author: WILLIAMS, C. PER CURIAM.

text:
    MILTON W. BRANNOCK, Appellant, v. SAMUEL McHENRY and MARTHA E. McHENRY.
    Division Two,
    June 28, 1913.
    1. QUIETING TITLE: Limitations: Sec. 1884, R. S. 1909: Evidence: Burdeft of Proof. Where there was no evidence tending to show that plaintiff or those under whom he claims had been out of possession of the land in suit for thirty consecutive years; where there was testimony tending to prove that about thirteen years before the trial, one of plaintiff’s predecessors in title was in possession of a part of the land; and where there was no evidence that defendants had ever been in possession of the land, the trial court erred in finding that defendants had acquired title by virtue of Sec. 1884, R. S. 1909. Those are essential conditions to the' operation of said statute, and the burden of proof is upon the party claiming under it.
    2.-: -: -: Proof of “Lawful Possession.” The payment of taxes by defendant and the cutting of timber by his agent were not sufficient to prove “lawful possession” of land as required by Sec. 1884, R. S. 1909.

      ■3. -: Proof of Record Title: Defective Sheriff’s Deed: Record of Circuit Court. A sheriff’s deed which lacks the certificate of the circuit clerk under seal of the court that the deed was acknowledged in open court, conveys no title and is not admissible in evidence as proof of record title. Neither can the defect in such a deed he cured by offering in evidence the record of the circuit court showing that the deed was so acknowledged.
    4. -: -: -: How Remedied: Secs. 2237-2239, R. S. 1909. One who claims through a sheriff’s deed which is defective in that it does not bear the certificate of the circuit clerk that it was properly acknowledged can proceed in either of two ways, in view of Secs. 2237-2239, R. S. 1909, to procure a new deed. That remedy is exclusive, and a court of equity cannot reform the defective deed.
    Appeal from Stoddard Circuit Court. — Eon. J. L. Fort, Judge.
    REVERSED AND REMANDED.

      Wilson Cramer and R. S. Eouch for appellant.
    (1) The indorsement of the clerk’s certificate of acknowledgement upon a sheriff’s deed is an essential part of the deed, without which it is void. Ryan v. Carr, 46 Mo. 482; Adams v. Buchanan, 49 Mo. 64; G-raton v. Land & Lumber Co., 189 Mo."320. (2) This certificate of acknowledgement cannot be supplied by the clerk’s minutes. Samuels v. Shelton, 48 Mo. 444; McClurg v. McClurg, 53 Mo. 173; Lincoln v. Thompson, 75 Mo. 613. (3) A court of equity will not'aid in the execution of a statutory power; the statutory remedy is exclusive. Dixon v. Hunter, 204 Mo. 382; Ware v. Johnson, 55 Mo. 503. (4) A purchaser at an execution sale acquires title only upon delivery of a valid deed to the purchaser by the sheriff. Leach v. Koenig, 55 Mo. 453; Blodgett v. Perry, 97 Mo. 275; Land & Lumber .Co. ,v. Bippus, 98 S. W. 547. (5) Non-payment of taxes for thirty years, absence of possession by legal owner for a like period and one year of actual possession by claimant nest before tbe institution of suit, are prerequisites to tbe acquisition of title by claimant under Sec. 1884, R. S. 1909. Collins y. Pease, 146 Mo. 140.

      Wammach & Well)orn for respondents.
    (1) Tbe appellant’s action is barred by tbe ten years Statute of Limitations. Haarstiek v. Gabriel, 200 Mo. 244. (2) Tbe appellant and bis grantors abandoned tbeir ownership of this land tbirty-five years ago and they should not now be beard to assert any claim to it. Shelton v. Horrell, 232 Mo. 374. (3) Tbe respondents are entitled to a corrected sheriff’s deed. Porter v. Mariner, 50 Mo. 364; Land & Lumber Co. v. Franks, 156 Mo. 673; Thornton v. Miskimmon, 48 Mo. 219.
   WILLIAMS, C.

This is an action under section 650, Revised Statutes 1899 (Sec. 2535, R. S. 1909), to quiet title to tbe south half of lot 2-, tbe north half of tbe south half of lot 3, and tbe south half of lot 4, section 6, township 27,. range 12, in Stoddard county, Missouri.

Tbe petition is in tbe usual form. Tbe defendants, by tbeir answer, claim title in themselves, and ask for affirmative relief; also plead tbe ten-year and thirty-year Statutes of Limitation, and laches. Tbe answer also contained a count asking for a new sheriff’s deed from tbe present sheriff as follows:

“Further answering, defendants aver that they verily believe that tbe only defect urged by plaintiff against said sheriff’s sale and deed is tbe fact, as claimed by plaintiff, that tbe circuit clerk of said Stod-dard county failed to indorse upon said deed bis certificate of tbe acknowledgment by tbe then sheriff of said county in open court of tbe execution of said deed; defendants state that tbe said Ebeneezer G. Liles purchased said lands at said sheriff’s sale and paid the sheriff the amount of his bid; that R. M. Fraker, the then sheriff of said county, duly acknowledged his execution of said deed in open court, and that the failure of the clerk to indorse Ms certificate of said acknowledgment of said deed was simply a clerical omission.
“Defendants state that plaintiff and those under whom he claims, when they obtained title to said lands, did so with full knowledge of the rights of defendants and those under whom they claim in and to said lands, under said sheriff’s sale and deed.
“Wherefore, defendants say that they are entitled at law and in equity to an initial sheriff’s deed to said premises to be duly executed by the present sheriff and clerk of said circuit court of Stoddard county, and they pray the court for a decree ordering-said sheriff and clerk to execute the same to them.”

Plaintiff’s reply was a general denial.

One John E. Liles was admitted to be the common source of title and the owner of this land prior to December 2, 1871. Plaintiff introduced in evidence a deed executed by said Liles and wife to Walter Phelan, dated October 13,. 1894, and a complete chain of conveyances from said Phelan to plaintiff. The defendants' then offered in evidence a. sheriff’s deed to said land, dated December 2, 1871, from Robert M. Fraker, sheriff of Stoddard county, to Ebeneezer Gr. Liles, reciting that said land was sold under executions issued by the clerk of the circuit court of Stod-dard county upon personal judgments against the said John E. Liles. Said sheriff’s deed was recorded July 12, 1872, in the recorder’s office-of said county, but the deed did not bear the certificate of the circuit clerk showing that it was acknowledged by the sheriff as required by law. Over plaintiff’s objection, defendants introduced in evidence the record of the Stod-dard county circuit court, made by the clerk of that court January 10, 1871, reciting that said Robert M. Fraker, sheriff, came into open court and acknowledged the execution of said deed, describing the lands ■and the parties to the judgments upon which executions were issued. Defendants then offered in evidence mesne conveyances from said Ebeneezer Gr. Liles to Samuel McHenry, defendant herein.

The evidence tended to prove that defendant Mc-Henry had paid the taxes on this land from 1876 down to the time of the trial, that the lands were wild, unfenced timber lands, and that the only portion thereof that had been cleared or cultivated was half an acre in the south half of said lot two, which said half acre appears to have been enclosed in a neighbor’s field, and not to have been in possession of either of the parties to this suit or those nnder whom they claim.

The total land in controversy approximates eighty acres, and comprises three separate, non-adjoining tracts. Defendant did not live in Stoddard county, and does not claim to have had actual possession of the land at any time, but the testimony shows that he owned other lands in that county, lying near but not adjoining this land, upon which he had a tenant, and that he authorized this tenant to go upon the land in controversy and cut such timber therefrom as he might need. There was some testimony that defendant had an agent residing in the county at one time, and that this agent authorized some parties to cut-some timber off a portion of this land. How much timber was cut is not shown. Two witnesses testified for defendant that it had been known in that vicinity for the last eighteen years that the land in controversy was defendant’s land. The evidence further shows that at the time plaintiff purchased this land, which was on January 28, 1908, he was told that defendant claimed the same by virtue of the above-mentioned sheriff’s deed, and that he was.apprized of the fact that he would likely have to bring suit to quiet the title.

Plaintiff’s testimony in rebuttal tended to prove that be did not have knowledge of tbe defective sheriff’s deed at tbe time he purchased. Plaintiff’s evidence further tended to prove that about thirteen years prior to the institution of this suit, one of his predecessors in title, R. M. Abner, built a house on said lot number two, and lived there a few years, claiming to own all of lots two and three, and another lot not in suit here, being lot number one, all of which lots were contiguous and were embraced in the deed that undertook to convey same to said Abner.

Defendant introduced in evidence the depositions of John E. Liles, in which Liles testified that he was now eight-two years old; that at one time he owned over thirteen thousand acres of swamp and timber land, including the land in controversy, in Stoddard county, and that he paid taxes on the same up until 1876, but paid very little attention to the land in controversy after that time; that he quit paying taxes because he thought the taxes amounted to more than the land was worth. When asked if he abandoned the land, he answered that all that he “ever did in the way of abandonment of the land was just letting the taxes go delinquent;” that after he quit paying the taxes he paid no more attention to the land until Walter Phelan urged him to deed the land to him. He then says, “I quitclaimed all the land I had to Walter Phelan, and he was to work it up and give me half, but my half never came to anything; he never gave me anything.”

No declarations of law were requested or given. The court, sitting as a jury, found for defendants, and entered the■ following judgment:

“Now on this 3rd day of April, 1909, this cause coming on to be heard, and both parties appearing in person and by attorneys, it is submitted to the court for trial. And the court, having seen and heard all the evidence adduced by both the plaintiff and defendants, and being fully advised in the premises, doth find as follows:
“(1) That defendants claim no title to the following described lands, to-wit: The south half of the south half of lot three, in section six, township twenty-seven, range twelve east, in Stoddard county, Missouri, and that the title thereto is, as between plaintiff and defendants, in the plaintiff.
“(2) That the equitable title to the following described lands, to-wit: The south half of lot 2,-the north half of the south half of lot 3, and the south half •of lot 4, all in section six, township twenty-seven, range twelve east, in Stoddard county, Missouri, emanated from the government more than ten years before the bringing of this suit, and that neither the plaintiff nor any one under whom he claims has been in possession of or paid any taxes on said real estate, -or any part thereof, for more than thirty-one years prior to the bringing of this suit, and that the defendants have been in the lawful possession of said lands for one year and more next before that time.
“(3) That on the 20th day of May, 1871, one John E. Liles was the owner in fee of the lands last above described; that on said date judgment was rendered in the • circuit court of Stoddard county, Missouri, against said John E. Liles, and under said judgment the said lands were duly levied on and sold against said John E. Liles, and were duly purchased at said sheriff’s sale by Ebeneezer Gr. Liles, under whom defendants claim title, who received a sheriff’s ■deed therefor, dated December 2, 1871; that the sheriff who executed said deed duly acknowledged the same in’ open court, but his acknowledgment thereof was not indorsed by the clerk on the deed; that although said sheriff’s deed was thus defective, the grantee in said sheriff’s deed, and those claiming under him, were and are entitled, as against said John E. Liles, and those claiming under him with knowledge, through deeds executed by him subsequent to said sheriff’s sale, to a duly executed sheriff’s deed to said premises, and the court finds that the plaintiff,, and those under whom he claims, claim title to said lands under said John E. Liles, through deeds executed by him subsequent to said sheriff’s sale, and that, they obtained their said title to said lands with full knowledge of all the rights of defendants, and those under whom they claim, in and to said lands under said sheriff’s sale and deed.
“It-is therefore ordered and adjudged by the court that the title to the said south half of the south half of said lot 3 be, and the same is hereby, confirmed and quieted in the plaintiff.
“It is further so ordered and adjudged that the present sheriff and clerk of this court execute to the defendant a sheriff’s deed in due form to the said south half of lot 2, the north half of the south half of lot 3, and the south half of lot 4, all in said section six, township 27, range 12 east, Stoddard county, Missouri.
“It is further so ordered and adjudged by the court that, at the date of the institution of this suit, plaintiff had not, and that he has not now, any title, estate or interest in or to said lands, to-wit: The south half of lot 2, the north half of the south half of lot 3, and the south half of lot 4, of said section six, township twenty-seven, range twelve east, in Stoddard county, Missouri.
“And it is further so ordered and adjudged that, the fee simple title to said last-described premises be, and the same hereby is, confirmed and quieted in the defendants, and that plaintiff and all persons claimT ing by, through or under him, be and they are hereby estopped and forever barred from setting up or asserting any title or estate in or to said last-described premises.
“It is further ordered and adjudged that defendants recover their costs from the plaintiff, and have execution thereof.”

From the above judgment plaintiff perfected his appeal to this court.

I. Appellant contends that the court erred in finding that defendant had acquired title to the land in controversy under and by virtue of the provisions of section 1884, Revised Statutes 1909. We tlamk this contention well founded. A careful reading of the testimony discloses no evidence tending to show that plaintiff or those under whom he claims have been out of possession .of said land for thirty -consecutive years. It was held in Weir v. Lumber Co., 186 Mo. 388, that the record title to wild and vacant land raises the presumption that the possession is in the record owner. On the other hand, there was testimony tending to prove that about thirteen years before the trial of this case, one of plaintiff’s predecessors in title was in possession of lots two and three for about five years. Neither is there evidence tending to prove that defendants have ever been in lawful possession of the land in controversy. These are essential conditions to the operation of said statute (Collins v. Pease, 146 Mo. 1. c. 140), and the burden is upon the party claiming under said section to prove those facts. The payment of taxes by defendant and the cutting of timber on different occasions by his agent, was not sufficient to prove “lawful possession” on the part-of defendant, as required by section 1884, Revised Statutes 1909. [Weir v. Lumber Co., supra; Nye v. Alf-ter, 127 Mo. 529; Crain v. Peterman, 200 Mo. 295; Chilton v. Oomanianni, 221 Mo. 685.]

II. Another contention of appellant is, that the-judgment of the court is wholly without evidence to support it.' This brings us to a discussion of the force and effect of the sheriff’s deed by R. M. Fraker, sheriff of Stoddard coun- ^ elated December 2, 1871, which undertook to convey the title of John E. Liles to said lands to defendants’ predecessors in title. This deed was regular in every way, except that it did not hear the certificate of the clerk under seal of the court that the deed was acknowledged in open court, as required' by law. It is well settled in this State that such a deed conveys no title, and therefore is not admissible-in evidence as proof of record title. [Ryan v. Carr, 46 Mo. 482; Adams v. Buchanan, 49 Mo. 482; Grafton v. Land & Lumber Co., 189 Mo. 322.] Neither can the-defect in such a deed be cured by offering in evidence the record of the circuit court showing that said deed was so acknowledged. [Samuels v. Shelton, 48 Mo. 444; Adams v. Buchanan, supra; McClure v. McClung, 53 Mo. 173.] Under the state of facts shown by the record in this ease, the situation is .the same as though no proper deed had ever been made by Sheriff Fraker. In that predicament, respondent had at least one of two ways open to him: 1. If Sheriff Fraker is Alive, and bears none of the disqualifications mentioned in section 2239, Revised Statutes 1909, he would have the right to execute a new deed to defendant, correcting the defect of the former deed, without any order from the court so to do. [Land & Lumber Co. v. Franks, 156 Mo. 673, and cases cited therein; Smith v. Vickery, 235 Mo. 413; Butler v. Imhoff, 238 Mo. 584; Sec. 2237, R. S. 1909.] 2. If Sheriff Fraker bo either dead, removed from office, disqualified, or has removed from the State, then, upon defendant’s making the showing required by section 2239, Revised Statutes 1909, “the court out of which the execution issued” will order the present sheriff to execute, acknowledge and deliver a new deed to the purchaser, or the person claiming by, through or under him. [Land & Lumber Co. v. Franks, supra.] "When the situation is such as to call for the application of the above statutory remedy, that remedy is exclusive, and a court of equity cannot reform the defective deed. [Dixon v. Hunter, 204 Mo. 382.]

While it would constitute no valid defense to the merits of the case, yet we would not say that it is improper in a suit involving the present state of facts that defendant state in his answer facts sufficient to show that he is entitled to have a new deed made, so that the court may he apprized of the exact situation; for it would certainly he within the discretion of the trial court, upon proper application and showing, to grant a stay of the original proceeding for a time sufficient to allow the party a reasonable opportunity to procure'a new deed in proper form; hut that portion of the judgment in the case at bar which orders the present sheriff to execute a new deed certainly can be of no help to respondent here. The only way that title to land can be conveyed when sold by a sheriff is by sheriff’s deed, executed in the form and manner required by law, and the deed itself is the proper evidence of that fact. The court’s order on the sheriff to make a new deed, even if the order were properly made, could not be used in lieu of a deed. In the case at bar no new deed appears to have been made. At least, none is found in the evidence.

The facts- disclosed by the evidence would not even authorize the court to order the present sheriff to make a new deed. There was no showing that Sheriff Fraker was dead, or, if alive, that he bore any of the disqualifications enumerated in section 2239, Revised Statutes 1909. From the evidence .in the ease we cannot tell who would have the right to make the new deed. "We would suggest also that the better and safer practice in matters of this kind is to conform to the requirements of the Code when the Code defines the procedure.

Upon another trial, defendants may perhaps he able to produce and offer in evidence a new sheriff’s deed, duly executed and acknowledged, in which event the trial court can then determine whether the plaintiff purchased with such knowledge or notice as will cause the new deed to relate hack, and establish title in defendants. We find no evidence in the present record to justify the judgment below upon any theory.

The judgment is reversed and the cause remanded.

Roy, C., concurs.

PER CURIAM.

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

All of the judges concur, Baris, J., in result only.


source: Caselaw Access Project

author: BBOWN, P. J.

license: Public Domain

text:
    MARIE SCHMELZER, Appellant, v. CENTRAL FURNITURE COMPANY.
    Division Two,
    June 28, 1913.
    1. RES ADJUDICATA: Transmitted Cause of Action. If a final •and valid judgment was rendered against plaintiffs husband in his suit against defendant for negligent injuries and thereafter he died, his widow cannot recover in a suit for damages caused by the alleged wrongful death of her husband by the same negligence.
    2. Death of Plaintiff Before Final Judgment of Reversal: No Revivor. When living parties enter their appearance in court, or are brought in by process, the court then having complete jurisdiction of their persons and the cause of action, a subsequent failure to comply with the requirements of the statute, to suggest the death of one of the parties and to revive the action, does not render the judgment entered therein void, but only voidable. So that where judgment for damages was ■ rendered for plaintiffs husband, for negligent injuries, and the defendant-appealed to the St. Louis Court of Appeals, and the cause was submitted while he was yet living, and fifteen days before a judgment was rendered reversing the judgment of the trial court, be died, and no suggestion of bis death was made in said Court of Appeals and the cause was not revived in the name of bis wife or other person, the judgment of reversal was not void, but only voidable.
    3. -:-: -: Voidable Judgment. A voidable judgment has all the force and effect of a valid judgment until it is set aside or reversed. So where the Court of Appeals, upon a consideration of the merits, reversed a judgment for damages in favor of plaintiff’s husband, fifteen days after his death, with no suggestion of his death and no attempt to revive the same before reversal, such judgment of reversal was not void, but only voidable, and was a complete bar to the subsequent prosecution-of a suit by his wife for damages for the alleged wrongful death of her husband growing out of the same injuries — the additional allegations of acts of negligence not being proven.
    Appeal from St. Louis City Circuit Court. — Eon. Hugo Muench, Judge.
    Affirmed.

      James J. O’Donohoe -for appellant.
    (1) “If the merits of the case are adjudicated and passed upon, a judgment of reversal is final; if not, it is not necessarily final.” Strottman v. Railroad, 228 Mo. 154; Abbott v. Railroad, 232 Mo. 616; G-ragg v. Insurance Co., 140 Mo. App. 685. The judgment of reversal in the husband’s case was invalid, because at that time he was dead and human tribunals have no jurisdiction over the dead. Death stops further proceedings until the cause is revived. Murphy v. Redmond, 46 Mo. 317; Gamble v. Daugherty, 71 'Mo. 599; Crawford v. Railroad, 171 Mo. 68; Yoorhis v. Gamble, 6 Mo. App. 1. The decision in the husband’s ease is not supported by reason or authority and is in conflict with prior decisions and hence should not be treated as barring this case. Young v. Downey, 150 Mo. 317. Points were made and not passed on by the St. Louis Court of Appeals in the husband’s case and consequently the decision in that case should not be considered as a finality. Moreover, decisions of inferior courts are not binding on tbe Supreme Court. Sedalia to use v. Donohue, 190 Mo. 407. The ■ court of Appeals is bound under the Constitution to follow the latest ruling of the Supreme Court. Railroad v. Crow, 137 Mo. App. 461. (2) Kraemer, who threw the timber, and plaintiff’s husband worked in different departments and hence were not fellow-servants. Koerner v. Car Co., 209 Mo. 141; McMurray v. Railroad, 225 Mo. 272; Burkard v. Rope Co., 217 Mo. 466; Clark v. Iron & Foundry Co., 234 Mo. 436. Koet-ting, who ordered Kraemer to throw the timbers into the yard, was vice-principal, and it was his negligence that caused the injuries to Schmelzer. Fogarty v. Transfer Co., 180 Mo. 490; Bane v. Irwin, 172 Mo. 306; Foster v. Railroad, 115 Mo. 165; Russ v. Railroad, 112 Mo. 45; Rigsby v. Supply Co., 115 Mo. App. 297; Miller v. Railroad, 109 Mo. 350; Dayharsh v. Railroad, 103 Mo. 570; Donnelly- v. Mining Co., 103 Mo. App. 349; Strode v. Conkey, 105 Mo. App. 399; Packet Co. v. Hill, 122 Fed.' 246; Wrecking Co. v. Birney, 117 Fed. 72; G-old Min. Co. v. Muset, 114 Fed. 66; Railroad v. Ross, 112 U. S. 377; Smith v. Car & Foundry Co., 122 Mo. App. 610; Holweg v. Telephone Co., 195 Mo. 149; Haworth v. Railroad, 94 Mo. App. 224. Even if the injuries to the plaintiff’s husband were caused by the negligence of Kraemer and that they were fellow-servants, yet as Kraemer was acting under the immediate direction of the vice-principal the respondent is liable. Combs v. Construction Co., 205 Mo. 367. The respondent is liable whether the injuries to and death of the plaintiff’s husband were due to the foreman’s negligent order to Kraemer, or in his failure to communicate necessary orders to him. Smith v. Railroad, 92 Mo. 359; Card v. Eddy, 129 Mo. 529. This is a case of negligence per se. Adams v. ITospital, 122 Mo. App. 675; Hoffman v. Walsh, 117 Mo. App. 278; Evers v. Ferry Co., 116 Mo. App. 130; Scharff v. Construction Co., 115 Mo. App. 157; Lang v. Eailroad, 115 Mo. App. 489; Eaney v. Lachance, 96 Mo. App. 479; Shuler v. Eailroad, 87 Mo. App. 618; 'Setter v. Bischoff, 63 Mo. App. 160.

      J. Lionberger Davis and Jones, Hooker, Hawes ■& Angert for respondent.
    (1) In the case of Frank Schmelzer against this defendant the merits of the case were adjudicated by the St. Louis Court of Appeals and the judgment of reversal was final and a bar to this action. Strott-naan v. Eailroad, 228 Mo. 154. (2) The judgment of reversal in the husband’s case was at most irregular, because of his death after submission but before decision but the judgment is not void or subject to collateral attack. Coleman v. McAnulty, 16 Mo. 173; State ex rel. v. Eiley, 219 Mo. 685. (3) Kramer, who threw the board, and Schmelzer were not in ■different departments but were fellow-servants. Schmelzer v. Furniture Co., 134 Mo. App. 493; Parker v. Eailroad, 109 Mo. 362; Koerner v. Car Co., 209 Mo. 141. (4) Kraemer, if negligent, was not carrying out any order. His act was merely the act of a servant, and if there was any negligence it was in the performance of a manual act, i. e., in the manner of throwing out the board. Evan v. McCully, 123 Mo. ■626; Card v. Eddy, 129 Mo. 510; Jones v. Eailroad, 178 Mo. 544; Livengood v. Lead & Zinc Co., 179 Mo. 229. (5) Schmelzer was guilty of negligence as a matter of law. Schmelzer v. Furniture Co., 134 Mo. Mo. App. 493.
   BBOWN, P. J.

Action for damages caused by the alleged wrongful death of plaintiff’s husband. From a judgment for defendant, plaintiff appeals.

On December 1, 1906, Frank Schmelzer, plaintiff’s husband, was employed by defendant to pile lumber and perform other labor in and about tbe yard of defendant’s furniture factory in tbe city of St. Louis.

Defendant, being engaged in remodeling and repairing tbe fourth story of its factory found some shelving or boards which were unfit for further use, and caused one of its employees to throw said boards out of the windows of said factory. One of tbe boards thus thrown out struck plaintiff’s husband, causing his death about two years later. The husband of plaintiff during his lifetime instituted a suit in the circuit court of St. Louis city to' recover damages from defendant for the identical injury pleaded in the present action.

In the former action the plaintiff’s husband recovered judgment against defendant, but upon appeal by defendant to the St. Louis Court of Appeals that judgment was reversed. [Schmelzer v. Furniture Co., 134 Mo. App. 493.]

In the case at bar (brought after the death of her husband) plaintiff has pleaded additional acts of negligence on the part of defendant not mentioned in the former case, but which additional acts of negligence are charged to have been the proximate cause of her husband’s death. Upon a careful examination of the evidence in this case we find that none of said additional . acts of negligence pleaded by plaintiff were proven. We further find that said St. Louis Court of Appeals heard and determined the former case upon its merits and reversed the judgment, which plaintiff's husband had recovered, on the ground that the injury received by Schmelzer was caused by the negligent act of a fellow-servant, “his own negligence con--curring therein.”

Among the defenses interposed by defendant' in this case is the plea of res adjudicata, based upon the petition, answer, reply and judgment in the former action by plaintiff’s husband.

Plaintiff’s reply to said plea of res ad judicata is a general denial. No attack is made by plaintiff in her pleadings in this canse upon the sufficiency of the pleadings or judgment in the action by her husband before mentioned.

The evidence shows that the appeal in said former case was taken and duly submitted to said Court of Appeals while plaintiff’s husband was yet living, but no suggestion of his death was made to said Court of Appeals, and the cause was not revived in the name of his wife or any other person before the entry of the final judgment in that action.

At the close of plaintiff’s evidence the trial court directed a verdict for defendant.

I. Plaintiff concedes that if a final and valid judgment on the merits had been rendered against her husband in the former case she could not recover in this action. This is undoubtedly true. [Strode v. St. Louis Transit Co., 197 Mo. 616; Strottman v. Railroad, 228 Mo. 154.]

II. Plaintiff’s attorney, however insists that the judgment against her husband is void because the same was entered by the St. Louis Court Appeals fifteen days after he died and without any suggestion of death, and with-yie cailse being revived in the name of his widow, children or administrator. He cites: Murphy v. Redmond, 46 Mo. 317; Gamble v. Daugherty, 71 Mo. 599, and Crawford v. Railroad, 171 Mo. 68. These cases lend some color to plaintiff’s insistence, but a close examination discloses the fact that in each of those actions knowledge was brought home to the court by suggestion of death, or otherwise, that the litigant had died before judgment was entered against Mm. Those cases' are, therefore, different from the case at bar, for here there was no suggestion of Schmelzer’s death. The, appeal was regularly submitted during his lifetime and the Court of Apeáis possessed no knowledge of Ms death when it determined the action and reversed his judgment.

It is true that when one of the parties to an action dies while such action is pending in an appellate court the law directs that the death of such litigant shall be suggested to the appellate court and the cause revived against his legal representative before further proceedings are had. [Sec. 2075 and 2076, R. S. 1909.] Our statutes also require the same procedure (varying only in unimportant details) upon the death of a party to an action pending in a trial court. [Art. 10, Chap. 21, R. S. 1909.] It is axiomatic that courts must acquire jurisdiction of the parties to actions before they can lawfully adjudicate the matters in controversy in such actions; and as no court can compel a dead man to answer its processes a judgment obtained against one who was dead when the action was instituted is a nullity.

The general rule, however, is that when living parties enter their appearance in court, or be brought in by process, the court then having complete jurisdiction of their persons and the cause of action, a subsequent failure to comply with the requirements of the statute does not render a judgment entered therein void, but only voidable.

In the case of Charley v. Kelley, 120 Mo. 134, a minor defendant was brought into court by an order of publication. The law then, as now, required the trial court to appoint a guardian ad litem for such defendant before proceeding to try the action (Sec. 1747, R. S. 1909); but in that case the court rendered judgment against said minor defendant without appointing a guardian for him, and it was held that the judgment was only voidable and a sale nnder it passed tbe title of tbe minor defendant.

Mr. Freeman in bis work on Judgments (4 Ed.), vol. 1, sec. 153, says:

“If an action is begun by or against living parties, over whom tbe court obtains jurisdiction, and some of them subsequently die, it is not thereby deprived of its jurisdiction; and while it ought not to proceed to judgment without making the representatives or successors in interest of the- deceased party parties to the action, yet if it does so proceed its ac- • tion is irregular merely, and its judgment is not void.”

In the recent well-considered case of State ex rel. v. Riley, 219 Mo. 667, this court In Banc followed the above quoted rule of law announced by Mr. Freeman. TJpon a careful review of the matter we hold that the judgment of reversal entered against plaintiff’s husband by the St. Louis Court of Appeals is not void.

III. The Missouri cases before cited sustain the proposition that a voidable judgment has all the force and effect of a valid judgment until it is set as^e or reversed. That rule seems to be almost universal in the American States. Black in his splendid work on Judgments (2 Ed.), vol. 2, sec. 513, says:

“Where the court has jurisdiction of the subject-matter and the parties, and where jurisdiction attaches in the particular case and authorizes the particular adjudication made, its judgment, although it may be voidable for irregularities, or liable to be reversed or set aside for errors in law or fact, is binding and conclusive upon the parties until its effect is •destroyed in some regular proceeding for that purpose.”

We, therefore, hold that the final judgment of the St. Louis Court of Appeals reversing the judgment theretofore obtained by plaintiff’s husband is a bar to the prosecution of the present action, and the trial court properly directed a verdict for defendant. Its judgment is therefore affirmed.

Faris and Walker, JJ., concur.


author: "WILLIAMS, C. PER CURIAM.

text:
    MINERS’ BANK v. EDWARD M. CLARK, Appellant.
    Division Two,
    June 28, 1913.
    1. SUIT ON SPECIAL TAX BILLS: Prlma-Facie Case: Burden of Proof. When, in a suit upon special tax bills, the bills themselves are regular upon their face, they make out a prima-facie case for plaintiff. That prima-facie case is subject to rebuttal, • but the burden is upon defendant to show the defect in the proceedings or work rendering the tax bills void.
    2. -: Width of Street: Plans and Specifications: Finding' of Trial Court. The resolution of the city council declaring the street improvement necessary, the ordinance providing for the improvement, the notice to contractors for bids on the work, and the contract for the work, each and all stated that the work should be done according to plans and specifications on file in the city clerk’s office. The evidence shows that the plan was filed in the office of the city clerk showing that the roadway portion of the street was twenty-four feet in width, and that the improvement made conformed to that dimension. Appellant’s abstract of the record does not contain a copy of the plan, but the trial court found that the plan was properly filed, that it “fixed the width of the improvement with sufficient certainty,” and that the work was substantially performed by the contractor. Held, that, absent a copy of the plan from the abstract, the finding of the trial court cannot be reviewed, and it will be presumed that the court properly and correctly found as stated.
    3.-: -: Material Designated: Engineer’s Power to Change. Tax bills based upon a general ordinance for macadam work are not, in the circumstances of this case, void because1 the ordinance reads, in part: “The macadam course having been finished, the space between stones shall be filled with clean mill tailings, or such other material as may be directed by the city engineer or street committee.” The evidence shows-that mill tailings were used in fulfilling the present contract, and it does not show that any attempt was made by the city engineer or street committee to change the material from mill tailings, and in the absence of any evidence tending to show that the contractors were misled in any way, or that their bids were based upon other materials, it is fair to presume that the bids were based upon mill tailings, which is the only material that the ordinance specifically designated for the binder course.
    4. -: Sec. 9255, R. S. 1909: Protest by Resident Owners: Constitutional Question. Section 9255, K. S. 1909, providing that “if a majority of the resident owners of the property liable to taxation therefor (for street improvements), at the date of the passage of the resolution, who shall own a majority of the front feet owned by residents of the city abutting on the street, . . . shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power,” etc., to let the contract, is not unconstitutional because it gives the privilege of protesting to resident and not to nonresident owners.
    5.-: Cities: Contracting Away Power to Levy Special Assessments. Cities of the third class cannot contract away their power to levy special assessments for street improvements and thereby create an exemption from such assessments.
    Appeal from Jasper Circuit Court. — Ron. David E. Blair, Judge.
    AFFIRMED.

      C. V. Buckley for appellant.
    (1) The work to be done, that is in this case, the space to be covered with macadam, must be specified; not only the length hut the width and when it is specified it must be done as specified. If a less space than the contract calls for is actually covered by the contractor the tax bills are void. City v. Etterson, 120 Mo. App. 215; Grading Co. v. Holden, 32 Mo. .App. 490; Cole v. Shrinka,-105 Mo. 303; Brady v. St. J o-seph, 84 Mo. App. 399; Kansas City v. O ’Conner, 8 Mo. App. 655; West v. Porter, 89 Mo. App. 150; Louisiana v. Shaffner, 104 Mo. App. 101. An ordinance for construction of sewer must contain plans and specifications or refer the public to some place where they may be found or the ordinance is void. McCormick v. Moore, 134 Mo. App. 669; Dickey v. Holmes, 109 Mo. App. 721. (2) Ordinances cannot delegate the authority to select the material to be used in a street improvement or any part thereof. It was violated in this ’case by allowing the engineer or the street committee to select the kind of sand to be used in the top, filler or binder course. City v. Eddy, 123 Mo. 563; Independence v. Knoepker, 134 Mo. App. 601. A city ordinance cannot direct sidewalks to be built of wood, brick or stone. Rich Hill v. Donnon, 82 Mo. App. 386. It cannot be said that the material selected is just as good or that it was immaterial. It was held that where the ordinance required crushed river gravel, if the river gravel used was not crushed, the tax bills were void. Kansas City v. Askew, 105 Mo. App. 84. The city cannot leave to engineer part of street to be improved. Council cannot delegate its (legislative) functions to a ministerial officer. Ramsey v. Field, 115 Mo. App. 620. (3) The appellant properly and in time protested against the improvement in question. The city had no power, in the face of such protest, to order the improvement. A majority of the front feet owners protested. The appellant at the time owned it all. Sec. 9255, R. S. 1909. (4) It was illegal for the city to order the improvement at the expense of the appellant. The city had agreed to do it and therefore was estopped by the deed to this street made to it by appellant. A city has power to acquire public .highways within its limits by express grant. Wythe v. St. Louis, 153 Mo. 80. A city can make any contract for property or about any subject within its express or implied powers. 15 Am. & Eng. Ency. Law, p. 1080, sec. 14. The acquirement and control of its streets by a city is one of its principal privileges and if it cannot procure land for streets by grant from its owners, it can acquire such land by condemnation. Constitution, art. 2, sec. 21; Sec. 9261, R. S. 1909. Joplin, being a city of the third class, has power and authority to improve its streets at its own expense; and is not limited in the doing of said improvements, to taxing the same to the adjoining property owners. Sec. 9254, R. S. 1909. A city may be charged with improvements whether it has the money in its treasury or not; whether it has appropriated it or not. If it has the power to make the contract it is all that is required. Barber & Co. v. St. Joseph, 183 Mo. 451. It is estopped- to deny any contract it has power to make. Unionville v. Martin, 95 Mo. App. 38. A city may buy land for any legitimate or authorized purpose. Yaughan v. Greencastle, 104 Mo. App. 206; Ely v. St. Louis, 181 Mo. 723; 15 Am. & Eng. Ency. Law, p. 1080, sec. 14. A case very much in point is where a city was held bound by its contract to maintain bridges across a mill race within its limits. State ex rel. v. Cowgill M. Co., 156 Mo. 620. The cases in this State that hold a city, or the State, cannot exempt persons from taxation, or even from special assessments is based on the doctrine that it is ultra vires of a city, because it would proportionally increase the burden of taxation upon others if some were returned; but that condition does not exist here. Here there is nobody but the city and Clark concerned; and we have seen from the above authorities that a city is charged with its obligations where no other person’s rights are violated; where no unjust or unequal burden is thrown upon any other citizen.

      George J. Grayston and Haywood Scott for respondent.
    (1) Sufficiency of specifications of work to be done. The width to be improved need not be specified when shown by the plan. Hamilton on Special Assessments (1 Ed.), p. 359, sec. 407; Gafney v. San Francisco, 72 Cal. 146; Hedonburg v. Chicago, 44 N. E. 395. Reference to plans and specifications in resolution and ordinance is sufficient. Page & Jones on Taxation by Assessment (1 Ed.), sec. 833, p. 1418; sec. 849, p. 1446; Roth v. llax, 68 Mo. App. 287; Gal-breath v. Newton, 30 Mo. App. 381; "Whitworth v. Webb City, 204 Mo. 598; Akers v. Kolkmeyer & Co., 97 Mo. App. 529; Paving Co. v. Ullman, 137 Mo: 571. “An ordinance or notice of an improvement is sufficient where it describes generally the kind of improvement proposed to be made and refers for a specific description to maps, plans, specifications or other detail thereof on file in a public office, accessible to interested parties.” Walsh v. Bank, 139 Mo. App. 647; Hamilton on Special Assessments (1 Ed.) p. 304, sec. 358; Page and Jones on Assessments (1 Ed.), sec. 833, p. 1418; Clinton v. Portland, 26 Ore. 419; Greens-burg v. Zoller, 60 N.- E. 1007. Ordinance 2050 and the plan furnished all the plans and' specifications necessary for such work. The trial court expressly found same to be sufficient, and as appellant has not furnished the plan in his record this court is not in a position to hold same'insufficient. Probert v. Investment Co., 155 Mo. App. 344. (2) De Minimus. The ordinance provided that the 4-inch layer of macadam should consist of stone not to exceed two inches in diameter, and that it should be thoroughly consolidated by rolling with a 15-ton roller. The spaces then existing should be filled with mill tailings, or such other material as might be designated by the city engineer or street committee. Minor matters may be left to the discretion of the officials in charge of such work. Swift v. St. Louis, 180 Mo. 96; Gibson v. Owen, 110 Mo. 455; Guyer v. Rock Island, 215 Ill. 144. Another view of the matter is: The ordinance provided that those spaces should be filled with mill tailings or such other material as might be designated by the engineer or street committee. The attempt to delegate follows a provision, which is otherwise certain, as an alternative. If the attempt to delegate is ineffectual, then that provision should be disregarded as surplusage. Thus the requirement as to the use of mill tailings would be rendered certain and the ordinance would still be complete. Railroad v; Jacksonville, 114 Ill. 563. Mill tailings were in fact used. (3) Appellant’s contention that the statute, limiting the right to protest against such improvements to resident property owners, is unconstitutional, has been decided against him by this court and by the Supreme Court of the United States. Buchan v. Broadwell, 88 Mo. 36; Field v. Asphalt Co., 194 U. S. 618. (4) The provision in the deed from appellant to the city of Joplin, which he claims exempts his property from taxation, was void for the reason that the city was not authorized to waive its right to improve its streets in either manner provided by law. Yrana v. St. Louis, 164 Mo. 146; Noblesville v. Railroad, 130 Ind. 1; City v. Railroad, 19 "Wash. 518; Elliott on Roads and Streets (2 Ed.), sec. 148, p. 156. Richards v. Cincinnati, 31 Ohio St. 506, holds that in such cases the grant is valid but the condition void.
   "WILLIAMS, C.

"This is a suit upon eight special tax bills issued by the city of Joplin, a city of the third class, to the contractor for grading and macadamizing the roadway portion of Fifth street, from the east line of School street to the west line of Spring Park Addition, in said city. The tax bills were sold and assigned by the contractor to the plaintiff bank, respondent herein. Trial was had in Division Two of the circuit court of Jasper county before the court, without a jury, resulting in a judgment in favor-of plaintiff on each of said tax bills, from which judgment defendant (certain, constitutional questions being involved) bas appealed to this court.

Plaintiff introduced in evidence said special tax bills, which appear to be regular in form. Defendant, the owner of the lots against which the special tax bills were issued, thereupon introduced evidence in support of his answer pleading certain defenses. No question is raised as to the sufficiency of the pleadings, and there is little, if any, dispute about the facts. It is therefore unnecessary to deal with the facts at length here, but such of the facts as are necessary to a complete understanding of the errors, assigned will be stated in the course of the opinion.

The special tax bills introduced in evidence were regular upon their face, and therefore made out a FacTe* case, prima-facie case for plaintiff. The prima-facie case ^us ma^e is subject to rebuttal, but the burden is upon defendant to show the defect in the proceedings or work rendering the tax bills void.

I. Recognizing the above burden, appellant first contends that the tax bills are void because the width of that portion of the street to be graded ancl macadamized, designated as the “road-way,” was not specified or definitely fixed by ordinance or proper plans and specifications. The resolution of the city council declaring the improvement necessary, the ordinance providing for the improvement, and the notice to contractors for bids on the work, and. later the contract for the work, ■each and all state that the work shall be done according to plans and specifications on file in the city clerk’s office. The evidence shows that the plan was filed in the office of the city clerk showing that the roadway portion of the street was twenty-four feet in width, and that the improvement made conformed to that dimension. Where the resolution, ordinance, notice to contractors and the contract itself, refer to a plan on file in the city clerk’s office, that is sufficient, providing the plan so on file sufficiently designates the different dimensions of the improvement to be made. [Asphalt Paving Co. v. Ullman, 137 Mo. 543, 1. c. 571; Construction Co. v. Coal Co., 205 Mo. 1. c. 68; McCormick v. Moore, 134 Mo. App. 669, 1. c. 678; Laws 1907, pp. 103-104.] Appellant’s abstract of the record does not contain a copy of said plan, but the trial court found that the plan was properly filed in the city clerk’s office, that it “fixed the width of the proposed improvement with sufficient certainty,” and that the work was substantially performed by the contractor. Absent a copy of the plan from the abstract, we cannot review the court’s finding in that regard, but will presume that the court properly and correctly so found.

II. Appellant’s next contention is that the tax bills are void because the ordinance delegated to the city engineer the authority to select part of the material to be used. That portion of the ordinance thus attacked reads:

“The macadam course having been finished, the space between stones shall be filled with clean mill tailings, or such, other material as may he directed by the city engineer or street committee.”

The specifications for the work provide, first, that the roadway be excavated to a depth of twelve inches below the. established grade line, and that into this excavation shall be put an eight-inch layer of stones four inches or less in diameter, which must be consolidated by rolling with a steam roller. Upon this foundation layer must then be placed a four-inch layer of macadam, consisting of stones two inches or less in diameter, which must likewise be thoroughly rolled. After this comes the binder course above referred to, which is applied for the purpose of filling any spaces remaining between the stones after the rolling process, and to make the surface of the roadway smooth and suitable for public travel and public use.

The evidence shows that “mill tailings’’ were used for said purpose in the present contract, and hence we have not before us for determination the question whether or not the tax bills would be void had the city engineer or street committee directed the use of some other material, and the material so directed had been used by the contractor instead of mill tailings. Appellant further insists, however, that by reason of the specification above mentioned competitive bidding is prevented, in that the contractor could not know in advance what material would be used for the binder course.

A strict construction of the specification, in accordance with the rules of punctuation and English grammar, would be that the city engineer or street committee, is given no right to determine whether mill tailings shall or shall not be used, but their option is limited to a choice among other materials if mill tail-ings are not used. The ordinance containing the specification was passed as a general ordinance, intended to cover work of this kind whenever done.' We think it would be a somewhat forced and unfair construction to say that said ordinance undertook to delegate absolutely to the city engineer or street com•mittee the right to change the material from mill tail-ings to some other material after notice was published calling for bids, or even before calling for bids, without directing the attention of the bidding public thereto by having such new choice ratified by act of the city council and mention thereof in the notice advertising for bids. ■ In the absence, then, of any public notice of any such change the contractors, in preparing their bids, had the right to assume that mill tailings would be used in the binder course, and in fact they had no right to assume that any other material would be used.

The evidence does not show that any attempt was made at any time by the city engineer or street committee to change the material from mill tailings to some other material, and in the absence of any evidence tending to show that the contractors were’misled in any way, or that'their bids were based npon other materials, it is fair to presume that the bids were based npon mill tailings, which is the only material which the ordinance specifically designated for the binder course.

III. Within ten days after the publication of the resolution of the council declaring the improvement necessary to be done, appellant filed with the city clerk his written protest against said improvement. It is admitted by the parties that at the date of the passage of said resolution appellant owned all the property abutting upon that portion of the street sought to be improved, and that on said date appellant was not a resident of the city, but was a resident of the State of Illinois and a citizen of the United States. The statute in force at the time — Laws 1907, p. 103, now section 9255, Revised Statutes 1909 — does not provide for a protest by non-residents, but provides that “if a majority of the resident owners of the property liable to taxation therefor, at the date of the passage of such resolution, who shall oivn a majority of the front feet owned by residents of the city abutting on the street, . . . shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power,” etc., to let the contract for such work.

Appellant insists that since the above statute gives to the resident owner, and not'to the non-resident owner, the right of protest, the statute is special legislation and violates section 53, article 4, of the Constitution of Missouri, and that said statute also yio-lates the Fourteenth Amendment to the Federal Constitution.

A statute is not special or class legislation if it apply to all alike of a given class, provided the classification thus made is not arbitrary or without a reasonable basis. [State v. Julow, 129 Mo. 163; White v. Railroad, 230 Mo. 287, 1. c. 305-306.] “The courts, before pronouncing a statute void, demand to be satisfied, beyond a reasonable doubt of its vice, so this court has announced, ‘Both upon principle and authority the acts of the Legislature are to be presumed constitutional until the contrary is clearly shown; and it is only when they manifestly infringe on some provision of the Constitution that they can be declared void for that reason. In case of doubt, every possible presumption not directly and clearly inconsistent with the language and subject-matter, is to be made in favor of the constitutionality of the act.’ [State ex rel. v. Railroad, 48 Mo. 468; State v. Able, 65 Mo. 357.]” [Humes v. Railroad, 82 Mo. 1. c. 232; Hamman v. Cen. Coal & Coke Co., 156 Mo. 232, 1. c. 242.]

The statute in question gives the privilege of protesting to all persons living within the city and owning property abutting the street sought to be improved. In the case of Buchan v. Broadwell, 88 Mo. 31, it was held that the charter of Kansas City, providing that upon a “petition of residents of Kansas City who own a majority of front feet on a street to be graded,” the council could order the same to be graded at the expense of the property owners, was not unconstitutional on the ground that' it discriminated against the non-resident property owners, the court further holding that it was within the legislative power “to have authorized the council to have ordered the grading of streets at the- expense of the property owners without any petition.” And as to the statute under consideration, it could not be properly said that the Legislature acted in a manner arbitrary or unreasonable in restricting the right of protest to the resident owners — a class having not only a pecuniary interest in the land affected, and in the hoped-for unearned increment of the future, hut also possessing a more accurate knowledge of the public need, and naturally taking a greater pride and interest in the municipality’s progress and general welfare, thereby constituting a class whose judgment, thus tempered by such diversity of interest, would no doubt serve as a safe check upon the acts of the “city fathers” rather than as a lock upon the wheel of municipal progress, such as might well be presumed to result were the matter left within the control of persons residing without the city. “Control” is here used advisedly, because the point here raised could not be involved unless the non-resident protesters, either by themselves or acting in conjunction, with a minority of resident owners, should be sufficient to constitute a majority.

Appellant further contends that said statute violates the Fourteenth Amendment to the Constitution of the United States. However, as to the Federal question thus raised, it is sufficient to say that the exact point has been directly passed upon by the United States Supreme Court in Field v. Barber Asphalt Paving Co., 194 U. S. 618, and decided adversely to appellant’s contention. That decision is controlling here.

IV. On June 21, 1901, by quit-claim deed, the defendant conveyed for public street purposes the land embraced by the street here involved, as well as other streets, to the city of Joplin. Said deed contained the following' provisions: ‘‘And it is hereby agreed and understood that when said streets are brought to grade and macadamized, said work is to be-done at the expense of . . It is further understood that the the city. . city shall begin the improvement of said streets within a reasonable length of time, and complete the same on or before November the first, 1901, or forfeit all rights to the above described streets, except those graded.”

The deed was accepted by resolution of the city council. The city did nothing toward grading or macadamizing the street until the proceedings instituted in December, 1907, which form the basis of the tax bills sued upon. On April 30, 1906, the defendant platted the addition to the city of Joplin known as Central Addition, embracing the street and lots here involved, and formally and unconditionally dedicated the streets, including the street here involved, and alleys thereof to the public; which dedication and plat were by ordinance enacted by the city council of Joplin duly accepted on the first day of May, 1906. Appellant contends that by reason of the condition contained in the quit-claim deed from Clark to the city; dated June 21, 1901, the city had no right to improve said street at the expense of Clark, and that said deed being of record the contractor was charged with notice thereof, and the tax bills are therefore void. The determination of the proposition turns upon the answer to. the following question: Did the city, by accepting the deed from Clark in 1901, contract away its right to later order said street improved at the expense of the abutting property owner, even though the grantor in said deed be the property owner when the improvement is later made? Unless the law constituting its charter gives such right, a city cannot contract away its right and power to levy special assessments for street improvements, and thereby create an exemption from such assessments. [Vrana v. City of St. Louis, 164 Mo. 146, where the exemption was attempted in the dedication; Rackliffe & Gibson v. Duncan, 130 Mo. App. 695, where the exemption was attempted in the deed conveying the street to the city.] The charter of cities of the third class does not give such power. In fact, the legislative right to give such power might well he doubted — a point, however, which we do not decide.

It is true, as asserted by appellant, that a city of the third class may acquire title to land for street purposes; but we know of no rule which authorizes the city to surrender, as the purchase price of a street, its right to order that street improved in any manner authorized by law. If, therefore, the city did not dispose of its right to order the street improved in the manner exercised in the present suit, it could by properly exercising that power issue valid special tax bills. The quit-claim deed, properly construed, vested the title to the streets in the city, subject to be divested later if the city failed to carry out the condition subsequent, should the grantor duly exercise his right of forfeiture on account of such failure. But such provision only goes to the question of title. As to what was the condition of the city’s title in and to said street as a public street, after accepting said quitclaim deed, and prior to May 1, 1906, it is not necessary to decide, for all will agree that the title to said street vested in the city absolutely by virtue of the dedication of the latter date, and that the street was a public street when the proceedings were instituted for the grading and macadamizing thereof. And the city having the power and right to proceed in the way it did, and having proceeded regularly, and the contractor having duly performed his contract, it follows that the special tax bills are valid.

The judgment is affirmed.

Boy, C., concurs.

PER CURIAM.

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

All the judges concur.


author: BROWN, P. J.

text:
    LUCY E. COUCH v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division Two,
    June 28, 1913.
    1. DAMAGES: Conjectural: Modification. The rule that damages-must be real and actual, not conjectural or speculative, is an abstract rule oi law, to be followed as a guide so long as it promotes justice, and to be put aside when it leads in the opposite direction. The courts have found it necessary to engraft some modification or exception on most rules of law. A rule for the measure of damages should not be condemned because it contains some element of uncertainty.
    2. MEASURE OF DAMAGES: Meadow Destroyed by Fire: Reseeding. The rule for measuring the damages caused by the burning of meadows, adopted by the Kansas City Court of Appeals, which authorizes a recovery for the expense of reseeding the meadow and the rental value of the land during the time the owner will be deprived of crops of hay therefrom by reason of the fire, is approved. The rule announced by the St. Louis Court of Appeals, that the real measure of the owner’s damages is the depreciation in the value of the land (the injury to the inheritance) caused by burning the meadow, may, and perhaps usually does, promote justice, but it is more cumbersome and more likely to cause a miscarriage of justice than the other rule.
    3.-: -: -: Second Crop. The instructions are not erroneous because they do not restrict plaintiff to such damages as he sustained by the loss of one hay crop through the burning of his meadow, where some of the meadow was burned in the fall and the rest in March, and there was evidence tending to prove that it was usually impossible to secure a full crop of hay the first season after re-seeding the meadow.
    Appeal from Vernon Circuit Court. — Mon. B. G. Thurman, Judge.
    Affirmed.

      Cyrus Crane and M. C. Clark for appellant.
    Instructions numbered 1, 2 and 3, given at tbe instance of the plaintiff, are fatally erroneous under the rule laid down in Knight v. Railroad, 122 Mo. App.' 38, in that they permit the jury to enter the remote field of conjecture. The conrt committed reversible error in permitting the introduction of testimony and instructing the jury as to the rental value of the meadow land at the time of the fire and the cost of re-seeding. Where grass roots are destroyed, the injury is to the inheritance, the measure of damages being the difference in the value of the land before and after the fire. Wiggins v. Railroad, 119 Mo. App. 492, 129 Mo. App. 369; Carter v. Railroad, 128 Mo. App. 57; Grates v. Railroad, 44 Mo. App. 488.

      Scott & BowJcer for respondent.
    Where a tame meadow has been totally destroyed so as to require re-seeding in order to continue it as a meadow, the measure of damages is the cost of reseeding the same, together with loss of rental value for the time the party was deprived of it as a meadow. Mattis v. Railroad, 138 Mo. App. 61; Knight v. Railroad, 122 Mo. App. 38; Jones v. Cooley Link Club, 122 Mo. App. 113.
   BROWN, P. J.

Civil action for burning a meadow. Prom a judgment for plaintiff, defendant appeals.

Plaintiff recovered a judgment for $193.50 for twenty-two acres of meadow and twenty-seven rods of fence which defendant destroyed by permitting fire to be communicated from its engines to. said meadow.

The evidence quite. clearly proves the quantity and value of the meadow and fence destroyed, and that the defendant’s agents caused the fire by permitting sparks to escape from its engines. The roots of the meadow were destroyed so that it became necessary to re-seed same. There was some evidence tending to prove that a re-seeded meadow would not yield a full crop of hay the first season after such re-seeding.

The only issue nrged here for reversal of the judgment is the instructions of the trial court which authorized a recovery for the expense of re-seeding the meadow and the rental value of the land during the time plaintiff was or will be deprived of crops of hay therefrom by reason of the fire.

. The appellant contends that the real measure of plaintiff’s damages is the depreciation in the value of her land (the injury to the inheritance) caused by burning her meadow.

This appeal was submitted to the Kansas City Court of Appeals, which affirmed the judgment of the trial court through an able opinion by Bhoaddus, J. [141 Mo. App. 256.] The case was, however, transferred to this court because the opinion filed therein conflicts with several opinions of the St. Louis Court of Appeals prescribing a different rule for ascertaining damages of this character.

The decision of the Kansas City Court of Appeals affirming the judgment is well sustained by its own prior rulings. [Adam v. Railroad, 139 Mo. App. 204; Doty v. Railroad, 136 Mo. App. 254; Knight Brothers v. Railroad, 122 Mo. App. 38; and Mattis v. Railroad, 138 Mo. App. 61.]

While on the other hand the views of appellant are ably supported by the St. Louis Court of Appeals. [Wiggins v. Railroad, 119 Mo. App. 492; Wiggins v. Railroad, 129 Mo. App. 369; and Carter v. Railroad, 128 Mo. App. 57.] So it becomes our duty to finally determine what shall be the rule throughout the State for measuring damages caused by the burning of meadows.

Something could be-said in favor of each method of ascertaining such damages. The appellant insists that the method adopted by the trial court, and sanctioned by the Kansas City Court of Appeals, for ascertaining damages in this class of cases, is too much, a matter of conjecture or speculation.

It is a cardinal rule that when damages are awarded against any one such damages must he actual -and real — not conjectural or speculative. This, however, is only an abstract rule of law; a general guide to be followed so long as it promotes justice, and to be put aside when it leads in the opposite direction. It would be difficult, indeed, to find a rule of law upon which the courts have not found it necessary to en-graft some modification or exception. It is a settled rule of law that in actions for personal injuries recoveries may he had for loss of time and physical pain which a plaintiff will suffer after the trial and judgment. [Sotebier v. Transit Co., 203 Mo. 702.] Such future suffering is usually proven by expert medical testimony, which, experience has taught us, is not infallible, hut sometimes amounts only to conjecture or speculation. Other incidents of the allowance of speculative or uncertain damages could be cited if necessary. [Smith v. City of Sedalia, 244 Mo. 107.]

It is true no one can examine a meadow in October, or even in March, ánd determine how much hay it will yield the following season. A drought, (and in some cases a flood) may destroy it entirely. This does not signify that because a meadow, like most any other crop, is uncertain, it has no standard of value, and that one who negligently destroys same cannot be made to respond in damages.

Men are willing to rent meadows or buy the product thereof before any hay is in sight, the same as they are willing to buy young pigs and assume the risk of such animals growing to a size when they will be. suitable for food. Therefore, the fact that people are willing to and do rent meadows when there is no matured hay thereon gives them a rental value, though their real value is only prospective or speculative.

The rule for measuring' the damages adopted by the trial court in this case should not be condemned because it possesses some elements of uncertainty.

The rule announced by the St. Louis Court of Appeals for ascertaining the value of meadows may, and no doubt usually does, promote justice, but we consider it more cumbersome and more likely to cause a miscarriage of justice than the other rule.

‘ To ascertain the damage to the inheritance by the burning of a meadow, it is necessary to find out what the land was worth with the meadow, and then ascertain what its value is after the meadow is destroyed. A meadow may possess several elements of value' to the owner thereof. Just how many, we do not judicially know, but we do take judicial notice that meadows are sometimes valuable to prevent the soil from washing and also to give the soil a rest from grain crops. Therefore, farmers incur an expense in growing meadows which they would not incur for the hay crop alone.

The value of farm land can be ascertained with a fair degree of certainty, provided there are any such lands for sale .in the locality where it becomes judicially necessary to find out their value; but the number of persons in a given locality who possess a correct knowledge of the value of lands is insignificant compared with those who know the value of meadows or the rental value of meadows, for the simple reason that nearly every farmer has some meadow and knows the market value of the product thereof. Why investigate the value of the land when only the value of a natural product thereof — something that can soon be reproduced — is in issue? Placing in evidence the value of the land upon which a meadow grew tends, to some extent, to inject a collateral issue into the case and thereby befog the minds of the tryers of fact. [State v. Reed, 250 Mo. 379.]

The rule announced by the Kansas City Court of Appeals for measuring the value of meadows recommends itself to us, because under that rule the evidence of the value or lack of value of such property is more readily obtainable, and we believe it is more likely to produce actual justice than the rule announced by the St. Louis Court of Appeals.

The appellant complains that the plaintiff-was not restricted by the instructions to such damages as she would sustain by the loss of one hay crop through the burning of her meadow. No error was committed on that point. Some of the meadow was burned in the fall and some of it in March. There was evidence tending to prove that it was usually impossible to secure a full crop of hay the first season after re-seeding & meadow. The defendant introduced no evidence.

There is nothing in this record* which indicates that the verdict was excessive. The judgment is affirmed.

Faris and Walker, JJ., concur.


author: WILLIAMS, C. PEE CURIAM.

text:
    JOHN HURCK v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    June 28, 1913.
    1. NEGLIGENCE: Carrier: Act of God: Burden of Proof: Instructions. Defendant’s train was stopped by a heavy snowstorm and was attempting to back into a near by town by ramming the snow, when the coach in which plaintiff was a passenger was derailed. His petition alleges that the car was •derailed on account of defendant’s negligence, and that he was injured thereby. His evidence tended to prove the charges, of the petition. Held, that, in the circumstances, an instruction was erroneous which told the jury the plaintiff must show that the injury resulted solely from the derailment of the car, and that such derailment was due to some defect or imperfection in the track, or to some want of care and caution on the part of the trainmen. That is so because, in this case, it is immaterial whether the snowstorm was so unprecedented or unusual as to constitute an act of God within the legal meaning of that phrase. It could not he said that the snow and ice was the sole cause of the derailment, but the derailment, as shown by the evidence, was more directly attributable to-the backing or “ramming” of the train into the snow and ice, the extent and character of which was known to the trainmen at the time. Whether, therefore, the defendant had shown a condition of facts which exempted it from the presumption of negligence arising from the prima-facie case made by plaintiff was a matter for the jury’s determination, and it was error to force the plaintiff to a proof of specific negligence on the part of defendant.
    2. APPEAL: “Verdict for Right Party:” Erroneous Instructions^ Unless the evidence would be insufficient as a matter of law to make out a case or a defense for the losing party below, the appellate court is not justified in saying as a matter of law that the verdict is for the right party and that hence errors, in instructions given at the reguest of the winning party below would not-work a reversal.
    Appeal from .St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      James F. Green for appellant.
    (1) There was no error in giving defendant’s instruction 6. G-illespie v. Railroad, 6 Mo. App. 558 • Reeves v. Railroad, 77 U. S. 190; Livesay v. Railroad, 64 Pa. St. 106; Jones v. Railroad, 91 Minn. .329; Willis v. Power Co., Ill Mo. App. 580; Coleman v. Railroad, 36 Mo. App. 493. (2) Where the verdict of a jury is clearly for the right party, it should he upheld even if there should be error in the giving of instructions. Fritz v. Railroad, 243 Mo. 69.; State v. Vickers, 209' Mo. 34; Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railroad, 218 Mo. 561; Mockowik v. Railroad, 196 Mo. 568; Moore v. Railroad, 176 Mo. 545; Puterman v. Smith, 127 Mo. App. 514; Secs. 1850, -2082, R. S. 1909; Schuepbach v. Gras Co., 232 Mo. 611; Bradiey v. Coffee Co., 213 Mo. 325. (3) All of the evidence in the case was to the effect that the derailment of the car was due to a snowstorm, which obstructed the railroad track. This was an act of God, which excuses the railroad company. Ballentine v. Railroad, 40 Mo. 491; Davis v. Railroad, 89 Mo. 350; Shoe Co. v. Railroad, 147 Mo. App. 489; Jones v. Railroad, 91 Minn. 329; Kemp-ton v. Railroad, 138 Fed. 997.

      Frank H. Haskins. for respondent.
    (1) Defendant’s instructions 2, 6 and 7 were erroneous. Lemon v. Chanslor, 68 Mo. 343; Hipsley v. Railroad,' 88 Mo. 352; Estés v. Railroad, 110 Mo. App. 730; O’G-ara v. Transit Co., 204 Mo. 732; Freeman v. Foreman, 141 Mo. App. 359; Wolven v. Traction Co., 143 Mo. App. 643; Goodloe v. Met. St. Ry., 120 Mo. App. 197; Price v. Met. St. Ry., 220 Mo. 435; Briscoe v. Met. St. Ry., 222 Mo. 115; Redman v. Railroad, 185 Mo. 10; Orcutt v. Century Bldg1. Co., 214 Mo. 3‘5; Price v. Railroad, 220 Mo, 463 ; McDonald v. Railroad, 219 Mo. 489; Gleeson v. Railroad; 140 U. S. 435.. (2) The defect in these instructions was not corrected by giving a proper instruction for plaintiff. Standard Oil Co. v. Mayer, 74 Mo. App.'446; Spillane v. Railroad, 111 Mo. 565; Kansas City v. Bacon, 147 Mo. 287. (3) The derailment was not caused by an act of God. Gillespie v. Railroad, 6 Mo. App. 554; Railroad v. Manning, 23 Neb. 552; Ryan v. Rogers, 96 Cal. 349; New Brunswick S. Co. v. Tiers, 24 N. J. L. 697; Gleeson v. Railroad, 140 IT. S. 435. (4) An act of God must be the sole and immediate cause independent of human agency. Merritt v. Earle, 31 Barb. 38; Parsons "v. Monteath, 13 Barb. 353; Railroad v. Bell, 24 Tex. Civ. App. 579.
   WILLIAMS, C.

This is an action to recover damages for personal injuries which plaintiff claims to have received while a passenger on one of defendant’s trains in the State of Kansas. Trial' was bad in the circuit court of tbe city of St. Louis,, resulting in a verdict and judgment for defendant. The trial court sustained plaintiff’s motion for a new trial on the ground that instruction 6., given at defendant’s request, was erroneous, and defendant duly perfected its appeal to this court,

That portion of plaintiff’s petition which charges negligence on the part of defendant is as follows:

“Plaintiff states that through the negligence of defendant, the coach in which plaintiff was riding as a passenger was derailed, and left the track, thereby-causing plaintiff to be jerked and thrown from his seat, striking portions of the car and injuring him in such manner as to rupture him.”

The petition further alleges that plaintiff was a passenger on defendant’s train, and that he has suffered and will continue to suffer great pain and anguish of body and mind by reason of said injury, was rendered unable to attend to his regular duties, and has suffered and will continue to suffer great loss of earnings, and that he is permanently injured to the extent of $10,000, for which sum he asks judgment.

The evidence on the part of plaintiff tends to 'show the following facts: On February 18, 1908, at about 8:30 a. m., at Jamestown, Kansas, plaintiff became a passenger on and boarded one of defendant’s trains to go to Jewel City, Kansas. At the time there was a heavy snow on the ground, considerable snow was falling, and a high wind blowing. After the train had gone a distance of about four miles it became stalled in a snow bank, and remained there until about 4:30 p. m., when a gang of twenty or thirty men came and began shoveling the snow off the track behind the train. The train crew, believing it impossible, on account of the snow, for, the train to proceed further,, determined to back the train to Jamestown. Plaintiff testified that after the men -would shovel a while the train wonld he cansed to back and “buck up against the snow,” and in that manner push its way towards Jamestown. The train consisted of an engine, one freight car, containing a water tank with an extra supply of water for the engine, and a combination coach containing compartments for baggage, mail and passengers. The passenger compartment was at the rear end of the coach, which however, constituted the front end as the train backed towards Jamestown. There were twelve or fifteen passengers on the train. Plaintiff further testified that in the manner above described the train backed a distance of two or three miles, that it was then about .eight o’clock p. m., and most of the shovelers refused to work longer, and that he expected the train to remain there all night; that he was sitting on the right hand side of the coach, facing Jamestown, and had fallen asleep,. when he was awakened by being thrown against either the back of the seat or the window-sill, and that when he got up he felt a pain in his lower abdomen, lasting about five minutes; that his being thrown in the above manner was occasioned by the derailment of the wheels of the truck nearest Jamestown; that said derailment left the right side of the coach upon which plaintiff was seated two or three feet lower than its opposite side; that after the accident plaintiff put on a pair of leggins, wrapped himself up, and, with several other passengers, walked through the deep snow from the place where the coach was derailed to Jamestown, a distance of about a mile and a half. When the derailment occurred the snow had stopped falling and the wind had allayed. The accident happened on Tuesday, and on the following Saturday night plaintiff first examined himself and discovered an injury in the form of a lump on the left side of the lower abdomen. He made, no statement to any of the passengers either the day of the derailment or the next that he had been injured by the derailment. About eleven days after the derailment plaintiff returned to St. Lonis, bis borne, and called upon a physician for treatment. The doctor prescribed the use of a truss, and advised plaintiff not to do any heavy work in the way of lifting. That by reason of the injury he was unable to perform bis usual work, which was that of motorcycle repairing, that bis ■services were worth about eighteen dollars per week, and that bis loss of wages bad continued up to the time of the trial.- It also developed from the cross-examination of plaintiff that be carried two accident policies at the time, each policy providing for a weekly indemnity for partial debility of $12.50 per'Week, and that be settled with one accident company for sixty dollars, and with the other for seventy-five dollars.

Plaintiff’s physician, Doctor Dorsey, testified that when be first examined plaintiff, the latter part of February, 1908, be found him suffering from inguinal hernia, that the same might have been produced by a blow such as plaintiff claimed be received by being thrown against a car seat or window-sill, and that usually a patient cannot tell when hernia first occurs, and might not know of it for some time afterwards; that the injury would be permanent unless cured by surgical operation. Plaintiff testified that be bad not been afflicted with hernia or rupture prior to the day of the derailment.

Defendant’s evidence tended to show that the snowstorm referred to was what was known as a “Kansas blizzard,” and that at the time the train left Jamestown the conductor bad some doubts about being able to get the train through on the trip; that the day was cold, and the snow became frozen soon after falling. One of defendant’s witnesses, Rev. Bennett, testified that the snowstorm was not extraordinary, but that they have lots of storms like that out there.

Defendant’s testimony contradicted plaintiff’s testimony with reference to the force of the jar caused by the derailment of the coach. The conductor testified that at the time of the derailment he was outside, walking along by the side of the coach, and that he had a lantern in his hand for the purpose of signaling the brakeman who had charge of the air-brake, and that the train was pushing back at the rate of about three miles an hour; that the snow and ice accumulated to such an extent under the wheels that the wheels were lifted so • as to permit their leaving the rails; that when they left the rails he signaled the brakeman to apply the air, and that the train was stopped within a few feet, and that the' derailment .caused very little jarring.

Five or six of the passengers testified for defendant to the effect that the jerk or jar caused by the derailment was not sufficiently severe to cause a man standing up in the car to be thrown down, or to cause a man sitting down to be thrown out of his seat, and that they did not see anybody thrown down while standing, or thrown from their seats. One witness for defendant, however, testified that the jar raised her off her seat, but that by grasping the seat in front of her she was enabled to regain her position. Another witness for defendant testified that he was standing-up when the derailment occurred, and that to the best of his recollection he had to hold on to the seat to keep from falling.

The depth of the snow at the place of derailment, as fixed by defendant’s witnesses, varied all the way from two to nine feet. It seems there was a railroad cut at that point, and that the snow drifted considerably, thus increasing its depth in the cut. • Some of defendant’s witnesses testified to the effect that they were “butting” or “ramming” the snow drift with the coach when the derailment occurred; that the train would be pulled forward about a hundred feet and then backed or rammed into the snow bank with considerable force.

Three physicians and surgeons testified that they had never known of hernia to he -produced by jars from wrecks, or by blows on the abdomen snch as plaintiff claimed he received. They testified that hernia is generally due to hereditary weakness of certain portions of the abdominal structure, and on cross-examination said that where such condition existed a blow or strain might aid in bringing on hernia.

I. The trial court granted plaintiff a new trial on the ground that instruction 6, which y. giveri at the request of defendant, was erroneous. Said instruction is as follows:

“The jury are further instructed that the burden of proof in the case .is upon the plaintiff, to show to your satisfaction that the injury alleged to have been sustained by him resulted solely from the derailment of the car in which he was riding, and that such derailment was due to some defect or imperfection in defendant’s track, or to some want of care and caution on part of defendant’s employees in charge of and operating the train; and, unless you find that such facts have been established by a preponderance or greater weight of the evidence, your verdict must be for defendant.”

Appellant contends that said instruction was properly given, and that the court therefore erred in granting the new trial.

Plaintiff’s petition charges general negligence. The petition alleges that he was a passenger' on defendant’s train, and that while such passenger the coach in which he was riding was, through the negligence of defendant, derailed, “thereby causing plaintiff to be jerked and thrown from his seat, striking portions of the car and injuring him in such a manner as to rupture him.” Plaintiff’s evidence tended to prove the charges of the petition, and under the general rule such a situation made out for plaintiff a prima-facie case, and cast upon deefndant the burden of explaining away the presumption of negligence thus arising, by showing that the derailment was caused by something without or beyond the control of defendant, or by “an accident which the utmost skill, foresight and diligence (on the part of defendant) could not have prevented.” [Lemon v. Chanslor, 68 Mo. 354; Hipsley v. Railroad, 88 Mo. 348; O’Gara v. Transit Company, 204 Mo. 724, 1. c. 752; Price v. Railroad, 220 Mo. 435.]

It will be noticed that the instruction above set forth cast upon plaintiff not only the burden of proving that the alleged injury resulted solely from the derailment of the car, which as to that point was proper, but also the burden of proving that ‘ ‘ such derailment was due to some defect or imperfection in defendant’s track, or to some want of care and caution on the part of defendant’s employees in charge of and operating the train.” Learned counsel for appellant do not attack the above stated geriteral rule as to the onus probcmdi in such cases, but contend that the facts involved in the present case create an exception to the above general rule, and place the burden-upon plaintiff as by said instruction declared. More particularly stated, appellant’s contention is this: That the facts disclosed by the testimony of the witnesses both for plaintiff and defendant show that the sole cause of the derailment was the great mass of snow and ice which had accumulated upon" the track during the violent blizzard, which appellant contends was of such a nature as to be in the legal sense denominated an “act of God,” and that this being true, the presumption arising from plaintiff’s prima-facie case is explained away, and the burden is then upon plaintiff to prove specific negligence. We find no fault with appellant’s proposition with reference to the abstract principles of law contained' therein. The same is firmly supported by the authorities. [Gillespie v. Railroad, 6 Mo. App. 554, 1. c. 558; Davis v. Railroad, 89 Mo. 340; Memphis & Charleston Railroad v. Reeves, 77 U. S. (10 Wall.) 176, 1. c. 189-190, and many other cases not necessary to cite herein.] In the case of Memphis & Charleston Railroad v. Reeves, supra, the court said:

“It is hard to see how the soundness of this proposition can be made clearer than by its bare statement. A common carrier assumes all risks except those caused by the act of God and the public enemy. One of the instances always mentioned by the elementary writers of loss by the .act of God is the case of loss by flood and storm. Now, when it is shown that the damage resulted from this cause immediately, he is excused.
“What is to make him laible after this? No question of his negligence arises unless it is made by the other party. It is not necessary for him to prove that the cause was. such as releases him, and then to prove affirmatively that he did not contribute to it. If, after he has excused himself by showing the presence of the overpowering cause, it is charged that his negligence contributed to the loss, the proof of this must come from those who assert or rely on it.”

The above stated exception to the general rule is, it will be seen, wholesome doctrine, for if either by plaintiff’s own evidence or by the evidence offered by defendant it appears that the unusual happening (which by its very nature .raises the presumption of negligence) was caused solely by vis major, or by any other instrumentality disconnected from any negligence of defendant, the presumption is undermined and falls and no case is made, and in that situation the plaintiff must fail unless he goes forward with evidence showing specific negligence.

The determination of the question involved here, then, depends upon whether the above stated exception is “applicable to the facts of this case. Did the evidence either of plaintiff, or defendant show that the derailment occurred solely by “act of God,” or by any agency disconnected from any act of negligence on the part of defendant? Plaintiff’s evidence does not undertake to explain bow the derailment occurred. It is true, be testifies that a snowstorm was in progress at the time, but as to bow the derailment in fact occurred bis evidence is silent. In that regard plaintiff offered no testimony save bis own, and be testified that be was asleep when the derailment occurred. The evidence on the part of defendant tends to show that the derailment resulted from pushing or “ramming” the end of the caocb and forward wheels against and over the snow and ice which bad accumulated on the track, and that the agents of' defendant operating the train bad knowledge of the bulk and extent of said snow and ice mass when they attempted to “butt” or push the coach through or over same. It is therefore immaterial whether the snowstorm was so unusual or unprecedented as to be denominated an act of God within the legal meaning of that phrase. It could not be said that the snow and ice was the sole cause of the derailment, but the derailment, as shown by the evidence, is more directly attributable to the backing or “ramming” of the train into the snow and ice mass, the extent and character of which was known to defendant’s agents at the time. “Whether, therefore, the defendant bad shown a condition of facts which exempted it from the presumption of negligence arising from the prima-facie case made by plaintiff, was a matter for the jury’s determination. In the, case of Davis v. Railroad, 89 Mo. 340, 1. c. 350, the court said:

“If, therefore, plaintiff shows delivery of bis goods to the carrier, and a subsequent loss thereof, be need do no more. This is a sufficient statement, ordinarily, of bis cause of action, and a showing to. that effect is sufficient to make out a prima-facie case. The onus probcmdi is then on the carrier to bring the case within one of the other of said exemptions. If, in establishing his said defense, facts and circumstances also appear tending to show that his negligence cooperated to produce the damages he must, we think, hear the burden of satisfying the jury that they did not directly contribute to the damage, and he is not relieved of liability unless he so shows. In other words, when the burden is cast on him, he must make a case in which no negligence of his own appears from the evidence. In that event, he is excused prima-facie, unless plaintiff then shows, or it appears from the facts in the case, that his negligence causes or cooperates to .produce the damage complained of. ’ ’

In the case of O’Gara v. Transit Company, supra, the plaintiff was injured by reason of the derailment of a street car upon which she was a passenger. The evidence showed that the derailment was caused by the car wheel running over a brick which had been placed on the track by some children. The defendant company interposed a demurrer to the evidence, which was refused by the court, and the refusal was assigned as error on appeal. This court held that the demurrer to the evidence was properly refused. Judge GaNtt, speaking for the court, said:

“The plaintiff having made a prima-facie case, the burden devolved upon the defendant of showing that the derailment of its car was caused by the tor-tious act of the boy, and if it could establish that plaintiff’s injury was caused solely by the act of the boy or some third person placing the brick upon the track, then it must have shown the good legal excuse for the exemption from liability.” (L. c. 734, italics ours.)

Then, after a discussion of facts and authorities, he further said:

“While the defendant cannot be held for the tor-tious act of the little boy in placing the brick upon its track, if its motorman could not have discovered it by that high degree of diligence and care which every careful railroad employee would have exercised in the same or similar circumstances, still if by the exercise of such care its motorman could have discovered the brick upon the track in time to have averted a derailment of the car, then the law holds the defendant liable for the failure of its servants to exercise such •care.” (L. c. 737.)

Said instruction 6, by casting upon plaintiff the burden of showing specific negligence, was sufficiently misleading to cause the jury to find for defendant, for the jury would remember that the plaintiff had not proven any specific act of negligence. As was well said by Judge Graves, in Price v. Railroad, 220 Mo. 1. c. 463, in discussing the effect of an instruction casting the burden of proof upon the plaintiff where the rule of res ipsa loquitur applied: “Such an instruction has no place in a case where the doctrine of res ipsa loquitur is applicable. It destroys every vestige of the doctrine of presumptive negligence.”

. The facts disclosed by the evidence in the present cáse were not such as to show that the derailment was caused solely by instrumentalities beyond the control of defendant, or disconnected from defendant’s negligence, and the burden remained with defendant to overcome the presumption arising from the prima-facie case made by plaintiff, and it follows that it was error to place upon the plaintiff the burden of showing specific acts of negligence.

II. Appellant next contends that the verdict of the jury was for the right party, and that where that is true the verdict “should be upheld even if there should be error in the giving of instructions;” citing Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railroad, 218 Mo. 545, and like cases. With • regard to this contention it is suffcient to say that, unless the evidence would be insufficient as a matter of law to make out a case or defense for the losing-party below, the appellate court is not justified in saying as a matter of law that the verdict is for the right party, and that hence errors in instructions given at the request of the winning party below would not work a reversal. The correct rule in that regard is stated by Lamm, J., in Trainer v. Mining Co., supra, as follows

“The logic of the matter, then, is that if on the facts of the record a court can say as a matter of law that the end reached at the trial was the only end that could be rightly reached, plaintiff cannot be injured (within the meaning of that word in the law) by improper testimony or too favorable instructions for defendant. ... In establishing a working theory in the premises, the stiff rule has come to be: No case for plaintiff, no merits or substantial rights. No merits o.r substantial rights, no reversible error of which plaintiff can complain.” (L. c. 371.)

In the present case, we cannot say as a matter of law that had the jury rendered a verdict in favor of plaintiff, it would have been without evidence sufficiently substantial to sustain it. When this is true, it is for the jury and not the court to determine "the issues of fact, and it matters not what our personal view might be in the matter, or what would be our conclusion in the matter were we acting as jurors.

The proper placing of the burden of proof was a’ matter of vital importance in the trial contest, and the instruction as given in effect destroyed the force of the rule of res ipsa loquitur, which rule, under the facts, plaintiff had the right to invoke.

The judgment is affirmed, and the cause remanded for new trial.

Boy, C., concurs.

PEE CURIAM.

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

All of the judges concur.