text:
    MORAN BOLT AND NUT MANUFACTURING COMPANY, Plaintiff, Appellant, v. GEORGE W. CALDWELL and LESTER DRAKE, Defendants, Appellants.
    Division One,
    February 29, 1912.
    1. CONTRACTS: Construction: Meaning of Words. In construing a contract the court does not investigate the meaning of words in the abstract, but deals only with the concrete meaning in concrete contracts. The law puts itself in the shoes of the contracting parties and ascertains the natural and accepted sense of the words used in their agreement viewed in the light of the objects in view and the circumstances surrounding the actors.
    2. -: -: -: “Require.” Plaintiff contracted to furnish defendant with all wrought iron and steel, cast iron arid washers for a building covering twenty-two acres, defendant to furnish the plaintiff lists of “material required at least thirty days prior to the time” the defendants required it, Held, that, giving to the word “require” the idea it carries in general speech, namely, to demand or request authoritatively, a meaning is evolved from the clause in harmony with the surroundings of the parties and their objects when the agreement was made, i. e., that a list of material should be handed to plaintiff, who should • have thirty days in which to provide the material listed “prior to the time” when it should he required. It was not intended that the submitting of the list should of itself require the delivery of the articles within thirty days, and therefore a failure to deliver within thirty days material specified by list at the beginning of the work, the list covering two-thirds of all the material, was not a breach of the contract.

      3. -: Counterclaim: Evidence. Where, in an action on a contract to furnish supplies, there is no evidence that any demand was made of the plaintiff with which it did not comply within thirty days, or according to the terms of the contract, a counterclaim for damages for delay will not be allowed.
    4. REFERENCE: Evidence: Appeal. In a suit where a compulsory reference might have been ordered, and the case actually was submitted to a referee, the evidence and the findings of the referee are open to full review on appeal.
    Appeal from St. Louis City Circuit Court. — Eon. George E. Shields, Judge.
    Reversed and remanded (with directions).

      Kinealy & Kinealy for plaintiff appellant.
    (1) The words in the plaintiff’s proposal accepted by defendants: “You to furnish lists of each and every land of material- required, ‘at least thirty days prior to the time you require it,’ ” are not an agreement or proposal of plaintiff to furnish any material specified in any such list within thirty days after such list has been furnished to plaintiff. Leslie v. Mining Co., 110 Mo. 31; Duhamel v. Stone Co., 59 "Wash. 171; McReynolds’s Appeal, 66 Pa. St. 102; United States v. Dimmick, 112 Fed. 350; People v. Railroad, 76 Cal. 29; Brewster v. Brewster, 52 N. H. 52; Bowerman v. Mining Co., 98 Mo. App. 317. (2) Where no time is specified for the delivery of material the law is well settled that it must be delivered in what would be a reasonable time under the circumstances. 24 Am. & Eng. Ency. Law, 1073; Berthold v. Construction Co., 165 Mo. 280; Joseph v. Andrews, 78 Mo. App. 551; State v. King, 44 Mo. 238. (3) The court erred in allowing to defendants and adjudging in their favor on their counterclaims the sums of $94.50, of $800, of $704 and of $1874 or any one or part of any one of them. The foundation of the court’s action is an erroneous construction of the contract, but even under that construction there was no competent evidence to support any of them in whole or in part.

      Wilfley, Wilfley, McIntyre & Hardin for defendants appellants.
    (1) Words in a contract will be construed according to their usual and customary meaning in the connection in which they are used, the aim of the court being to construe the contract as an entirety so as to give effect to the mutual intention of the parties. Lovelace v. Protective Assn., 126 Mo. 104; Eaton v. Coal Co., 125 Mo. App. 194; Donovan v. Boeck, 217 Mo. 87. (2) The word “required,” as used in the contract between plaintiff and defendants, must be construed to mean “needed.” Bowerman v. Mining Co., 98 Mo. App. 316 ; McKeener v. Iron Co., 138 P'a. St. 184; Hull v. Hollaway, 58 Conn. 210 ; Park v. Candler, 114 Ga. 466; Miller v. Leo, 35 App. Div. (3ST. Y.) 589-. (3) The filing of the lists with plaintiff was notice to plaintiff of materials needed, and at the end of thirty days from the end of filing the lists, the time for delivery under the contract was fixed.
   BOND, C.

Plaintiff, a materialman, on February 17, 1904, sued the defendants, who were general contractors for the construction of the agricultural building for the World’s Fair Company, for $6426.30 and interest thereon, alleged to be a balance due for wrought and east iron materials furnished according to specifications of defendants.

The amended answer of defendants averred that plaintiff entered into a contract with them on March 3, 1903, to-wit:

“St. Louis, Mo., Mch. 3, 1903,
“Messrs. Caldwell & Drake,
Builders,
St. Louis, Mo.
“Gentlemen: — We propose to furnish yon with all the wrought iron and steel, east iron, and washers, all according to plans and specifications for the construction of the agricultural building at the World’s Fair, all finished complete and ready for erection F. O. B. World’s Fair Grounds at site of agricultural building at the following prices;- plain rods, up set rods, turn buckles, all bolts, drift pins and other wrought iron of whatsoever kind at $2.55 per 100 lbs. All cast washers, at $1.55 per 100 lbs. All other cast iron where patterns are necessary at $2.20 per 100 lbs. You to furnish us lists of each and every kind of material required at least thirty days prior to the time you require it.
“Upon our failure to deliver goods on time as stated we agree to pay whatever damages you sustain on account of such delay. Terms sixty days net. We further agree to furnish a bond for the faithful performance of our part of this agreement in the penal sum of seven thousand ($7,000') dollars with some responsible bonding company.
“Respectfully submitted,
“Moran Bolt & Nut Mfu. Co.,
“Jno. Gusman, Pres.
“We accept the above proposition.
[signed] ' “Caldwell & Drake,
“by Geo. Caldwell.”

That on March 31st defendants “delivered to plaintiff lists for two-thirds of the material required” for the building which the defendants had contracted to erect, that plaintiff did not deliver said material within thirty days after reception of said lists nor the material specified on a list given to plaintiff June 24, 1903, within thirty days thereafter; that said delays damaged defendants in various ways, aggregating $12,000, for which they counterclaim and prayed judgment-.

Issue was joined by reply. There was no dispute as to the price or the delivery of materials sued for by plaintiff.

The case was submitted to a referee who recommended-judgment for plaintiff’s account and interest, and judgment against the several counterclaims filed by defendants. His-report is in part to-wit:

“This was a large and complex structure, containing iron of various dimensions and shapes. The lists.of March 30th and 31st were for, approximately, five hundred thousand pounds of iron, consisting of over one hundred different sizes and shapes. Very little of this iron was needed until June. Under these circumstances, I do not consider that the mere sending of these lists of March 30th and 31st to plaintiff was a notice to it that defendant would require all the iron mentioned in those lists to be delivered by May 1st. Especially so, considering the facts that defendants conceded the inaccuracies in the lists; that they requested alterations be made in the dimension of certain articles specified in the lists; and that on June 24th a new list was provided as a substitute for the previous lists, and that when the list of March 31st was sent,' it was accompanied by the request that the articles specified therein be gotten out before those specified in the list of March 30-th; that about April 25th, plaintiff offered to deliver a carload of iron, but defendants refused to receive it, saying they could not then use it; that about May 7th defendants complained to plaintiff that it was sending more washers than had been specified in one of the special orders. Since the only instance in which plaintiff was notified of the time when the material would be required was when the small lists or orders were sent, plaintiff was not in default unless it failed to deliver the material ordered in those small lists or orders within a reasonable time (not exceeding thirty days). No such failure on the part of the plaintiff was shown.
“Unless the contract of March 3, 1903, is to be construed according to defendants’ contention by holding that it required plaintiff to deliver all the materials specified in the lists of March 30th and 31st within thirty days from the furnishing of those lists, then there is no evidence to show any default upon the part of plaintiff. But as I do not construe the contract according to defendants’ contention, I find that plaintiff was not in default by reason of any failure to deliver the material according to the terms of the contract.
“Even if the contract of March 3, 1903, were to be construed according to defendants’ contention, I still find that defendants are not entitled to recover on their counterclaim, for the reason that their evidence is not sufficient or definite enough upon which to base a judgment, and they have not .shown with sufficient clearness that the losses which they claimed to have-suffered were due to a default upon the part of plaintiff. Their evidence upon the subject com sists only of general impressions that plaintiff was forty to fifty days behind in delivery of iron, but they were unable to give details sufficient to convince me that these statements are more than a mere guess or conjecture.
“The forty or fifty days delay to which they have testified is admitted in their testimony to mean that the iron was not delivered until forty or fifty days after May 1st; this would bring it to June 10th or 20th. I find from the evidence that prior to about June 15-th, there was no shortage of iron sufficient to interfere with the work. Defendants have shown that they were obliged to go over the work and replace certain iron work, but they have not proven the time that this occurred or when the order was given £o.r the iron which was lacking’, and have not shown with any degree of definiteness the amount of the damages they have sustained, nor have they proved with sufficient definiteness the other elements of damage alleged, nor shown them to have been a direct result of any default upon the part of plaintiff. ’ ’

The court, on defendants’ exceptions, sustained the finding for the plaintiff, overruled the referee as to the disallowance of four items of the counterclaim of defendants, aggregating $3472.90, and held these should be allowed and deducted from finding for plaintiff, and judgment rendered for the balance in its favor, $2953.40.

Both joarties appealed. The errors assigned and the appurtenant evidence, as far as necessary, will be discussed in the opinion.

OPINION.

I. The first error assigned by the two appellants is based upon the following language of the accepted proposal which constituted the contract between the parties, to-wit: “You to furnish us lists of each and .every kind of material required at least thirty days prior to the time you require it.” Plaintiff insists this language required defendants when delivering a list of the various “kind of material required,” then or afterwards, to give notice for at least thirty days 1 ‘ of the time you require it. ’ ’ On the other hand, defendants argue that the contract'•would preserve its full meaning if the words “needed” and “need” were substituted for “required” and “require,” and that it should read as if thus changed, to-wit: “You to furnish us lists of each and every kind of material needed at least thirty days prior to the-time you need it.” And that to give it the meaning which plaintiff ascribes to it, the words “demanded” and “demand” must be substituted for “required” and “require.”

The issue thus formulated by counsel for defendants is accepted by counsel for plaintiff, and the two learned counselors have collated in their respective briefs illustrations showing some of the synonyms of the word “require.” This search for synonyms discloses occasions when the term “require,” owing to context or circumstances, has been used in a sense varying from its primal meaning. Every word has its own radical meaning which is the symbol of the idea expressed by it. If it had two such meanings, it could not represent one idea. No two terms of the same tongue are absolutely identical in etymological meaning. Synonyms do exhibit those nuances of thought and expression which give variety and vividness to speech and writing; they enrich language by obviating the narrow monotony of reiterated terms and increasing its play and scope by giving expression to all the variations of meaning taken by words when used in a synonymous sense.

The problem in this case is not to declare the delicate graduation of meaning which the term “require” takes when expanded as a synonym, but to ascertain its natural import and accepted meaning in the particular sentence of the contract under review. To do this, the law does not investigate the meaning of words in. the abstract but deals only with the concrete meaning in concrete contracts of the words used. All other inquiries are linguistic, not legal quests. To serve its own purpose, the law puts itself in the shoes of the contracting parties and ascertains the natural and accepted sense of the words used in their agreement viewed in the light of the objects had in view and the circumstances surrounding the actors. This rule has been aptly stated by Lamm, J., in Donovan v. Boeck, 217 Mo. l. c. 87, to-wit: “But one-main rule is common to the construction of all contracts and to it all others must give way. That rule is to get at the meaning of the contract and enforce its true intendment as judicially gathered from all its four corners. To this end it is elementary that the subject-matter of the contract, the relations of the parties to that subject-matter and the ordinary meaning of the language used in the contract, pass in .review. ’ ’

The first meaning of the word “require” is “to demand or request, authoritatively.” [Standard Dictionary.] This is the idea which it conveys in general speech. By giving it this significance, a clear insight is had into the clause of the contract under review, and a meaning evolved which is in accordance with the natural import of the term, and in harmony with the circumstances surrounding the parties and their objects when the agreement was made. The plaintiff Offered to furnish all kinds of nuts, bolts, rods and cast iron and wrought iron material which were to be used by defendants in constructing a large building covering twenty-two acres of ground. It could. not have been in the minds of the parties that these different articles would all be wanted simultaneously. Hence, they used the above language to denote that a list of the specified articles should be handed to plaintiff, and who should have thirty days within which to manufacture or provide them “prior to the time” the list was required. It was not intended that the submitting of the list should of itself require the delivery of the articles within thirty days.

i ' The erection of such a structure as the Agricultural Building for the World’s Pair was well understood by plaintiff and defendants to be a gradual and progressive performance. It could not arise by “rubbing a lamp” or other enchantment, but was of necessity a prolonged work, requiring the use of the particular kind and quantity of material appropriate to the successive stages of the erection of an immense structure from beginning until completion. It was essential; therefore, that the agreement should enable the general contractors to get this material when it was needed in the course of the prosecution of the work, and not before. If it had been dumped on the ground within thirty days after a list covering two-thirds of it was furnished, the contractor would doubtless have been seriously inconvenienced. Hence the wisdom of the plan adopted of requiring notice or demand for its delivery.

We think this was the clear meaning and legal intendment of the contract between the parties as expressed in this clause, and as demonstrated by their environment and their mutual purposes. This .conclusion is sustained by a recent precedent closely in point. In the case of Duhamel v. Port Angeles Stone Co., 59 Wash. 171, the decision turned on the meaning of the word “require” as used in a contract between a materialman and a general contractor who had engaged to do some construction work for the United States government. By the terms of the contract the materialman engaged to deliver the stone “required” for the structure within thirty days’ notice from parties of the second part that the said stone has been accepted by the government as proper material for said building, etc. The evidence showed that the materialman was notified that the government had accepted the character of stone which he had engaged to supply, but no notice or demand was made upon him to commence deliveries of stone. His obligation was to deliver it in such quantities as “required” by the contractor. The contractor thereafter notified the materialman that he was in default in the matter of making deliveries, and that the stone would be purchased elsewhere, and his contract was terminated, and he would be held responsible in damages. The general contractor brought an action against the materialman for damages alleged to have been caused by his delay. The Supreme Court of Washington affirmed a judgment of the trial court in favor of the materialman upon the theory that he was not obligated to deliver stone except upon orders specifying the quantities and dimensions “required.” In arriving at that conclusion the court used the following language: “Looking to the provisions of the contract, unaided by extrinsic evidence, the question of the P'ort Angeles Stone Company’s obligation to make deliveries depends upon the meaning of the word, ‘required’ as here used. This word ‘require’ is defined by the Standard Dictionary as follows: ‘(1) To-demand, or to request something of, authoritatively; ask as of right; claim; insist upon; (2) To have imperative need of; .render or find indispensable; want.’ ”

In the ease of Brewster v. Brewster, 52 N. H. l. c. 58, the court observed: “The verb ‘require’ is not absolutely the synonym of the verb ‘need,’ though it is of the verb ‘demand.’ [Crabb’s Synonyms, 228.] Although the verb require may, undoubtedly, be properly used in the. sense of the verb need, such is not its primary nor its usual signification. It comes from the latin requiro, compounded re and quaero — to seek for, or to seek to get back. It means according to all lexicographers, and in very common parlance, to demand; or, as Webster defines it, ‘to ask as of right and by authority.’ ” [See also McReynolds’s Appeal, 66 Pa. St. l. c. 111; Miller v. Leo, 35 App. Div. (N. Y.) l. c. 593.]

The case of McKeever v. Iron Co., 138 Pa. St. 184, relied on by counsel for defendants is wholly off the point. In that case the owner of an iron mill had engaged to buy all the coal which he required for his mill for a term of three years from an owner of a coal mine. Subsequently, the mill owner diminished the amount of coal required for fuel by employing natural gas, and purchased the remainder of the coal from a third party. The court held that he was still liable to the owner of the coal mine for failing to buy the limited amount of coal still needed for fuel from him instead of from the third party. Nor do any of the other eases cited by defendants militate against our ruling in this matter.

II. There was no evidence before the referee that a demand was made of plaintiff which it did not comply with within thirty days thereafter, and he was, therefore, right in disallowing the counterclaim of defendants on the grounds that no liability for delay had accrued against- plaintiff under the terms of the contract. The referee further found, as shown by his report, that there was no substantial evidence sustaining the counterclaims of defendants even if they could have been set up in this case. This being a suit wherein compulsory reference might have been ordered, the evidence and the finding’s of the referee would be open to full review in this court. While the record shows his findings of fact are well supported, it is unnecessary for ns to go further into the evidence. For under the contract in this case plaintiff did not prejudicially delay defendants in their construction work, since it is not denied that defendants made no demand for the delivery within thirty days of any of the material specified in their contract with the World’s Fair Company and set forth in the lists which were furnished to plaintiff in March and June, 1903, except verbal orders given over the telephone referring to small lots of previously listed articles, which the evidence shows were complied with within thirty days. Plaintiff was, therefore, guilty of no delay which formed the basis of any matter of counterclaim by defendants. . The result is the judgment herein is reversed, and the cause remanded with,directions to the trial court to find in favor of plaintiff on its cause of action, and against defendants on their several counterclaims, and to enter judgment accordingly.

Broim, C., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    SOUTHWEST LAND AND ORCHARD COMPANY v. DAVID M. BARNETT et al., Appellants.
    Division One,
    February 29, 1912.
    1. DEED: Wrong Township and Section: Judgment: No Objection: Appeal. A petition describing the land as forty acres in section 33 in township 26 will not support á judgment for forty acres in section 11 in township 25; nor does a deed which describes forty acres in section 11 in township 25 tend to support the allegations of the petition. And though no objection that the deed did not describe the land sued for was made when it was offered in evidence, yet if defendants in their motion for a new trial called the court’s attention to the fact that its findings were against the evidence and that the court had erred in admitting the deed in evidence, and if plaintiff’s case rests wholly on the sufficiency of that deed, the judgment cannot stand.
    2. TAX DEED: Judgment by Justice of Peace. A sheriff’s deed made in pursuance of a judgment by a justice of the peace for taxes is void. A justice of the peace never had jurisdiction to try such a cause.
    3. -: Void: Decree on Appeal for Defendants. Where the tax deed under which plaintiff claims is void, and it is admitted at the trial that the title is in defendants “unless same has been divested out of them by virtue of the sale of said land for taxes, as evidenced by the sheriff’s deed hereinbefore introduced in evidence by plaintiff,” and defendants in their answer assert title in themselves and pray for a decree vesting it in them, the court will not only reverse the judgment for plaintiff, but will direct the trial court to enter a decree for defendants.
    Appeal from Butler Circuit Court. — Hon. J. C. Sheppard, Judge.
    Reversed.

      J. W. Chilton for appellants.
    (1) A justice of the peace has no jurisdiction in-actions to enforce the lien of the State for hack taxes -on land, and a deed based on such judgment is null and void and conveys no title. R. S. 1909, sec. 7393; State ex rel. v. Hopkins, 87 Mo. 529. (2) A sheriff’s deed -which does not convey nor purport to convey a given tract of land, certainly does not convey such land. This law is so elementary that we fail to find any authority directly in point. We, however, cite Nelson v. Brodhack, 44 Mo. 603; Clemens v. Eannells, 34 Mo. 579; Burnham Heirs v. Hitt, 143 Mo. 414; State ex rel. v. Burroughs, 174 Mo. 700. (3) The party holding the best title to land, under an agreed common source, is, in. an action to determine and quiet title, entitled to a decree against the opposite party. E. S. 1909, sec. 2535; Graton v. Holliday-Klotz Co., 189 Mo. 322; Machine Works v. Bowers, 200 Mo. 219; Gage v. Cantwell, 191 Mo. 698; Dixon v. Hunter, 204 Mo. 382; Pelker v. Breece, 226' Mo. 320'. (4) The appellants having proven a title in themselves under the common source, to the land in controversy, were, on the pleadings and the evidence, entitled to a decree vesting them with the title and barring plaintiff’s claim thereto. Lambert v. Eailroad, 212 Mo. 692; Summet v. City Eealty Co., 208 Mo. 501; Armour v. Prey, 226 Mo. 646.

      Clark & Yount and George Willett for respondent.
   GRAVES, P. J.

Plaintiff, a non-resident corporation doing business in this State, brought this action under our old section 650, Revised Statutes 1899, to have its title to the southwest quarter of section thirty-three,' in township twenty-six, north of range four east, in Butler county, Missouri, ascertained and determined.

The petition is in usual form. It averred that David M. Barnett and Dudley M. Keen, if living, claimed some interest in the land above described., and if dead, that their unknown heirs and devisees claimed some interest therein. Later the following stipulation was filed in said cause:

“It is hereby stipulated and agreed that the following named persons may be made parties defendant in the above entitled cause, and that their answer to plaintiff’s petition herein filed may be made when this cause is set for trial, and that no judgment shall be rendered against them for failure to answer before trial of said cause. Said parties are as follows: Emma Boos, Agnes Applegate, Harvey Wallace Applegate, Dudley Applegate, Charles H. Applegate and John Applegate. . . .
“Clark & Yount,
Attorneys for Plaintiff.
“J. W. Chilton,
Attorney for Defendant. ’y

The above named parties filed their answer in which they (1) denied the allegations of the plaintiff’s petition, and (2) set up their ownership in fee to said lands. Their answer then thus concludes:

“Wherefore defendants pray the court to try, ascertain and determine and by its judgment and decree to define, settle and adjudge the title of the parties, plaintiff and defendant respectively, in and to said real estate; and if the court shall adjudge that defendants are the owners of the said land, then that the plaintiff be forever barred and precluded from setting up or mailing claim of title thereto.”

The record discloses no reply, but the trial proceeded as if one had been filed, and for this reason the case stands here as if a reply of general denial had been filed.

By the judgment and decree nisi the plaintiff was found to have the title to'said lands as “the sole legal and equitable owner” thereof, and that defendants had no interest therein. From this decree defendants have appealed.

Doing to the evidence and things preserved in the bill of exceptions, it appears that it was first agreed that the common source of title was Dudley M. Keen.

Plaintiff to sustain the issues upon its part offered a tax deed dated in 1883, executed by the sheriff of Butler county, from which it appears that the sheriff, under a judgment of a justice of the peace, levied upon and sold to J. B. White lands thus described in said deed: “N. E. 14 and N. % of S. E. % and N. W. VL of S. W. Vl of Sec. Eleven (11); Township Twenty-five (25), Range Four (4) East.”

Objections were made to the introduction of this d.eed. These objections were lodged against the right of a justice of the peace by its judgment to enforce the State’s lien for taxes, and the validity of the deed made under such a judgment. No objections were made to the effect that the deed did not describe the lands set out in the petition. The deed was admitted in evidence. It was then further admitted that the plaintiff had acquired whatever right, if any, that White had in and to the land in dispute. With this the plaintiff closed.

The following stipulation was then made in behalf of defendants:

“It was admitted by plaintiff that defendants answering in this cause, are the grantees of the heirs of Dudley M. Keen, and that said defendants have whatever title, if any, the said Dudley M. Keen died seized of, and that said defendants have the title to the land in controversy, unless same has been divested out of them by virtue of the sale of said land for taxes, as •evidenced by the sheriff’s deed hereinbefore introduced in evidence by the plaintiff. ’ ’

The defendants thereupon rested their case. For the plaintiff the court gave the following declaration of law:

“The court declares the law to be that the sheriff’s deed read in evidence on the part of the plaintiff, which deed was executed by the sheriff of Butler county, Missouri, on March 8th, 1883, and recorded in Book.S, page 46, of the Deed Records of Butler county, was sufficient to pass the title to the land in controversy, to J. B. White, the grantee in said deed, whose title passed by mesne conveyances to the plaintiff, and the finding of the court should be for the plaintiff vesting in it the title to the land in controversy.”

For the defendants the court gave a declaration of law thus worded:

“The court declares the law to be that the title to the land in controversy is vested in the defendants, Emma Boos, Agnes Applegate, Harvey Wallace Applegate, Dudley Applegate, Charles H. Applegate and John Applegate, unless the title to said land passed to plaintiff by virtue of the sheriff’s deed introduced in evidence by the plaintiff.”

But the court refused to give for the defendants the following:

“The court declares the law to be that the judgment upon which the sheriff’s deed for taxes under which plaintiff claims title to the land in controversy, is void, for the reason that the justice of the peace rendering said judgment had no jurisdiction of. the subject-matter of the suit, that the deed made in pursuance of said judgment is void and confers n$ title on plaintiff.”

Judgment went as above set out. The motion for new trial omitting unnecessary parts thus challenges the action of the trial court:

“1st. The court erred in admitting in evidence the sheriff’s deed offered by plaintiff, upon which plaintiff’s title is founded.
“2nd. The court erred in giving plaintiff’s declaration of law No. 1.
“3rd. The court erred in refusing defendants’ declaration of law No. 2.
“4th. The findings of the court are against the evidence and the weight thereof.
“5th. The judgment of the court is against the law.”

Such is the record in the case. The contentions, here are (1) that the sheriff’s deed did not describe the property mentioned in the petition, and (2) that even if it did so describe it the deed is void because based upon a judgment of a justice of the peace.

I. The land described in the petition is forty acres in section thirty-three, in township twenty-six,, of range four. The land described in the deed is in section eleven in township twenty-five, range four. The judgment describes the land as in the deed and not as in plaintiff’s petition. It must be noticed at a glance that the two descriptions do not refer to the same land. The two tracts are not only in different townships, but in different sections. This point was not made when the deed was offered in evidence, but the motion for new trial called the court’s attention to the fact that its findings were against the evidence, and that the court had erred in admitting the deed in evidence. The deed offered and admitted did not tend to support the allegations of the plaintiff’s petition. Under the admissions made in the record the title to the land mentioned in the petition was in the defendants, unless the deed offered in evidence had divested their predecessor of title. If their predecessor in his lifetime had title to the land described in the petition, then that title was never taken from him by, this tax proceeding, because it is recited in the tax deed that the tax judgment was against lands in section eleven, township twenty-five, whilst the lands described in the petition are in section thirty-three of township twenty-six.

The result is (1) that the evidence before the trial court did not show that plaintiff had any title to the land described in -its petition, and (2) that the judgment is erroneous in decreeing to plaintiff land not described in its petition. We are not favored with briefs by the respondent. Respondent evidently discovered after the trial this discrepancy in the deed upon which it relied. For these reasons the judgment for plaintiff will have to be reversed and remanded at least. Whether we shall go further we will see later.

II. But even if the deed offered in evidence had properly described the land claimed in the petition of plaintiff, yet the trial court erred in admitting such deed, because it is based upon a tax judgment entered by a justice of the peace. Justices of the peace never had any jurisdiction to try such causes. Such judgments are void and deeds made thereunder are void. Such has been the consistent holding of this court for many years. [State ex rel. Gordon v. Hopkins, 87 Mo. 519; City of Pleasant Hill v. Dasher, 120 Mo. l. c. 681; Harwood v. Toms, 130 Mo. l. c: 237; McVey v. Carr, 159 Mo. l. c. 653; Lumber Co. v. Keener, 217 Mo. 539.]

With this deed out of the way plaintiff’s title, or rather plaintiff’s alleged title, wholly fails. For this error as well as the other above mentioned the judgment for plaintiff must be reversed.

III. The foregoing disposes of the case so far as the plaintiff is concerned. Defendants, however, insist that they were entitled to a decree in their favor, and that on the record before this court we should direct the lower court to so enter a decree. It is clear under the stipulation as to the facts that under the law the trial court should have decreed title in defendants, and should have debarred plaintiff from further claim of title. It was agreed that the title to the land (meaning of course the land described in the plaintiff’s petition) was in the defendants, “unless same has been divested out of them by virtue of the sale of said land for taxes, as evidenced by the sheriff’s deed herein-before introduced in evidence by the plaintiff. ’ ’

It is admitted in the record that the title was at one time in Dudley M. Keen, defendant in the void tax judgment. It was admitted that his heirs conveyed to Sarah E. Keen, and that the defendants would hold through her, she having died in 1907. The judgment nisi was for the wrong party. It should have been for the defendants under the prayer of their answer.. They ask the determination of the title. They by their cross-bill claim title in fee, and ask that it be adjudged to them, and that plaintiff be adjudged to have no claim or interest therein. The judgment should have so been. We therefore reverse the judgment and remand the cause with directions to the lower court to-enter a judgment and decree for the defendants in form and substance as above indicated.

All concur.


author: BOND, C.

text:
    PEMISCOT COUNTY, Appellant, v. WISCONSIN LUMBER COMPANY.
    Division One,
    February 29, 1912.
    BOUNDARY LINE: “Middle” of Section. An act of the Legislature fixed the boundary line between Pemiscot and Dunklin counties to begin at a point to be reached by a line running due west from the junction of Portage Bay and Little River “to the middle of section 10,” etc. Section 10 is 117 chains instead of the customary eighty chains, or one mile, in width. Held, that the boundary line between the counties lies one-half mile west from the east line of section 10.
    Appeal from Butler Circuit Court. — Hon. J. C. ■ . Sheppard, Judge.
    Appirmed.

      J. B. Breioer for appellant.
    (1) The word “middle” as used in the statute defining the boundary of Pemiscot, not being a technical word, should have its ordinary and usual meaning. “Words and phrases shall be taken in their plan or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.” R. S. 1909, sec. 8057; State v. Jones, 102 Mo. 305; "Warren v. Paving Co., 115 Mo. 572; State ex rel. v. Marion County, 128 Mo. 427; Henry v. Evans, 97 Mo. 47; State ex rel. v. Johnson, 132 Mo. 109; Manson v. Coleman, 86 Mo. App'. 18; Grimes v. Reynolds, 94 Mo. App. 576. (2) We say that the “middle” of section ten, in township twenty, north of range ten east, is at a point equi-distant between the west boundary line of said section and the east boundary line of said section, that is, a point fifty-eight chains and ninety-five links due east of the east boundary line of said section ten. Definitions of “middle.” Webster: " ‘ ‘ The point or part equally distant from the extremities or exterior limits.” The Standard Dictionary: “Occupying a position equally distant from the extremes, as the middle point.” The Century Dictionary: “The point or part equally distant from the two extremes.” Worcester’s Dictionary: “That part or place equally distant from the two extremes.” What are the extremes or the exterior limits of section ten ? The exterior lines of said section as a matter of course. But as the line drawn from, the point where Portage Bay empties into Little River prolonged due west through said section ten would strike said section ten a quarter of a mile north of the “center” of said section ten, could not strike the “center” of section ten, the northwest corner of P'emiscot county could Pot be at the “center” of said section, that is, at the intersection of the quarter section lines of said section ten. The “middle” of said section ten is not at the point where the quarter section lines of said section intersect. In the Act of 1868 (Laws 1868, p. 16), the word “middle” is used thirty-five times, not counting the reference to section ten, and in each instance it means “equally distant between two extremes,” as, “the middle of the main channel of the river,” the “middle of a township,” the “middle of a range.” Why, then, apply a different meaning when used in connection with section ten? It is true the witness, Randolph, testified that, starting at said junction-point and running due west to the middle of section ten, he would go to what is technically known as the center, hut when cross-examined he further stated that the point to which he was to go, and not the direction, would control. He is confounding “middle” and “center.” "When called upon to state where he gets the idea that middle and center mean the same thing, he can give no authority except his own opinion, based upon the statute defining the boundary of Pemiscot county. The said Act of 1868 in defining the boundary of New Madrid county uses the word “center” four times, and each time it means the point where the quarter section lines intersect. The use of the two words “middle” and “center” in the same act shows that the Legislature had in mind the different meanings of these two. words and rightly applied each. A section is a technical word and does not mean 640 acres of land laid off in one body, but is a survey of land and not necessarily 640 acres. Brown v. Hardin, 21 Ark. 324. (3) The county court is authorized by law to ascertain, and not to establish, a county boundary. This must be done by the Legislature. R. S. 1909, sec. 3625; Sturgeon v. Hampton, 88 Mo. 203; Johnson v. School District, 67 Mo. 319; Mauphin v. Franklin County, 67 Mo. 327; Bryson v. Johnson County, 100 Mo. 76 ; Phillips v. Bijtler County, 187 Mo. 714. (4) “The construction of a doubtful or ambiguous statute by the department charged with .its execution, in order to be binding upon the court, must be long continued.” A regulation of a department, however, cannot repeal a statute. Merritt v. Cameron, 137 H. S. 542. When there is no doubt this rule cannot be resorted to. United States v. Graham, 110 U. S. 219.

      Faris & Oliver and James M. Blazer for respondent.
    (1) The boundary line between Pemiscot and Dunklin counties was precisely as the lower court found. R. S. 1900, secs. 3572 and 3599; Harding v. Wright, 119 Mo. 1; Hamilton v. McNeil, 13 Gratt. (Ya.) 394; Prentiss v. Brewer, 17 Wis. 635; 5 Cyc. 914; 1 Lester’s Land Laws, p. 722; Turner v. Railroad, 112 Mo. 542; Edinger v. Woodke, 127 Mich. 41. It is a cardinal rule of construction, that the intention of the Legislature must prevail over the literal meaning of the words employed in a statute. State v. Tobacco Co., 177 Mo. 1; Felton v. United States, 96 U. S. 699; United States v. Babbit, 1 Black, 55; Trinity Church v. United States, 143 U. S. 457. And this rule applies with peculiar force to statutes regulating boundaries. Palms v. Shawano County, 61 Wis. 211; Perry County v. Jefferson County, 94 111. 214. (2) Appellant is estopped from asserting title to the lands in dispute. Simpson v. Stoddard County, 173 Mo. 465; Board v. Head, 33 Ky. 489; Union County v. Essex County, 43 N. J. L. 391; Hecker v. Sterling, 36 Pa. St. 423; Roane County v. Anderson County, 89 Tenn. 259'; Briggs v. Jasper County, 49 Iowa 485.
   BOND, C.

This action was brought on the 14th of June, 1907, in Pemiscot county, and by change of venue tried in Butler county. It was begun under what is now section 2535', Revised Statutes 1909, to ascertain and determine title to land.

Plaintiff claims title in fee to the lands-described in its petition under an act of the Legislature of Missouri, passed March 27,1868 (Laws 1868, p. 68), which donated to the respective counties in which they were situated, all the swamp lands granted to the State by act of Congress, approved September 28, 1850. It is further alleged that said lands were included in the boundaries of the plaintiff county by the terms of the •act of the Legislature establishing them, passed in 1868; and which with reference to the boundaries of Pemiscot and Dunklin counties, fixed the west boundary of the former and the east boundary of the latter, to begin at a point to be reached by a line running ■due west from the junction of Portage Bay and Little River “to the middle of section 10, township 20; range 10 east.” From this initial point, the line dividing the two counties to run thence to the southern boundary of the State of Missouri, where it touches the northern boundary of the State of Arkansas. Plaintiff claims that the act of the Legislature intended this beginning point to be located at half distance between the east and west boundaries of section 10, township 20, range 10 east; and that if the line was so run it included the land sued for.

Defendant, in addition to a general denial, pleaded the existence of a dividing line between the two counties, which it averred was located in accordance with the provisions and purposes of the legislative act, and which began one-half mile west of the eastern boundary of said section 10, and ran-thence to the southern boundary of the State; and that the lands sued for were west of this line and were a part of Dunklin county; that this line was established immediately after the act of the Legislature was passed prescribing the boundaries of said counties, and that the State of Missouri at once patented said lands to Dunklin county, and that Dunklin county conveyed them to defendant’s grantors; that Dunklin county from that time until the institution of this suit, a period of about thirty-nine years, had treated said lands as a part of its domain by levying and collecting taxes thereon from the successive owners, and that defendant bought them as a part of Dbnldin county in reliance upon the line of division so established and upon the acquiescence therein of the plaintiff; that in 1903 the two counties appointed a joint commission to ascertain the boundary line between them, which reported the one which had been established and located as before stated, and that this report was confirmed by the county courts of each county and assented to by both counties; that plaintiff was precluded by estoppel and delay from any ground of relief in equity or in law. Issue was taken by reply.

On the trial the parties made the following stipulations: “1. That the lands, and all of them, in controversy in this suit are such lands as are known and designated as ‘Swamp Lands.’ 2. That the State of Missouri is the common source of title to and of the said lands in controversy, and all’ of them. 3. That the defendant is the legal and equitable owner and holder of all and whatever title the county of Dunklin, in the State of Missouri, has ever had in said lands, through mesne conveyances from the patentees and grantees of said Dunklin county.”

The acts of the Legislature donating the lands and describing the boundaries of the counties were read in evidence. There was oral testimony tending to prove the matters pleaded in the answer, and also tending to prove that the existing line which had been recognized by the two counties for about thirty-nine years, was laid off in accordance with what expert surveyors would do ip undertaking to follow the statutory calls. The evidence showed that section 10, within which the beginning point was fixed by the terms of the statute, though of the usual depth of eighty chains; was 117 chains in width. The trial judge made a finding of facts, which included the following: “The court finds that by said statute the northeast corner of Pemiscot county is located in the ‘middle’ of section Í0, township 20 range^ 101 east, and that this point is at the point of intersection of the quarter-section lines of said section 10. That the dividing line between the two counties runs from this point south to the State line between the States of Missouri and Arkansas, and that the lands involved in this suit all lie west of this line, and hence in Dunklin county, and belong to the defendant.” And rendered judgment that said lands were well vested in defendant. Plaintiff duly perfected its appeal.

OPINION.

I. The only error assigned is, that, the court held the word “middle” as used in the statutory phrase, speaking of the northern point of the beginning' of the south line to be run between Pemiscot county on the east and Dunklin county on the west, “to mean a point one-half mile from the east line to section 10, and not a point the exact half of the distance between the east and west lines of said section.”

The section in question was unusual in size. It contained 943.20 acres instead of 640 acres. Its north and south lines are eighty chains apart. Its east and west lines are 117 chains distant, or nearly a mile and a half. If the recognized boundary now existing between the two counties is correct, then a larger part of said section lies in Dunklin county than is contained in Pemiscot county. If the boundary line were to be located and established as claimed by plaintiff, it would project about a furlong in width of said lands and twenty-seven miles in length into Pemiscot county. This narrow strip contains the land sued for.

The only point, therefore, arising under the error assigned, is whether the intent and language of the Legislature in establishing the boundaries as above expressed have been complied with in the existing division line. The intent of the Legislature is the key which unlocks the true meaning' of the statute. This may be gathered by a construction of the terms used as affected by the view-point of the lawmakers and the objects had in mind and the environing circumstances. The boundary act (Laws 1868. p. 68) was intended to describe lands by tbe nse of just sucb words as would be put into a deed inter partes. In the matter in band, tbe Legislature stood in tbe same position to tbe two counties as that of grantor to grantees. At tbe time of the passage of tbe act, tbe Legislature bad no khowledge of tbe lands except that they bad been sectionized by tbe government, which meant only that tbe section comers bad been located and not that tbe lands bad been surveyed. No lines showing tbe exact boundaries of tbe sections bad been established. Tbe ordinary and common size of a section is 640 acres, enclosed in one square mile. Abnormal sections are of infrequent occurrence. Tbe surveyor’s method of ascertaining tbe middle or center of a normal section of land is a matter of common knowledge. It may be done in many ways. Tbe usual method is to ‘‘project from tbe north quarter-section corner to tbe quarter-section corner on tbe south, and from tbe east to tbe west, and find tbe center of tbe section at tbe intersection of tbe two lines.” It is always tbe meeting point of tbe four quarter-sections within a section. This custom of surveyors and tbe fact that tbe swamp lands in question were only surveyed to the extent of locating quarter section corners, and were otherwise unmeasured, and hence presumptively of regular dimensions, was fully within the knowledge of tbe Legislature when tbe boundary acts were passed which fixed tbe point from which tbe line must be run due south to separate Pemiscot and Dunklin counties. This rule has been applied between private owners. [Knight v. Elliott, 57 Mo. 317.]

Under these circumstances it is reasonable to presume, that tbe Legislature intended tbe middle of section 10 to be reached by the-ordinary surveyor’s method of finding tbe center of that section. This is what was actually done, and, according to tbe testimony of experts, is always done whether such point is referred to by the word center or middle, which are considered by them to be interchangeable terms. The executive department of the State recognized the correctness of the boundary line established in this way by immediately patenting all the lands sued for to Dunklin county. The two counties were content with the division line thus created, and, as far as they could do through their county courts, ratified the action of the commission jointly appointed to ascertain the existence of the boundary line between them. At no time was this line transgressed by either county either for governmental or proprietary purposes. In fact it was shown on the trial that before the bringing of this suit the plaintiff county had sold all of its swamp lands, and in describing them in its contract with the purchaser has not included .any description of or claim to those in suit.

We think there is no doubt that the State and the two counties have fixed the boundary line just as it was in fact located. We hold that the language of the Legislature under review intended, what the trial judge found, to establish and define the boundary line as it would have been marked out if section 10 had comprised the usual acreage and extent. This conclusion renders it unnecessary to consider the other grounds urged as a preclusion to this action. The judgment of the trial court was manifestly for the right party, and it is affirmed.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Bonn, C., is adopted as the opinion of the court.

All concur.


author: VALLIANT, J.

text:
    SAMUEL P. MAJORS et al., Appellants, v. JAMES CRYTS et al.
    Division One,
    February 29, 1912.
    1. CURTESY: Limitation: No Seizin in Wife. The seizin of the wife that will entitle the husband to curtesy in her lands may be either seizin in deed of seizin in law — that is, actual seizin, or the right to immediate entry. But the deceased wife’s husband cannot have curtesy so long as her father has curtesy, for then the wife did not have the right to immediate entry. So that where plaintiffs’ grandmother died the owner of the land in 1864, leaving a husband in possession, who lived till 1889, and plaintiffs’ mother died a few months after her mother’s death, leaving' a husband, who died in 1907, and in 1881 plaintiffs’ father, grandfather, uncles and aunts made a deed to the whole and the grantees went into possession and were in possession when the suit was brought in 1907, plaintiffs are barred by limitations, for plaintiffs’ mother was not entitled to immediate entry during her life.
    2. -: -: Cotenancy. The husband who has curtesy in his deceased wife’s lands is not a cotenant with her children. The possession of the tenant by the curtesy is exclusive. The rents and profits are all his so long as he lives. There is no element in his possession of a tenancy in common with the children of the wife.
    Appeal from Stoddard Circuit Court. — Now. J. L. Fort, Judge.
    Affirmed.

      Wilson Cramer for appellants.
    (1) Rebecca J. McMillan having owned the land in fee and having died leaving her husband, John McMillan, and children by him surviving, he was tenant by the' curtesy and entitled to the possession and control of the land during his lifetime, but the declaration in defendants’ first instruction that “the estate of Rebecca J. McMillan was simply a reversion after such life estate had terminated” is erroneous. Meyers v. Hanbrough, 209 Mo. 495; DeHatre v. Edmonds, 200 Mo. 246. (2) Upon the death of Rebecca J. McMillan the real estate descended to her children, each becoming entitled in fee to an undivided one-sixth. Mary Ann McMillan having married P. P'. "W. Majors and died leaving him and children by him surviving, her interest passed by descent to her children, the plaintiffs in this suit, and her husband immediately became by law entitled to curtesy. McBreen v. Mc-Breen, 154 Mo. 322. (3) After John McMillan died in 1889 or 1890, the defendants held the one-sixth interest belonging to plaintiffs by virtue of the deed of March 31st, 1881, executed by P. P. W. Majors, tenant by the curtesy, and this holding could not possibly become adverse until after the death of P. P. W. Majors in May, 1907, when plaintiffs’ cause of action accrued.

      Wammack £ WeTborn for respondents.
    (1) Before a husband can have any curtesy right in the real property of his wife she must have either had the actual possession of the property, or the right to the immediate possession during coverture and before her death. Martin v. Trail, 142 Mo. 85; Dozier v. Toalson, 180 Mo. 546; Cochran v. Thomas, 131 Mo. 274. (2) The conveyance of the entire estate in a tract of land by one tenant in common, as sole owner, amounts to an ouster of his cotenants and the Statute of Limitations commences running in favor of his grantee from that time. Long v. Stapp, 49 Mo. 506;. Hendricks v. Musgroves, 183 Mo. 310; Dunlap v. Griffith, 146 Mo. 283; Campbell v. Gas Light Co., 84 Mo. 352.
   VALLIANT, J.

Ejectment for an undivided one-fourth of lot 2 in northeast quarter of section 2, township 25, range 9, Stoddard county.

There is very little, if any, dispute about the facts. Plaintiffs inherited the interest sued for from their mother and are entitled to recover unless their right of action is barred by the Statutes of Limitations, and it is barred unless their father, who survived their mother, had an estate by the curtesy in the land which prevented the running of the statute during his lifetime.

Eebecca J. McMillan, who was the plaintiffs’ grandmother, is the common source of title; she died in June, 1864, leaving her husband, John McMillan, and their six children, of whom the plaintiffs ’ mother, Mary Ann McMillan, was one. Mary Ann married P. P. W. Majors, plaintiffs’ father, and died in November, 1864, leaving her surviving her husband and three children, who are the plaintiffs in this suit. John McMillan died in 1889 or 1890. P. P. W. Majors died in 1907. Two of the six children of Eebecca J. McMillan died unmarried and without issue.

In 1881 Daniel W. Horton obtained a deed purporting to convey all of the lot 2 above mentioned, signed by John McMillan and the three then surviving children of Eebecca, and signed also by P. P. W. Majors; Horton went into possession under the deed, which was duly recorded. The title he acquired by that deed has since passed by mesne conveyances to the defendants, and the possession taken by Horton in 1881 has continued in him and his successors in his title until the present time.

Mary Aun having died during the lifetime of her father, John McMillan, therefore before the termination of his estate by the curtesy, was never in the actual possession of the interest she inherited from her mother, and. the court held that for that reason her husband acquired no estate by the curtesy; that the Statutes of Limitations began to run against the plaintiffs at the death of John McMillan in 1889 or 1890; this suit was begun in 1907. The judgment was for the defendants and the plaintiffs appeal.

I. There is no question but that John McMillan’s estate by the curtesy began at the death of his wife in 1864, and continued until his own death in 1889 or 1890. The title in fee descended to the children of Rebecca at her death in 1864, and they would then have been entitled to immediate actual possession if it had not been for the curtesy estate of their father, but that estate intervening excluded them from actual possession o.r right of possession until his death, which did not occur until after the death of plaintiffs’ mother.

The question is did P. P. W. Majors, plaintiffs’ father, ever have an estate by the curtesy in the land sued for? If he did have such an estate it continued until his death in 1907, and the plaintiffs are not barred; if he did not, the statute began to run against them on the death of their grandfather and their suit is barred.

Under the common law the essentials to an estate by the curtesy were four, marriage, seizin of the wife, birth of child capable of inheriting, and death of the wife. The seizin required by the common law was actual seizin, but this court in an early case decided that actual seizin was not necessary. [Reaume v. Chambers, 22 Mo. 36, l. c. 54.]

In that case the court per Scott, J., said: “As to the question whether actual seizin of the wife’s land is necessary to entitle the husband to curtesy, we are of the opinion that such an idea never prevailed here. Whatever may be the common law on the subject, the circumstances of the country demand a modification of the rule. Titles to land conferred by the United States were supposed to give seizin in deed to purchasers.”

In that case, as we understand it, the wife, though never having been in actual possession, had, during coverture, the right to immediate possession and that was held to be sufficient. That has ever since been the doctrine of this court.

In Washburn on Real Property, vol. 3, sec. 1953 (6 Ed.), the author says: “There is a seizin in deed and a seizin in law, and the difference between the two is, that in one ease an actual possession has been taken and in the other there is a right like that of an heir upon descent from his ancestor, while the possession is vacant, before he has made an actual entry.” Seizin in law as' there defined does not mean that there is a constructive possession in the heir when there is an estate in another person intervening to postpone his right of entry; it means a right of immediate entry. 'Seizin of the wife is essential to the husband’s right of curtesy, but under the decisions of this court it may be either seizin in deed or seizin in law. [Reaume v. Chambers, 22 Mo. 36; Cochran v. Thomas, 131 Mo. 258; Martin v. Trail, 142 Mo. 85; Dozier v. Toalson, 180 Mo. 546.] And that seems to be the general rule in this country. [1 Washburn on Real Property (6 Ed ), sec. 328.]

In Cochran v. Thomas, there is an expression that implies that actual possession by the wife is necessary, but that dictum was corrected in Martin v. Trail.

Appellants present the point that John McMillan and his children were tenants in common, that his possession was their possession, and that therefore their mother through him was in possession. Tenants in common have, inter sese, a common right of possession, a common right to rents and profits, and if one takes more than his share of the rents and profits he may be held to account to his cotenant. The possession of a tenant by the curtesy is exclusive, the .rents and profits are all his as long as he lives, there is no element of tenancy in common in his possession.

There can he no estate hy the curtesy in the husband when there has been no seizin in the wife, either in deed or in law.

We conclude therefore that in the case at bar there was neither seizin in deed nor seizin in law in the plaintiffs’ mother; she having died before her right of possession accrued, therefore her husband did not have an estate by the curtesy, and the plaintiffs’ right of action accrued at the death of their grandfather in 1890, and was barred by the Statute of limitations when this suit was begun.

II. The judgment goes farther than a judgment at law in ejectment should go. The judgment is that the plaintiffs take nothing by their writ and the defendants go without day and recover their costs; so far it is right, and should have gone no farther, but it did go on to decree no title in plaintiffs and full title in defendants. This was doubtless because there were in the third paragraph of the answer statements to the effect that the deed to Horton, under whom defendants claim, which was executed by the other heirs and parties in interest, purported to convey the title of plaintiffs and that those parties accounted to plaintiffs for their share of the purchase money and plaintiffs accepted it. But there was not a word of proof offered to sustain those allegations; the sole question litigated was whether plaintiffs’ right of action was barred by the Statutes of Limitations. We do not deem this error of any serious consequence, because the title of defendants by adverse possession is so clearly established that it puts the case at rest.

The judgment is affirmed.

All concur:


author: BOND C.

text:
    CARLTON G. HAIZLIP v. ADELIA (DAISY) HAIZLIP; WESTERN FUNERAL BENEFIT ASSOCIATION, J. O. U. A. M., Garnishee, Appellant.
    Division One,
    February 29, 1912.
    1. ATTACHMENT AND EXECUTION: Maintenance and Alimony: Constitutional Question: Changing Method of Collecting Debts: Special Laws. Section 8296, R. S. 1909, which lays all property open to attachment-or execution in proceedings by married women for maintenance or upon judgments or orders issued to enforce a decree for alimony, is not obnoxious to the constitutional provision which forbids the passage of any “special law providing or changing methods for the collection of debts, or the enforcing of judgments.” The section mentioned is not a “special law.”
    2. EXEMPTION LAWS: Constitutional Question: Vested Rights: Remedies and Procedure. No man can acquire, as against the State, any vested rights in previous exemptions of his property or earnings. All exemption laws axe of grace and favor, and can only exist during the will of the lawmaking body. It is entirely competent for the Legislature to abolish them in the absence of constitutional restraint. Laws merely affecting civil remedies and modes of procedure are not within the constitutional interdiction.
    Appeal from St. Louis City Circuit Court. — Hon. ■ Virgil Buie, Judge.
    Affirmed.

      J. G. Hamer for appellant.
    (1) Section 8296', R. S. 1909, as applied to the facts in this case, is null and void, as being in violation of and contrary to article 2, section 15 of the Constitution of Missouri. Ex parte Bethurum, 66 Mo. 550'; Leete v. State Bank. 115 Mo. 184; Gladney v. Sydnor, 172 Mo. 318; Society v. Wheeler, 2 Gall. (N. II.) 105. (2) It is a special law, applying only to judgments for alimony, and this violates article 4, section 53, subdivision 17, of the Constitution of this State, in this, that the Legislature shall have no authority to pass any special law for “the enforcing of judgments.” (3) A judgment or decree for alimony is simply a judgment or decree for the payment of money in discharge of a debt. McMalán v. McMaldn, 68 Mo. App. 57; Coughlin v. Ehlert, 39 Mo. 285; In re Kinsolving, 135 Mo. App. 631. (4) The section has no retrospective operation and does not attach to judgments rendered prior to the taking effect of the act. Young v. Renshaw, 102 Mo. App. 187; Leete v. State Bank, 115 Mo. 184. (5) Statutes uniformly act prospectively, unless a retrospective operation is clearly expressed. State ex rel. v. Walker, 80 Mo. 610; State ex rel. v. State Auditor, 41 Mo. 25; Black on Const. Law (2 Ed.), sec. 286, p. 627. (6) Retrospective laws are forbidden eo nomine by the State Constitution, and when this is the case it is immaterial whether or not the act interferes with vested rights. Bartlett v. Ball, 142 Mo. 36; Cooley’s Const. Lirns. (6 Ed.), pp. 454-455.

      George 8afford for respondent.
    (1) Exemption rights are purely of statutory origin, and exist only so far as they are created by statute. Caldwell v. Renfro, 99 Mo. App. 376. (2) The rights of the parties in garnishment proceedings must be determined by their status at the time of the issuance of the writ of attachment. Caldwell v. Renfro, 99 Mo.'App. 381. (3) Statutory exemption of a debt- or’s property from levy and sale for the payment of his debts is ‘a mere privilege, and in the absence of constitutional restrictions the Legislature may modify or wholly repeal exemption laws as to existing property and debts. 12 Am. & Eng. Ency. Law, p. 74, art. 5; Sparger v. Cumpton, 54 Ga. 355; Harris v. Glenn, 56 Ga. 94; Pramble v. State, 41 Md. 435; Bull v. Con-roe, 13 Wis. 233; Caldwell v. Benfro, 99 Mo. App. 376; Howland v. Bailroad, 134 Mo. 474; State ex rel v. Fidelity Co., 135 Mo. App. 164. (4) The repeal of an exemption law without a saving clause, after a debt has been contracted, leaves the debtor in precisely the same position as if there never had been such a law, except as to rights which have already vested by reason of a levy and a claim and setting apart of property as exempt or other proceedings had under the statute. 12 Am. & Eng. Ency. Law, p. 74, par. 4. (5) Modification or repeal of an exemption law does not impair the obligation of any contract as to creditors, but on the contrary it enlarges their remedy. And it is not objectionable as impairing the obligation of contracts as regards the debtor, for there is no contract giving him an exemption. Sparger v. Cumpton, 54 Ga. 355; 12 Am. & Eng. Ency. Law, p. 74, par. 2. (6) An act providing for execution to reach wages to satisfy judgment rendered prior to the passage of the act is not so much retroactive as operative upon the existing condition of things — that is, judgments existing but awaiting enforcement. Laird v. Carton, 196 N. Y. 169; Lindholm v. Waite, 119 N. Y. Supp. 1132, 134 App. Div. 993; Hedges v. Keiser, 119 N. Y. Supp. 751,135 App. Div. 12; Bayliss v. Byan, 117 N. Y. Supp. 1022, 64 Misc. 146. (7) Exemption acts, whether constitutional or statutory, relate to procedure and are remedial only. Cusic v. Douglas, 3 Kan. 123; Folson v. Asper, 25 Utah 299; Kirkman v. Bird, 2 Utah 100; Commonwealth v. Whipps, 80 Ky. 269. (8) A statute which relates to persons or things as a class, and which embraces all persons who are or who may come into a like situation and circumstances, is a general law. Dunne v. Bailroad, 131 Mo. 1; State v. Walsh, 136 Mo. 400; State ex inf. v. Ins. Co., 150 Mo. 113; Elting v. Hickman, 172 Mo. 237.
   BOND C.

This is a garnishment based upon decrees rendered in November and December, 1898, for alimony pendente lite and in gross, amounting to $1081.37, in a divorce suit wherein Adelia Haizlip obtained a divorce on her cross-bill to an action brought by her husband, C. Gr. Haizlip. The writ of garnishment was executed March 13, 1907, by summoning the Western Funeral Benefit Association, of which the defendant, C. Gr. Haizlip, was an employee. Issues were taken on the denial of the answer of the' garnishee. Upon the trial, judgment was rendered against the garnishee for the amount of the alimony decreed in the divorce suit. The only defense interposed was the claim that the act of the Legislature abolishing all exemptions of property or wages in certain proceedings was unconstitutional. Said act is contained in the Revised Statutes of 19091, section 8296. Judgment was rendered against the garnishee, from which it duly takes its appeal to this court.

OPINION.

I. The act which appellant assails as unconstitutional is, to-wit: “No property shall be exempt from attachment or execution in a proceeding instituted by a married woman for maintenance, nor from attachment or execution upon a judgment or order issued to enforce a decree for alimony. And all wages due to the defendant shall be subject to garnishment on attachment or execution in any proceedings mentioned in this section, whether said wages are due from the garnishee to the defendant for the last thirty days’ service or not.” [R. 8. 1909, sec. 8296.]

This statute was enacted in 1903 after the rendition of the judgment for alimony upon which this garnishment issued. Appellant contends that it is obnoxious to the constitutional provisions (Constitution of Missouri, art. 4, sec, 53, subdiv. 17) which forbid tbe passage of any “special law” in tbe instances therein enumerated, including the following, to-wit, “providing or changing methods for the collection of debts, or the enforcing of judgments.” We are unable to concur in this contention. The act in question is not a special law, and hence does not transgress in that respect the prohibition of the organic law. It is clear from the terms and intendment of the act that it applies equally to all persons belonging to the classes designated therein, that is, to all husbands who fail to maintain their wives, or having been divorced fail to pay the alimony awarded. It also comprehends all wives before or after divorce belonging to the classes specified in the statute. Such an act of the Legislature is a general and not a special law, and hence not forbidden by the foregoing language. [Elting v. Hickman, 172 Mo. 237; State ex inf. v. Aetna Ins. Co., 150 Mo. 113; State v. Walsh, 136 Mo. 400; Dunne v. Railroad, 131 Mo. 1; St. Louis v. Liessing, 190 Mo. l. c. 481.]

Appellant takes the further view that the act in question deprives the husband of vested rights which accrued to him on his remarriage as the head of a family. This is- also untenable, for it overlooks the principle, that no man can acquire, as against the State, any vested rights in previous exemptions of his property or earnings from liability to his creditors. All exemption laws are of grace and favor, and can only exist during the will of the lawmaking body. It is entirely competent for the Legislature to abolish them in the absence of constitutional restraint. [Caldwell v. Renfro, 99 Mo. App. 376; 12 Am. & Eng. Ency. Law, p. 74, art. 5.]

The intent of the legislative act under consideration was to amplify the remedy of a wife before or after divorce against the husband who had failed in the duty assumed by him to maintain her during the marriage and provide for her upon its dissolution, as required by law. [Anderson v. Hardware Co., 134 Mo. App. 188.]

Tbe. act does not prejudice any vested rights in the husband, for the exemption laws do not constitute contracts on the part of the State and do not create any irrepealable rights. It was the design of the Legislature by this provision to make the remedy more efficient in the class, of proceedings therein mentioned without affecting the previous obligations of the parties or creating any new obligations. Laws merely affecting civil remedies and modes of procedure are not within the constitutional interdiction. [Clark v. Railroad, 219 Mo. l. c. 532, and cases cited.]

The act under review is a wholesome exercise of the power of the Legislature and not repugnant to the Constitution. The result is, that the judgment in this case, rendered in pursuance of its provisions, is affirmed.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur.


author: WOODSON, J.

text:
    R. B. COLE, Appellant, v. NORTH AMERICAN LEAD COMPANY.
    Division One,
    February 29, 1912.
    1. NEGLIGENCE: Guarding Machinery: Knives of Planing Mill: Statute. The Statute (See. 6433, R. S. 1899) requiring “the. belting, shafting, gearing and drums” in all manufacturing and mechanical establishments, to be safely and securely guarded ■when possible, limits the guards to those parts only, and does not embrace all dangerous parts of the machinery. Those words do not include or embrace the planing ltniyes of a planing machine “set in a cylinder or axle or shaft Which rapidly rotated and which was run by a belt leading to a shaft in the floor.” The word “shafting” does not include either the knives or the axle or shaft in which they were set. And where plaintiff’s fingers were cut off hy the knives, as he was operating the machine, and his petition counted on defendant’s failure to guard the knives, in violation of the statute, and that negligence only, a demurrer to his case was properly sustained. [Disapproving Millsap v. Beggs, 122 Mo. App. 1.]
    2. -: -: Master’s Common Law Liability. The statute did not change the master’s common law liability to provide a reasonably safe place in which and reasonably safe tools with which his servants may perform their work, except to impose on him the duty to safely and securely guard the belting, shafting, gearing and drums of the machinery, where that is possible, and where that is impossible, to post notice of its danger; otherwise, the master’s liability remains as it did at common law.
    Appeal from Madison Circuit Court. — Hon. Chas. A. Killian, Judge.
    Affirmed.

      B. H. Boyer and T. B. Buries for appellant.

      E. D. Anthony and W. S. Fordyce for respondent.

      Conleling, Rea & Sparrotv amici curiae.

   WOODSON, J.

This is an action for damages for personal injuries sustained by appellant through the alleged negligence of the respondent; and is here on certification by the St. Louis Court of Appeals, for the reason that the opinion thereof is in conflict with the opinion of the Kansas City Court of Appeals, in the case of Millsap v. Beggs, 122 Mo. App. 1.

The former opinion is as follows:

“This plaintiff lost part of his right hand in consequence of its slipping against the knives of a planing machine in defendant’s factory, and instituted this action for damages. The machine consisted of a metallic table, with a smooth surface. The table, which is about a foot in width, is divided into two sections, the section in front of the knives being adjustable at different heights. Between the two sections were the planing knives. They were set in a cylinder or axle which rotated rapidly. In planing the operator would lower the adjustable table so the surface of the board to be planed would be cut to the proper depth and would-then slide the board against and over the knives, passing it over the stationary end of the table behind the knives. The pedestal on which the table was placed had two openings in the side under the table and near the floor. Shavings would fall into this pedestal and either pass out at the opening or be raked out by the operator. If allowed to remain in the pedestal, they would choke the machine. The shaft or axle on which the knives were fixed was run by a belt leading to a shaft in the floor of the shop, which shaft was in turn connected with a belt running on a countershaft near the ceiling. All the machinery in the room was operated by power transmitted from the engine room by shafting. This plaintiff, in obedience to an order from his foreman, undertook to plane a piece of timber, at the time the planing machine was idle,. but plaintiff adjusted the belting so as to set it in motion. After it had started he stooped to rake some shavings from the pedestal with his left hand, having his right hand not far from the knives at the time. As he raised from his stooping posture, he stepped on a block of wood lying on the floor and covered with shavings. The block turned, throwing plaintiff off his balance and his right hand against the knives of the planer, which lopped off a portion of three of his fingers and his thumb. At the conclusion of the testimony the court directed a verdict for defendant and pláintiff appealed.
“A careful study of the pleadings and evidence has satisfied us there is only one question of doubt raised on the appeal • that is, whether or not the planing machine ought to have béen guarded in obedience to the statute, which says: ‘The belting, shafting, gearing and drums, in all manufacturing, mechanical . and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.’ [B. S. 1899, sec. 6433.]
“The petition avers it was possible at all times to securely guard the planing machine and knives and thereby make them safe, and asks damages fo.r failure to guard them, and does not count on negligence in not posting notices that the knives were unguarded on the theory that it was impossible to guard them. Other assignments of negligence are contained in the petition, based on the failure of defendant to guard belts, pulleys and other shafting in the room, and on allowing debris and shavings to accumulate on the floor of the room; but we are satisfied no case was made on those facts. Omission to guard other portions of the machinery was not the proximate cause of the accident, and the circumstance that some shavings were on the floor was not actionable negligence. Unless the defendant was remiss in omitting to guard the knives of the planer, the case must be classed as an accidental casualty for which the defendant is not responsible. Plaintiff testified the knives could have been guarded without interfering with the use of the planer and undertook to state how this could have been done. It is far from clear to our minds that if could have been, but perhaps the question would be for the jury if the machine falls within the scope of the statute. The lower court held the statute ‘did not apply to working parts of the machine, but only to the parts used in transmitting power — gearing, pulleys, shafting and drums;’ that it covered only parts of machinery used ‘to transmit power to the working parts — belts, shafts, pulleys and cog wheels.’ In Millsap v. Beggs, 122 Mo. App. 1, a machine precisely like the one by which plaintiff was hurt, as far as we are able to determine from the description in the opinion, was held to come within the statute. The court said, after describing the planer: ‘We conclude that this horizontal instrument with knives fastened therein, was “shafting” in the sense and meaning of the statute. We think it wholly unlike the machine described in Smith v. Forrester-Nace Box Co., 193 Mo. 715, and that that case is not applicable.’ If the statute required the machine in question to be guarded, it is because it was ‘shafting’ within the meaning of that word as used in the statute. ‘Shafting’ is defined in the Standard Dictionary as follows: ‘A system of stout rods or shafts, usually cylindrical, mounted in bearings and serving to carry pulleys, gear-wheels or the like, for communicating power, as from a motor to machines.’ Webster defines the word as meaning ‘a system of connecting shafts for commu-nicating motion. ’ Shafting appears to have a different meaning in mechanics from ‘shaft,’ which is defined in the Standard Dictionary as ‘an axle, mandrel, arbor, or other long and usually cylindrical bar, especially if rotating, and subject to torsional stress; as a steamer-shaft; a fly-wheel shaft.’ It is also defined in the same work as ‘a length of shafting.’ It may be said the metal cylinder in which the knives were set was a shaft, without outraging the meaning of the term. So it might be said they were set in an axle or on a rod. A saw rotating on an axle is, in a'certain sense, set on a shaft, or shafting; and perhaps the same may be said of other tools. The point is whether the word ‘shafting’ in the statute includes such a meaning. The connection in which the word is used, along with belting, gearing and drums, indicates the statute is intended to apply, not to tools proper, but to mechanical devices by which the tools are operated; that is, by which power is transmitted to them to rotate them or impart other motion to them. In Smith v. Forrester-Nace Box Co., 193 Mo. 715, it appeared the plaintiff was injured while working with a planing machine, but his injury resulted from his hand being caught between two rollers in the rear of the planing knives over which the planed boards ran. The Supreme Court held those rollers were not ‘shafting’ within the sense of the statute, and the proprietor was not required to guard them. We are mindful of the fact that this statute is remedial and ought to be liberally construed to realize the purpose of the Legislature. [Lore v. Manufacturing Co., 160 Mo. 608.] But it cannot be extended beyond the meaning its words will bear. It looks to us like the planing knives, though set in a shaft or axle, were in substance a tool and not shafting, and hence not covered by the statute. The statutes require all words used in a law, except technical ones, to be given their usual sense, and technical words to be given their import as used by experts. [R. S. 1899, sec. 4160.] No layman would describe the planer as ‘shafting,’ and according to the dictionaries, the word ‘shafting’ technically used, does not include in its meaning a planer like the one in question.
“It is contended for defendant that plaintiff was guilty of negligence contributing to his injury and hence was not entitled to recover even if the statute was violated. We find no evidence in the record which would justify a court in holding he was guilty of contributory negligence as a matter of law. The case turned on whether- or not the defendant failed to comply with its statutory' duty. We hold it did not, and affirm the judgment; but as we deem our decision in conflict with that of the Kansas City Court of Appeals, in Millsap v. Beggs, supra, we certify the cause to the Supreme Court for final decision. It is so ordered.

All concur. — Richard L. Goode, J.”

On account of the much interest manifested in this case, and the earnestness with which the legal propositions are discussed, we deem it best to add a few observations to the able opinion delivered by the St. Louis Court of Appeals.

The questions involved are well briefed and ably discussed by' counsel for both parties; and we are also favored with an able brief and argument by counsel amici curiae.

A clearer insight will be had of the case, if we keep in mind the statute, upon which the cause of action, as stated in the petition, is predicated, namely, section 6433, Revised Statutes 1899, which reads as follows:

“The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.?’

From this reading of the statute, it is seen that it does not require the entire machinery in the establishment mentioned to be guarded, nor all of the parts thereof, but it simply provides that the “belting, shafting, gearing and drums” shall be safely guarded.

It seems to us that the old maxim, “Expressio unius est exclusio alterius,” applies here with great force and effect; for otherwise, why did the Legislature single out and name those four parts of this class of machinery and require them to be safely guarded, if it was not the design to limit the guards to those parts alone, but did intend to embrace all parts of the machinery, when so placed as to be dangerous to persons employed therein.

And especially does that seem to he the intention of the Legislature, when we remember that prior to that enactment operators of machinery could with perfect impunity leave all parts of their machinery unguarded and incur no legal liability whatever on that account, except probably in those cases where other negligence might contribute therewith and • cause an injury.

Now it is common knowledge that -the belting, shafting, gearing and drums constitute a very small part of the machinery employed in the great manufacturing establishments of the State and throughout the country. If all four of those parts should be detached and removed from such a building, I dare say, they would scarcely he noticed, except by the skilled eye of the machinist. It is also common knowledge that the four parts mentioned, and required by the statute to be safely guarded, constitute no part of the power plant proper, nor of the machinery proper, which produces the fabric or finished product. Those four parts are the connecting links as it were, between the two, carrying the power from the former and delivering it to and distributing it throughout the latter. Common observation and experience also teach us that in the absence of negligence on the part of employers, there are comparatively few cases of personal injuries inflicted by the engine itself, or by the machinery proper; both of which while in operation are under the constant care and observation of the employees, which enables them to keep out of danger.. But not so with regard to the belting, shafting, gearing and drums. There is no occasion for those employees to observe them while discharging their ordinary duties about the machine proper. Those four parts relate to the power, which is furnished and as a rule cared for l¿y a different set of employees; and being thus collateral to the ordinary duties of those who operate the machinery, their eyes and attention are not constantly drawn thereto as they are to the machinery which they are operating.

While, as previously stated, this belting, shafting, gearing and drums are in a sense collateral to the ordinary duties of the employees, yet their turning, tumbling, running and grinding close by and unobserved by the employees, while performing their ordinary duties about the machine proper, render them, exceedingly dangerous, and when unprotected, they inflict great personal injury, if not death, upon all who, in an unguarded moment, should happen to step against, lay a hand upon or fall into or upon any of them.

This common knowledge was shared in by the members of the Legislature, in common with all the citizens of the State, and doubtless led to the enactment of the statute in question, which was evidently designed, as previously pointed out, to guard the four parts named, they being the most dangerous, while all of the remaining part's, which were not so dangerous, were unaffected by the statute, but retained their status quo under the common law. Not only that, but from a careful reading of the entire act, it will be seen that the Legislature at all times had in mind, not only the safety of the employees, but also the practicability of even guarding the parts mentioned. If they could not be guarded without interference with the operation of the machinery, then the guards were to be dispensed with, and notices were to be substituted. -

In the case of Huss v. Heydt Bakery Co., 210 Mo, 44, l. c. 59, in a dissenting opinion, I undertook to point out, at some length, the evils that were incident to this belting, shafting, etc., and the remedy designed by the Legislature^ It was there said:

“When we read this entire section in the light of what the common law was upon the subject prior to its enactment and the evils that existed thereunder, it is perfectly clear that it was the intention of the Legislatnre to chang’e the common law governing master and servant, which only required him to furnish the servant a reasonably safe place and instrumentalities with which to perform his duties, and to establish instead thereof a much higher standard of duty upon the master. The day after this statute went into effect and operation the master no longer discharged his full duty to his employees by furnishing them with a reasonably safe place in which' to work and. reasonably safe means with which to perform their work, but he had to go much further than that, and was required, where it was possible, to safely and securely guard all gearing and drums when placed so as to be dangerous to the employees. The gearing in this case falls within the letter and spirit of the statute, and was so placed as to make it dangerous to the employees, as much so as any piece of gearing that could be pointed out in any such institution. Conceding that to be true, and we presume it will not be controverted, had defendant discharged its full duty to plaintiff, at the time he was injured, gauged by the standard of duty imposed upon it by this statute? Clearly not; the gearing was so placed as to be dangerous to plaintiff in the discharge of his duties to the master, and the record conclusively shows, beyond contradiction, that it was not only possible to safely and securely guard it, but it could have been done easily, readily, and we dare say at but little cost, not to exceed four or five dollars. Any ordinary mechanic or even a ‘jack at all trades’ in a very short time could have taken two pieces of gas pipe, about four and a half feet long, and one about two and a half feet in length and screwed them together in the form of a rectangle, with an open base, and then placed it over the .gearing and fastened the other ends of the pipes to the floor; and then covered the rectangle thus formed with a piece of sheet-iron or other suitable material; he could thereby have safely and securely guarded the gearing without interfering in the remotest degree with the working efficiency of the machine and conld have thereby completely abolished or removed the danger which is pointed ont by the statute, in express terms, and condemned thereby; but this was not done. The defendant continued to operate its machinery just as it had done before the enactment of the statute.
“In our judgment this is one of the wisest and most humane statutes to be found upon our statute books, and should be given a broad and liberal interpretation, because it is remedial and highly salutary, intended to protect the employees from just such injuries as the one sustained by plaintiff in this case. The Legislature knew that the human mind and conduct was such that a servant when in the performance of his duties to his master, surrounded- by dangerous machinery, in motion, with his mind concentrated upon his work, oblivious to his surroundings, is liable to slip or take a misstep and fall into the revolving machinery, or thoughtlessly thrust his hand or other portion of his body into the gearing or other portion of the machinery; and if not ‘safely and securely guarded,’ he would in consequence thereof receive injuries of a serious character. It was the intention of the Legislature and the object and the purpose of the statute -to put a stop to all such injuries which grow out of such inattention, inadvertence, mishaps or accidents, that is, such acts of omission.
“This is clearly manifested and emphasized by the last clause of this section of the statute.- The Legislature was so solicitous of those matters and of the safety of the employees of such institutions, that it required, by this last clause, that when it was impossible for the master to safely and securely guard the machinery mentioned, notice of such dangers should be conspicuously posted in such establishments; evidently for the purpose of continuously and potently calling their attention to the dangers surrounding them, and thereby make them more watchful of the machinery and careful in their actions and motions about it.
‘ ‘ So, in brief, the rationale of the statute is this: That where it is possible to do so, the master must safely and securely guard the belting, shafting, gearing and drums in his institution; but when that is impossible, then he must give the required notice. This increases the degree of care required of the master regarding those matters from reasonable care to an absolute duty to safely and securely guard such gearing, etc., where it is possible to do so without materially interfering with the working efficiency of the machinery of the institution; but if that is impossible, then he must post the required notice; and if he fails in the performance of those duties, then the burden rests upon him to show that the servant was guilty of such contributory negligence that he would have been injured in consequence thereof, even though the gearing, etc., had been so guarded, o.r that the notice had been properly posted.
“It should be borne in mind, however, that this statute in no manner increases or diminishes the degree of care the master owes his servant, except in regard to the specific matters mentioned therein.”

It will be seen by reading the last clause of the quotation, that I was then, and I am still, of the opinion that this statute did in no manner undertake to increase or diminish the degree or scope of the master’s care toward his employees, beyond the guards expressly provided for therein.

I thought I took a much more liberal view of this statute than my learned associates did; but it was not my opinion then, nor is it now, that the provisions of that statute were or are sufficiently comprehensive to embrace the machinery, which it is charged caused the injury in this case. This statute left all parts of this class of machinery open and unguarded just as it existed at common law.

The planer which inflicted the injury upon the appellant, is in no sense a belt, shaft, gear or a drum; no more so than an arm or leg is the body; because the former are attached to and form a part of the latter, does not alter the fact. While it is true the head, trunk and limbs constitute and form the body, just as the engines, boilers, belts, shafts, gears, drums and machinery constitute and make up a manufacturing plant, nevertheless the belts, shafts, gear and drums no more constitute the plant than the limbs constitute the body, and when spoken of separately and distinctly, as the statute speaks of the former, they are just as separate and distinct from the other parts of the plant, as the limb of a man or tree is distinct from the body or trunk.

For the reason stated by the St. Louis. Court of Appeals, and because of the views here expressed, the judgment of the latter court should in our opinion, be affirmed, and the opinion of the Kansas City Court of Appeals, in the case of Millsap v. Beggs, 122 Mo. App. 1, should be overruled.

It is so ordered.

All concur.