1905 for most of the law of this case, as it was in full effect at the organiza-. tion of the district. This act repealed many sections of article 4, chapter 122, Bevised Statutes 1899, and enacted new sections in lieu thereof. These new sections are the applicable law, and if they, when considered with the old sections, furnish no basis for a subsequent assessment of the lands in the district, defendant is right in his contention. That there is no express authority for such action is clear, and the real question is to determine whether or not the then law precludes a clear inference of such .a power.

By section 8284 (Laws 1905, p. 182) it is provided that after the county court has determined that the improvement should be made, it then shall appoint an engineer and three viewers. These viewers are given specific duties to perform. Among other things to be done by this board, this section says:

‘ ‘ They shall also make and return a schedule of all lots and lands and of public and corporate roads or railroads that will be benefited, damaged or condemned by or for the improvement, and the damage or.benefit to each tract of forty acres or less, and make separate estimates of the cost of location and construction, and apportion the same to each tract in proportion to the benefits or damages that may result to each.”

In the same act, section 8286 reads:

“The viewers shall have the power to condemn the right of way for the ditch or other’ improvement; and when damages are allowed persons, their benefits, if benefited, shall be taken into consideration, and their assessments for benefits shall be reduced by the amount of their damages; and if not benefited they shall be allowed and paid compensation for their damages.”

At first blush one might be impressed with the view that assessments for benefits should be the same as the-taxes levied by the county court, but we are inclined to the idea that this section has reference solely to condemnation of lands and the adjustment of damages therefor. This, because of other sections which follow, as well as those which precede it. Thus in section 8284. these viewers are required to apportion the cost of location and construction in proportion to the benefits found, but not necessarily up to the benefits found. In other words, they might find that a certain tract would be benefited $800, but further find that its due' proportion of the cost of location and construction would be only $400.

Section 8287 of said act provides that upon the incoming of the report of the viewers, which report must give the part of the cost actually apportioned against each tract of land, the court shall set the same down for hearing and give notice of such hearing.

In the instant case twenty-year bonds were to be issued, and the apportioned cost of construction would cover a period of twenty years. This cost to the land involved here was an annual payment of $59 for the .twenty years, which was raised by the subsequent order to more than $115 per year.

Now it must be noted that ‘the landownels, under .the statute, supra, were entitled to a hearing upon the amount of benefits assessed against their lands, as well as the amount of the proportionate, cost of construction to be charged against that land. The law provides for but one time for such a hearing, and that is prior to the approval by the county court of the viewers’ report. Passing now from a consideration of said section 8287, we come in order to 8288 (Laws 1905, p-. 184)' which-reads:

“The court shall first determine whether the required notice has been given. If it finds that due notice has not been given, it shall continue the hearing to a day to be fixed by the court, and cause the notice to be given as provided in section 8287; and when the court finds that due notice has been given, it shall examine the report of the engineer and viewers, and if it appears to the court that the estimates of the cost of location and construction and of damages and benefits to each •tract are correct, and that the apportionment of the cost of location and construction, is, in proportion to the benefits and damages to each tract, in all things fair and just, it shall approve and confirm the same; if, however, the county court shall find that the apportionments reported by the engineer and' viewers are unfair or unjust, and, as- made, ought not’ to be confirmed, It may, 'by an order of record, amend the report upon the evidence so as to mate the apportionments fair and just in proportion to the benefits or damages; if the county court shall find that the location or specification of the ditch or other improvement should be changed it may by an order.of record change such location and dimensions, provided -that, before the county court shall change the location reported by the viewers,- the parties interested shall convey or cause to be conveyed to the .drainage district, a right-of way for the ditch or other improvement upon the route selected by the county court.”

The italics here, as elsewhere in the quotation of these statutes, are ours.

This section again emphasizes the fact that the apportionment of the cost of construction to the several tracts of land is one primarily for the viewers, but thereafter to be confirmed by the court, or modified and then confirmed by .the court. Following the same thought, i. e., that the apportionment of the cost of construction, as made- by the viewers, is a matter for .court determination when the report is up for consideration, after notice given, we find this language used in section 8292 (Laws 1905, p. 185):

“Any person whose lands are affected by the proposed improvements may, on or before the day set for the hearing by the court, file exceptions to the apportionments made by, and to the action of, the viewers upon, any claim for compensation or damages. The county court may hear testimony and examine witnesses upon all questions made by such exceptions, and for that purpose may compel the attendance of persons as witnesses and the production of other evidence, and its decision upon each of the exceptions shall be entered of record.”

Note the language. The landowner must file exceptions to'the apportionments made.. These exceptions must be tried out by the court, and if the report of the viewers is sustained, it is a final judgment as to the landowner, unless he. appeals therefrom and reverses the action -of the county court. The question then arises, if it is afterward found that by this final judgment the amount -is too small, is it not still a finality so far as the landowner is concerned? We think so. Both parties have had their day in court. Judgment has been rendered, and there is no provision in the law for a re-assessment of these cosfs of construction. By the Act of 1913, the Legislature recognized that further authority was necessary- for a re-assessment, and amended the law, but that act cannot be made retroactive, and applied to this case.

. The Act of 1905 contemplated but one action by the county court. ■ It, of course, contemplated that the charges against all the tracts in the district would pay off the bonds issued, but it further contemplated that all this would be done at the hearing provided for by the law, and not by -future orders of the court. It contemplated that the final judgment approving the report would have the apportionments against the lands equal to the cost of construction, but from this it does not follow that after a different final judgment is entered, power is left in the court to correct it four or five years later. Absent a • statute authorizing later action by the court (and there is none) this action of the county court was coram non judice, and void. Whether equity might reach the case, we do not consider in this, a law case. It -may be that the Act of 1913 was the outgrowth of this case, but from any angle it is unavailing here. All through the Act of 1905 runs the idea that the viewers must first act as to the assessment of the costs of construction as against each tract of land. [Vide Sec. 8298, Laws 1905, p. 187.]

The payment of the bonds issued is limited to the proceeds of these assessments of cost of construction. If they pay the bonds, well and good, but if they do not, there is no further recourse under this Act of 1905, under which this district was organized. Of this Act of 1905, sections 8301 and 8301a read:

“Sec. 8301. The said assessments, after the confirmation by the county court as herein provided, together with the interest thereon, as so fixed by the court, shall be entered by the county clerk, in a special book, to be known as the ditch assessment book, which shall be provided by him at the expense of the county, and annually thereafter, until such assessment and the interest thereon shall be fully paid, the county clerk shall enter, opposite each tract of land, upon a ditch tax book in columns to be provided for that purpose, the amount of the installment of such assessments for sneh year, and the interest for snch year on all unpaid installments not past due, as fixed. by the county, court as herein provided; the said installments of said assessments and the interest thereon shall be applied to the payment of the bonds, principal and interest, issued pursuant to this article, and, except as herein provided, to no other purpose, and the payment of such ‘bonds shall be thus secured.
“Section 8301a. The county court may, if prayed for in the petition, issue bonds in denominations of not less than one hundred dollars, and sell the same to meet the expenses of locating and constructing any ditch or improvement under the provisions of this article, which bonds shall mature, at annual intervals, commencing after a period of two years, for not exceeding twenty years, bear interest at not to exceed six per cent per annum and be payable semi-annually at the office of the county treasurer. Such bonds shall be sold by the coupty treasurer, without expense to the county, to the highest and best bidder, after the county court shall have fixed the time and place of such sale, and given notice thereof, by publication, in some weekly newspaper published in the county, but in no case shall any such bond be sold for less than par: Provided, such bonds shall show upon their face the purpose for which they are issued and shall be payable out of moneys derived from such assessments and none other.” Again the italics are ours.

But reverting to section 8301, for another thought, it clearly appears therefrom that the lawmaker only contemplated the one action by the county court. This section only leaves (after the confirmation judgment of the county court has been entered) simple ministerial duties for the county clerk. It contemplates no further action by the court, nor dp we find in ihe statutes governing drainage districts organized by the county court, under this article 4 of chapter 122, Revised Statutes 1899, and the Act of 1905, any power or right to reassess the lands with the costs of improvements, until the Act of' 1913. County courts are of limited jurisdiction, and their powers must be gathered from the law. We find no law for the action of the county court in 1912, and it must fall.

III. We are cited to State ex rel. v. Wilson, 216 Mo. l. c. 282, as authority for the action of the county court in this case. The ruling- there is-not applicable here. We-were then discussing a township drainage district, organized under article 5 of chapter 122, Revised Statutes 1899. The district in question here was organized under article' 4, chapter 122, Revised Statutes 1899, as amended by Acts of-1905. In article- 5, chapter 122, Revised Statutes 1899, we had section 8337 which gave the county court express authority for supplemental assessments and it was upon this express statute, that we sustained the supplemental assessment without notice, because the statute so read.

We are also cited to the case of State ex rel. v. Bates et al., 235 Mo. 262. That case does not discuss the statutes we have here under consideration. That drainage district was organized under article 7 of chapter 122, Revised Statutes 1899. That article also' had section 8369, which (provided for an additional assessment. State ex rel. v. Young, 255 Mo. l. c. 635, is also cited. The drainage district there involved was' one organized under article 5, chapter 122, Revised Statutes 1899, and what we have said of State ex rel. v. Wilson, supra, applies to this case. It is not in point as subsequent assessments are specifically provided for' in said article. Under that law the jurisdiction of the' county court was expressly given. Not so in the ease at' bar. Barnes v. Construction Co., 257 Mo. l. c. 195, is cited, but it does not reach the question here.

We have been cited to no case in Missouri holding that under article 4 of chapter 122, Revised Statutes 1899, as amended by Acts of 1905, the county court has any power to take any step towards a second assessment. The Legislature so recognized this absence of power by granting the same by. the Act of 1913. Because other articles contained express power to the county court to make- such- subsequent assessments, does not help the plaintiff in' this case. The right to make this subsequent assessment must- be sought from the express provisions of the law under which the drainage district was organized. That law conferred no such power upon the county court, and its order of April 29, 1912, was void.

The judgment nisi was correct and is affirmed.

All concur;


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    O. A. KIPPENBROCK v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    March 30, 1917.
    1. NEGLIGENCE: Notice of Dangerous Situation: Crossing Tracks Necessary. Having constructed its yard office a few feet south of the main track and necessarily making up its freight trains north of the main track, and it being necessary for conductors to obtain their orders and waybills from the yard office, the railway company was bound to know these employees must cross the main line in order to reach their trains about to be taken out. This was notice that such employees were likely to,be upon or near the track next to the office.
    2. -: -: —:-: Running Train Without Warning or Headlight in Night Time. And in these circumstances, and there being no particular point used or recognized as a crossing, it was negligence to run an overdue passenger train past the yard office, on the main line, on a dark night, through an unlighted yard, at a speed of thirty or thirty-five miles an hour, without sounding the bell or whistle, and without a headlighht burning, particularly when the register in the office indicated the train had already passed, as was observed by the plaintiff freight conductor, who, having received his orders and waybills, had left the office and was proceeding to his freight train along the main line, when suddenly apprehending his danger he leáped.back, struck the office building and "rebounded” against the train.

      3. -: Headlight. A headlight is a common and necessary means adopted by all railroads for the protection alike of those rightfully on the train, or on the track, or approaching it, in the night time, and to rapidly run a train through railroad yards in the night, time without such headlight is negligence.
    4. -: Lookout for Employees. The rule that a railroad company is under no obligation to keep a lookout for employees who are aware of what is going, oh and are required to guard themselves from injuries naturally to be expected, has no application to an act or .movement which is of unusual character and the unusualness of which reasonably may deprive the employee of an opportunity to protect himself.
    5. -: Contributory: Crossing Track by Shortest Course. The fact that the freight conductor on his way from the yard office across the main line to take his train, did not cross it directly, was at , most evidence of contributory negligence, which is not a bar to an action for damages under the Federal Employers’ Liability Act.
    6. -: Instruction: Should. The use of the word should, used in an instruction in which the jury are told that, if they find certain 'facts, they “should” return a verdict for plaintiff, is not objectionable. It imports duty or obligation; and is therefore appropriate to advise the jury of their duty.
    7. -: -: Contributory Negligence as Diminution of Damages: In Language of Statute. In an action brought under the Federal Employers’ Liability Act, an instruction telling the jury, if they find certain facts, to return a verdict for plaintiff, “even if if you should find him guilty of negligence contributing to the injury, but in that event the damages should be diminished by you •in proportion to the amount of negligence attributable to plaintiff,” using the language of the statute, uses a formula that is exempt from criticism. But whether an instruction explaining the statutory language should have been given, is not decided, because none such was asked, and the question is not in the record.
    Appeal from Randolph Circuit Court. — Hon. A. H. Waller, Judge.
    Affirmed,
    J. L. Minnis, N. S. Brown and D. H. Robertson for appellant.
    , (1) The trial court erred in refusing to give defendant’s instructions in the nature of demurrers to the evidence, at the close of plaintiff’s case and again at the close of all the evidence, because: (a) there was a total- failure to prove the charges of negligence alleged in the petition; (b) there was a failure tó. prove any duty of the defendant to have the headlight on the engine burning, or to warn the plaintiff by sounding the whistle or ringing the bell; and (c) there was a total failure of proof that the speed of the passenger train was excessive. Kelly'v. Benas, 217 Mo. 9; Hufft v. Railroad, 222 Mo. 286; Gabal v. Railroad, 251 Mo. 257; Rashall v. Railroad, 249 Mo. 509; Ca-hill v. Railroad, 205 Mo. 393; Riccio-v. Railroad, 189 Mass. 358; Clancy v. Transit Co., 192 Mo. 615; McGrath v. Transit Co., 197 Mo. 98. (d) It was not negligence per se for defendant to run its passenger train without a headlight or to fail to ring the bell or sound the whistle, because such failures were not shown to be in violation of any duty created by statute or ordinance. 8 Thompson (White Supp.), sec. 10. (2) Plaintiff was guilty of contributory negligence and his negligence was the sole cause of his injuries. (3) The court erred in giving plaintiff’s instructions numbered one and four. Sec. 3, Federal Employers’ Liability Act; Railroad v. Earnest, 229 U. S. 122; Railroad v. Tilghman, 237 U. S. 499; Railroad v. Banks, 156 Ky. 609; Railroad v. Holloway, 163 Ky. 125; Cross v. Railroad, 191 Mo. App. 202.

      M. J. Lilly and O. C. Phillips for respondent.
    (1) The testimony showed negligence on the part of defendant. Tetwiler v. Railroad, 242 Mo. 187; Cotner v. Railroad, 220 Mo. 285; Becks v. Mo. Pac. By. Co., 102 Mo. 551; Morrow v. Railroad, 147 N. C. 623, 16 L. R. A. (N. S.) 642; Gorton v. Harmon, 152 Mich. 473; 8 Thompson (White Supp.), Negligence, see. 1548; Railroad v. Masley, 60 Fla-. 186. (2) There was no error in the instruction in the measure of damages. Railroad v. Ernest, 229 U. S. 114. Appellant cannot complain of the instructions, hawing failed to ask one instructing more fully. Bank v. Ragsdale, 171 Mo, 168; Wheeler v. Bowles, 163 Mo. 398; Ferber v. Railroad, 139 Mo. 285; Wahl v. Transit .Co., 203 Mo. 276; King v. St. Louis, 250 Mo. 501.
   BLAIR, J.

— In the Randolph Circuit Court respondent, a freight conductor in appellant’s service, recovered judgment for damages for injuries he received when struck by one of appellant’s trains in the yards at Moberly. Moberly is a division point? The yard office is a few feet south of the main line; and a double lead on which two or three switch engines were working at the time respondent was injured, is just north of the main line. About midnight respondent was called for duty. He was to take out a freight train composed of cars destined to points outside the State. His train was made up in the yards on a track north and west of the yard office, which office is south of all the tracks. One of appellant’s, passenger trains due from the west at 2:50 a. m. was late. Respondent went to the yard office, procured his waybills and orders, and left the office on his way to his train. It was necessary for him and all other freight conductors to cross the main track, after leaving the office, in order to get to trains to which they were assigned. The distance of the yard office from the south rail of the main line is estimated by the' witnesses to be from four to six feet. There is evidence tending to show that it was known to be customary for conductors to look over the train register and that respondent did this; that this register indicated that the train which struck respondent was already in; that respondent procured his waybills and orders and went out the east door of the yard office, thence to the north side thereof, and, according to the engineer on the passenger train, was walking westward in the space between the office and the main track when he suddenly discovered appellant’s train almost upon him; that, he leaped back, struck the building and “.rebounded” against the train and was injured. There is also evidence that he had walked, in the space indieated, toward the west end of the yard office, and then stepped ont upon the main track and proceeded west a few steps further, and then was struck; that this course in going to his train was more convenient and safer than to go directly across the main track; that there was a space six or eight feet wide between the main line . and the lead track next north of it, and the employees walked along this space in which there was a pathway; there is no evidence this pathway crossed the main line or was generally used by trainmen in going from the yard office to their trains. There was evidence the main track west from the yard office was straight for a half mile or more, and that an electric headlight, such as was on the engine' of the passenger train, could be seen two miles away; that the train which struck respondent was running thirty or thirty-five miles an hour; that it gave no signals, either by beli or whistle, and that the headlight was not burning and that it reached the yard office before those inside were aware of its approach; that the night was dark, and the testimony warrants an inference that no other lights on the train were visible to one as nearly in front of it as was respondent, and that the yard, west of the office, was unlighted. There is no dispute as to respondent ’s injury nor as to the. train which injured him.

I. Having constructed its yard office next the main track and south of it and necessarily making up its freight trains north of the main track, and it being necessary for conductors to procure their or waybills from the yard office, appellant was bound to know these employees must cross the . main line in order to reach their trains. This was notice that such employees were likely to be upon or near the. track near the yard office. There was no evidence any particular point was used or recognized as a crossing. In the circumstances it was negligence to run an overdue passenger train past the yard office on a dark night, through an unlighted yard, at a speed of thirty or thirty-fiv.e miles per hour, without sounding bell or .whistle and without .a headlight burning, particularly when the train register in the office, as observed by respondent, indicated such train had already passed. A headlight is “a common and necessary means adopted by all railroad companies for the protection alike of those rightfully on the train, and on the track, or approaching it in the night time. No engine is constructed. without such a light, and no train is run in the night time by any railroad company under any ordinary circumstances without having it lighted. This is a fact known to all; reasonable minds by common experience, and the court commited no error in declaring that it was- negligence if defendant’s servants failed to- have such light lighted and burning at the time of the collision.” [Becke v. Ry. Co., 102 Mo. l. c. 552; Gorton v. Harmon, 152 Mich. l. c. 476; Burling v. Railway, 85 Ill. l. c. 20; B. & O. S. W. Ry. v. Alsop, 176 Ill. l. c. 475; Collins v. Railroad, 30 Minn. l. c. 33; Railway v. O’Hara, 150 Ill. l. c. 585; Willis v. Railroad, 122 N. C. l. c. 909; Railroad v. McNicholas, 98 Ill. App. l. c. 58; Artz v. Railroad, 44 Iowa, 284.]

It is contended respondent was an employee and there was no obligation to keep a lookout for him. Gabal v. Railroad, 251 Mo. l. c. 267 et seq., and like cases are relied on. The principle announced in those cases has no application, to this. That principle is founded upon the idea that employees falling within it are aware of what is going on and are expected, ordinarily, to guard themselves from injury from the transaction of the company’s business in the usual manner. In those cases the ability of the employee to protect himself and the rule that he must do so depend upon the fact that the movement which caused the injury was one naturally to be expected. It is not held in any of those decisions that an act or movement which is of unusual character and the unusualness of which reasonably may he found to have deprived the employee of an opportunity to protect himself, is nevertheless one from which he must protect himself at his peril. The rule invoked has not been applied to facts like those in this case, and we do not think it applicable. The doctrine is usually carefully limited and qualified and respondent does not fall, within its scope. [Gabal v. Railroad, supra; Colasurdo v. Railroad, 180 Fed. l. c. 835; Hardwick v. Railroad, 181 Mo. App. l. c. 166 et seq; Schulz v. Railway, 57 Minn. l. c. 273.] The fact respondent did not walk directly across the main line does not, of itself, defeat the action. It was evidence, at most, of contributory negligence, which is not a bar in an action under the Federal Employers’ Liability Act under which this case was tried.

II. This action is under the Federal Employers’ Liability Act. Respondent’s first instruction required the jury, if they found certain facts they should return a verdict for respondent; and added: “and so find your verdict should be for the plaintiff, even if you should find him guilty of negligence contributing to the injury, but in that event the damages should be diminished by you in proportion to the amount of negligence attributable to plaintiff.”

The language of the act (Sec. 3) is that “contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributed to such employee.”

(a) The word “should” as used, in the instruction imports duty, obligation; and, therefore, the objection to its use is not well founded. It is a word used with frequency in instructions to advise the jury that it is their duty as jurors to find as stated. The objection is quite technical and is untenable._ [State v. Connor, 74 Kan. 898; People v. Barkas, 255 Ill. l. c. 526; Lynch v. Bates, 139 Ind. l. c. 210, 211; Smith v. State, 142 Ind. l. c. 293; Durand v. Railroad, 65 N. J. L. l. c. 660, 661.]

(b) The language of the quoted clause, except as pointed out under (a), is the language of the statute. In Norfolk & Western Ry. v. Earnest, 229 U. S. l. c. 120 et seq., the Supreme Court of the United States considered an instruction, the relevant part of which is: “the Act of Congress.....provides that .... contributory negligence is not to defeat a recovery altogether, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee .... the negligence of the plaintiff is not a bar to a recovery, but it goes by way of diminution of damages in proportion to his negligence as compared with the negligence of the defendant.” The court said: “The thought which the instruction expressed and made plain was that, if the plaintiff had contributed to his injury by his own negligence, the diminution in the damages should be in proportion to the amount of his negligence. This was twice said, each time in terms readily understood. But for the use” in the second instance of the additional words ‘as compared with the negligence of the defendant’ there would be no room for criticism.” The objectionable language is not found in respondent’s instruction in this case. In that case the court held that “the statutory direction that the diminution shall be ‘in proportion to the amount of negligence attributable to such employee’ means, and can only mean, that, where the casual negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable .to both.” The in: struction in this case follows the act, and the decision cited holds such a formula to be exempt from criticism. Whether an instruction explaining the statutory language, in accordance with the holding in the Earnest case, ought to have been given had appellant asked it, is not a question the record presents.

We find no reversible error. The judgment is affirmed.

All concur, Bond, P. J., in paragraph one and in result.


author: BROWN, C. PER CURIAM:

text:
    FIDELITY TRUST COMPANY, Plaintiff in Error, v. MEXICO, SANTA FE & PERRY TRACTION COMPANY.
    Division One,
    March 30, 1917.
    1. WRIT OF ERROR: New Suit. A writ of error is not, like an appeal, to be considered as a continuation of the original action, but as a new action, which must contain, on its face, the evidence of the right of the plaintiff in error to a review.
    2. -: Specification of Parties. Although the writ of error is a writ of right, that right differs in no respect from the absolute right to bring an action under the Code of Civil Procedure, which can only be done by petition, specifying, among other things, the names of the parties to the action. So in the writ of error, the plaintiff must be equally explicit as to the identity of the judgment he attacks and those against whom he seeks a remedy.
    3. -: -: Real Party Not Named. If neither the name of the party with whom alone is the controversy, nor his judgment by any title which identifies it, is mentioned in the writ, and he does not come within any description contained in it by which he can be identified as the adversary of the plaintiff in error, the writ must be quashed.
    Error to Audrain Circuit Court. — Hon. James D. Barnett, Judge.
    Writ quashed.

      E. W. Hinton and David H. Robertson for J. S. Brown, Trustee, Intervenor.
    (1) The writ of error is insufficient to bring any record before this court, and especially the record in the intervening or branch, case between Brown, Trustee., as claimant, and Fidelity Trust Company, which is apparently the record-sought to be reviewed; the writ wholly fails to name the parties to the cause below,, and is fatally defective. ' Miller v. McKenzie, 10 Wall. 582; Davenport v. Fletcher, 16 How. 142-143; Smythe v. Strader, Pevine & Co., 12 How. 327. Hence, the court cannot take jurisdiction. A writ of error is the beginning of a new suit. Macklin v. Allenberg, 100 Mo. 337. It operates to remove the record of the cause below to the appellate court, and it is therefore jurisdictional that the cause below be described by naming all the parties. St. .Louis v. Theatre Co., 201 Mo. 396. (2) The notice must advise what judgment, the parties to the judgment, and the cause in which given, which is sought to be reviewed by writ of error. 3 Corpus Juris, pp. 1211 and 1212; Drug Co. v. Hill, 61 Mo. App. 680.

      Clarence A. Barnes, Justin D. Bowersock and Robert B. Fizzell for plaintiff in error.
    (1) The defendant in error, J. S. Brown, Trustee, contends that the writ of error issued in this cause should b.e quashed because the writ does not set out the names of all the parties in the court below. An examination of the statute and practice governing writs of error in this State shows that this was not necessary. Sec. 2054, R. S. 1909. Our statute does not prescribe the form of the writ or its contents, nor does it provide that the writ shall be served on the adverse parties, as was the rule at common law. Instead of this, it provides (Sec. 2071) for the giving of notice of the suing out of the writ to the adverse parties. As to the writ itself, the statute leaves it as a matter solely between the clerk of this court and the court below. It is the duty of the clerk of this court to describe the action below sufficiently to enable the lower court to certify up the record in the proper case. It is the duty of the lower court to certify up the record in the case described in the writ, and in no other case. In the present case both of these duties were fulfilled. The defendant in error contends that the designation “et al.” in the writ was. meaningless, although it is a term universally employed by bench and bar and was used in the present case in the journal entries in the court below. Cowhick v. Jackson, 161 Mo. App. 459; State ex rel. v. Mining Co., 169 Mo. App. 79. The defendant in error has cited several old cases in the United States Supreme Court to support his contention that the writ of error should name all of the parties in detail. These cases were not only decided at a time when a writ of error was a technical remedy, and not a statutory mode of review as in this State, but they were decided in view of the common law principle which required that the writ be served on the adverse party, and under which the writ itself was the sole notice to the adverse party that such writ had been issued. If the writ was not so served, it would be dismissed. Washington County v. Durant, 7 Wall. 694; Wood v. Lide, 4 Cranch, 180. If the writ itself is served upon the adverse party, and if it constitutes the sole notice to him of its issuance, necessarily it must be more complete than in this State where is is purely a matter between this court and the lower court, and where a separate' notice of the issuance of the writ is prescribed by the statute. The form of the writ in the cáse at bar was specifically approved by this court in a dictum in the case of St. Louis v. Butler, 201 Mo. 396. See also Gulf Line Ry. Co. v. Way, 137 Ga. 109. (2) The.defendant in error, J. S. Brown, Trustee, contends that the notice served upon him of the issuance of the writ of error in this cause, was insufficient. An examination of the notice in view of the statutory requirements concerning- it proves its sufficiency. Sec. 2071, R. S. 1909. The notice in the present case contains the names of every party to the writ. The Fidelity Trust Company, a plaintiff below, is the sole plaintiff in error, and every other party below, except the co-plaintiffs who refused to join in the writ, is named as a defendant in error. The notice is addressed to all of the defendants in error or their attorneys of record as the statute permits. It is true that the notice does not set out in detail all of the parties in the lower court in describing the action below. The statute does not require that it should. It is the suit in this court of which the defendants in error should be advised, not of the suit below. The rule adopted by the courts of appeals in determining the sufficiency of the notice is whether on a fair and reasonable interpretation it informs the respondent that an appeal has been taken. Coal Co. v. Mo. Pac. Ry. Co., 48 Mo. App. 578; Munroe v. Herrington, 99 Mo. App. 288; Igo v. Bradford, 110 Mo. App. 670; Teasdale & Co. v. Produce Co., 120 Mo. App. 584; Swift & Co. v. Baldwin, 185 S. W. 551.
   BROWN, C.

— This controversy is here upon writ of error to the circuit court for Audrain County, and the question of the sufficiency of the writ stands at the ■door of its consideration. It is as follows, omitting the attestation which is regular:

The State of Missouri, ss.
The State of Missouri, To the Judge of the Eleventh Judicial Circuit in said State, Greeting:
Whereas in the record and proceedings in a certain cause lately pending in the Circuit Court of Audrain County, wherein J. D. Bates et al. were plaintiffs, and Mexico, Santa Fe & Perry Traction Company et al. were defendants in a civil action, manifest error hath intervened to the great damage of the said Fidelity Trust Company, one of the above plaintiffs, as by its complaint we are informed.
Now we being willing that the error, if any there be, should be corrected, and full and speedy justice done to the parties aforesaid, in that behalf command you that you send to us, certified under your seal a perfect transcript of the record and proceedings in the cause aforesaid, or in lieu of such transcript, a certified copy of the record entry of the judgment order or decree, showing the term and day of the term, month and year upon which the same shall have been rendered, as the plaintiff in error shall direct, as fully as the same remain of record before you ip said court, so that we may have them before us at our Supreme Court, to be begun and held at the City of Jefferson, in the County of Cole in said State, on the second Tuesday in October, next, so that our Judges of our Supreme Court on inspecting the record and proceedings aforesaid, may cause to be further done therein, for correcting the error, what of right and according to law ought to' be done, and have you then and there this writ.

'Prior to its issuance the Fidelity Trust Company requested J. D. Bates, W. W. Mundy, L. E. Botts, J. A. Botts, J. S. Brown, D. B. Guthrie, J. P. Cauthorn, C. C. ITeizer and W. W. Botts to join with, it in the application for the writ, all of whom refused to do so.

After the issuance of the writ, and more than twenty days before the return day named in it, the said Fidelity Trust Company caused a notice in writing of its issuance to be served on the following persons and corporations: Mexico, Santa Fe and Perry Traction Company; W. W. Botts, receiver of said company, J. S. Brown, trustee; S. L. Robertson, Mathias Crum, Butler Manufacturing Company, Bates Machine Company, Coatsworth Lumber Company and Crane Company. This notice concludes as follows: “The plaintiff in error, Fidelity Trust Company, was one of the plaintiffs in ease, J. D. Bates et al. v. Mexico, Santa Fe & Perry Traction Company et al., the other plaintiffs refused to join in the writ of error. The return- day of such writ of error is the first day of the Oct. term, 1914, of the Supreme Court, the same being Tuesday, October 13, 1914.”

The transcript which constitutes the return to the writ is entitled as follows: “J. D. Bates et' ah, plaintiffs, v. Mexico, Santa Fe and Perry Traction Company et al., defendants,” while the original petition which constitutes its first entry is entitled as follows: “J. D. Bates, "W. W. Mundy, L. E. Botts, J. A. Botts, J. S. Brown, D. B. Guthrie, J. P. Cauthorn, C. C. Heizer and W. W. Botts, plaintiffs, v. Mexico, Santa Fe and Perry Traction Company, a corporation, and Fidelity Trust Company of Kansas City, a corporation, defendants.” The petition was filed in the Audrain Circuit Court, January 28, 1913, and alleged that the plaintiffs owned a total of 137 bonds of the Traction Company (each in the sum of $250, or a total of $34,250); that the interest thereon was in default; * that the Traction Company was insolvent; that the company’s property was in danger of being lost; and ashed that a receiver he appointed to administer it, and that the deed of trust to the Fidelity Trust Company, trustee, he foreclosed. It also stated, in substance, that the Fruin-Bambrick Construction Company had a judgment against the Traction Company for the sum of $47,900.47, and. that great doubt existed as to whether or not it constituted a lien superior to that of the bonds on the property of the Traction Company, and asked that the receiver take immediate charge of the property, and for its sale and for the adjudication of the priority of the several liens.

A receiver was appointed on March 3, 1913, and on the 28th day of the same month the Fidelity Trust Company filed its answer setting out that by the provisions of the deed of trust it had the exclusive right to institute and maintain the - foreclosure suit and asking that it be discharged as a defendant, which was done. In the meantime intervening petitions were filed by parties claiming small construction liens upon the railway company, and who are with the exception of J. S. Brown, Trustee, the same parties who were notified of the issuance of'the writ of error.

On April 21, 1913, the court entered its decree foreclosing the deed of trust, and ordering the sale of the property by the receiver, free and clear of encumbrances; and that the money raised from such sale should not be distributed until the court should determine whether the lien of the Construction Company was prior to that created by the deed of trust. The sale was made on May 17, 1913, from which the sum of $37,500 was realized. On the 28th of the same month the Construction Company, through one Marshall Rust, assigned its judgment to J. S. Brown, Trustee, whose connection with the litigation in that capacity then began.

On June 2, 1913, he filed as such trustee an intervening petition setting' up his ownership of the judgment of the Fruin-Bambrick Construction Company, and claiming thereunder a lien on the proceeds of the receiver’s sale prior to the lien of the deed of trust.. The Fidelity Company answered, setting up its claim under the deed of trust to the entire proceeds of the sale. The intervenor replied, and the issue was tried by the court. The entire record in the original cause was introduced, together with much other evidence. The court found that there was in the hands of a receiver $37,500, which, after payment of certain costs, including attorneys’ fees, and not including the costs of the intervenor, which were taxed against the Fidelity Trust Company, was to be prorated among J. S. Brown, Trustee, as assignee of the Fruin-Bambrick Construction Company, the Crane Company, the Coatsworth Lumber Company, the Butler Manufacturing Company and Bates Machine Company, so that each should receive the same per cent of his claim out of the fund. From this judgment an appeal was asked by the plaintiff in error and granted, and leave given to file a bill of exceptions, which is the same bill of exceptions returned with this writ of error. Should it be necessary to refer further to the record we will do so in the opinion.

One J. S. Brown, Trustee, an intervenor upon the record filed as a return to this writ of error, has moved that the writ be quashed for the reason that it is wholly insufficient in law in failing to name or describe the parties to the record below or in this court. The facts-before us are as follows: Suit was instituted by one J. D. Bates and eight other individuals claiming to be holders of bonds secured. by deed of trust of the Mexico, Santa Fe & Perry Traction Company, a corporation, against that corporation and the Fidelity Trust Company, the trustee in the deed of trust, to foreclose that instrument and have a receiver pendente lite. The Trust Company answered that by the terms of the deed of trust it was the only party entitled to foreclose, and on its own application the court “'discharged” it as defendant, and permitted it to proceed as a plaintiff, and the cause thereafter proceeded upon the record by the designation of J. D. Bates et al.. appellants, v. Mexico, Santa Fe & Perry Traction Company et al., defendants. This is the title as it appears both in the writ of error andi the return thereto. The cause proceeded in this way to final judgment of foreclosure on April 21, 1913, under which the property was sold May 17th and was purchased by J. D. Bates, Trustee, for $37,500, which in the hands of the receiver then became the bone of contention. After the sale J. S. Brown, as trustee for himself and others, purchased the Fruin-Bambrick judgment mentioned in the foregoing statement and intervened with a claim for the money in his capacity as trustee. The priority of a number of other intervenors who had established small liens upon the property was recognized in the decree of foreclosure, but we cannot gather from the record that their right is questioned. Around the intervention of J. S. Brown, Trustee, the sole controversy gathered and the Trust Company has thus far indicated no other object in the prosecution of this writ than to dispute his priority.

The application for this writ is not before us. Although the common law procedure in such cases required a praecipe containing the names of the parties and the nature of the judgment, we will assume, without determining its necessity, that it was filed and that it contained all the facts that appear upon the face of the writ, and determine its validity.

It is the settled doctrine of this court that a writ of error is not, like an appeal, to be considered as a continuation of the original action, but as a new action which must contain, on its face, the evidence of the right of the plaintiff in error to a review. [St. Louis v. Butler, 201 Mo. 396.] Although it is a writ of right, that right differs in no respect from the absolute right to bring an action under the Code of Civil Procedure, which can only be done by petition specifying, among others things, the names of the parties to the action, plaintiffs and defendants. These may not be left to be gathered by general averments showing whom the plaintiff might have sued had he so desired. So in this proceeding the plaintiff must be equally explicit as to the identity of the judgment he attacks and those against whom he seeks the remedy. There are' many plaintiffs in this ease beside the plaintiff in error, but none of them had any fault to find with the judgment, and would not proceed with him against it, so that Bates, the only plaintiff named in the title to the cause, had nothing to do with this proceeding. There were two defendants included in the title — the Traction Company, against whom the foreclosure was sought, and this plaintiff in error, who afterward had itself transferred to the other side. It evidently has no controversy with the Traction Company, so that the title to the case, as it appears in the writ, contains no hint as to the identity of the real defendant in error. So far as this proceeding goes the plaintiff in error was, at the time the decree of foreclosure was entered, the sole plaintiff, and the Traction Company the sole defendant. The Construction Company had taken no steps upon the record to become a party. After the sale, Brown, Trustee, as its representative by assignment, intervened with a claim for the proceeds and won. The controversy is with Brown, Trustee, and with him alone, and yet neither his judgment nor his name is mentioned in the writ, nor does he come within any description contained in it by which he can be identified as the adversary of the plaintiff in error.

The writ should show on its face the name or some equivalent description of the one ag’ainst whom it is directed, and such description as will identify the judgment upon which error is intended to be assigned. For insufficiency in these respects the writ is quashed and the proceeding dismissed.

Railey, C., concurs.

PER CURIAM:

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

All the judges concur; Bond, J., in result.


author: RAILEY, C. PER CURIAM: PER CURIAM:

text:
    JACOB K. SHACKLETT, Appellant, v. SHERMAN CUMMINS.
    Division One,
    March 30, 1917.
    LEASE: Parol Agreement: Part Performance: Possession. The retention of possession of land by a lessee after the expiration of his written lease, under a parol contract made by the landlord, while he was yet in possession, to lease to him fpr another year, will take the case out of the Statute of Frauds and authorize compulsory specific performance, only when such retention of possession is pursuant to and referable solely to the parol contract. Mere continuance of possession does not constitute part performance. Hence the expression by the Court of Appeals, in Winter v. Spradling, 163 Mo. App. 77, that “there would be nothing inconsistent in the defendant [tenant] holding possession under both the written and verbal leases at the same time,” is condemned.
    Appeal from Sullivan Circuit Court. — Hon. Fred Lamb, Judge.
    Reversed and remanded (with directions).

      D. M. Wilson, J. W. Clapp and R. E. Ash for appellant.

      E. F. Nelson, J. M. Wattenbarger, Calfee & Painter and John W. Bingham for respondent.
   RAILEY, C.

— In tie summer of 1911, plaintiff, residing in Scotland County, Missouri, bought of one Dodson a farm of 240 acres, lying in Sullivan County. It was then in possession of defendant under a lease from Dodson for a year ending the following first of March, 1912. At the end of said lease defendant refused to quit the premises, and this action of unlawful detainer was instituted.

The judgment in'the circuit court was for the defendant. The latter claims a rightful possession by reason of a verbal renting from plaintiff entered into the latter part of August, 1911, shortly after plaintiff bought from Dodson, whereby be was to have tbe land for a year from tbe expiration of bis lease aforesaid, viz., from tbe first of March, 1912, np to tbe first of March, 1913; be to plow about thirty-five acres of sod in tbe fall of 1911, and give a part of tbe crop when matured.

Tbe ease was duly appealed to tbe Kansas City Court of Appeals by plaintiff, and tbe latter court, in an opinion by Judge Ellison, reported in 178 Mo. App. 309, in which all tbe members of said court'concurred, reversed tbe case, and certified it to this court, on tbe ground that said decision was in conflict with tbe decision of tbe Springfield Court of Appeals in Winter v. Spradling, 163 Mo. App. 77. Judge Ellison’s opinion, supra, was filed April 6, 1914. Tbe opinion of tbe Springfield Court of Appeals, in Starks v. Manufacturing Co., 182 Mo. App. 241, was not filed until June 27, 1914, and hence, the decisión of said court in Winter v. Spradling, 163 Mo. App. 77, contained its latest utterances upon tbe subject under consideration, when tbe present case was transferred to this court.

In Winter v. Spradling, plaintiffs leased certain lands to defendant for a period of three years, ending March 1, 1911. Defendant went into possession and continued in possession beyond tbe expiration of that ■lease and was still in possession when tbe action for unlawful detainer was instituted. Defendant claimed that in July, 1910, be made an oral agreement with "Winter, tbe owner of said land, by tbe terms of which be leased tbe land for another year, to begin at tbe expiration of said written lease on March 1, 1911, and to expire March 1, 1912. As part of tbe terms of said verbal lease, certain improvements were to be made on tbe land, for which plaintiff was to furnish tbe material and defendant was to perform tbe labor, and that part of those improvements were made as agreed. Defendant also plowed eight acres of ground preparatory to sowing wheat. After this was done, plaintiffs, on August 15, 1911, notified defendant that they wanted possession at tbe expiration of tbe written lease and nothing further was done in relation to the oral lease. Suit was filed March 4, 1911, before a justice of the peace, and the cause removed to the circuit court on certiorari. Judgment was rendered for defendant and the plaintiffs appealed to the Springfield Court of Appeals. The latter reversed and remanded the cause and held that plaintiffs were entitled to recover. The conclusion reached, as to the disposition of the case, was in accord with the views expressed by Judge Ellison in the case at bar, but certain principles of law are announced in the Winter-Spradling case which are in conflict with the ruling of the Kansas City Court of Appeals in this case, and likewise in conflict with the rulings of both divisions of the Supreme Court.

Judge Cox, in the Winter case, on page 83, said: “If defendant had been out of possession when the oral contract of lease was made, and were he now seeking to hold possession as a tenant from year to year, it is clear that he would have to show that the lessor put him in possession under the oral contract of lease. He could not call to his aid a possession taken without the lessor’s knowledge or consent. Neither can he in this case call to his aid an act of his own done without the lessor’s knowledge or consent and thereby change the character of his possession. While there ivould be nothing inconsistent in defendant holding possession under both 'the written and verbal leases at the same time, yet, when the evidence that he was holding under both consists of his own acts, it would be manifestly unjust to plaintiffs to bind them thereby when they had no knowledge of what he was doing. ’ ’

The principle of law, announced in the italicized portion of above quotation, is in conflict with the conclusion reached by Judge Ellison in this case.

The cause was properly certified to the Supreme Court.

In the well considered opinion of Judge Sherwood in Emmel v. Hayes, 102 Mo. l. c. 193-4, it is said:

“The taking possession of a tract of land by a vendee, under a parol contract made by a vendor to convey to him, and with the consent of such vendor, will take tíre case out of the Statute of Frauds, and authorize compulsory specific performance only where such taking of possession is pursuant to, and referable solely to, the parol contract. Nothing short of this unequivocal act of taking possession will suffice. . . . The uniform statement of the text-writers and the reported ruling of adjudged cases is that mere continuanee of possession does not constitute part performance. There must be a radical 'change in the attitude of the contracting parties towards each other, a change consisting of acts done; a notorious change which itself indicates that some contract has been made between the parties, ¿nd then parol evidence is admissible to show the details of the agreement.”

The above opinion overruled the case of Simmons v. Headlee, 94 Mo. 482, in which a different conclusion was reached. The rule of law announced by Judge Sherwood supra, has been followed in subsequent cases as follows: Rogers v. Wolfe, 104 Mo. l. c. 10; Taylor v. Von Schraeder, 107 Mo. l. c. 228; Cherbonnier v. Cherbonnier, 108 Mo. l. c. 263-4; Hays v. Kansas City, Ft. S. & G. Ry. Co., 108 Mo. 549-550; Warren v. Castello, 109 Mo. l. c. 342; Rosenwald v. Middlebrook, 188 Mo. l. c. 93; Swearengin v. Stafford, 188 S. W. (Mo.) 97-99; Starks v. Manufacturing Co., 182 Mo. App. l. c. 244-5.

The opinion of the Kansas City Court of Appeals in this case is in accord with the principles of law enunciated in the above authorities and meets with our approval.

The judgment of the circuit court is accordingly reversed. -

Brown, C., concurs.

PER CURIAM:

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

All of the judges concur.

PLAINTIFF’S MOTION TO MODIFY JUDGMENT, AND DEFENDANT’S MOTION FOR REHEAR- ' ING.

PER CURIAM:

— Plaintiff’s motion to modify the judgment of reversal herein, is sustained, and said cause is hereby reversed and remanded with directions to the trial court, to allow plaintiff, if he so desires, to amend his complaint; to proceed with said cause in conformity to the views heretofore expressed, and to enter judgment in behalf of plaintiff as contemplated by section 7674, Revised Statutes 1909. The defendant’s motion for a rehearing is overruled.