source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    MILLIE FISH, Administratrix, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    December 31, 1914.
    1. REMOVAL OF CAUSES: Interstate Commerce: U. S. Employer’s Liability Act. An interstate railroad company engaged in interstate commerce, cannot have removed to the F'ederal court a suit for damages for personal injuries to one of its brakemen brought under the Federal Employer’s Liability Act, which provides that “the jurisdiction of the courts of the United States under this act shall be concurrent with the courts of the several States, and no case arising under this act and brought in any State court of competent jurisdiction shall be removed to any' court of the United States.” The jurisdiction of the inferior courts of the United States in every case depends upon the acts of Congress, and, though the act creates a right of action, this language affects only the remedy, and it explicitly forbids a removal of the action to a Federal court.
    2. CONSTITUTIONALITY OF U. S. STATUTE: Jurisdiction of State Court. Courts of general jurisdiction in the several States have power to decide cases involving the rights of litigants under the Constitution or statutes of the United States, unless deprived of the right so to do by the terms of said Constitution or statutes; and such decisions are conclusive upon the parties unless reversed by the Supreme Court of the United States, upon a writ of error, or after a removal of the case to a Federal court in accordance with the acts of Congress. A circuit court of -this State has power to decide whether a statute of the United States is or is not constitutional; there being reserved the right of a writ of error from the Supreme Court of the United States to the State court of last resort, where the State court has made a decision adverse to the party suing out the writ, upon some right or immunity guaranteed to him by the Federal statute.
    3. NEGLIGENCE: Interstate Railway: Employer’s Liability Act: Defective Facilities. The second clause of the first section of the Employer’s Liability Act of the United States of April 22, 1908, gives a right of recovery upon proof (1) of a negligent defect or insufficiency of the physical instruments of transportation or other equipment of an interstate carrier, and (2) the injury or death of one of its servants due to such negligent defect or insufficiency.
    4. -: -: -: -: Water Crane. Unless it can be said as a matter of law that the railway company exercised ordinary care in placing the water crane of its standpipe •sufficiently distant from passing freight cars as to avoid injury to brakemen riding on the ladder of said passing cars, it will not be held that the administratrix of a brakeman who, while riding on the ladder of a freight car, in the performance of his duties, was struck by said water crane, and was killed, cannot recover.
    5. -: -:-: -:-: This Case. Plaintiff’s cause of action is predicated upon the negligence of an interstate carrier, engaged in interstate commerce, in locating a standpipe or water crane at a point too close to the sides of its passing freight cars to be reasonably safe for her deceased husband to use the ladder at the side of the car in the performance of his duties as head brakeman. The time was a dark night; the train was moving from a main track to a side track, and the brakeman mounted the ladder of a car for the purpose of signaling the conductor to stop the train; in the performance of this duty his body collided with the standpipe or water crane, which was so located as to be not more than twenty-two inches from the side of the passing car; the centers of the main and side tracks were fifteen feet apart, and the standpipe was equidistant from them. Other railroads placed similar standpipes at a greater distance. The standpipe was on defendants’ yards, and it had ample room to widen the distance between the two tracks, or to locate the water crane at a point where the tracks were further apart, and this was done by other railroads. Held, that, despite evidence for defendant of a contrary nature, it cannot be said that defendant exercised ordinary care to install the water crane at a sufficient distance from passing cars, and the evidence made a case fdr the jury on the issue of negligence on the part of the defendant in providing a reasonably safe place for the performance of the duty imposed upon the brakeman; and in so holding, the fact that the performance of such duty on a dark night was in contemplation, is to be kept in view.
    6. CONTRIBUTORY NEGLIGENCE: As Defense Under U. S. Employer’s Liability Act. Section 3 of the Employer’s Liability Act of the United States has abolished contributory negligence as a complete defense to any action brought under its provisions. Contributory negligence can still be shown, not to preclude a recovery, but only to diminish the damages awarded by the jury, in proportion to the amount-of negligence attributable to the injured employee.
    7. ASSUMPTION OF RISKS: Under U. S. Employer’s Liability Act: Master’s Negligence. Section 4 of the Federal Employer’s Liability Act provides that the doctrine of assumption of risks shall not be available as a defense in any case where the railroad company has violated the statute in reference to providing safety appliances and proper equipment on its trains; and that means that the servant does not assume the risks where his injuries are due to the master’s negligence in furnishing an unsafe place or defective tools; and the master’s negligence in such case is to be adjudged according to the common-law rule. If the injury was inflicted on defendant’s brakeman by the negligent failure of the defendant to furnish him a safe place in which to work, the brakeman did not assume the risk of injury resulting from such negligence.
    8. -: Caution: Telegram. A telegram sent to trainmen de- . daring that the water crane, with which the brakeman’s body collided as he was on a ladder of a passing car, “will not clear a man hanging too far outside of car,” did not require him not to hang outside of the car in performing his duties of signaling the train, as he and other brakemen customarily did with the knowledge of defendant’s officers, but merely cautioned him in a vague way to exercise ordinary care, and will not support a special plea of assumption of risks.
    9. -: Contract. A contract entered into by a brakeman with the railroad company whereby he assumed to take care- of himself as far as the existing and known dangers of his employment are concerned, cannot he held to be an assumption of the risk of injury from a collision with a water crane erected a year after the contract was made.
    Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.
    Affirmed.

      Paul E. Walker, E. M. Harter and A. G. Knight for appellant.

      Platt Hubbell and George Hubbell for respondent.
   STATEMENT.

The plaintiff is the widow and administratrix of Norman Gr. Fish, and sues to recover damag'es under the Federal Employer’s Liability Act as amended in 1910, for his death on January 15, 1909, at Princeton, Mercer county, Missouri. The petition was filed the 21st of September, 1910, and alleges in substance: That on the date of his death said Norman Gr. Fish was employed as a head brakeman of a freight train by the defendant railroad company, which was an interstate carrier and engaged at the time in interstate commerce; that ‘‘ prior to the 15th of January, 1909, the defendant had negligently erected on its roadway between its passing track and main line at the south end of its yards at Princeton, Missouri, an iron standpipe or water crane for the supplial of water to its engines, and negligently maintained said iron standpipe or water crane so near its said tracks and so near the sides of passing cars and of such insufficient distance from said tracks and from the sides of passing cars as to endanger the personal safety and lives of defendant’s employees in the performance of their duties, upon its trains and cars, passing through, said town of Princeton, and along said standpipe or water crane. 'Said standpipe or water crane was then and there erected and maintained within a distance of between eighteen and' twenty-four inches from the sides and side ladders of passing cars ordinarily passing on defendant’s passing track, and said standpipe or water crane was of such insufficient "distance from said railroad tracks and said passing cars and so near the same that it was not reasonably safe to defendant’s brakeman, while on the side and side ladders of its freight car, and while in the performance of their duties on trains passing said standpipe or water crane; and said nearness of said standpipe or water crane rendered defendant’s tracks, cars, and standpipe or water crane, at that point, an unsafe place to work. And at all times mentioned in this petition, the defendant knew of said nearness and said insufficient distance to said standpipe or water crane, and might have known of the same by the exercise of ordinary care and diligence.

“On January 15, 1909, at Princeton, Missouri, while the said Norman Gr. Pish was in the exercise of ordinary care and was in the performance of his duties as defendant’s head brakeman of said freight train, and while said Norman Gr. Pish was on the side of one of defendant’s cars engaged in his duties as head brakeman, and while it was dark and while said Norman Gr. Pish did not know of his proximity to said standpipe or water crane, said train, upon which the said Norman Gr. Pish was serving defendant as head brakeman, ran over and along defendant’s said passing track and carried the said Norman Gr. Pish against said standpipe or water crane, whereby the head and body of Norman Gr. Pish was brought into contact, and collision with, and struck by said standpipe or water crane, and the said Norman Gr. Fish was thereby knocked under said train and his body was thereby mutilated and mangled and the said Norman Gr. Fish was thereby negligently killed and caused to die, which death of the said Norman Gr. Fish was caused by the aforesaid negligence and negligent acts of the defendant. That at the time of his death, said Norman Gr. Fish was a servant of the defendant in the conduct of its interstate commerce business; that his earning capacity was one hundred dollars per month.

Wherefore, plaintiff prays damages for his death in the sum of thirty thousand dollars.”

Before answering said petition the defendant filed a petition to remove the same to the Federal court on the ground of diverse citizenship, and on the further ground that it involved the construction of an amendment- (April 5, 1910) of the Federal Employer’s Liability Act and executed bond for removal.

The petition for removal being denied, the defendant answered in substance:

That the deceased husband of the plaintiff had been long in defendant’s employ as a freight brakeman and had full knowledge of the location of the said water crane and negligently assumed such a position on the side of the car and placed his body from such distance that his injuries and death were caused by his own negligence directly contributing thereto and his assumption of the risks of such a collision; that the deceased carried and was familiar with a time-table and also with certain rules prescribed by defendant for its employees, and among other, the following:

“All employees are hereby notified that there are coal chutes, platforms, and other structures, located on the main line and on sidings, also structures and platforms belonging to private corporations and persons, located on industrial sidings and spurs, that will not olear a man riding on the side of a car, and all employees must protect themselves from injury in passing such structures.”

The answer further alleged that the deceased in violation of defendant’s rule on the occasion in question climbed upon one of its moving trains and attached himself to a certain car and placed his body at an unnecessary distance therefrom, and by reason of such negligence directly contributed to the injury sustained by him without any negligence on the part of the defendant, and that by so acting, he also assumed the risk of such injury.

The answer further stated that prior to his employment the deceased on the 20th of November, 1907, in order to receive employment from defendant as freight brakeman entered into a written, contract in the following terms:

“I have had explained to me the dangerous nature of the service in which I am about to engage. .1 understand that standing in front of or getting on to an engine or car coming towards me, is dangerous, and is in violation of the rules, and if done by me will be at my own risk. I understand that great care must be exercised in approaching and passing all bridges and overhead structures, as they will not clear a man standing on the top of a high covered car; that it is dangerous to climb upon and down the sides of cars, or otherwise expose myself while passing water tank spouts, and house pipes, coal houses or chutes, seed houses, cotton platforms, signal posts, through girder bridges, switch stands, mail cranes, roundhouse doors, buildings and other structures dangerously near to the track, as they will not clear a man with safety, and that I am required to look out for the same and avoid danger. I understand that the duties of the aforesaid situation exposes me to great danger, the risk of which I assume, and agree to use constant and proper care to prevent injury to myself and others.”

The answer alleged that this contract was an assumption of risk on the part of the deceased which prevented any recovery in the present action. The answer further alleged that the risks incident to the use of said water crane was not only observable by plaintiff’s husband, but he was fully informed and had full knowledge of the location thereof, and that his continued use of the same prior to his death without complaint or objection was the assumption by him of the risk of injury therefrom.

Plaintiff adduced evidence tending to support the allegations contained in her petition. Defendant introduced evidence tending to show the facts pleaded in its answer. Defendant preserved a term bill of exceptions to the action of the court in denying its petition to remove the cause. After the instructions of the court, the jury brought in a verdict for plaintiff for $5000, and the defendant perfected its appeal to this court. The material evidence touching the points in controversy will be adverted to when discussing them. The Act of Congress and its Amendment, whose validity is drawn in question, or so much thereof as is material on this appeal is, to-wit:

Sections 1 and 2 simply provide for a right of action in favor of employees or their representatives, and against interstate carriers in the United States proper and all of its possessions.

The remainder of the' act is, to-wit:

“Section 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but. the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; provided, that no such employee who may he injured or killed shall he held to have been guilty of contributory negligence in any ease where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.
“Section 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death .of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.
“Section 5. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void; provided, that in any action brought against any such common carrier under or by virtue of any of- the 'provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action, was brought.
“Section 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.
“Section 7. That the term 'common carrier’ as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.
“Section 8. That nothing in this act shall be held to limit the duty or liability of common carriers or to impair the rights of their employees under any other act or acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the Act of Congress entitled ‘An Act relating to liability of common carriers in the District of Columbia and Territories, and to common carriers engaged in commerce between the States and between the States and foreign nations to their employees ’ approved June eleventh, nineteen hundred and six.
“Approved April 22, 1908.” [35 IT. S. Stat. at Large, chap. 149, p. 65.]
“An Act to Amend an Act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases,’ approved April twenty-second, nineteen hundred and eight.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That an act entitled ‘An Act relating to the liability of common carriers by railroad to their employees in certain cases, ’ approved April twenty-second, nineteen hundred and eight, be amended in section six so that said section shall read:
“ ‘Section 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.
“ ‘Under this act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several States, and no ease arising under this act and brought in any State court of competent jurisdiction shall be removed to any court of the United States. ’ -
“Section 2. That said act be further amended by adding the following section as section nine of said act:
“ ‘Section 9. That any right of action given by this act to a person suffering injury, shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.’
“Approved, April 5, 1910.” [36 U. S. Stat. at Large, chap. 143, p. 291.]

OPINION.

I.

BOND, J.

(After stating the facts as above.)— A preliminary point presented by appellant’s brief is that the trial court erred in refusing to grant its petition for removal to the Federal court on the ground of diverse citizenship. By the amendment of the Federal Employer’s Liability Act of April 5, 1910, it is said with reference to the enforcement of the provisions of that law, to-wit: “The jurisdiction of the courts of .the United States under this act shall be concurrent with that of the courts of the several states; and no case arising under this act, and brought in any State court of competent jurisdiction shall be removed to any court of the United States.” [36 U. S. Stat. at Large, p. 291.]

The exact point made by appellant was held in judgment in a recent case in the Federal Court of Appeals of the Sixth Circuit, and was disposed of in a clear and conclusive opinion by Warrington, Circuit Judge. [Teel v. Chesapeake & O. Ry. Co., 204 Fed. l. c. 919.] In speaking of the above provision, it is there said: “This provision is purely remedial and is couched in plain language. Congress was clearly acting within its constitutional power when it passed the amendment. While section 2 of article 3 of the Constitution declares that the judicial power shall extend to all cases arising under that instrument and the laws of the United States, as also, among others to cases ‘between citizens of different States,’ yet it was long ago settled that, as to courts inf.iior to the Supreme Court, their jurisdiction in every case must depend upon some act of Congress. [Case of the Sewing Machine Companies, 85 U. S. (18 Wall.) 553, 577; Cary v. Curtis, 44 U. S. (3 How.) 236, 245; Turner v. Bank of North America, 4 Dall. 9 (note A); Loveland, App. Jur., sec. 2.] As Justice Harlan said in Johnson Company v. Wharton, 152 U. S. 252, 260:

“ ‘But, except in the eases specially enumerated in the Constitution and of which this court may take cognizance, without an enabling act of Congress, the distribution of the judicial power of the United States among the courts of the United States is a matter entirely within the control of the legislative branch of the government.’ ”

It was accordingly held that the above amendment affected only the remedy for the rights of action created by the Employer’s Liability Act; and that Congress having power to limit the rights of action to a particular class, might likewise limit the remedies given for their enforcement, and in so doing neither denied due process of law nor the equal protection of the laws. The court held that this fact distinguished the act in question from other acts which might affect constitutional or vested rights and ruled, to-wit:

“The jurisdiction conferred upon the courts of the United States is concurrent with that of the courts of the several States; and removal of any case arising under the Employer’s Liability Act and brought in any State court of competent jurisdiction is explicitly forbidden.” [Teel v. C. & O. Ry. Co. of Va., 204 Fed. l. c. 919-920.] Besides the jurisdiction of the State courts in such cases has been affirmed by the Supreme Court of the United States since the appeal herein. [Second Employers’ Liability Cases, 223 U. S. l. c. 56.] •

Under this ruling of tbe Court of Appeals, now approved by tbe Supreme Court of tbe United States, there was no error in tbe ruling of tbe trial court, denying tbe petition to remove this cause to tbe Federal court.

Tbe learned counsel for appellant to support bis theory that tbe circuit court of Daviess county bad no jurisdiction to pass upon tbe Federal act of April 5, 1910 (amendatory of tbe former act) says tbe Supreme Court of Missouri has no power “to decide whether a Federal act was constitutional or not.” [Citing State v. Railroad, 212 Mo. l. c. 684.] That was a decision of Judge Lamm, which was entirely correct, both in statement of tbe facts and legal conclusion thereon. Tbe matter held in judgment was whether or not a statute of tbe State of Missouri relating to working hours of telegraph operators, etc., was valid in view of tbe fact that Congress in tbe exercise of its power to control interstate commerce bad occupied tbe field and covered tbe same subject-matter, and bad specifically provided that any violation of tbe act should be redressed by a suit in tbe district court of tbe United States. Judge 'Lamm held, as is universally held, that tbe advent of tbe Federal act superseded all State legislation on tbe same subject. Tbe validity of tbe Federal act was not before him, and by its terms no State court could take cognizance of a suit brought for any violation of its provisions. Pie necessarily held, therefore, in accordance with tbe provisions of tbe act, that tbe Federal courts alone could take jurisdiction of tbe specific suits for its violation. Tbe writer of that opinion bad clearly in mind that one of tbe classes of cases wherein appellate jurisdiction is lodged in this court, arises on an appeal “involving tbe construction of tbe Constitution of the United States or . . . where tbe validity of a treaty or statute of or authority exercised under the United States is drawn in question” (Constitution, art. 6, sec. 12); for he so held in Miller v. Connor, 250 Mo. 677, l. c. 683.

The law is settled that courts of general jurisdiction in the several States have power to decide cases involving the rights of litigants' under the Constitution or statutes of the United States unless deprived of the right so to do by the terms of the Federal Constitution or acts of Congress; and such decisions of the State courts are conclusive upon the parties unless reversed upon writ of error in the Supreme Court of the United States or after a removal of the case to the Federal courts in accordance with the acts of Congress. The very right to a writ of error to a court of last resort of one of the states from the Supreme Court of the United States, is grounded upon the fact that the former court has made a decision adverse to the party suing out the writ of error, upon some Federal right or immunity possessed by him. [3 Foster’s Fed. Prac. (5 Ed.), sec. 692.]

Moreover, the Supreme Court of this State has jurisdiction to decide the question of the validity of an act of the Legislature of a sister State from the standpoint of its conformity to the Constitution of the United States. [Kwilecki v. Holman, 258 Mo. 624.] There is no merit in appellant’s contention on this point.

It follows that the present appeal, although the amount in dispute was within the pecuniary limit of the jurisdiction of the Kansas City Court of Appeals, was properly brought to this court because in its answer defendant draws in qtoestion the constitutionality .of the amendment to the Federal Employer’s Liability Act (Specialty Co. v. Glass Co., 243 Mo. 356; Schwyhart v. Barrett, 223 Mo. 497); and that point had not been decided until after the appeal was taken to this court. [Second Employers’ Liability Cases, 223 U. S. l. c. 56.]

II.

The act of Congress, under which plaintiff seeks to recover in this case, is set out in full in the statement herein and also at page 6, Vol. 223, U. S. Reports (Second Em. Liab. Oases). A resume of its contents is made in the recent decision of the Supreme Court of the United States (Seaboard Air Line v. Horton, 233 U. S. l. c. 501), where it is said in substance that its first section gives a right of action (under cerf;ain conditions) for injury or death of the employee caused by the negligence of any of the officers, agents or servants of an interstate carrier, or by reason of any defect or insufficiency due to its negligence, and its cars, engines, appliances, machinery, tracks, road beds, works, boats, wharfs or other equipment. The first clause of this section abolishes the common law rule that a servant is held to assume the risk of an injury caused to him by the negli•gence of a fellow-servant. The second clause grants the right to recover upon proof of a negligent defect or insufficiency of the physical instruments of transportation or other equipment.

The plaintiff’s cause of action is predicated upon this latter clause. In order to recover therefor it was necessary for her to adduce evidence tending to prove negligence on the part of the defendant in locating the standpipe or water crane at a point too close to the sides of its passing trains to be reasonably safe for the deceased to use the ladder at the side of a car for the performance of his duties as head freight brakeman. There is substantial evidence in the record which tends to prove that at the time of his injury the deceased had mounted the ladder of the third car of a freig'ht train belonging to defendant which had'moved from its main track on a siding at Princeton, Missouri, for the purpose of signalling the conductor to stop the train after it had cleared the main track and gotten fully upon the sidetrack; that while in and about the performance of this duty, his head or other portion of his body collided with the standpipe or water crane, which was so located as to be not more than twenty-two inches from the side of the passing car, and that by being thus struck he received the injuries which resulted in his death. The evidence tends to show that this standpipe was placed at a point equidistant from the centers, fifteen feet apart, of the main track and the side track. There was evidence tending to show that other railroads placed similar standpipes or water cranes at a greater distance. There was evidence tending to show that the erection in question was on the yards of the railroad company where it had ample room to widen the distance between its two tracks or to locate the water crane at a point where they were further apart, and there was also evidence tending to show that this was done by other railroad companies. Under this state of the evidence, and despite evidence on behalf of defendant of a contrary nature, we cannot say that the defendant exercised ordinary care in installing the water crane at such a distance from the side of a passing car'whereon its brakemen, as shown by the record, were accustomed to stand on ladders, and give signals to the conductor of a moving train. This particular injury was occasioned on a dark night, and necessarily that should have been in contemplation when the crane was erected, for this kind of work was required to be done in the night, as well as in the day. A careful consideration of the evidence satisfies us that the proof adduced by plaintiff tended to make out a case for the jury on the issue of negligence on the part of the defendant in providing a reasonably safe place for the performance of the duties imposed upon the deceased and other brakemen.

III.

The question therefore is, whether or not upon either of its pleas, i. e., contributory negligence or assumption of risks, the evidence adduced by defendant, would have justified the trial court in taking the case from the jury? Taking these in order, it must be borne in mind that section 3 of the Federal Employer’s Liability Act has abolished at one stroke the defense of contributory negligence as a complete bar to an action brought under its provisions. Contributory negligence may still be shown, but its effect is not to preclude a recovery, but only to diminish the damages awarded by the jury “in proportion to the amount of negligence attributable to such employee.” The moderate verdict rendered in this case tends to show that the jury followed the guidance of the statute. At any rate, we may dismiss that assignment of error, because it is answered by the plain letter of the law.

The only question presenting any difficulty in this case, is the question of the defense arising upon the theory that the deceased assumed the risk of being struck by this water crane when he entered into the services of the defendant. In this connection it must be borne in mind that section 4 of the Federal Employer’s Liability Act provides in terms that the doctrine of assumption of risk shall not be available in any case where the master, or employer, has violated any Federal statute in reference to providing safety appliances or proper equipment on its trains. The thought in the mind of Congress evidently was that the doctrine of assumption of risk should not obtain where the negligence of the master had supervened, and that provision of the act is in strict consonance with the law as established in this State.

This exclusion of the defense of the assumption of risk in cases of Federal statutory negligence on the part of the master, leaves that defense available in other cases. And in applying it in accordance with that limitation, it has been recently held by the Supreme Court of the United States, in a case appealed from, the Supreme Court of North Carolina and which involved the construction of the Federal Employer’s Liability Act on the point under review, that in other than the instances excepted in the statutes, the test would be whether or not there was an assumption of risk on the part of the plaintiff or his representative according to the common law rule. In that case the question was whether failure of the master to comply with a State statute, excluded the defense of assumption of risk. The court held that it did not, adding: “But the necessary result of this is, not to leave the employer responsible for the consequences of any defect in such an appliance, excluding the common law rule as to assumption of risk, but to leave the matter in this respect open to the ordinary application of the common latv rule. The adoption of the opposite view would in effect leave the several State laws, and not the act of Congress, to control the subject-matter.” (Italics ours.) [Seaboard Air Line v. Horton, 233 U. S. l. c. 507.]

The effect of that decision and of the act construed therein, and of the previous decision of the Supreme Court devolving concurrent jurisdiction upon the courts of the several states to enforce the provisions of said act, is to require them in passing on the defense of assumption of risk to apply as a standard the common law rule on that subject. This points a plain pathway, that of the common law as adopted, interpreted, expounded and enforced in the respective states.

For almost one hundred years, since January, 1816, the common law of England, except as inconsistent with the Constitution of the United States and this State, or the State and Federal statute laws for the time being, has been a part of the jurisprudence administered by the Supreme Court of Missouri. [R. S. 1909, sec. 8047; State ex rel. v. Withrow, 133 Mo. 500; Baker v. Crandall, 78 Mo. 584; Duke v. Harper, 66 Mo. 51.]

Among other subjects thus made a part of the law of this State were the doctrines of contributory negligence and assimption of risk. It is the settled rule of the common law as interpreted and enforced in this State that these two defenses are separate and distinct from each other and have a different origin and application. The former is applicable generally in actions of tort. The latter is confined to the relation of master and servant arid their contracts with each other. Contributory negligence, as the terms import, is nothing more than negligence on the part of a defendant which directly contributes to or causes his injuries, and it therefore implies on his part the neglect of the duty imposed upon all men to observe ordinary care. Being thus a breach of duty, it is strictly founded in tort.

On the other hand, “assumption of risk” is confined to the relation of master and servant, and means what its terms denote, that when a hiring takes place, the parties mutually undertake: first, the master to pay a stipulated wage and to exercise ordinary care in providing a reasonably safe place and appliances for the work to be done; second, the servant to asswne or take the risks of any mishaps which may befall him, after the observance of such care by the master, which are the ordinary incidents of the work which he engaged to perform. It is apparent that these several obligations assumed by the respective parties, are reciprocal considerations, moving from the one to the other, and that they strictly rest upon contracts to that effect implied between them by sound legal policy. Necessarily, therefore, the assumption of neither goes beyond its terms. Thus measured, the servant does not assume any dangers or perils caused by the negligence of the master.' In cases therefore where the servant is injured by the negligence of the master in furnishing an unsafe place or defective tools, his suit for such injuries cannot be defeated on any theory of assumption of such risk, for his implied contract did not include the risk of the master’s negligence. It follows, that when the servant is injured by a peril created by the negligence of his master the only defense to a suit therefor is that the servant, with no reasonable grounds to believe he could escape, such danger by ordinary care, negligently disregarded its imminence and thereby directly contributed to his own injury, or in other words, that the servant was guilty of “contributory negligence.’’ That is the common law as administered in Missouri. [Charlton v. Railroad, 200 Mo. l. c. 433, and cases cited; George v. Railroad, 225 Mo. l. c. 407, and cases cited.] This principle obviates the incongruity of the notion that a master should reap the benefit of a contract, that he might negligently injure a servant with legal immunity from the damage thus inflicted. This distinction inheres in the diverse nature of the two doctrines. It was borne in mind by Congress when it enacted the Federal Employer’s Act, for it abolished the bar of contributory negligence, and left only a limited application of the doctrine of assumption of risk, and this evidently because of the essential difference between the two, for if they were identical the abrogation of one would have disposed of the other. In speaking of the Missouri law on these subjects, our Brother Faris, in Division No. Two, in a recent case, accurately said: We use the terms “assumption of risk to express the mere hazards which appertain to a dangerous vocation when unaffected by negligence of the master. When, however, the servant enters into or remains in the service of the master with actual or constructive knowledge of defects arising from the master’s negligence and without a promise of remedy, we speak of this in our Missouri courts as contributory negligence.”

It is evident under the common rule of assumption of risk, as declared and enforced in this State, there was no ground upon which the case could have been taken from a jury, for as we have seen the plaintiff introduced evidence which tended to show that the injury was inflicted upon her husband by the negligent failure of defendant to furnish him a safe place in which to work. And in this connection, it may be well to say that the long list of authorities cited by appellant that the standpipe or water crane was one of approved type and in common use, have no relevancy to the matter in hand. The insecurity of the place where the plaintiff’s husband was required to work did not arise from the kind of instrument used for conducting the water in the engines, but arose from its being located too near the sides of the passing freight cars to be safe for men engaged in their duties on the ladders attached to such cars. At least, that was the question presented, and such was the finding of the jury.

Defendant also introduced evidence tending to show the telegrams and pink bulletins were communicated to the deceased as to the danger to be encountered after the erection of this standpipe or water crane at Princeton. This evidence was not conclusive, because it was not admitted, and the jury had the power to disregard it, but it would not, under the Missouri classification of contributory negligence and assumption of risk, have supported the latter plea, and if the jury believed that it tended to show contributory negligence in some degree on the part of the deceased, he would still be entitled to recover under the Federal Act whatever under all the evidence they should think he was entitled to, after reducing the amount in proportion to his contributory negligence. But, besides all that, the main one of these warnings related to the communication sent out by defendant to its trainmen in the following terms: “Water cranes at Princeton are now ready for nse. They are located between the main and passing tracks. One east and one west of depot. They will not clear a man hanging too far outside of car.”' This was not a proper warning. It did not tell the brakemen not to hang out on the side of the car in performing signalling duties, as the evidence tends to show they were in the habit of doing with the knowledge of defendant’s officers. But merely cautioned him in a vague way not to “hang to.o far outside the car.” In other words, to exercise ordinary care, which the evidence .does not show the deceased failed to do.

Neither can it be maintained that the deceased made any contract with reference to the danger created by the installation of this water crane when he entered into the service of defendant, for it was not erected for more than a year after he was employed. Besides, the substance of his contract, as stated in the answer, was a stipulation to take care of himself as far’ as the existing and known dangers of his work are concerned. But under the pink bulletin warning, which seems to be that upon which appellant lays most stress, there was no reason why the deceased might not have attempted to perform his signalling work while on the ladder of the passing car, as had been customarily done, without expecting that, notwithstanding that warning, an iron pipe had been placed within twenty-two inches of the side of the car where he had climbed on a ladder. This presented a very narrow space within which he would have been compelled to crowd his body and wave his signal lamp with safety. It fairly admitted of a legitimate inference of negligent maintenance on the part of the defendant. Yet by the terms of the pink bulletin the deceased was told in effect that he might lean out unless he leaned out too far. It is well to note that this warning did not forbid him and other workmen to stand on the ladder when they were required to pass this point, but merely cautioned them upon a seeming assumption that they would occupy that place. There is nothing in this record to show that in passing- that point the deceased did not act with reference to the duties in which he was engaged in the same manner in which they had been performed before. But if he did not act with due care, Ms contributory negligence and that of the defendant, when considered together and compared by the jury, as they were authorized to do under the terms of the Federal Employer’s Liability Act, resulted in a verdict much smaller than is usually given.

Defendant complains of certain instructions, but after a careful examination of the points made in the record, we are unable to find any reversible error. The judgment in this case is therefore affirmed.

All concur, Brown and Faris, JJ., in result.


author: FARIS, J.

text:
    CHARLES D. McCLURE, Appellant, v. NATIONAL BANK OF COMMERCE IN ST. LOUIS. CHARLES D. McLURE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS, Appellant.
    In Banc,
    December 31, 1914.
    1. ESTOPPEL: Must Be Pleaded. Estoppel must be pleaded unless (1) it arises in sucb wise as to afford no opportunity to plead it, or (2) be shown by plaintiff’s proof.
    2. -: Holding Back Defenses. If a case is to be tried by piecemeal the end of a lawsuit would never be reached. At the trial of the case all issues and all defenses should be brought forward.
    3. -: Answer: Amendment After Reversal With Directions. Where defendant’s only plea in an equity suit for an accounting at the first trial was a general denial, and on appeal the cause was remanded with directions that the new trial should be confined to the single issue of the value of the land, “all other issues having been properly tried and determined,” with leave to either party to so amend the pleadings “as to clearly draw the issue upon this one question of value,” defendant cannot be permitted to file a new answer bringing in the issue of plaintiff’s estoppel to claim more than a specified sum, or raising the issue of ratification.

      4. -: Accounting: Letter Agreeing to Take Less. A letter written by plaintiff to defendant, at a time when he was in pressing need of money and pinched with debt, offering to take a certain amount of money in settlement for his interest in the land which defendant claimed absolutely, and which the court holds that defendant held in trust for him, cannot be used as an estoppel in his suit for an accounting and to recover the value of the land, sold by defendant; but is competent as evidence bearing on the issue of what plaintiff then considered the value of the land.
    5. VALUATION OF LAND: Flxed'on Appeal. Exercising its prerogative to try an equity case de novo, the Supreme Court holds that, in the valuation of sixty-five acres of land belonging to plaintiff and bought in by defendant under a friendly foreclosure sale, and then wrongfully sold by it, thereby converting the proceeds, the trial court fell into error in disregarding the value of the improvements, such as dwelling house, barn, etc., and the chancellor’s valuation of $52,500 is raised to $58,887.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Reversed and Remanded (With directions.)

      Thomas Bond and W. G. Schofield for plaintiff.
    (1) The value of land should be ascertained by evidence of what the same was reasonably worth and could have been sold for at a given time, on a sale by one willing, but not obliged to sell, to one willing and able but not obliged to buy. Railroad v. Enapp> Stout & Co., 60 Mo. 410; Rilqy v. Cullen, 101 Mo. App. 43; Lawrence v. Boston, 119 Mass. 126. (2) The per curiam order required the trial court to try the single issue of the value of the land in July, 1909, “all other issues having been properly tried and determined before.” Therefore, to have permitted defendants to file their amended answer and to introduce evidence in support of the defenses therein attempted to be raised, to-wit, estoppel and ratification, would not only-have been contrary to the positive mandate of this court, but any finding thereon would have been ■ coram non judice, and of consequence void. Chouteau v. Allen, 74 Mo. 59; Keaton v. Jorndt, 259 Mo. 179. The pretended defenses of estoppel and ratification sought to be injected into this case by defendant are not only contrary to the mandate, of this court, but contradictory of the entire position assumed by the defendant in the original trial and upon which the defendant staked its case; i. e., that the property in question belonged to the defendant and that plaintiff had absolutely no interest therein. See opinion of Judge Graves herein, 252 Mo. 510. DeLashmutt v. Teetor, 261 Mo. 412.

      George L. Edwards and Edward D’Arcy for defendant.
    (1) The trial court should have permitted the defendant after this case was remanded for further hearing to have amended its answer so as to set up the defense of estoppel as proposed. Per curiam opinion on prior appeal, 252 Mo. 524. (2) The prior opinion in this case cannot fairly be construed as foreclosing to the defendant the question of estoppel sought to be raised by the amended answer which it proposed to file in this case, for two reasons. First, this question was not raised or determined on the former appeal, and upon the theory upon which the case was tried before this question could not have been raised. This case was first tried upon the theory that it was a suit for an accounting for the proceeds of the sale of the property, and in affirmance of that sale. It would be manifestly unjust and inequitable, therefore, to say that this defense was foreclosed to the defendant by the prior opinion in this case. Second, even if the prior opinion could be construed as foreclosing this defense, it would be manifestly unjust and inequitable, and should, therefore, be modified so as to permit of a full and fair consideration of this defense. Mangold v. Bacon, 237 Mo. 511. (3) The plaintiff is estopped' to contend that the reasonable market value of the property at the time it was sold by the defendant was more than $40,000. Riley v. Cullen, 101 Mo. App. 32; 16 Oye. 785; Bigelow on Estoppel (6 Ed.), pp. 602-603; Sedgwick on Damages (9 Ed.), sec. 1301.
   FARIS, J.

This is a suit in equity which comes to us upon cross-appeals. Since a decision of one appeal will necessarily' dispose fully of the other, the cases, by consent of counsel, have been consolidated. Both cases, and all points involved therein, will be disposed of in one opinion.

This is likewise the second cross-appeal in this case. All of the facts of the case and' all of the points involved, except the one issue hereafter to be adverted to, are set forth and disposed of upon the former cross-appeals, our rulings upon which will be found in the case styled McLure v. Bank of Commerce, 252 Mo. 510. Reference for the facts and the matters held in judgment upon the former appeals, is hereby made to the former opinion, should the curious desire more light or should such light become necessary to an understanding of the points in the below opinion.

When the case was here before our learned Brother Graves, who wrote the opinion of the court, took the view that the case ought to be reversed and remanded with directions to the court nisi to enter up judgment in accordance to the views expressed in the opinion. Our- Brother Graves upon the very important point as to the value of the land in dispute, held under the evidence in that record, that this land was worth the sum of $58,887. A majority of us, however, yielded to the earnest insistence of counsel for defendant that -the rulings of the lower court and the allegations of plaintiff’s petition being regarded, defendant might have been led, to his hurt, not to offer on the measure of value all available testimony. Defendant most strenuously insisted that this was the case, and that much testimony in proof of his contention that the land in question was of a value far less than that found by our Brother Graves, was readily obtainable. In fairness, therefore, and gathering as stated, from the record, that counsel might well have been misled to his hurt, we sent the case back for a new trial, by a per curiam opinion, on the single issue of the value of the land. In that opinion it was expressly provided that the new trial should be confined to that single issue, and it was further ruled that “all other issues had been properly tried and determined before.” Permission, however, was given by our opinion to either party to so amend the pleadings as to clearly draw the issue upon this question of value of the land in dispute.

When the case went back to be retried below plaintiff amended his petition by interlineation in such wise as to raise with sufficient clearness the issue as to the , value of the land in dispute on the date in 1909 when this land was wrongfully, as our former opinion held, sold by defendant. The defendant thereupon asked leave to so amend its answer as to raise for the first time in the case the issue as to whether plaintiff by statements made by him, and his agent, one Mellor, to defendant in 1908, had not led defendant to believe that' the land in question was worth only the sum of $40,000, thus, by the proposed amended answer, raising the issue of estoppel. Likewise the proposed amended answer raised the issue that plaintiff had ratified and approved the sale by defendant of the land at the sum and price of $38,000. Defendant’s theory of ratification is based upon a letter of plaintiff to. defendant, dated January 4, 1910, in which, plaintiff, replying apparently to a written demand for the settlement of plaintiff’s account, asks that he be given credit for the sum of $20,000, which he says was the surplus proceeds of the sale of the land in dispute after payment of the amount advanced by defendant to buy the land in at the foreclosure sale. The proof shows defendant then refused to give any credit to plaintiff on this account, and claimed to have owned the said land absolutely at the time it was sold to Mrs. Koehlor. Upon objection of plaintiff to the filing of the amended answer containing the two new defenses of estoppel and ratification, leave to file same was denied by the court and the objections of plaintiff thereto were sustained. Plaintiff and defendant then proceeded to trial upon the issue as to the value of the land alone. Defendant was permitted to offer apparently all evidence desired and available to it upon the issue of estoppel and ratification, though the probative effect of such evidence was by the ruling of the trial court confined solely to its competency as showing the value placed upon said land by plaintiff shortly preceding the date of the sale thereof.

The learned trial court, upon the conclusion of all evidence upon the issue of the value of the land, found that the same was worth the sum of $52,500 as of the date this land was sold by defendant, and made an accounting between the parties and rendered a decree upon the basis of this value. Prom the finding of the court plaintiff appealed upon the ground that the value placed on the land by the court was smaller than was justified by the evidence offered. Defendant has appealed because such value was too large, and upon the further ground that it was error for the court to refuse to defendant permission to file the amended answer containing the said allegations of estoppel and ratification. The below opinion will be confined to a discussion of these points only.

I. As forecast in our statement of the case both sides being dissatisfied with some part of the decree, have appealed; the plaintiff for that the value of the land as the court nisi found it, was too little, and the defendant for that it was too big, and for the further reason that it was error for the trial court to refuse defendant permission to amend its answer so as to set up estoppel and ratification as defenses.

Since we may logically deal with the respective contentions of the parties touching the finding as to the value of the land under one and the same head, we will first examine the contention of alleged error based upon the refusal of the court to permit an amendment of defendant’s answer.

When this case was here before it had been tried below upon a mere general denial. No estoppel of whatever sort was pleaded by defendant. It contented itself by saying for defense, this only: “Defendants in the above-entitled cause, answering the petition of the plaintiff, say they deny each and every allegation therein contained.”

This court on the former appeal approved all that was done by the trial court, except that, upon the insistence of defendant that it had been so misled by the attitude of plaintiff and by the ruling of the trial court that it had failed to offer much obtainable testimony as to the value of the land in dispute, we held, as we say in the statement, that in the interest of fairness we ought to send this case back and allow defendant to offer any additional evidence it might have upon this question. So, while agreeing to all that was said upon the merits, a majority of us disagreed with the opinion only as to the finality of the amount found as the value of the land. On this question we made in our opinion per curiam, among others, these observations, viz:

“A majority of the court, however, are of the opinion that the cause should-be remanded to the end that the issue of the value of the land may be more thoroughly tried, and the whole court is of the further opinion that the new trial should be confined to that single issue, all other issues having been properly tried and determined before. Either party may so amend the pleadings, if such is desired, so as to clearly draw the issue upon this question.
“The judgment is therefore reversed and the cause remanded to the circuit court with directions to hear testimony upon the value of the land in dispute at the date of the sale, and to confine such new trial to that issue alone, and after having determined such value to then enter up judgment in accordance with the facts heretofore found and then found upon this issue. ’ ’

Estoppel must be pleaded (Loving Co. v. Cattle Co., 176 Mo. 330; Cape Girardeau, etc., Ry. Co. v. St. Louis & Gulf Ry. Co., 222 Mo. 461), unless it arises in such wise as to afford no opportunity to plead it (Long v. Lackawanna Coal & Iron Co., 233 Mo. 713); or be shown by plaintiff’s proof (Brown Construction Co. v. MacArthur Bros. Co., 236 Mo. 41). The general denial set out above shows that estoppel was not pleaded upon the former trial. The former opinion does not refer to such a defense. [McLure v. Bank, 252 Mo. 510.] The case does not fall within either of the exceptions, and even if it could be said to fall upon the facts within the exception secondly above noted and to have been shown by the cross-examination of Mellor, who was one of plaintiff’s witnesses, yet it was not either tried below on the former trial, or ruled here upon any such theory. For, since estoppel was not pleaded in the former trial, it follows that such issue was not raised. If a-case could be tried piecemeal, we would never reach the end of a lawsuit. [Spratt v. Early, 199 Mo. 491; Donnell v. Wright, 147 Mo. l. c. 647.] If all issues arising in the case and all defenses which defendant then had were not in it before, they should have been in it. [Hastings v. Foxworthy, 45 Neb. 676, 34 L. R. A. 321, and notes; 2 R. C. L. 224.] The issue of estoppel (except in so far as the evidence of the alleged facts, which go to make up the proof of it, also serves to throw light upon the value of the land involved in this case) being an issue upon the merits, went out of this case upon the rendition of the former judgment here. For we reversed and remanded this case with directions. Thereby all other matters were concluded by our judgment except the single one set out in those directions. [Stump v. Hornback, 109 Mo. 272; Pitkin v. Shacklett, 117 Mo. 547; Tourville v. Railroad, 148 Mo. l. c. 623; Young v. Thrasher, 123 Mo. 308; Chouteau v. Allen, 74 Mo. 56; Keaton v. Jorndt, 259 Mo. 179.] Certainly this is so where no statute and no controlling opinion of this or any other court was overlooked by us, and where no injusice has been done to defendant by our former holding, when viewed in the light of the instant record. [Baker v. Railroad, 147 Mo. l. c. 149, and cases cited; 2 R. C. L. 226.]

. We do not think there can be two views as to what the former judgment reversing this case directed the trial court to do. The only tenable view would seem to be settled from this compelling language found in our per curiam opinion, viz: “The whole court is of the further opinion that the new trial should be confined to that single issue, all other issues having been properly tried and determined before. . . . The judgment is therefore reversed and the cause remanded to the circuit court with directions to hear testimony upon the value of the land in dispute at the date of the sale, and to confine such new trial to that issue alone.”

It is true that qualified permission, conditioned upon whether counsel were so advised, was given to amend the pleadings. But does that prove anything of pith or moment in aid of defendant’s insistence? Does it mean that defendant should be allowed for the first time to inject into this case an entirely new matter' of defense, which matter was then wholly within its knowledge and available to it upon the first trial, and touching the proof of which there was more uncontradicted evidence offered in the first trial than in the instant one? Does the language of this court’s opinion mean the actual value or worth of this land to A and B and C in the market, or does it mean the fictional value as between plaintiff and defendant bank, which fictional value was superinduced by the attitude of the witness Mellor as the agent of plaintiff? We think it fairly means the former, and that the alleged matter of estoppel properly belonged to, and ought to have been in the former trial, and that it was foreclosed in the former appeal.

The law as to the effect of our holding upon a former appeal is fairly well settled, and from the case of Chouteau v. Allen, 74 Mo. 56, to the late case of Keaton v. Jorndt, 259 Mo. 179, there has been in our holdings neither change nor shadow of turning. In fact, we do not understand learned counsel for defendant to challenge the rule of law which, as the ChouteauAlien case, supra, expresses it, makes the mandate of this court “in the nature of a special power of attorney” to the court nisi in the new trial. The difficulty lies in the fact that learned counsel take the view that the defense of estoppel operating to limit the value of the land to $40,000, was within the contemplation of our mandate. We do not agree with them in this contention. Granting for argument’s sake that under our mandate defendant could by estoppel limit the finding of value to $40,000, being the price at which plaintiff in the summer and fall of 1908 was willing to sell, still the evidence of Mellor, upon whose testimony the alleged estoppel is largely based, now tends to show that the offer of plaintiff through, said Mellor to sell in 1908 for $40,000, was dominated, as defendant knew, by the pressing need of ready money with which to pay the debt due to defendant bank, for payment of which, or for additional collateral, said defendant was almost diurnally insisting. In addition to this in June, 1909, when the sale to Mrs. Koehlor was made defendant bank had so far ceased to regard plaintiff as having any interest in this land as that it sold it for its own account and pocketed the entire purchase-price; refusing subsequently to give plaintiff any credit whatever for the $20,000 difference between the price paid by Mrs. Koehlor and the price at which the land was bought in at the friendly foreclosure sale. We cannot lend our concurrence to a view of estoppel based upon an attitude which said in effect to plaintiff: “Your willingness to sell this land for $40,000 so that you could pay your debt to us, in the fall of 1908 when you 'owned it, so worked upon us in the summer of 1909, after we had become owners of it, as. that we were induced to sell it for $38,000 and keep- all of the money.”

In passing we pause to say that no absolute ratification as is urged upon us by defendant can fairly be based upon the letter of plaintiff of January, 1910. The latter for the sake of peace and to procure the release to him of his dividend-bearing collateral, might have been willing to accept the surplus of $20,000 then, without a lawsuit, acquiescing thus and ratifying the sale to Mrs. Koehlor. But when defendant bank utterly refused to concede any interest in this surplus to plaintiff and profanely informed him that “not one cent of credit” was to be given plaintiff on account of this land, does not a doctrine which is concededly not estoppel but which in common sense is very analogous to it, arise logically in favor of plaintiff? In the former trial this was likewise the attitude of defendant bank throughout its defense. Absent the profanity, it took the position of absolute ownership taken in pais by it, and held this attitude upon all the pleadings and upon the trial and until driven from it by our mandate.

Defendant had the full benefit of all of the evidence which it now urges upon us as proof of estoppel, so far as this evidence operated to prove the view held by plaintiff in the fall of 1908 as to the value of this land. This is in our opinion all it was entitled to under the facts and the law of this case. Therefore the trial court did not err in refusing to allow the filing of the proposed amended petition, and we are constrained to disallow this assignment of error.

II. Which brings us to the contention of plaintiff that the finding of the trial court that the land in dispute was worth $52,500, as of the day in 1909 when defendant bank sold it, was too low, and to the counter contention of defendánt that the said sum was too high. Upon this question of value plaintiff called, if we include plaintiff himself, an even dozen witnesses. For the most part these witnesses all either lived in the vicinity and had dealt in county real estate, or had much experience in the buying and selling of real estate in the neighborhood of this land. In our view, with the probable exception of the witness Bryce and the witness Ryan, they each showed themselves qualified to testify as experts on value of land of the location and sort of that in dispute.

The plaintiff fixed the value of the land at $75,000, which included the permanent improvements. He testified that for the purchase of the land and for improvements of whatever kind, both permanent and perishable, he had expended some $100,000, but that of this amount the sum of $25,000 was for shrubbery, hedges, vineyards and other ornamental things, perishable and ephemeral and of which he took no account. There was in 1909 a seventeen-room brick house on the land. This house was old, but had been repaired under the superintendence of an architect and he had installed practically all of what are now usually called “modern improvements,” viz: hot and cold water, porcelain bath, system of lighting, etc. There were in addition a barn and a new cottage for servants and farm hands. These permanent improvements plaintiff valued in 1909 at from ten to fifteen thousand dollars. No witness contradicted the plaintiff as to the value of the improvements, except indirectly by admitting or by stating, that in certain contingencies (e. g. in subdividing, for the sale of the land in lots, or in case the purchaser for a country home desired a finer residence) the improvements would not be an asset but a liability and would but cumber the earth, as did the “old mansions on Lucas Place.”

In addition to plaintiff and to said Bryce and Ryan, the two latter of whom fixed the value at $65,-430 exclusive of improvements, and $64,000 apparently including improvements, respectively, but whose testimony is of doubtful weight, the witnesses for plaintiff fixed the following values to this land: McDermott, $1,000 per acre, or $65,430; Darst, $850 per acre or $56,615; Grivans, $900 per acre or $58,887; Surkamp, $900 per acre, or $58,887; Sidebotham, $1,000 per acre, or $65,430; Dowler, $950 per acre,.or $62,300; Zeibig, $800 per acre, or $52,344; Dittmeier, $900 per acre, or $58,887; and Henderson fixed the worth of twenty-five acres of the land only, with the improvements thereon, at $62,500. All of these witnesses, except Henderson, Ryan and the plaintiff, based their figures on the value of the bare ground, exclusive of the improvements.

Defendant called six witnesses, viz: Messrs. Hufft, Kaufman and Gibson, who each fixed the value at $600 per acre, or $39,258; Messrs. Schoflin and Watkins, who each fixed the value at from $550 to $600 per acre, or from $39,258 to $35,986.50, and Mr. Lilburn I. McNair, who fixed the value, with a deal of shuffling, at the price for which his real estate concern had originally sold the land to Mrs. Koehlor, viz: $38,000: This witness was still in the mental attitude held by him in the former trial. [McLure v. Bank of Commerce, 252 Mo. l. c. 523.] Messrs. Kaufman, Schopflin and Gibson were employees of the Mercantile Trust Company, which latter company had been employed to make an appraisement of this land. Counsel for defendant frankly conceded that they expected to compensate the Mercantile Trust Company for the experts furnished and the witness Watkins admitted frankly that he expected compensation for his trouble in. qualifying himself to place a value on this land; as likewise did the witness Hufft.

The learned trial judge took the lowest value placed on this land by any of the witnesses for plaintiff, that is to say, that of Mr. Zeibig, who fixed the value, exclusive of improvements, at $52,500. The court below took no account of the value of the improvements. In this, in the light of the great weight of the testimony, we think he fell into error. In the condition of this record, and in view of the opinion held by ns before, on a showing (we stray from the record to say) weaker, comparatively, than that now before us, we do not feel inclined to fix a value less than that found before by us. So, exercising the right given us in an equity case to try the issues de novo, we find the value of this land at the date of the sale thereof by defendant to Mrs. Koehlor in 1909, to have been $58,887.

A recasting of the accounts between plaintiff and defendant had pursuant to the decree of the court below, will, we are advised by counsel and assume from the record, leave in the hands of defendant certain payments made to defendant bank either as dividends, or as the profits arising from the liquidation of collateral deposited with it by plaintiff. The ascertainment of the amounts thereof is a matter, we gather, of mere book-keeping detail, susceptible of mathematical adjustment without difficulty. We here take no account of these profits and dividends which have been collected by defendant bank, if any such there be, but leave them for adjustment upon the return from defendant bank to plaintiff, pursuant to the decree, of the collateral out of which they accrued.

It follows that this case should be reversed and remanded with directions to find the value of the land in dispute at the sum of $58.,887, and to recast the account between plaintiff and defendant upon the basis of such value; decree in all other respects to be as entered by the trial court; saving, however, the said matter of accrued dividends and profits, if any, to be hereafter adjusted between the parties. It is so ordered.

All concur, except Bond, J., who having been of counsel does not sit.