author: FARIS, J.

text:
    MAUDE CRECELIUS, Administratrix of Estate of WALTER CRECELIUS, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.
    In Banc,
    June 13, 1918.
    1. EVIDENCE: Stipulation: Waiver. A written stipulation as to a certain fact, signed by plaintiff’s and defendant’s counsel, which, though offered in evidence by both sides for definitely restricted purposes, is ignored by both counsel and court — by counsel in introducing, without objection, testimony on one side inconsistent with or contradictory of, and on the other in support of, its state-mets of fact, and by the court in the instructions given, without exceptions — is waived, and oh appeal the ruling will be based on such testimony, and not upon the stipulation.
    2. NEGLIGENCE: Federal Employers’ Liability Act: Interstate Commerce: Question for Jury. Where there was substantial evidence, in the action brought under the Federal Employers’ Liability Act for the negligent killing of a timekeeper, that the trackmen in connection with whom he was employed were at the. time engaged in work on both the main track, which was an interstate line, and in repairing or constructing a side track, which was an intrastate track and was not in use in interstate commerce, and evidence to the contrary that they had been engaged only in constructing the side track, the question of whether the timekeeper at the time of his death was engaged in interstate commerce and whether the facts bring the case within the purview of said act, becomes one for the jury, with whose finding the court on appeal cannot interfere. And such must be the ruling, although at the time the timekeeper was killed the trackmen had ceased their work for the day and he, after making out his daily report, had started, thirty minutes later, as was his custom, to the telegraph office to. send it to the road-master in another State, and was killed by a train as he was crossing a passing-track.
    3. CONTRIBUTORY NEGLIGENCE: Federal Employers’ Liability Act: Reduction of Damages. An instruction, in an action brought under the Federal Employers’ Liability Act for the negligent killing of an employee, which tells the jury that, if they find that deceased was guilty of contributory negligence, “such finding and such fact of contributory negligence will not authorize a verdict in favor of defendant, but will only authorize that the damages assessed by you in favor of plaintiff be diminished by the jury in proportion to the amount of negligence attributable to said deceased,” is erroneous. The act says that, in such case, “the damages shall be diminished,” and the instruction should clearly tell the jury that they must reduce them, not simply tell them that they are “authorized” to do so.
    4. NEGLIGENCE: Federal Employers’ Liability Act: Measure of Damages: Motion for New Trial. The court will not review an instruction on the measure of damagés in an action brought under the Federal Employers’ Liability Act, if said instruction is in no manner mentioned in the motion for a new trial.
    5. -: -: -: Excessive Verdict: Abandoned in Brief. And if appellant complained in his motion for a new trial that the verdict was excessive, but fails to keep that complaint alive in the brief, it will not be reviewed.
    Appeal from Grundy Circuit Court. — New. Geo. W. Wanamalter, Judge.
    Reversed AND remanded.

      Fred 8. Hudson for appellant.
    (1) The deceased was not engaged in interstate commerce at the time of his death, as the accident occurred at 6:30 o’clock in the evening, after the day’s work was over, and the test as to whether or not the case is rightfully brought under the Federal Employers’ Liability Act, is what the deceased was doing at the time of the injury. Illinois Central v. Behrens, 233 U. S. 473;' Shank v. El. & W. Railroad., 239 U. S. 556; Erie Railroad v. Welch, 242 U. S. 303; Jacoby v. C. M. & St. P., 161 N. W. 753. (2) As deceased was an employee and not engaged in interstate commerce at the time of his death, was familiar with the yards and the movement of trains, the defendant owed him no duty except not to wantonly or wilfully injure him. The “last-clear-ehance doctrine” would not apply in this case. Cahill v. Railroad, 205 Mo. 408; Dagonia, v.> Railroad, 224 Mo. 564; Rashall v. Railroad 249 Mo.. 519 ; Gaball v. Railroad, 251 Mo. 270. (3) As the company at this time was engaged in constructing a temporary track and deceased was employed in this construction work, neither the deceased nor defendant was engaged in interstate commerce at the time of this accident, so far as the work that was being performed by both the defendant and the deceased is concerned. The construction work at that time was not and probably might never be used in interstate commerce. Pederson v. Railroad, 229 U. S. 146; New York Central v. White, 243 U. S. 188; Raymond v. Ry. Co., 243 U. S. 43; Bravis v. Ry. Co., 217 Fed. 234; Chicago & E. Railroad v. Steel, 108 N. E. 4. (4) The stipulation filed in this case shows that the extra gang of which Crecelius was the time-keeper was constructing a temporary track, hence this suit is not properly brought under the Federal Employers’ Liability Act. (5) Instruction 11 -on the measure of damage is erroneous and is not the proper method of determining damage under the Federal Employers’ Liability Act. C. '& O. Railway v. Kelley, 241 U. S. 485 ; C. & O. Railway v. Gainey, 241 IT. S. 494. (6) Instruction 5 does not properly declare the rule for assessing damage under the law under which this case is brought. Dowell v. Railroad, 190 S. W. 939; Seaboard Air Line Railroad v. Tilghman, 237 U. S. 499; Norfolk Railroad Co. v. Earnest, 2-29 U. S. 114.

      Platt Hubbe.ll. Geo. H. Hubbell for respondent.
    (.1) Defendant railway company negligently killed deceased. Pittsburg Ry. Co. v. Glinn, 219 Fed. 148; Delaware, L. & W. R. Co. v. Hughes, 240 Fed. 941; Seaboard Air Line Rv. Co. v. Koennecke. 36 Sup. Ct. Rep. 127; Huxoll v. Union Pac. R. Co. 155 N. W. 900; Mc-Whirt v. Railway Co., 187 S. W. 830'; Trivette v. Railway Co., 212 Fed. 641; Anest v. Railroad, 154 Pac. 1100; Kippenbrock v. Wabash R. Co., 194 S. W. 50; Jettcr v. St. Joseph Terminal Ry. Co., 193 S. W. 956. (2) Defendant and deceased were engaged in interstate commerce at. the time Crecelius was killed. This case is governed by the Federal Employers ’ Liability Act. Southern Ry. Co. v. McG-lin, 240 Fed. 649; Cincinnati Ry. Co. v. Hall, 243 Fed. 76; Columbia & P. S. R. Co. v. Sauter, 223 Fed. 604; Pecos & Northern Tex. Ry. Co. v. Rosenbloom, 36 Sup. Ct. Rep. 3¡90; Long v. Lusk, 186 S. W. 601; Grand Trunk Ry. Co. v. Knapp, 233 Fed. 950; North Carolina R. R. Co. v. Zachary, 232 U. S. 260; N. Y. C. & H. R, R. v. Carr, 238 U. S. 260; Ross v. Sheldon, 154 N. W. 499; Sells v. A. T. & S. F. Ry. Co., 181 S. W. 106; ÍPederson v. Railroad, 229 U. S. 146; Philadelphia B. & W. R. Co. v. McConnell, 228 Fed. 263; Sanders v. Railway Co., 97 S. C. 50; Railroad Co. v. Seale, 229 IT. S. 156; Erie Railroad Co. v. Win-field, 37 Sup. Ct. Rep. 556; Denver & R. G. Railroad Co. v. DaVella, 165 Pac. 254. (3) The stipulation is not the only evidence of wha,t defendant railway company and deceased were doing. Plaintiff has a right to prove that defendant and deceased were doing work additional to that mentioned in the stipulation. Plaintiff offered the stipulation “for the purpose of showing the use made of the york-train. ’ ’ Burnham et al. v. St. Ry. Co., 88 Fed. 628; 12 Enoy. Evidence, 83', 84; 12 Ency. Evidence, 101, Note 71. (4) Plaintiff’s instruction numbered 5 is correct. Kippenbrock v. Wabash R. Co., 194 S. W. 52; Norfolk & Western Ry. v. Earnest, 229 U. S. 120; M. K. & T. Ry. Co. v. Rentz, 162 S. W. 959; Illinois C. R. Co. v. Skaggs, 36 Sup. Ct. Rep. 252; Fish v. Railroad, 263 Mo. 106; Haines y. Railroad, 193 Mlo. A.pp. 453; Iron Mountain y. Rogers, 176 S. W. 696; Humphfres y. Western Pac. Ry. Co., 160 Pac. 415.
   FARIS, J.

This is an action brought by plaintiff, as the administratrix of one Walter Crecelius, deceased, against defendant, under the Federal Employers’ Lia,-bility Act, for the alleged negligent killing of plaintiff’s decedent. Upon a trial in the circuit court of Grundy County plaintiff had judgment for the sum of $25,000, from which judgment, after the conventional procedure, defendant has appealed.

As stated, plaintiff brings this action as the ad-ministratrix of said Crecelius, whom we. shall, for brevity, hereinafter call deceased. The deceased, a.t the time he lost his life, was in the employ of defendant as a timekeeper for a gang of Bulgarian and Armenian laborers, who were engaged at or near the little village of Morley, in the State of Iowa, in repairing the main line track of defendant, and in constructing a temporary track, thereafter to be used for main line traffic, pending the lowering of the grade of defendant’s main interstate-railroad track. Deceased was killed at about the hour of 6:30 in the evening of March 14, 1913. At this time the gang of laborers of which deceased was1 timekeeper had quit work for the day and had returned to the boarding cars and eaten their suppers. It was the duty of deceased as timekeeper to make a record of the number of laborers engaged in work, of the hours worked by each laborer, of the nature of the work done by the gang, of the number of ties laid, th'e amount of steel put in, and various other details, showing the progress of the work .and the material used therein. It was also the duty of deceased to make daily reports showing the above facts, as well as monthly reports, once each month. The reports, which deceased was required to' make daily both by wire and by mail, were made to the division roadmaster at Marion, Iowa. He was accustomed to malte out these reports after work hours, since this was the only time at which it was possible for him to have the information which, he was required to include in them. He was in the habit of preparing these reports between 6:30 o’clock and 7:00 o’clock in the evening of each day, and of transmitting same both by mail and by wire as early as possible thereafter.

On the day that deceased was killed, and after he with the gang of laborers had returned from work upon the main track and the said temporary track, he ate his supper and made out his daily report for transmission by wire to the roadmaster. A few minutes (one witness said two to five minutes) before he was killed, he left the car in which he kept his desk, with the remark that he was going to send his message. After going out of his office car he went into the car occupied by the interpreter of the gang. He remained in this car but a moment, and then came out and started across the tracks of defendant toward the depot, wherein the telegraph office was maintained. In the meantime, a freight train of defendant, called in the testimony a way-freight, had come up to the depot, and had stopped there apparently for the purpose of discharging freight. As deceased went across the tracks of defendant toward the depot, he stopped in the middle of what is called the passing-track, at a point some ten feet from the locomotive .of the way-freight, and stood at this point apparently looking at this train. After'he had been standing in this position for some twenty-five seconds, he was run down and killed by a car attached to the work-train, which was used in hauling the material for this gang of laborers. At this time the work-traiu was doing certain switching in the yards at Morley, for the purpose of making up the, train to return to Marion, Iowa, which was a division point, and a station upon defendant’s railroad some eighteen or twenty miles from Morley.

At the time deceased was killed he was in gpod health, except that he was very hard of hearing, and about thirty-five years of age. His wages at this time were $60 a month. He left surviving him a wife and one child six years old, for whose use and benefit, the wife, as administratrix, is here suing.

There are keen contradictions in the testimony. The statement of the facts as made by ns is taken largely from the testimony of witnesses -adduced by plaintiff. This is done because a demurrer to the testimony was offered, and because the point here chiefly relied on for reversal is that there is not sufficient evidence to take the case to the jury; particularly, upon the. point that deceased, when he was killed,, was not engaged in the performing of such labors or duties as to bripg him within the purview of the F'ederal Employers’ Liability Act.

While upon the law- applicable to such a contention, present defendant’s negligence, the countervailing testimony as to the manner in which deceased lost his life is scarcely important, except as a matter of curiosity, we may yet say in passing that if the testimony of the witnesses for the defendant is to -be believed, defendant was wholly without negligence, and deceased lost his life by his own gross lack of care and contributory negligence. Upon this sharply contradicted phase of the case the testimony adduced by plaintiff tended to show that it was dusk, approaching dark, and spitting snow slightly at the moment deceased was struck; that the work-train which struck him was running with an old gondola car in front of the engine; that this car prevented the engineer and fireman from getting a clear view of the track in front; that this work-train was running at a1 prohibited rate of speed, to-wit, about twelve miles an hour; that there was no brakeman, or other person on the front of the train to keep1 a lookout, and that deceased could have been seen and the train stopped in time to avoid striking him had defendant’s servants, agents and employees kept a proper look-out, such as the situation demanded.-

Touching this situation it further appeared - that there were some hundred or more laborers engaged in this work and composing this gang; that all of these persons were housed in some boarding cars, which were set. upon a side track. This side track was separated from the town of Morley, and the depot, by the main track and the passing-track. It was necessary for all of these persons who were in this gang or engaged in work about these boarding cars to cross both the main track and the passing-track at all hours, and that defendant’s crew in charge of this work-train knew this fact, and that it was the duty of defendant to exercise in all its switching operations a care commensurate with the dangers existent.

The testimony on the part of defendant tended to show that .at the time the' deceased was killed the work-train was running only some six or seven miles' an hour; that the gondola oar, which was in front of the locomotive, was a small one, so that both the fireman and engineer could see over it, and that there was maintained a look-out at the time of the accident; that a brakeman was standing at the ’brake-wheel on a small platform on the front end of the car which struck and killed deceased. Some three or four witnesses, for defendant, who say they were in a position to see and did see the whole casualty, testified that as the work-train approached a point opposite the interpreter’s car, deceased came hastily out of this car, passing therefrom on a board laid from the car to the top of a pile of coal, and ran down this pile of coal directly in front of the work-train; that when he came out of the interpreter’s car, the'work-train was only some twenty-five feet distant, and that without looking or stopping, deceased traversed rapidly the space of some six or eight feet between the interpreter’s car and the track on which the work-train was approaching, and came upon the passing track directly in front of the train when it was only some six or eight feet from him. After striking and killing deceased the work-train stopped almost instantly. So quickly, did it stop that deceased’s body was taken from the track at a poinl? only some twenty-six feet from where he had been struck, and directly in front of the cow-catcher upon the locomotive. In stopping the engineer reversed his engine and the stop made was so sudden as to derail the gondola car.

Upon the trial of the case a stipulation was offered. This stipulation had been made .and was signed both by counsel for plaintiff and counsel for defendant. It occurs in the record twice. It wa's -offered for the first time by plaintiff for the purpose, as plaintiff stated, of “showing the use made of the work-train.” It was offered by defendant for the purpose, as stated by defendant when offered, of “showing the work of the working crew on March 14, 1913, of which deceased was the timekeeper.” No. objections or exceptions were made by either party to the offering of this stipulation, nor to the verbal limitations made when offering it touching its probative effect. This stipulation, ommitting signatures of counsel and,formal parts, which are conventional, reads thus:

“It is hereby agreed and stipulated by and between the parties hereto, that on the day that Walter Cre-celius was killed, March 14, 1913, the crew of which Walter Creeelius was timekeeper, and of which William Metcalf was foreman, had been engaged in ballasting a temporary track along the side of the main line of defendant’s railroad at Morley, Jones County, Iowa. That said temporary track was to be used when repairs and construction were completed as the main line for the passage of all trains while the grade of the regular main line was being reduced; said temporary track when finished to be used for.the purpose of transporting trains carrying freight and passengers from the State of Iowa and from the other states, into- and through the State of Iowa; while grade of main line track was being lowered. It is understood that by this stipulation defendant in nowise admits that at the time and place of the .accident or the day of the accident defendant’s train which is alleged to have killed Walter Creeelius, or plaintiff’s intestate, Walter Creeelius, was engaged or employed in interstate commerce.”

Notwithstanding this stipulation both plaintiff and defendant put in much testimony without objection from the adverse side which supplemented, and in a sense contradicted, the stipulation as to the nature of the work which the gang of laborers was doing on the day deceased was killed. This contradiction goes to the fact whether this gang was on this • day engaged solely in constructing the temporary track, or whether it was both engaged in constructing this temporary track and in putting in neio ties and steel upon the old main-line interstate track of defendant. The testimony offered by plaintiff tended to show that this gang was engaged in performing labor upon both the old track and the new track, while that offered by defendant tended to show that the sole work on the day deceased was killed had been that of constructing the temporary track. This temporary track had never been used in interstate commerce. In fact, it had not been completed, and was not, except presumably at one end, joined or connected to the main interstate track at all. When completed it was intended to' be used in both intrastate and interstate commerce, pending the lowering of the grade of the main line track, but at the time of deceased’s death it was neither completed nor connected, nor had it ever been used in any sort of traffic or commerce.

Such further facts as may become pertinent in, the course of the discussion will be set forth in our opinion in connection with that discussion.

I. The defendant’s contentions in the last analysis are but three in number: (1) Do the facts in the case bring it within the purview of the Federal Employers’ Liability Act of April 22, 1908 (35 U. S. Stat., p. 65, c. 149) as amended April 5, 1910 (36 U. S. Stat. p. 291, c. 143) 1 , (2) does instruction five for plaintiff properly declare the correct rule for the diminution of damages under the Employers’ Liability Act, when the person killed or injured has been guilty of contributory negligence? and (3) does instruction eleven for plaintiff set forth the correct measure of and the proper method of determining damages, in eases under said act?

Interstate Commerce.

The first contention made is an exceedingly close and difficult one. It turns, as such' questions always* do, upon the facts. Much of the difficulty has been eliminated by a total disregard' and consequential waiver of the stipulation made and offered, touching the nature of the wort on whicl^ the gang for which plaintiff’s decedent was timekeeper, was engaged on the day deceased was killed. Not only was there a total disregard of this stipulation, hut much evidence was put in on both sides without any objection., both in corroboration and in contradiction of it. Moreover, both plaintiff and the trial court m express) terms disregarded it’ by an instruction which is not now here urged as error, and defendant did the like in leaving the question of the nature of this work to the jury, instead of regarding it as a matter of law to be determined as such upon defendant’s demurrer to the evidence. On ' cross-examination defendant asked a witness for plaintiff this question: “I believe you said these men were engaged in what kind of work at this time on this day?” To which the witness answered: “Building a temporary track and repairing the old track.” This old track was conclusively shown to be the main-line track used by defendant in its interstate traffic. We conclude that the terms of the stipulation were waived, since upon the trial this stipulation was ignored without objection by the trial court and 'by counsel upon both sides. [People v. Holden, 28 Calif. 128; Hughes v. Jackson, 12 Md. 450; Givens v. Lawler, 9 Ala. 543; Gage v. Bank, 86 Ill. 371; Foster’s Exrs. v. Dickerson, 64 Vt. 233.]

Upon this phase of the question, it thus became through this evidence a question for the jury whether the gang for which deceased was acting as timekeeper was on the day he was killed repairing a railroad track used in interstate commerce. The jury found that this gang was so engaged, and as there was substantial evidence to support this finding we cannot interfere. But, since deceased was concededly killed some thirty minutes or more after the gang in question had quit work for the day, was deceased, when killed by reason of the custom of performance and necessity of his labors, still himself engaged in performing an act so directly and immediately connected with' his previous acts as a timekeeper as to make of it ,a part thereof, or a necessary incident thereto? [Erie Railroad Co. v. Welsh, 242 U. S. 303; Shanks v. Delaware, etc., Co., 239 U. S. 556; New York, etc., Co. v. Carr, 238 U. S. 260.] We are constrained to say that this question must also he answered in the affirmative.

The facts upon this phase of the case show that it was the duty of deceased as timekeeper of the gang in question to make out daily reports on the work-day just ended of the number of men at work, the nature of the work being done by them, the number of hours of labor done by each man, the amount of steel laid and the number of ties put in. These reports were sent by mail and by telegraph to the roadmaster of defendant at Marion, Iowa. The report which was mailed was a full report of the day’s work, while the short telegraphic report was merely a resume thereof. It was shown to be the custom of deceased to> make out these reports between 6:30 and 7:30 o’clock p. m. each evening. The report intended by him to be mailed was written on a typewriter, while the telegraphic report was written out with a pencil in longhand. Just a few minutes before he was killed, deceased had made out his report. Shortly afterwards, about the hour he was in the custom of sending this report, he left the car m which' he had his desk, and with the statement that he “was going to send his message,” went to the car occupied by the interpreter for the gang, remained there a minute or two; and then started across the passing-track toward the telegraph office. As he came onto the passing track he stopped in the middle thereof, apparently looking at a way-freight train which had stopped at the station, the engine of which was only some ten feet away from Mm. While thus standing, and after he had stood in the middle of this track for some twenty-five seconds, he was run down and killed by the work-train then on its way to Marion, Iowa, the division point, apparently to “tie up” for the night. After the killing of deceased his daily telegraphic report was found on his desk; though on this point there is evidence that he sometimes prepared this report at the telegraph office. There is not in the record any countervailing proof whatever as to the object of deceased in crossing these tracks at the time he was killed, except that having relation to' his having made out his report, the arrival of the customary time of sending-same, and his own statement as to his intentions when he left his desk. "We think upon this evidence, the question whether deceased was hound for the telegraph office to send a message in furtherance of his usual duties when he was'killed, became a question of fact to he resolved 'by the triers of fact, and not a question of law to he determined as such by this court. [Knorpp v. Wagner, 195 Mo. l. c. 662; State ex rel. v. Elliott, 157 Mo. l. c. 618; Finnegan v. Railroad, 224 Mo. l. c. 653; Linderman v. Carmin, 255 Mo. 62.]

The ultimate facts of this case then, as the trial jury was warranted in finding them from the substantial evidence adduced, ran thus: Deceased, on the day lie was killed was working as a timekeeper for a gang of men engaged in repairing the main track of an interstate railroad (and in constructing a temporary track to be used while the grade of the main-line track was being lowered); after work hours for the gang of laborers, but at a time when the duties of deceased required him to make out and send to the roadmaster of the defendant a daily telegraphic report of the number of men engaged and the nature of the work done by the gang of which deceased was timekeeper, and after he had prepared his report, he was killed by an intrastate work-train, while he was crossing the tracks of defendant on Ms way to the telegraph office to wire in said report.

That deceased was guilty of contributory negligence as a matter of law, tbe-re can be no manner of doubt. For while, pursuant to the rule of law in such behalf, when the sufficiency of the evidence is brought in question by a demurrer thereto, we have recited the facts upon the view most favorable to plaintiff, the latter’s own evidence conclusively shows that deceased came to his death through his own contributory negligence. If a cloud of witnesses are to be believed, defendant was itself free from negligence, but upon this point, there was a sharp conflict in the evidence, which was likewise to be resolved by the trial jury. We conclude, therefore, that at the time deceased1 met his death he was engaged in the performance of duties which were so closely connected with interstate commerce as to constitute a part thereof, within the purview of the Federal Employers’ Liability Act.

In the late case of Pederson v. Delaware, Lackawanna & Western Railroad Co., 229 U. S. 146, plaintiff, an iron-worker, was injured while carrying some iron bolts from a tool-car to a bridge which formed a p;art of an interstate railroad, which bolts were to be used that night or early the next morning in repairing this bridge. It was held, nevertheless, that plaintiff was, when injured, so far engaged in duties so closely connected with interstate commerce as to be a part thereof and so as to bring him within the provisions of the Employers ’ Liability Act.

In the case of St. Louis Ry. Co. v. Seale, 229 U. S. 156, plaintiff’s decedent, a yard clerk, in a division-point yard, was killed while on his way through the railroad yards to one of the tracks therein, to meet an interstate train, in order to check from the conductor’s lists and make a record of the number and initials of the cars and to inspect the condition of the doors and seals thereof. In this ease it was held that deceased was when killed engaged in performing duties so far connected with commerce between the States, as to make applicable the Employers’ Liability Act. Other cases wherein the act was held to apply, which are not quite so apposite, but •which accentuate the distinction and shed light upon the principle involved, are: Johnson v. Great Northern Railroad Co., 102 C. C. A. 89; Freeman v. Powell, 144 S. W. 1083; Horton v. Oregon Ry. & Nav. Co., 72 Wash. 503; Grow v. Oregon Short Line R. Co., 138 Pac. 398; Eng. v. Southern Pac. Co., 210 Fed. 92; San Pedro, etc. Co. v. Davide, 210 Fed. 870; Norfolk & Western Ry. v. Earnest, 229 U. S. 114; North Carolina Railroad v. Zachary, 232 U. S. 248; New York Central Railroad v. Carr, 238 U. S. 260. Cases wherein the facts were said to exclude the application of the Employers’ Liability Act, are Jackson v. Chicago M. & St. P. Ry. Co., 210 Fed. 495; Bennett v. Lehigh Valley Ry. Co., 197 Fed. 578; Shanks v. Delaware Ry., 239 U. S. 556; New York Central Ry. Co. v. White, 243 U. S. 188 ; Erie Railroad Co. v. Welsh, 242 U. S. 303; Bravis v. Chicago, M. & St. P. Ry. Co., 217 Fed. 234; Chicago etc. v. Steele, 108 N. E. 4; Jacoby v. Chicago, M. & St. P. Ry. Co., 361 N. W. 751. A comparison of the facts present in the Pederson case, and the Seale case, both supra, with the facts held in judgment in the Welsh case, and the Jacoby case, both supra, will we think clearly and inevitably serve to show the distinction existing and the fairly obvious line of demarcation which differentiates the cases wherein the act applies from the cases wherein it does not apply.

II. Defendant complains that instruction numbered five, given by the court nisi, is erroneous. This instruction reads thus:

“On the issue of ‘contributory negligence’ pleaded by the defendant the court instructs the jury that if you believe from the evidence that the defendant, acting through its servants and agents, was negligent as defined in plaintiff’s preceding instructions numbered 2 and 3, and that such negligence contributed as a direct cause to the death of Walter Crecelius; and that Walter Crecelius was then and there in the exercise of ordinary and reasonable care under all the facts and circumstances mentioned in evidence, then the said Walter Crecelius was not guilty of contributory negligence, and the jury would not be warranted in diminishing the damages assessed in plaintiff’s favor — in the event of a verdict for the plaintiff; and if the jury believe from the evidence that the defendant was negligent in th'e way and manner mentioned in plaintiff’s preceding instructions numbered two and three; and that such negligence, if any, contributed as a direct cause to the death of Walter Crecelius, then even if you should find and believe from the evidence that the deceased, Walter Crecelius, was guilty of contributory negligence, such finding and belief and such fact of contributory negligence would pot authorize a verdict in favor of th'e defendant Railroad Company, but would only authorise that the damages assessed by you in favor of the plaintiff be diminished by the jury in proportion to the amount of negligence attributable to said Walter Crecelius.”

This contention we are of opinion must be sustained. For it will be noted that the. instruction attacked does not require or command the jury in the event they find deceased to have been guilty of negligence directly contributing to- his own death, to deduct from th'e total amount of damages (if any) sustained by plaintiff such sum as equals the proportion which they may find the contributory negligence of deceased bears to the whole causal negligence in the case; it merely “authorizes” the jury to make this deduction. We think this is error. [Blankenbaker v. St. L. & San F. Railroad Co., 187 S. W. l. c. 842.] The pertinent lan-gauge of the Federal Employers’ Liability Act, applicable to the contention presented, reads thus:

“The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, hut the damages shall he diminished by the jury in proportion to the amount of negligence attributable to such employee.” [Sec. 3, Act of April 22, 1900, 35 U. S. Stat. p. 66, c. 149.] (Italics ours).

Interpreting this language the Supreme Court of the United States in the case of Seaboard Air Line v. Tilghman, 237 U. S. l. c. 501, said:

“It means, and can only mean, as this court has held, that, where the causal negligence is attributable partly to the carrier and partly to the injured employee, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to.the employee’s contribution to the total negligence. [Norfolk & Western Ry. v. Earnest, 229 U. S. 114, 122; Grand Trunk Western Ry. v. Lindsay, 233 U. S. 42, 49.]”

We are clearly of the opinion that the imperative command of the Federal statute requiring the jury to diminish the damages, in the mode stated, in the event that they find that the deceased was guilty of contributory negligence, was not conveyed to the triers of fact by the use of"the mere permissive word “authorize.” This word as here used means “to warrant; to justify; to furnish a ground for.” [Webster’s Diet.] It does not connote the idea that pursuant to the statute the jury must so diminish the damages. It merely permits the jury to do so, leaving it to the discretion of the jury whether they actually do so. or not. The jury should have been told that even if they should find and believe from the evidence that said Crecelius was guilty of contributory negligence, such finding and belief, and such fact of contributory negligence, would not authorize a verdict in favor of the defendant, but would make it necessary for the jury to deduct from the total amount of damages, if any, which the jury might find plaintiff had sustained by the killing of said Crecelius, such sum as the jury might find to be equal to the proportion which the negligence attributable to- said Creee-lius bears to the causal negligence attributable to both Crecelius and the defendant. It follows that this com tention must be sustained.

Measure oi Damages.

III. In the brief of learned counsel for defendant it is urged that instruction eleven on tbe measure of damages does not advise tbe jury of tbe proper method damages under tbe Federal Employers’ Liability Act. Unfortunately, so far as our review of tbis question here is concerned, defendant did not in any manner mention tbis instruction in its motion for a new trial. Defendant does complain in its motion for a new trial that tbe damages awarded are excessive, but if fails to *keep that complaint alive in its brief, and so we are warranted in assuming that it bas waived it. Since, then, defendant waived one of these germane questions and never raised tbe other, we can review neither.

It follows that tbe judgment of tbe trial court must be reversed and remanded for a new trial not inconsistent with what we have herein ruled. Let tbis be done.

Graves, G. J., ]3ond and Woodson, JJ., concur; Graves, G. J., in separate opinion, in which Woodson J., joins; Walker, J., dissents; Blair and Williams, JJ., concur in paragraphs one and three, but dissent as to paragraph two and tbe result.

GRAVES, C. J.

I concur with tbe amended opinioii of Fabis, J., filed in Banc, with one reservation, which I will state later. That instruction numbered 5 for tbe plaintiff is erroneous, I have no doubt. This instruction undertakes to tell tbe jury what they should do, under the terms of tbe Federal statute, in tbe event they found that deceased was guilty of negligence which contributed to bis -death. It is an instruction which defines tbe duty of tbe jury under tbe statute. Instead of telling tbe jury that they must reduce tbe total damages suffered in tbe event there was found negligence upon the part of deceased, tbe instruction leaves it solely with the jurors as to whether they will or will not reduce tbe total damages. As shown by Fabis, J., tbis is not tbe meaning of tbis statute. If there was contributory negligence tbe total damages must be reduced under the statute, and in the manner designatéd in the statute.

Nor is there substance in the claim that this instruction numbered 5 is mere non-direction and not misdirection. As an instruction it is a declaration of the meaning of this statute (Section 3 of the Federal Employer’s Liability Act), and for that reason is a misdirection and not a non-direction of the jury. In other words, having in view the act under which the suit is brought, it undertakes to tell the jury what (duty this law imposed upon the jury' in the event contributory negligence was found. The instruction wrongfully states that duty, and is clearly a mis-direction upon a most vital issue in the case. So that upon this, question I have had no trouble.

The question which has troubled me more, is whether or not there is any substantial evidence showing that the deceased was about his master’s work at the time of the accident. But as the case should be reversed for the error in the instruction, supra, it may be this phase of the case can be strengthened upon retrial. With a reservation upon this point, I concur in the views expressed by Paris, J., in the amended opinion filed in this court by him.

Woodson, J., concurs in these views.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    GEORGE A. CALLICOTTE v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    June 13, 1918.
    1. SAFETY APPLIANCE ACT: Injury to Employee: Negligence. In an action under the Safety Appliance Act for injury to a trainman who, in the course of duty, attempted' to descend from a car, and fell from its top hy reason of the giving way of the handhold, if the equipment was in fact defective or out of repair, the question of whether this was attributable to the defendant’s negligence is immaterial.

      2. -: -: Contributory Negligence. Under the Safety Appliance Act, contributory negligence constitutes neither defense nor mitigation of damages.
    3. -:-: Allegation of Negligence: Proof and Instruction. In an action for injury to an employee founded on the Safety Appliance Act, an allegation that the defendant was negligent in failing to discover and repair the defects specified is mere sur-plusage, and if the facts alleged and proved bring the case within that statute a judgment for plaintiff will not be reversed because the instruction required the jury to find that defendant was negligent in the manner alleged and there was no proof of such negligence. Both by the allegation and the instruction the plaintiff assumed an unnecessary burden, but the verdict being for him and the proof being sufficient to authorize a recovery under the act, the judgment will not be reversed because he assumed that unnecessary burden. Had he failed to recover and attempted to secure a reversal on the ground that he was not required to prove negligence, the contention that he is bound by his chosen trial theory might have greater validity.
    4. INSTRUCTION: Assumption of Injury. Where the first instruction required the jury, before finding for plaintiff, to find all facts necessary to authorize such a verdict, including the fact that he was injured, the second instruction, telling them that, if they find for plaintiff, they may take into consideration certain things in estimating his damages, does not assume that he was injured.
    5. VERDICT: Excessive: Character of Testimony. The appellate court will not rule that the verdict is excessive on the ground that the testimony to prove the injuries is not worthy of belief. In this case that was a jury question.
    6. -:-: Aliunde Evidence. The court in determining whether or not the verdict is excessive in view of the evidence is restricted to the record made at the trial, and will not consider evidence obtained in a subsequent attack upon the judgment tending to prove that plaintiff has entirely recovered from his injuries.
    Appeal from Buchanan Circuit Court. — Hon. Thomas B. Allen, Judge.
    Affirmed.

      Paul E. Walker, John E. Dolman and O. E. Shulls for appellant.
    (1) The court erred in refusing to give defendant’s peremptory instruction. The action is brought under the Federal Employers’ Liability Act, which regards negligence as the basis of the duty to make compensation and excludes the existence of such a duty in the absence of negligence. Erie Railroad Co. v. Winfield, 37 Snp. Court Rep. 556; N. Y. C. Railroad Co. y. Winfield, 244 U. S. 151; Seaboard Air Line y. Horton, 233 U. S. 492; So. Ry. Co. v. Gray, 241 U. S. 333; Hogan v. N. Y. C. Ry. Co., 223 F'ed. 890. The defect must be such as could have been discovered by reasonable inspection and negligence predicated thereon, in- the absence of which no recovery can be had. Penn. Ry. Co. v. Glas, 239 Fed. 256-261; Penn. Ry. Co. v. Knop, 218 Fed. 748. The burden is upon the plaintiff to prove negligence. If the lag screw broke by reason of some defect it devolves upon him to show that by reasonable care this defect might have been discovered. Texas Pac. Ry. Co. v. Barrett, 166 U. S. 617; Westinghouse Elect. Co. v. Heimlich, 127 Fed. 92. (2) If the defect in the lag screw and the handhold was of such a nature that it could have been discovered by reasonable inspection it was plaintiff’s duty under the rules of the company to examine the same before using it, to see that it was in proper condition, and his failure to do so would constitute negligence directly contributing to the accident complained of. Norfolk Ry. Co. v. Ferebee, 238 U. S. 269; Southern Ry. Co. v. Gray, 241 U. S. 333. (3) Instruction 2, requested by plaintiff, is erroneous, because it assumes that plaintiff was injured when this fact was disputed. The court may, in its instruction to the jury, assume the truth of a proposition which is established by the undisputed testimony, but it is manifestly improper to do so, where there is conflict in the evidence. Fullerton v. Fordyce, 121 Mo. 13; Hall v. Railroad, 74 Mo. 302; Barr v. Armstrong, 56 Mo. 589; Caldwell v. Stevens, 57 Mo. 595; Warrington v. Bird, 168 Mo. App. 390; Freeman v. Met. St. Ry. Co., 95 Mo. App. 104; Davidson v. Transit Co., 211 Mo. 357. (4) It will not be denied upon this appeal that within less than sixty ¡days after the rendition of the judgment herein complained of, plaintiff entirely recovered and admitted that he had entirely recovered from his alleged paralysis, and from that time to this has been as well as he ever was. Manifestly, therefore, the judgment is excessive and in the interest of justice, notwithstanding’ the record, does not disclose these admitted facts, it should be set aside for that reason.

      Randolph & Randolph and Strop & Mayer for respondent.
    (1) The eonrt did not err in refusing defendant’s peremptory instruction. Illinois Central Railroad G\>. v. Williams, 242 U. S. 462; Texas & Pacific Railroad Co. v. Rigsby, 241U. S. 33; Spokane Ry. Co. v. Campbell, 241 U. S. 99; San Antonio Railroad Co. v. Waggoner, 241 IT. S. 476; Great Northern Ry. Co. v. Otos, 239 U. S. 349; Burlington Ry. Co. v. United States, 220' U. S. 550; Iron Mountain Ry. Co. v. Taylor, 210 U. S. 281. (2) Contributory negligence was no defense, even for the purpose of diminishing the amount of damages. Spokane Ry. Co. v. Campbell, 241 U. S. 497; Grand Trunk Ry. Co. v. Lindsay, 23i3 U. S. 44. (3j It is not necessary to submit the question of contributory negligence in any case where the evidence shows there was none. Norfolk, etc. Ry..Co. v. Ferebee, 238 U. S. 269.
   BLAIR, J.

Respondent recovered judgment for $18,000 in an action for damages for personal injuries. This appeal followed.

It is. undisputed that the appellant was engaged and respondent employed in interstate commerce at the time of the injury. The evidence tends to show respondent, in the course of duty, attempted to descend from one of appellant’s cars and fell from its top by reason of the giving way of a handhold on the car at the top of the ladder he was about to use; that the lag screw designed to secure one end. of the handhold was partly rusted through or cracked one-half inch below the surface of the roof of the ear, and gave way when respondent attempted to use the handhold, and that respondent fell thirteen feet and struck upon his hack; that symptoms of paralysis of the lower limbs developed. Physicians who testified had examined respondent and had applied numerous tests for the purpose of determining the fact whether paralysis existed. The “doctors disagreed,” hut there was evidence that the tests applied developed facts showing that respondent’s injuries were permanent.

Appellant assigns for error (1) the refusal of the court to direct a verdict for defendant; (2) the giving of one of respondent’s instructions, and (3) excessiveness of the damages allowed.

I. In an action under the Safety Appliance Act “it is of course settled that if the equipment was in fact defective or out of repair, the question whether this was attributable to the company’s neg-pg.ence immaterial.” [Spokane & Inland Railroad v. Campbell, 241 U. S. l. c. 505, and cases cited; St. Joseph & Grand Island Ry. v. Moore, 243 U. S. l. c. 314; San Antonio Ry. v. Wagner, 241 U. S. l. c. 483, 484; Illinois Central Railroad v. Williams, 242 U. S. l. c. 464; New York Central Railroad v. White, 243 U. S. l. c. 198; L. & N. Railroad v. Layton, 243 U. S. l. c. 620, 621; Roberts’ Injuries to Interstate Employees, sec. 21.] Decisions under the Federal Employees’ Liability Act (several are cited) and in cases grounded upon general law are inapplicable.

II. Under the Safety Appliance Act contributory negligence of the injured person constitutes neither defense nor mitigation of damages. [Moore, v. St. Joseph & Grand Island Ry., 268 Mo. l. c. 35, 36, affirmed 243 U. S. 311; Spokane & Inland Railroad v. Campbell, 241 U. S. l. c. 509, 510.]

III. The petition stated facts making a case under the Safety Appliance Act. In addition, it alleged appellant was negligent in failing to discover and repair defects charged to exist. Appellant’s principal instruction required the jury, before finding for respondent, to find • facts which would authorize a recovery under the Safety Appliance Act, and, also, that appellant was negligent in the manner alleged in the petition. Appellant now contends respondent is hound by this theory; that there was no substantial evidence that the defect could have been discovered by the exercise of appropriate care; and, therefore, that this judgment must be reversed1. The facts alleged and proved brought the ease within the Safety Appliance Act. This act is, as is the Employers’ Liability Act, “paramount and exclusive” in its field. [N. Y. Central Railroad Co. v. Winfield, 244 U. S. l. c. 151 et seq.] The allegations of negligence in the petition were the purest surplusage, and in submitting the question in the instruction respondent assumed an unnecessary burden. Whether there was evidence of negligence of the sort mentioned is a purely academic question. The absence of such evidence, despite the submission of the question, is immaterial in view of “the positive duty imposed by the statute upon the railroad to furnish safe appliances” in the way of handholds. [Minn. & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66.] The cases cited by appellant might be applicable had respondent failed to recover and liad he attempted to secure a reversal on the ground that he was not required to prove negligence.

IV. It is contended the instruction on the measure of damages is erroneous. The only objection made which is not covered by principles already adverted to is that the instruction assumes that appellant was injured. Respondent’s first instruction required the jury, before finding for respondent, to find all facts necessary to authorize such a verdict, including the fact that respondent was injured. Instruction 2 is as follows:

“The court instructs thé jury that if you find for the plaintiff, in estimating and determining the measure of his damages you should take into consideration, in connection with the facts, circumstances and evidence, the bodily pain and suffering and mental anguish, if any, endured by him and resulting from the injuries received; the character and extent of his injuries and whether they are permanent in their nature; the extent, if any, to which he has been prevented and disabled, and will be prevented and disabled in the future, by reason of such injuries,” etc.

This whole instruction is conditioned upon a finding for respondent, and instruction one requires that the fact of injury shall be found' before the jury are authorized to find for respondent. It is clear instruction 2 does not assume the fact of injury.

Y. In an additional brief appellant, after the argument and submission of the' cause, attempts to assign additional error with respect to instruction one. This might be disposed of on the ground that the complaint was not made in time. The contention is that “the evidence must show and the jury be required to find that the handhold in question literally complied with the statute” (Safety Appliance Act) “in order to bring the appliance within its terms and create a statutory liability for a defect therein;” that “there is nothing in the evidence in this case, nor in plaintiff’s instruction (one) defining his right to recover, that the grab-iron in question was the one prescribed by the statute to be at the top of the ladder.” (Italics are those of counsel.)

There was no dispute about the position of the handhold which gave way and allowed respondent to fall. Questions propounded to appellant’s witnesses 'by its counsel assumed the position of the handhold to be at the top of the ladder which respondent was attempting to descend. Further, the instruction assailed required the jury, before finding for respondent, to find, among other things, that respondent was upon a box car in use by appellant “and attempted to descend from said car, and in sucb attempt took bold of a, bandbold or grab-iron on the top of said car provided for the purpose,” etc. In the circumstances there m nothing in this contention.

verdict

VI. It is argued the judgment is excessive. We do not understand ’ counsel to contend there was no substantial evidence tending to prove injuries justifying a verc^c^ f°r tbe amount given. They argue that the testimony tending to prove such injuries is not worthy of belief. This question was submitted to the jury, and we have mo power to usurp their province and re-weigh! the evidence on appeal. Another contention is that it appeared in the hearing on the application for the order for the writ of error coram nobis that respondent had not been permanently injured and was practically well at the time of that hearing. Unfortunately for appellant we are restricted to the record in the case as made at the trial. This court is powerless to go outside th'at record for additional evidence upon which to 'base a reversal. The wisdom or unwisdom of this limitation it is useless to discuss. The limitation exists and binds this court. The judgment is affirmed.

All concur except WoodsoN, J., not sitting; Bonn, J., concurs in the result because this does not preclude defendant from equitable relief.


author: WILLIAMS, J.

text:
    AD VALOREM MINING COMPANY, Appellant, v. JULIUS C. MILLER et al.
    In Banc,
    June 13, 1918.
    1. NON- EST RETURN: Order of Publication: Corporation Defendant. A sheriff's return that he made “due and diligent search and failed to find the within named defendant, the Ad Valorem Mining Company, in my county” is sufficient to confer upon the court jurisdiction under the statute to determine whether an order of publication should he made against the said company, a domestic corporation, the defendant in the tax suit. It is not insufficient because it fails to recite that the sheriff made diligent search and failed to find the president or other chief officer of the said company in his county and that he was further unable to find any business office of said company in his county with a person in charge thereof.
    2. -:-:-: Naming Defendant Alone. The statute only requires that the return state that “the defendant or defendants cannot be found,” and such a recital in the return means that the serving officer was unable to find any lawfully designated person upon whom the process could he served.
    3. -: -: -: Satisfaction of Court. The court may become satisfied from the sheriff’s return that the defendant 'corporation cannot be found in the county; and when the sheriff’s return recites that he made “due and diligent search and failed to find the within named defendant,” a domestic corporation, in his county, and the court’s order recites that “it appearing to the satisfaction of the court from the non-est return of the sheriff, to the writ of summons heretofore issued herein, that the defendant cannot be served with the ordinary process of law in this State, it is therefore ordered by the court that publication be made, notifying the said defendant that suit has been commenced against it,” etc., there is a sufficient showing that the court was satisfied that process could not be served, and to. confer jurisdiction to make the order.
    Appeal' from Jasper Circuit Court. — Hon J. D. PerTcins, Judge.
    Affirmed.

      L. 8. Dewey and Owen & Davis for appellant.
    (1) In constructive service where a method has been prescribed, that method is preclusive and must he observed literally and strictly. Stewart' v. Stringer, 41 Mo. 400; Stanton v. Thompson, 234 Mo. 1; Harness v. Cravens, 126 Mo. 233. For the court has no authority to permit a different service or process from that outlined in the statutes. Such a course is exclusively the prerogative of the Legislature. Harness v. Cravens, 126 Mo. 247; Windso v. McVeigh, 93¡ U. S. 283. (2) The return is had for it is not according to the statute form. It reports merely a failure to find the company in the county — not its officers or office. R. S. 1909, secs. 1766, 1767, 1769. Everything may be inferred against the officer’s return which its departure from the statute warrants. Blanton v. Jamison, 3 Mo. 52; Bash v. Suman, 79 Mo. 527; IToltschneider v. Railroad Co., 107 Mb. App. 381. A corporation has no tangible entity. Kelly v. Mundagh, 184 Mo. 377. (3) The publication states that the court found from the return of non est that the defendant could not be served in the State, though not even an attempt to serve the company appears on its face. Stanton v. Thompson, 234 Mo. 11-13; Yan Natta v. Real Estate Co., 221 Mo. 378; Cummings v. Brown, 181 Mo. 711,

      Hugh Dabbs for respondents.
    (1) The tax deed set out in the record is in the usual form of sheriff’s deed on execution sales based on tax judgments. The non est return and order of publication are in compliance with the statute and holdings of this court relating to service in tax suits. The judgment in the tax suit is in proper form and publication was made in compliance with the terms of the statute. Under this, record, the trial court properly held that plaintiffs were the owners of the real estate in controversy' in this case. R. S. 1909, secs. 1769, 1770, 1772, 2231, 6346; Lumber Co. v. McCabe, 220 Mo. 179. (2) The petition in the tax suit contains the proper jurisdictional allegations of fact. The order of publication is in compliance with the statute. These are the things to be looked to where the judgment, as in this case, is a judgment of a court of general jurisdiction, and tax -sale has been made under the judgment. In such case, mere irregularities are not sufficient to overturn tax judgment in a collateral proceeding. Skillman v. Clardy, 256 Mo. 315-326; R. S. 1909, secs. 1770 and 1772 ; Cruzen v. Stephens, 123 Mo. 341-347; Cummings v. Brown, 181 Mo. 717.
   WILLIAMS, J.

Plaintiff’s petition: is in 'two counts. The first count is the usual statutory action to determine the title to the south half of the northeast quarter of the southeast quarter of section 16, township 27, range 33, Jasper County, Missouri.

The second count involves the same land and seeks to have cancelled as a cloud upon the title a certain tax deed purporting to convey said land to the defendants. The tax deed is attacked on the ground that it lias as a basis a void judgment.

The answer alleges defendants to be the owners in fee simple of said land and that by the tax deed above mentioned they acquired all'the right, title and interest of plaintiff therein.

Trial was had in the circuit court of Jasper County resulting in a judgment in favor of the defendants. The plaintiff duly appealed.

Appellant (plaintiff below) is a Missouri corporation. At the November Term., 1912, of the Jasper' County Circuit Court, the collector of that county instituted a suit against said company, the then owner of the land here involved, to recover taxes delinquent on said land. Sufficient reason arose for the issuance of an alias summons which was properly done on August 7, 1913.

In proper time the sheriff made the following return thereon, to-wit: <

“Executed the within writ in the County of Jasper and State of Missouri, until the 17th day of November, 1913, by making due and diligent search and failed to find the within named defendant the Ad Yalorem Mining Company in my county.
By Chas. Wells, D.S. C. B. Baker,
Sheriff Jasper County, Mo.”
(Italics ours).

Thereupon in proper time the court made the following order of publication in the case:

“Now at this day comes the plaintiff in the above entitled cause, by Attorney J. H. Flanigan, and it appearing to the satisfaction of the court from the non-est return of the Sheriff of Jasper County, Missouri, to tlie writ of summons heretofore issued herein that the defendant Ád Valorem Minimg Co. cannot he served with the ordinary process of law in this State. "Whereupon, upon the oral motion of the relator’s attorney herein it is hereby ordered by the court that publication be made, notifying the said defendant that a -suit has been commenced against it,” etc. (Italics ours). The remaining portion of the order of publication was correct as to form.

Proper publication was made of the above order. The Ad Valorem Mining Company failed to appear and in due time judgment was entered against said company for the amount of taxes due, "together with costs of suit.

It appears that the sheriff, proceeding in due and regular form, sold the land here involved to pay said judgment. Defendants became the purchasers at said sale, and the sheriff’s deed in proper form purporting to convey said land was executed and delivered to them.

Further facts necessary to an understanding of the issues presented will be stated in the opinion.

Respondents in their original brief urged as ground for the dismissal of the appeal the failure upon the part of appellant to compile its brief in conformity with Rule 15 of this court. "While the writer is of the opinion that the points made are not altogether without merit, yet since the case has been fully developed by an opinion in Division and by subsequent briefs of the respective parties, we now feel that the point at issue is so clearly defined and presented as to warrant a discussion of the merits of the case.

The case when reduced to its last analysis presents but one question for determination, viz.: Was the nonr-est return (see copy of same in foregoing statement) sufficient to confer upon the court jurisdiction under Section 1772, Revised Statutes 1909, to determine whether an order of publication should be made against the Ad Valorem Mining Company, a Missouri corporation, the defendant in the tax suit? If it was (all other necessary procedural steps having been properly taken), the title passed at the 'subsequent sheriff's sale to the defendants herein.

Upon careful consideration of the matter we have reached 'the conclusion that the above question must be answered in the affirmative.

Appellant’s position as we understand it is to the effect that the sheriff’s return in merely stating that after diligent search the defendant could not be found in Jasper County, was insufficient. That it should have recited that after diligent search, etc., he failed to find the president or other chief officer of the Ad Valorem, Mining Company m Jasper County and that he was further unable to find any foosiness office of said company in Jasper County with a person in charge thereof. '

If such non-est return to summons''against a: corporation is required before an order of publication in tax suits may be properly made by the court the same logic would' also require that a non-est return against an individual defendant in a tax suit would have to state in effect that after due and diligent search, etc., the sheriff was unable- to find the defendant in his county and was further unable to find some person of the defendant’s family over the age of fifteen years at defendant’s usual place of abode in said county. [See Sec. 1760, R. S. 1909.]

To so hold would, we think, be to place a construction upon the non-est return statute. (Sec. 1772 supra) which would conflict not only with1 the view held generally by the Bench and Bar of this State as to the usual and proper practice in such matters, but also with former decisions of this court, and one which would change a ruling which has in effect become a rule of property in the State.

In the case of Crimen v. Stephens, 123 Mo. 337, l. c. 342, a non-est return which stated “none, of the within named defendants found in my said county” was held «to be a sufficient return under Section) 2024, Revised Statutes 1889 (now Sec. 1772, R. S. 1909), to-authorize the court to proceed in the matter of making an order of publication against individual tax-suit defendants. We see no reason why Section 1772 supra should be ponstrued one way as to individual defendants and another way as to corporation defendants. The statute itself, sufficiently comprehensive in its terms to include corporate as well as individual defendants, makes no such distinction.

Appellant in support of its contention cites Sections 1766, 1767 and 1769, Revised Statutes 1909. Sections 1766 and 1767 supra, as will appear from a mere reading thereof, have to do only with the manner of serving and the; contents of a return when the summons is returned served upon a corporation. They have nothing whatever to do with the contents of a non-est return upon a summons not served, and can hence have no application whatever to the situation here presented.

Neither can Section 1769 be of any aid to appellant. Even if applicable here (a matter we do not concede) its only prerequisite to the court’s jurisdiction in determining the question of notice by publication against a corporation is that the “sheriff . . . shall return any summons not served.” The return in the instant case certainly comes up to that standard.

However, we are of the opinion that the return now under consideration is to be measured by Section 1772; Revised Statutes, 1909, which' provides:

“When, in any of the cases contained in Section 1770, summons shall be issued against cmy defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants cannot be found, the court, being first satisfied that process cannot be served, shall make an order as is required in said section.” (Italics ours).

■A suit to recover taxes, against real estate is a case which falls clearly within the provisions of Section 1770 mentioned in the above quoted section.'

It will be noticed that the only prerequisite of Section 1772 supra concerning the return is that it should state that the defendant “cannot be found.” The return now under review comes irp to the standard fixed by the above statute. When the sheriff in his-return states that after due anid diligent, search he was unable to find the defendant in his county, it means of course that the defendant cannot be found for the purpose of service of process and the term “cannot be found” or its equivalent necessarily implies that the serving officer was unable to find any lawfully designated person upon whom the process in hand could be served. Such we think is the general understanding as to the meaning of such language when found in a sheriff’s return.

If the non-est return in such instances is to be made differently or in more definite language than now required by the above statute the change must come, not through the courts, but through the Legislature.

When the sheriff duly returned the summons and stated in his return (as provided in Section 1772, supra) that after due and diligent search the defendant could not be found in his county the circuit court was thereby invested with jurisdiction under the provisions of said statute to proceed to “satisfy” itself as to whether process could be served. And upon becoming “satisfied” that process could not be served, as it did in this ease (as will appear from the recitation in the order made by the court) the court was then vested with full power to malee the order of publication.

The fact that the court became satisfied from the facts statecj in the return does not render the court’s action less' effective because, as was expressly held in discussing this same statute in the case of Cummings v. Brown, 181 Mo. 717, “the court may be satisfied of the fact from the sheriff’s return, but is not confined to that.” (Italics ours).

It follows from what is said above that the judgment should be affirmed. It is so ordered.

All concur; Faris, Jin the result.


author: BOND, J.

text:
    McMILLAN & PARKER v. BALL & GUNNING MILLING COMPANY, Appellant.
    Division One,
    June 4, 1918.
    MECHANIC’S LIEN: Subcontractor: Extra Work. • The contract between the contractor and subcontractor called for the payment of a lump sum of $7200 for labor and material to be furnished, and the subcontractor received $6781.60 as a credit, leaving $418.40 due him under the original contract; but after the work was commenced the contractor changed the plan of the work and ordered the subcontractor to furnish additional labor and material to the amount of $400.35, which sum, added to the $418.40 due under the original contract, made $818.75, for which- he had judgment against the contractor. Held, that the judgment for the entire sum of $815.75 should be decreed a lien on the building, and the majority opinion of the Court of Appeals (190 Mo. App. 340) decreeing' only the $418.75 to be a lien is disapproved, and the reasoning and conclusions of the dissenting opinion (190 Mo. ■App. 352) that the subcontractor is entitled to a lien for the whole balance due is approved.

      Appeal from Jasper Circuit Court. — Row. Joseph D. Perkins, Judge.
    Affirmed.

      B. F. Stewart, John B. McCammon and B. M. Sheppard for appellant.

      F. T. Stockhard and Gray & Gray for respondents.
   BOND, J.

The undisputed facts are that the firm of Stone & Watts (original contractors and parties defendant in the circuit court) contracted with the Ball k Gunning Company to erect certain concrete wheat tanks; that thereupon they entered into an agreement with the plaintiffs to furnish the material and labor for the construction of said wheat tanks for the lump sum of $7200; that plaintiffs did furnish labor and material in the construction thereof to the amount.of $7600.35; that they received therefor the sum of $6760 in cash, plus a certain credit of $21.60, which left a balance due them of $818.75, for which amount th<?y duly filed a lien against the property of the Ball & Gunning Company, designating it as a partnership and not as a corporation.

The evidence tended to show that the contract between plaintiffs and Stone & Watts only called for the payment of a lump sum of $7200 for the material and labor to be furnished by them; that the total credits to be deducted from said sum was $6781.60, which left $418.40 due them under their original contract; that after the work was commenced, Stone k Watts changed the. plan of the work and ordered plaintiffs to furnish additional labor and material to the amount of $400.35; that this sum added to the $418.40 due. them under their original contract made the $818.75, for which judgment was prayed.

The case was tried without a jury and the court rendered judgment for plaintiffs and against defendant Watts for the full amount of the balance claimed to be due, $818.75, and declared said judgment a lien upon the property of the Ball & Gunning Milling Company.

Thereupon the Ball & Gunning Company duly appealed to the Springfield Court of Appeals, which court reversed the judgment and remanded the cause with directions to the circuit court “to enter judgment against Watts in the sum tif $818.75 and make such judgment a lien against the real estate and improvements described belonging to the defendant, The Ball & Gunning Milling Company, in the sum of $418.75, together with interest,” etc. From this judgment Robertson, P. J., filed his dissent and deeming the majority opinion in conflict with the case of National Press Brick Company v. Const. Co., 177 Mo. App. 573, certified the cause to this court for final determination.

After a careful examination of the two opinions of the Springfield Court of Appeals, we agree with the learned writer of the dissenting opinion, 190 Mo. App. 1. c. 352, that the judgment ordered in the learned majority opinion, 190 Mo. App. 340, was incorrect under the testimony quoted in the dissenting opinion, and for the reasons stated therein. We, therefore, disapprove the judgment directed in the majority opinion of the Springfield Court of Appeals and approve the reasoning and conclusion of the dissenting opinion of Robertson, P. J., and hence affirm the judgment of the trial court. It is so ordered.

All concur.


text:
    H. D. WILLIAMS COOPERAGE COMPANY, Appellant, v. QUERCUS LUMBER COMPANY.
    Division One,
    June 4, 1918.
    TRESPASS: Cutting Timber: Mere Licensee: Affirming Decision of Court of Appeals. The decision of the Court of Appeals, 187 Me. App. 373, holding that a certain consent decree between plaintiff and the apparent record owner of land gave to plaintiff something more than a personal license to cut, but a beneficial ownership in, the growing timber, and that therefore plaintiff could maintain an action of trespass against "a mere stranger who cut and carried away parts of the timber, is not in conflict with a prior decision of the Supreme Court, but is correct.
    Appeal from Butler Circuit Court. — Now. J. P. Foard, Judge.
    Reversed and remanded.

      Douglas W. Robert for appellant.

      Sheppard S Green for respondent.
   BLAIR, J.

This cause was heard by the Springfield Court of Appeals. It was transferred here because one of the judges deemed the majority opinion in conflict with a decision of this court. We have reached the conclusion that the majority opinion of the Court o.f Appeals is correct. We think it properly distinguishes the decisions relied on by the dissenting judge. In accordance with the views expressed in that opinion (Williams Cooperage Co. v. Quercus Lumber Co., 187 Mo. App. 373) the 'judgment is reversed and the cause remanded.

All concur.


author: BOND, P. J.

text:
    NATHANIEL SHANKLIN, Appellant, v. RICHARD E. BOYCE et al.
    Division One,
    June 4, 1918.
    1. GUARDIAN AND CURATOR: Appointment: Insane Person: No Notice. The appointment by the probate court of a guardian of the person and curator of the estate of an insane person, without notice of the proceedings to such person, is void; and the sale of the real estate of an insane person by a curator appointed without such notice is likewise void. That part of the statute (Sec. 476, R. S. 1909) which permits the court to adjudge a person insane and to appoint a curator or guardian after having “spread upon its record of its proceedings the reason why such notice or attendance was not required” does not constitute due process of law, is unconstitutional and void. [Following and approving Hunt v. Searcy; 167 Mo. 158.]
    2. -:-:.-: Uselessness of Notice. The suggestion that a notice of a lunacy inquiry to an insane person is Useless and meaningless begs the question; for the issue to be tried is whether he is or is not insane, and to fail to give him notice on the ground that he is insane forestalls the very purpose of the inquest. /
    3. RECOVERY OF PROPERTY: By Person Adjudged Insane Without Notice: Equity. Since it is necessary for a person who has been adjudged insane without notice to resort to extrinsic facts, in order to show that the appointment of his curator was void and that the sale of his' real estate by said curator was void, he is not relegated to an action of ejectment to recover his property, but may resort to equity in the first instance.
    Appeal from Grundy Circuit Court. — How. Geo. W. Wanamaker, Judge.
    Reversed and remanded.
    . O. M. Shanklin, John W. Bingham,. J. D.„ Allen, J. M. Davis S Son and Eubbell Bros, for appellant.
    (1) While plaintiff was insane, confined in a hos- ^ pital in St. Louis, the probate court conducted an inquisition of insanity concerning him, and appointed a guardian of his person and estate, without notice to him, without his having any knowledge of it. Plaintiff contends that this original insanity inquisition is wholly void in law, for want of notice to him. Hunt v. Searcy, 167 Mo. 158; Bank v. Shanklin, 174 Mo. App. 642; In re Lambert, 66 Pac. Rep. 851, 134 Cal. 626; Wilcox v. Phillips, 260 Mo. 664; Wheeler v. State, 32 Am. Rep. 372, 34 Ohio St. 394; In re Letcher, 269 Mo. 148; Hovey v. Elliott, 167 U. S. 409; McCurry v. Hooper, 46 Am. Dec. 280, 12 Ala. 823; Evans v. Johnson, 45 Am. St. 912, 39 W. Va. 299; Walters v. McKinnis, 221 Fed. 746; Cooley, Const. Lim. (7 Ed.) p. 581; Martin v. White, 146 Fed. 461; Stewart v. Taylor, 63 S. W. 783, 23 Ky. L. Rep. 577, 182 U. S. 427; Chaloner v. Sherman, 242 U. S. 455; State ex rel. v. Duncan, 195 Mo. App. 541; State ex rel. v. Guinotte, 257 Mo. 1; Smoot v. Judd, 184 Mo. 508; McGee v. Hayes, 59 Pac. 767, 127 Cal. 336; Hutchins v. Johnson, 30 Am. Dec. 622, 12 Conn. 376; 10 Am. & Eng. Ann. Cas., p. 213; 16 Am. & Eng. Ency. Law (2 Ed.) p. 567. (2) Caveat emptor applies to any judicial sale. For a stronger reason it applies to the sale of the land of an insane person in ward, by his alleged guardian — and applies more strongly to this particular case, being one in which the vendee made an exchange or trade, in substance — instead of making a purchase for money. 21 Cyc. 145, 146; Stone v. Railroad, 261 Mo. 61; Estes v. Alexander, 90 Mo. 453; 17 Am. & Eng. Ency. Law (2 Ed.), p. 1010; Union Trading Co. v. Drach, 146 Pac. (Colo.) 767; Frost v. Atwood, 16 Am. St. 560, 73 Mich. 67; Buchanan v. Edmisten, 95 N. W. (Neb.) 620. (3) The inquisition of insanity is subject to collateral attack because it is void for want of notice. Duteher v. Hill, 29 Mo. 271; Webster v. Reid, 11 How. (U. S.) 437; Hunt v. Searcy, 167 Mo. 158; Evans v. Johnson, 23 L. R. A. 737. (4) The trial judge, sitting as a chancellor in equity, erred in holding that plaintiff is not entitled to recover “in this form of action.” Houtz v. Heilman, 228 Mo. 635. (5) If the trial judge was correct in holding that the form of action of- the plaintiff is defective and illegal, then, the trial judge should have dismissed the plaintiff’s ‘suit, only — should not have rendered judgment against the plaintiff on the merits. Humphreys v.-Atlantic Milling Co., 98 Mo. 542; Barnett v. Smart, 158 Mo. 167; Laeassagne v. Chapuis, 144 H. S. 119.
    J. W. Peery and A. G. Knight for respondents.
    (1) In Hunt v. Searcy, 167 Mo. 158, the court held Sec. 476, R. S. 1909, to he unconstitutional, hut said case fails to recognize fundamental principles later recognized by this court in State ex rel. v. MeQuillin, 151 S. W. 446; Whittelsey v. Conniff, 266 Mo. 567; State ex rel. Paxton v. Guinotte, 257 Mo. 1, and previously recognized by this court in Dutcher v. Hill, 29 Mo. 271; In the Matter of Marquis, 85 Mo. 615; In the Matter of Crouse, 140 Mo. App.. 545. Secs. 482, 519 and 520, R. S. 1909, constitute a scheme ,and mode of procedure for the adjudication of insanity that is perfectly constitutional. This scheme has existed in the statute laws of this State from our admission into the Union to the present hour. This scheme in fact copies after and is closely analogous to the procedure of the common law. From the days of the Great Charter until the Lunacy Regulation Act of 1853, notice of an inquisition was not necessary, and it is within the competency of a State, by its legislation, to dispense with the same, providing the unfortunate may at any time demand and receive a: trial under some provision of the statute. The decrees of probate courts adjudging persons to be of unsound mind, are not like ordinary judgments.’ They are not final, and are not to be treated as final judgments. They remain in fieri, like a cause pending, and may be reopened and set aside at any subsequent term of the court, whenever the insane person shall be restored to his right mind. The fundamental errors in Hunt v. Searcy. consist in treating these judgments and applying the same rules and tests to them as are applied to ordinary judgments. 10 Am. & Eng. Enc-y. Law 287; 3 Words & Phrases, 2227. The term “due process of law” is almost universally held to be synonymous with “law of the? land” and is therefore lineally decended from Magna Charta. 3 Words & Phrases, 2228; 10 Am. & Eng. Ency. Law 290; 8 Cyc. 1083; Minor v. Happersett, 21 Wall. (U. S.) 162; Weimer v. Bunbury, 30 Mich. 201; Wulzen v. San Francisco, 101 Cal. 15, 40 Am. St. 17; Minor v. Happersett, 21 Wall. 162; Ballard v. Hunter, 204 U. S. 241; Attorney General v. Jochim, 99 Mich. 358, 41 Am. St. 606. “Formerly, under the English practice in lunacy, the proceedings upon the writ de lunático inquirendo were ex parte, the alleged lunatic not being entitled as of right to notice thereof, since the proceedings were had for the information of the court, which might refuse to issue a commission, or might supersede a commission once issued, so that the right of the party to have the question of his insanity passed upon by a jury of the country in a court of law was. to be exercised, if at all, upon a traverse of the inquisition. Although the party’s right to traverse the finding of the inquisition appears to have been doubted or reluctantly admitted in some of the earlier cases, it was clearly established in the leading case of Cumming in re in which' St Leonards, C., reviews the authorities in an elaborate opinion.” 1 De G. M.. & G. 537; 21 L. J. (N. S.) ch. 753; Jur. 483; Bridge, in re, Or. & Ph. 338; Cumming, in re, the Chancellor St. 2 & 3 Edw. VI., ch. 8, sec. 6 (See also remarks of Eldon, C., in Ward ex parte, 6 Ves. 579; Staunton on the King’s Prerogative, cap. 20, Traverse, p. 68.); Fust in re, 1 Cox 418; Wragg at ex parte, Feme ex parte, 5 Ves. 450, 832; Sherwood v. Sanderson, 19 Ves. 280; Neville in re, Crawf. & Dix. Abr. Notes 55; Bridge, in re, Cr. & Ph. 338.. This continued to be the settled law of England until the enactment of the Lunacy Regulation Act in 1853, which provided for notice to the alleged incompetent, if he resided in the jurisdiction of the court, and which limited the absolute right of traverse to a period of three months after the finding of the inquisition. 16 & 17 Vic., eh. 70, sees. 148, 149; Buswell on Insanity, see. 71; Woerner on Guardianship, 391; 22 Cyc. 1124, 1131; 10 PI. & Prac. 1202. It therefore clearly appears that by the common law of England, prior to the Lunacy Regulation Act of 1853, inquisitions of insanity were regarded purely as proceedings ex parte; that notice to the alleged incompetent, though sometimes given, was never required, and that the findings of such inquisitions were never conclusive upon him, but were always open to attack. Buswell on Insanity, p. 33, sec. 23; Woerner on Guardianship, p. 382. It must be conceded, therefore, that if the subject of an inquisition of insanity ever had an absolute statutory right to notice of the proceedings, that right must be derived from the provisions of the Statute of 1835, requiring that he be brought before the court. In Hunt v. Searcy, 167 Mo. 1. c. 177, Marshall, J., appears to have been of the opinion that a compliance with this provision of the statute would have been the legal equivalent of notice; but this view involves a fundamental misconception of the purpose and effect of 'the statute. It is inconceivable that the presence of a party under compulsion could ever be held a legal substitute for notice, where notice is required. So far from it being equivalent to notice, compulsory attendance may well be calculated to defeat the very purpose for which notice should be given. Woerner on Guardianship, 400; Whitenack in re, 3 N. J. Eq. 252; Morton v. Sims 64 Ga. 298. Inquisition of insanity is primarily an ex parte proceeding. The commission and jury might require the attendance of the subject of the inquiry and he might appear voluntarily, but in neither event did his pres- . ence make the finding of the inquisition conclusive upon him. -His right to traverse the finding is in no way affected by the question of notice, or of his presence at the proceeding. When his attendance was required, it was rather in the capacity of a witness than as a party to the suit. His presence was regarded merely as an instrument of evidence by which the fact in issue might most properly be established. In fact, in some instances the question of sanity was formerly determined by inspection alone. 2 Cooley’s Blackstone (3 Ed.), p. 331. This being the state of the law at the time of the enactment of Section 2, page 323, R. S. 1835, it is clear that the provision with resjject to compulsory attendance of the subject of the inquiry could never have been intended as a substitute for, or as the equivalent of notice, It follows, therefore, that neither by the common law nor by statute has an alleged insane person ever had an absolute right to notice of the inquisition. Nor did he have any constitutional right to such notice. Weimer v. Bunbury, 30 Mich. 201; Eames v. Savage, 77 Me.'212, 52 Am. Rep. 751; 10 Am & Eng. Ency. Law, p. 295; Eames v. Savagé,' 52 Am. Rep. 752; Ex Parte Marmaduke, 91 Mo. 228; Humes v. Railroad, 82 Mo. 221; Railroad v. Humes, 115 U. S. 512; Railroad v. Evans, 85 Mo. 307; State v. Schenk, 238 Mo. 429; State ex rel. Kiel v. Riechmann, 239 Mo. 81. “These cases indicate that personal notice to the alleged lunatic is not regarded as a jurisdictional necessity in England. This accords with the statement of Shelford in his Work on Lunacy that in ordinary cases notice is not given to the party ‘inasmuch as such proceedings are ex parte and not conclusive.’ ” Evans v. Johnson, 23 L. R. A. (W. Va.) 737, Ex Parte Cranmer, 12 Ves. Jr. 445; Ex Parte Southcot, 2 Ves. Sr. 401; Ex Parte Hall, 7 Ves. Jr. 261; Re Lanwarne, 46 L. T. N. S. 668; Buswell on Insanity, secs. 54, 71, 72; Woerner’s American Law of Guardianship, sec. 119; Bumpus v. French, 60 N. E. (Mass.) 414; In re Dowdell, 47 N. E. (Mass.) 1. c. 1033; Ex parte Dagley, 128 Pac. (Okla.) 699; In re Crosswell, 28 R. I. 137, 13 Am. & Eng. Anno. Cas. 874; Ex parte Scudamore, 46 So. (Fla.) 279; Sporza v. Ger. .Sav. Bank, 192 N. Y. 8; People ex rel. Peabody v. Chanler, 117 N. Y. Supp. 322; McNamara v. Casserly, 61 Mjnn. 335, 343; Henning v. Stead, 138 Mo. 430; City of Kansas v. Huling, 87 Mo'. 203; Newark & S. O. H. R. Co. v. Hunt, 12 Atl. 697; Miller v. Horton, 152 Mass. 540, 10 L. R. A. 116, 23 Am. St. 850; In re James, 30 How. Pr. 446; Ex Parte Brown, 1 L. R. A. (N. S.) 540; Embree v. K. C. Liberty Blvd. Rd. Dist., 166 S. W. 282'; Shively v. Lankford, 174 Mo. 535; Marshall v. Standard, 24 Mo. App. 192, 196, 197. The constitutional provisions invoked in this case are not applicable to insanity cases, and the statutory provisions that notice may be dispensed with, has been expressly held constitutional. Chavannes v. Priestley, 80 Iowa, 316, 9 L. R. A. 19. The foregoing has received the tacit consent of Bumpus v. French, 60 N. E. 414; In re Dowdell, 47 N. E.' 1033; approved in Woerner on Guardianship, 392, and Dutch-er v. Hill, 29 Mo., 271; State ex rel. v. McQuillin, 151 S. W. 444; Same ease, 171 Mo. App. 106; State ex rel. Paxton v. Guinotte, 257 Mo. 1; Whittelsey v. Conniff, 266 Mo. 561. The plaintiff by going into the probate court, submitting himself to its jurisdiction and having, himself restored and adjudged sane, thereby acknowledged and ratified the proceedings of such court in adjudging him insane and appointing his guardian, and is therefore estopped from urging any irregularities in such proceedings. Dutcher v. Hill, 29 Mo. 274; Howard v. Lansbergs Committee, 60 S. E. (Va.) 769; Packard v. Ulrich, 67 Atl. (Md.) 246; Robertson v. Smith, 15 L. R. A. 273; In Re Blewitt, 30 N. E. (N. Y.) 587; Corbett v. Phvsicians’ Casualty Assn, of American. 115 N. W. (Wis.) 265, 16 L. R. A. (N. S.) 177; Nanson v. Jacob, 93 Mo. 344; Fischer v. Siekmann, 125 Mo. 165; Pockman v. Meatt, 49 Mo. 345; Boogher v. Frazier, 99 Mo. 325; Proctor v. Nance, 220 Mo. 104; Hector v. Mann, 225 Mo. 244. If the plaintiff could come into a court of equity and plead that on the lltli day of March, 1896, he was by a judge of the probate court of Grundy County, Missouri, adjudged insane and a guardian appointed over him; and that he had no notice thereof, and that his property in consequence thereof had been taken from him and his liberty restrained, when in truth and in fact he was not insane, then a case would be presented appealing to the equitable powers of the court, showing an injury and wrdng — a case for equitable jurisdiction. But, instead of this, the plaintiff comes into a court of equity asking relief against a judgment adjudging' him insane, and at the same time in his petition alleging that as a matter of fact he was insane. His pleading, at most, shows but a technical violation of his legal rights, but instead of accompanying such allegation with the further jurisdictional clause, that the act complained of was contrary to equity, and that he had suffered injury thereby, the allegation is to the contrary thereof — that he was actually insane, and affirmatively shows that he could' not have sustained injury. In other words, these allegations and the presence of the facts they allege, to-wit, that Shanklin was at all times mentioned actually insane, make the pleadings as well as the facts of the case, fail for the “want of .equity.” The bill must show that plaintiff has sustained or will sustain some substantial injury, by reason of the facts complained of, and not by general averment, but by specific facts. 16 Cyc. 235, par 6; Willingham v. King, 23 Fla. 478; Kearney v. Andrews, 10 N. J. Eq. 70; Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black 545, 17 L. Ed. 333; Williams v. Hagood, 8 Otto, 72, 25 L. Ed. 51; Stille v. Hess, 112 Mich. 678, 71 N: W. 513. If the want of notice rendered the proceedings void, or the form of the sale rendered them void, as contended for by plaintiff, and that such proceedings may be attacked collaterally, as contended for by plaintiff, then plaintiff had a plain, adequate and complete remedy at law, and a common law action in equity to remove a cloud upon title, is not maintainable. Benton . Co., v. Morgan, 163 Mo. 661; Planet Property & Finan. Co. v. Railroad, 115 Mo. 619; Walker v. Railroad 57 Mo. 275; Han. & St. Joe. Railroad Co. v. Nortoni, 154 Mo. 142; McKee v. Allen, 204 Mo. 655; Groe. Co. v. Clark’s Exrx., 79' Mo. App. 405; Church v. Church, 73 Mo. App. 421; Glaves y. Wood, 87 Mo. App. 92; Humphreys v. Atlantic Mill. Co., 98 Mo. 548; Railroad v. Reynolds, 89 Mo. - Í46; Christian v. City, 127 Mo. 109; Stockton v. Ranson, 60 Mo. 539; Michael y. City, 112 Mo. 614;- Russell v. Lumber Co., 112 Mo. 40; Faris v. Moore, 256 Mo. 129; Fontaine v. Hudson, 93 Mo. 62; Graves v. Ewart, 99 Mo. 13; Capitain v. Miss. Valley Trust Co., 177 S. W. 632; Neil v. Tubb, 241 Mo. 674; Weston v. Fisher, 180 S. W. 1039. Berry, the guardian who made the guardian’s deed, and which deed is sought to be can-celled by plaintiff, not having been made a party to the suit, and not being before the court, the court will be without authority to cancel the deed from him to defendant. Dunklin Co. v. Clark, 51 Mo. 60; Clark v. Covenant Mut. Life Ins. Co., 52 Mo. 272; Han. & St. Joe. R. R. Co. v. Nortoni, 154 Mo., 142. Judge Scott said as long ago as 1860, and whose words have not been doubted in any subsequent decision, on that question, that “After considerable examination, we have not been able to find a single case in which it has been held that the validity of a sale of land of a supposed lunatic, made by his guardian, can be attacked in a collateral proceeding on the ground of the want of notice of taking the inquisition by which the supposed lunatic was found to be such.” Dutcher v. Hill, 29 Mo. 273; Freeman v. Thompson, 53 Mo. 193; Johnson v. Beazley, 65 Mo. 250; Henry v. McKerlie, 78 Mo. 416; Noland v. Barrett, 122 Mo. 181; Brawford v. Wolfe, 103 Mo. 391. Long v. Mining Co., 68 Mo. 433; Blickensderffer v. Hanna, 231 Mo. 93; Cox v. Boyce, et. al., 152 Mo. 583; Higbee v. Bank, 244 Mo. 411; Decker v. Fessler, 146 Ind. 16.
   BOND, P. J.

1. In January,. 1911, the plaintiff filed his amended petition, making Richard E. Boyce and Grundy County, Missouri, defendants, alleging that he became insane on November 26, 1895, and remained in that condition until July 15, 1910, when his reagon an(j understanding were fully restored; that at the time of his becoming insane he owned certain real estate described in his petition; that on December 28, 1896, one C. L. Berry, assuming' to be the guardian of the person and estate of the plaintiff, unlawfully and fraudulently took possession of said property and attempted to sell and convey the same to Richard E. Boyce, for the purported consideration of $18,000, and made and delivered to said Boyce-a guardian’s deed to said property, now of record in the Recorder’s office of Grundy County; that the grantee took possession of the property and continued so to hold the same in fraud of plaintiff’s rights; that said grantee, on March 6, 1917, borrowed certain county funds to the amount of $4,000, and executed a mortgage to secure the same, with full knowledge on the part of both said Boyce and the parties making the loan, of the insane condition of plaintiff at that time; alleged that these transactions were clouds upon his title, which he prayed should be set aside and annulled, and that possession of said property should be restored to him, and for an accounting of rents and profits and a judgment therefor.

A demurrer was overruled and after answer and adduction of evidence the trial court rendered a judgment in favor of defendants, from which plaintiff has duly appealed.

II. Under the evidence in this case no question existed as to the fact and duration of the insanity of the plaintiff, nor as to the complete restoration of his faculties, as stated in his second amended petition. ^or *s ^ ^en^ec^ that the proceedings for the appointment of his guardian were had and conducted without any notice whatever to the plaintiff and without his personal presence in the probate court at the time of the alleged inquisition. That portion of Section 476, Revised Statutes 1909, which permits the appointment of a guardian or curator of insane persons, without notice given to the alleged insane person, was held unconstitutional in Hunt v. Searcy, 167 Mo. 158, after a full review of the authorities in this State and a clear discussion of the terms of the statute and the constitutional rights of persons affected thereby. The able author of that opinion buttressed his conclusion upon elemental propositions of law as enunciated by the Supreme Court of the United States, and in applying the result of these deductions to the construction of said statute (“Section 476: In proceedings under this article, the alleged insane person must be notified of the proceeding unless the probate court order such person to be brought before the court, or spread upon its records of its proceedings the reason why such notice or attendance was not required” R. S. 1909.) Held that its alternative provisions for notice were void. The court then added;

“It is too clear for argument that this qualification and attempted authority for depriving the accused of his liberty or property without notice violates both the State and Federal Constitutions, and does not constitute ‘due process of law.’

“But one reason can be suggested for not serving the person to be tried with notice, and that is, that as he is insane, a notice to him would be useless and meaningless. This argument begs the question; for the issue to be tried is whether he is insane or not, and to fail to give him notice, for this reason, is to forestall the very purpose of the inquest. But even if he be a raving maniac, he can. appear by attorney or through his friends and see that a proper person is appointed guardian or that proper care is given to his property and to his person. In addition, what if the person was not really insane at all, and without notice was adjudged insane and confined in an asylum and the management of his property given to another? In such contingency the propriety of notice would be manifest and if given would defeat the recovery of a judgment. It will not do to say that in the fifty-seven years that these provisions, not requiring notice, have been on the statute books, no instance is recorded of any sane person being so adjudged and deprived of his liberty or property, and that instances of such outrages are found only in highly-colored and improbable stories in works of fiction; for the Marquis case (85 Mo. 615) is an instance in our own reports where a citizen was so adjudged insane, without notice, and at the very next term of court appeared and proved that he was not and never was insane. .But however the past experience may have been, the fact remains that the possibility of such an outrage being perpetrated is afforded by the statutory provisions referred to, and it is the duty of the courts, whenever the question arises, to prevent the happening of such a wrong, by declaring those provisions to be unconstitutional.” [167 Mo. 1. c. 182-3.]

We are contented with' the conclusion expressed in Hunt v. Searcy and adhere to the reasoning of that case, despite the fact of the decisions in other juris- , diction^ of a contrary nature quoted in the brief of respondent.

It follows that the appointment of Berry as guardian of plaintiff was void and vested him with no title to the property beclouded by his deed to defendants.

III. As it was necessary in this case to resort to evidence of extrinsic facts, in order to show that the deeds purporting to convey plaintiff’s property were and that the appointment of the guardian was void, plaintiff is not relegated to an action of ejectment to recover his property, but may resort to equity in the first instance. Thompson v. Pinnell, 237 Mo. 1. c. 552, et cases cited.]

The judgment in this ease is reversed and the cause remanded to be proceeded with in a manner not inconsistent with' the views herein expressed.

All concur.