author: BROWN, C.

text:
    EMELINE ZUMMO, Appellant, v. KANSAS CITY.
    Division One,
    December 2, 1920.
    1. CITIES: Police Powers: Pecuniary Liability for Wrongful Acts of Agents. The same immunity which protects the State from pecuniary liability for the wrongful acts of officers and agents employed by it in the exercise of its police powers extends to municipal and quasi-municipal corporations created by it for the purpose of and charged with the exercise of the same powers.

      2. -.—: -: -: Injury to Hospital Patient. Kansas City is not liable in damages for tbe death of a patient caused by a violent patient who were placed in the same cell of a city hospital by its officers and agents. The preservation of the public health is an exercise of police power, which appertains to a govermental or public duty, and the city charter creates a hospital and health department and provides that it shall .have the power and be its duty to enforce the laws of the State and charter and ordinances of the city relating to the public health, and shall have the care, management and control of city hospitals, and make rules and regulations for the support, maintenance and confinement of insane persons and all other persons confined therein; and thereby the city is made, not merely the agent of the State, but an integral part of the State government, for the enforcement and exercise of the State’s police powers, and partakes of the State’s immunities from pecuniary liability for the wrongful conduct of the officers and agents of the city hospital.
    3. -: -: -: Private Capacity. The liability of a city for damages resulting from its failure to maintain its streets and parks in safe condition, which arises from the operation of public utilities for profit, has no relation to the pecuniary liability of a city for wrongful acts committed by its agents or officers in the exercise of the police powers, which appertain to its governmental and public character, as distinguished from acts done by it in its private capacity.
    Appeal from Jackson Circuit Court.—Hon. Kimbrough Stone, Judge.
    Affirmed.

      J. Roy Smith for appellant.
    (1) Tbe respondent under tbe Constitution owes certain duties and is charged witb certain responsibilities. Mo. Cons. secs. 4 and 30, art. 2. Tbe Charter of Kansas City was adopted subject to tbe limitations of the Construction and tbe laws of Missouri, and must be in substantial harmony therewith. Charter, sec. 1, p. 97; Charter, Art. 14; Kansas City v. Bacon, 147 Mo. 259; Hass v. Ward, 186 Mo. 325. Tbe Charter was adopted under authority of tbe laws of Missouri, as provided for in tbe Constitution. Tbe State did not give this charter of 1908 to the respondent; the power was given tbe municipality to adopt a charter, which was done by vote of the citizens comprising the municipality; the city is not therefore charged with the duty of maintaining a general hospital. It thereupon develops that it is not a governmental function, but a ministerial duty assumed by the people comprising the municipality. R. S. 1909, sec. 970J et seq. and sec. 9754; Mo. Constitution, sec. 16, art. 9; Charter, p. 18. “A municipal corporation possesses power granted in express words, those necessarily or fairly implied in or incidental to express powers, and those essential to declared purposes of corporation,” using the word “essential” in the sense of “indispensable,” and not merely convenient. City of St. Louis v. Dreisoerner, 243 Mo. 217; City of Long Beach v. Lisenby, 166 Pac. (Cal.) 333. Under common law the municipality is protected from liability inly while exercising delegated functions of sovereignty. Chafer v. City of Long Beach, 163 Pac. (Cal.) 670; Boise Dev. Co. v. Boise City, 167 Pac. (Idaho) 1032. The Constitution' made no change in the common-law liability—the common law therefore prevails. Mo. Constitution, Schedule. After the legislative power has been exercised in location and establishment, then the maintenance of the institution pursuant to former action is ministerial, and the municipality will be liable. 28 Cyc. 1263, 1266; Bowden v. Kansas City, Kan., 69 Kan. 587, 105 Am. St. 187; Trower v. City of Louisiana, 198 Mo. App. 198; Nelson v. Kansas City, 170 Mo. App. 542; Ely v. City of St. Louis, 181 Mo. 723; Cassidy v. City of St. Joseph, 247 Mo. 206; Deaconess Home v. Bontjes, 104 111. App. 484; 28 Cyc. 1285. “In performing the duties relating solely to its corporate charter, the city is liable for injuries caused by the negligence of its agents.” Healy v. Kansas City, 277 Mo. 626; Barree v. Cape Girardeau, 197 Mo. 391; Jones v. New Haven, 34 Conn. 1. The city parks and city hospitals of Kansas City, were conceived and born of the same parents, and the liability that attaches to the municipality because of neglect in the conduct and management of city parks certainly follows the municipality in its conduct and management of the general hospital. E. S. 1909, sec. 9754; Charter, p. 83; Capps v. City of St. Louis, 251 Mo. 252; Carey v. Kansas City, 187 Mo. 715; Mayhew v. Burns, 103 Ind. 328.

      E. M. Harter, Burr N. Mosman and Ilus M. Lee for respondent.
    (1) The petition does not contain a sufficient charge of negligence, and the demurrer was properly sustained. O ’Brien y. Transit Co., 212 Mo. 66; Eemovich v. Const. Co., 264 Mo. 43; State ex rel. Newspapers Assn. v. Ellison, 176 S. W. 31; Taylor v. Iron Co., 133 Mo. 358; Knapp, Stout & Co. v. St. Louis, 156 Mo. 353; Benjamin v. Eailroad, 245 Mo. 598; State ex rel. v. Ellison, 266 Mo. 423; Darrow v. Briggs, 261 Mo. 278. (2) A municipal corporation, while in the exercise of a governmental function, is not liable for the negligence of its officers and employees and the demurrer was properly sustained. 28 Cyc. 3305; 4 Dillon, sec. 1661; 6McQuillin, sec. 2623; Murtaugh y. St. Louis, 44 Mo. 479; Eichmond v. Long’s Admr., 17 Gfrat. (Ya.) 375; McKenna v. St. Louis, 6 Mo. App. 320; Ulrich v. St. Louis, 112 Mo. 143; Cassidy v. St. Joseph, 247 Mo. 197; Healy v. Kansas City, 277 Mo. 626; Browder v. City of Henderson, 207 S. 'W. (Ky.) 479; Frost v. Topeka, 98 Kan. 636; Butler v. Kansas City, 97 Kan. 239; Benton y. Trustees City Hospital, 140 Mass. 13; Hill v. Boston, 122 Mass. 344; Evans v. Kankakee, 231 111. 223; Tollefson v. Ottawa, 228 111. 134; Culver v. Streator, 130 111. 238; Adams v. University Hospital, 122 Mo. App. 673; Whit-taker v. St. Luke’s Hospital, 137 Mo. App. 116; Nicholas v. Deaconess Home, 219 S. W. 643.
   BROWN, C.

Petition filed in the Circuit Court of Jackson County Court May 5, 1935. Omitting caption ' and signature it is as follows:

“Plaintiff for her cause of action states that the defendant is now, and at all times hereinafter mentioned, was a municipal corporation, duly organized and existing according to law.
“That the General Hospital is now and was, at all times hereinafter mentioned, the City Hospital in Kansas City, Missouri, and under the control and regulation of said defendant corporation.
“That under the law it is now, and was at all the times hereinafter mentioned, the duty of the defendant, Kansas 'City, to have, keep and maintain said hospital, and to provide for the safety and well being of the patients therein.
“That on or about the eighth day of April, 1915, one Antonio Zummo, who was suffering from swamp fever, was taken to the General Hospital, at which hospital there was one Pete Gustia, who had been violent at times, and had been placed in restraint, from which restraint he had at least once freed himself.
“That on Friday, April-16, 1915, shortly prior to 9 a. m., the said Pete Gustia had a violent spell, and thereafter about 9 a. m. the said Pete Gustia was placed in the same cell with Antonio Zummo, both men wearing restraints; that afterwards, to-wit, on Saturday, April 17, 1915, sometime between one and one-fifteen p. m., the said Antonio Zummo was murdered in the cell; that it was alleged he was, strangled; that there were certain marks of violence on his head and body, which was disclosed at the coroner’s inquest, and there were other marks of violence and wounds found on the head and body of the said Antonio Zummo, which were not disclosed by the said inquest, and which wounds were of a fatal nature, the result of malfeasance or misfeasance on the part of defendant’s agents.
“That the defendant had carelessly and negligently suffered and permitted a lack of oversight and control over the patients in the said hospital.
“That the defendant knew, or by the exercise of ordinary care conld have known, of the dangerous practice of placing two patients in the -same cell in the said hospital when one or both of said patients were violent, and could have prevented this murder by the exercise of caution, care and prudence.
“Plaintiff states that within ninety days , of the occurrence of said murder, to-wit, on the fifth day of May, 1915, she caused to be served upon the mayor of said defendant, Kansas City, a written notice stating the place and the time when the injury complained of was done, and the character and circumstances thereof, and that she claimed damages therefor from said defendant, Kansas City, a copy of which said notice is hereto attached as a part hereof.
“Plaintiff further states that by reason of said carelessness, negligence, malfeasance, and misfeasance of defendant and defendant’s agents, the same Antonio Zummo was murdered; that he was the husband and 'the sole support of this plaintiff; that by reason of the premises she has lost her husband, his love and affection, his care and support, and because thereof has been damaged in the sum of $10,000, for which, together with her costs in this action, she prays judgment.”

On June 9, following, the defendant demurred in the following words, caption and signature omitted:

“Defendant demurs to plaintiff’s petition, and for ground thereof says that said petition fails to state facts sufficient to constitute a cause of action against this defendant.”

On March 13, 1916, the demurrer was taken up and heard by the court and sustained.

The plaintiff refusing to plead further, judgment for defendant was entered' on January 12, 1919, from which judgment this appeal was duly taken, and the cause is properly presented for our determination on the sufficiency of the petition.

I. The petition, which we have copied in full in the foregoing statement, is a model of circumlocution and uncertainty. In the ad damnum it reveals the fact that the deceased was the plaintiff’s husband. A careful reading discloses that the claim is founded upon the assumed liability of the defendant city in damages for his death under circumstances which, although meagerly and indefinitely stated, indicate by necessary inference that the defendant, in its municipal capacity, owned and operated a hospital in which it received plaintiff’s husband, who was sick, as a patient, and carelessly and negligently, by its agents and servants in charge of the said hospital, caused him to be confined in a “cell” with an insane patient known by it to be violent so as to require restraint, who killed him.

These facts, evident upon the face of the petition, raise the question whether the defendant, is liable in damages on account of acts done or omitted by its agents and employees in the conduct of its hospital. If it appears from the petition that there was no cause of action in the mind, of the pleader, the form in which he has expressed himself is not important. "VVe will therefore proceed to the question of the defendant’s liability for wrongs of this character committed by its agents, without reference to the form of words in which they are pleaded.

There is no principle which stands upon a firmer foundation of reason, or which is protected by more abundant judical authority, than the rule that the same immunity which protects the State from pecuniary liability for the wrongful acts of officers and agents employed by it in the exercise of its police powers, extends also to municipal and quasi-corporations created by the State for the purpose of and charged with the exercise of the same powers. The rule has been often stated by this court, in cases against counties and road districts for damages resulting from failure to maintain public roads within their limits and subject by law to their supervision and control. A great number of these will be found cited in the late case of Lamar v. Bolivar Special Road District, 201 S. W. 890, which has since been followed and applied in Moxley v. Pike County, 276 Mo. 449.

It is said, however, that a .different rule applies to municipal corporations, which are constantly held liable for damages from failure to maintain their streets in a safe condition. This is true, and arises from the fact that the powers vested in and exercised by municipal corporations are of a twofold nature. In a purely governmental capacity they include the ordinary police powers of the State within their limits. Their police officers are the peace officers of the State, preserving public order bymeans appropriate to the density of an urban population. In this they are performing a duty which the State owes alike to all persons within its limits; the duty to protect, them in the ‘exercise of their individual rights. No element of safety is more important than those pertaining to the public health. The health and police departments o-f the city are parts of the general government of the State as administered for those purposes.

Judge Dillon in 1 Mun. Corp. (5 Ed.) sec. 301, states the rule as follows: “Many of the powers exercised by municipalities fall within what is known as the police power of the State, and are delegated to them to-be exercised for the public good. Of this nature is the authority to suppress nuisances, preserve health, prevent fires, to regulate the use and storing of dangerous articles, to establish and control markets, and the like.. . -. . Laws and ordinances relating to the comfort,' health, convenience, good order and general welfare of the inhabitants are comprehensively styled ‘Police Laws or Regulations.’ ”

This clear and accurate statement was adopted and approved by the court in Healy v. Kansas City, 277 Mo. l. c. 626, following our early decisions in Cassidy v. St. Joseph, 247 Mo. 197, 206; Ulrich v. St. Louis, 112 Mo. 138, l. c. 143; Murtaugh v. City, 44 Mo. 479, and other cases. Of the application of this rule to cases of this character, the same author (Sec. 1661) says: “The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute, appertains to it in its governmental or public, and not in its corporate, or as it is sometimes called, private capacity. ’ ’ We refer the curious to the great number of cases cited by the learned author in support of this statement.

The charter of Kansas City (See. 1, Art. 14) establishes within its limits “a hospital and health department,” and provides that it “shall have the power and it shall be its duty:

“ (a) To enforce the laws of the State of Missouri, ordinances of Kansas City, Missouri, and the provisions of this charter relating to public health; and to make such rules and regulations, not inconsistent with other provisions of this charter, as will tend to preserve and promote the public health.
“(b) To have the care, management and control of all building's and property heretofore and now used and’known as city hospitals and all lands and premises used in connection therewith, and, also, of all property and institutions now, or hereafter, owned or controlled by the city for the care and treatment of sick and injured persons; for the support, maintenance and confinement of insane persons, and for maintenance and support of poor persons; and to locate, establish and maintain quarantine hospitals and stations within, or outside of, the corporate limits of the city, and to have the custody of all persons confined in any such institutions.”

The powers thus granted and the duty thus imposed could not be broader or more absolute. Among other things it. is created the governmental instrument of the State in the enforcement of all laws relating to the public health, with discretion to make by ordinance rules and regulations, including the support, maintenance and confinement of insane persons. In these respects it is the arm of the State government, including the use of its legislative powers so far as consistent with the Constitution and laws of the State. This being tñe case tñe same exemption enjoyed by the State itself from liability for damages inflicted by its officers and agents in the performance of similar duties attaches to the defendant city. For these purposes it is not merely an agency of the State but is, under the Constitution which is the authority for its existence, an integral part of the State government, and partakes of its immunities as well as its duties.

II. The liability of the city for damages resulting from its failure to maintain its streets and parks in safe condition has no- relation whatever to this question. That liability has its foundation in the same principle upon which liability is imposed upon the municipal corporation for damage inflicted in the operation of public utilities for profit, which of corse inures to its members. In Moxley v. Pike County, 276 Mo. 449-454, in speaking of the distinction between quasi-corporations which constitute, for the purpose of administration alone, mere political divisions of the State, and municipal corporations organized and established in some respects for the profit and advantage of their proprietorial members, we said:

“On the other hand, as we have already had some occasion to explain in Kansas City v. Holmes, 202 S. W. 392, the foundation of the distinction against municipal corporations is laid wide and deep in private interests which mark the first step in their creation. It consists, in this State, of filing a plat. Some proprietor, ambitious for the gains that come from a system of streets, alleys and other urban 'improvements which attend the creation of a city, lays it out according to his own idea, and trusts the future for that development which he hopes will immeasurably increase the value of every lot and plat of ground which, it includes. Purchasers come who partake of his hope, and join him in a system of-development of streets, p-uhlic squares and limited building districts, which are the principal elements of the expected profit. The State provides a plan by which the pride and ambition of the inhabitants of the surrounding country may be utilized for the benefit of the urban corporations (Chap. 102, Art. 6, R. S. 1909) and the fullest authority is given the corporation to control all improvements for the best interest of the inhabitants and other owners of urban property. These and other similar conditions affect the development of municipal corporations, and afford ample ground for the distinction which exists in this State between them and other governmental agencies with respect to their liability for the negligence of their officers and agents in the construction and maintenance of the class of improvement upon which their development and the peculiar value of their immovable property stands.”

No such condition exists in this case. The duty resulting in the injury out of which this action grew related as plainly to the police power of the State as the duty of its officers in suppressing disorder and maintaining the peace. Having arrived at this conculsion it is unnecessary to notice other points suggested by ■respondent as to the sufficiency of the petition.

The judgment of the Jackson County Circuit Court is affirmed.

Small and Ragland, CC., concur.

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

All of the judges concur.


source: Caselaw Access Project

author: RAGLAND, C.

license: Public Domain

text:
    CITY OF KIRKSVILLE, Appellant, v. WALKER D. HINES and WABASH RAILROAD COMPANY.
    Division One,
    December 2, 1920.
    1. STREET CROSSING: Location by City. A city cannot determine the particular point at which one of its streets is to cross an existing railroad track, nor can it by the process of condemnation extend an existing street across a railroad track until the site of the crossing is first determined by the Public Service Commission, nor can it do so subject to the approval of the Commission, for the Act of 1913 (Laws 1913, Sub-div. 2, Sec. 50, p. 589) invests the Commission with exclusive power to determine the particular point of crossing by a street across a railroad.
    2. -: -: Power of Commission. The Public Service Commission has no power of eminent domain, or authority to direct or control cities in the exercise of the power, or to determine questions relating to the necessity, expediency or propriety of establishing or extending streets across railroad tracks; but it does have power to determine “the particular point of crossing of the crossing” of a railroad by a proposed street, and until it determines that point the city cannot avaip itself of its statutory powers of extending a street across a railroad.
    3. -: -: Re-enacted Section 10626: Consistent. Subdivision 2 of Section 50 of the Public Service Act of 1913, empowering the Public Service -Commission to determine the particular point at which an existing street may be extended across a railroad track, is not inconsistent with new Section 10626, reenacted in the same year 1913, and requiring a railroad coi-poration to construct and maintain at its own expense good and sufficient crossings where its railroad crosses a street in a village or a city of the third class, and therefore said Section 10626 is no exception to the provisions of said Sub-division 2.
    Appeal from Adair Circuit Court.—Hon. James A. Cooley, Judge.
    Affirmed,

      A. Doneghy for appellant.
    (1) The court erred in sustaining the demurrer, for the reason that Sec. 9258, R. S. 1909, confers express power on the city to make such extension, and Sections 9261 to 9275 prescribe a complete scheme for the condemnation, and said sections comprise authority and the only authority in the statutes- whereby private property may be taken or damaged by a city of the third class for public purposes, (a) And Section 9262 gives the circuit courts exclusive jurisdiction to hear and determine all such condemnation proceedings, (b) Nowhere, in the Public Service Act, and in no other statute, is the Public Service Commission given authority to hear and determine a condemnation proceeding. And nowhere is said Commission given authority to impanel a jury or appoint commissioners for such purposes as is provided by Section 21, Article 2, of the Constitution. (e) And if the Legislature by the passage of the Act of 1913, see. 50, page 589, and Section 1, page 696, Laws 19.13, intended to confer on the Public Service Commission exclusive jurisdiction to say whether an underground crossing should or should not be built, still it would not take away from the circuit, courts the power to hear a condemnation case for such purpose. The city could obtain the permission of said Commission after the termination of the court proceedings. And it is no concern of the defendants as to which course the city will elect to pursue, as their land cannot be taken until paid for, and then it can be used for no other purpose than that for which it was condemned. State ex rel. v. Williams, 227 Mo. 32. (2) The court erred in dismissing the case for the reason that Section 9258, and Section 9261 confer on the city council authority to determine when a street shall be opened or extended, and Section 1, Laws 1913, page 696, gives the council of cities of the third class the exclusive right to order an underground crossing when the conditions prescribed by the act exist, to-wit: when a public street crosses the line of any railroad at a point where the grade of such railroad is ten feet or more higher or lower than the surface of such street. (3) The Public Service Commission not only has not the exclusive jurisdiction in such cases, but, on the contrary, has no jurisdiction at all. The Public Service Commission Act was approved on the 17th day of March, 1913. See Laws 1913, page 651. Three days later the same Legislature amended an act and wrote therein the words, “cities of the third class,” and provided that when a public street or road crosses the line of any railroad at a point where the grade of such railroad is ten feet or more higher or lower than the surface of such street or road, such railroad company shall be required by the proper authority of said city of the third class to construct a safe, convenient and suitable passage and roadway under or across such railroad for the use of the traveling public. Laws 1913, p. 696. The two Acts above referred to were each passed by the same Legislature at the same term, and it is our duty to give effect to each if possible, and not until we find it impossible to read them together without conflict are we called on to apply the rule that where two statutes are in conflict the latter statute shall prevail, and we think there is no difficulty in reconciling the two. The Public Service Commission Act, see. 50, is a, general act, and, unless restrained by some special act, is broad enough to include all crossings of roads or streets by railroads. The Act found at page 696 is a- special act and applies only to specific conditions, and was, under well recognized rules of construction, intended, when the specific conditions therein defined existed, to take the same out of the provisions of the general act. Sutherland, Stat. Con., sec. 153, p. 206, and secs. 157, 158, 159; Musick v. Railroad, 114 Mo. 314; State v. DeBar, 58 Mo. 398; Payner v. Musick, 114 Mo. 637; State v. Green, 24 Mo. App. 231; Gilkerson v. Railroad, 222 Mo. 173.

      N. S. Brown, L. H. Strasser, and Higbee & Mills for respondents.
    (1) The petition failing to aver'that the Public Service Commission has ordered a crossing to be put in across the defendant’s railroad, the court properly sustained the demurrer on the ground that it had no jurisdiction in the premises. State ex rel. v. Pub. Service Com., 271 Mo. 270. (2) The petition does not state facts sufficient to constitute a cause of action. It does not aver that the Public Service Commission has ordered the Wabash Railroad or the Director General to construct a crossing at the point in question. Appellant admits such order has not been made. Such order is a condition precedent to the condemnation of a right of way for the proposed crossing. (3) The Public Service Commission Act, Laws 1913, p. 557, Section '50, p. 589, gave the Public Service Commission exclusive jurisdiction to determine and prescribe the manner, including the parT. ticular point of crossing, and the terms of installation of a street by a railroad or vice versa. This includes sub-grade, grade, and overhead crossings. State ex rel. v. Public Service Com., 271 Mo. 283. This necessarily repealed Sec. 10626, R. S. 1909, and.other inconsistent acts. (4) Sec. 10626, having been repealed by necessary implication, the Act of March 20, 1913, Laws 1913, p. 696, purporting to repeal Section 10626, and to enact a new section in lieu thereof, is nugatory. It was an attempt to revive and amend the repealed section by making it applicable to villages and cities of the third class. State ex rel. v. Benton, 51 N. W. 143; Lampkin v. Pike, 115 Ga. 827; Draper v. Fallay, 33 Ind. 465; Wall v. Garrison, 11 Col. 51.5; Stingle v. Nevel, 9 Ore. 62; Black-more v. Dolan, 50 Ind. 194. (5) If the Act of March 20, 191.3, were a valid enactment it is to be read as a part of the earlier statute and not of the re-enactment, and does not repeal Section 50 of the Public Service Commission Act. Endlieh on Int. Statutes, 194; Lewis Sutherland, Stat. Constr., see. 273.
   RAGLAND, C.

This is a condemnation proceeding instituted by the City of Kirksville in furtherance of its effort to extend one of its streets across the right of way and tracks of the defendant railroad company. The petition, which was filed in the Circuit Court of Adair County December 15, 1919, is as follows:

“To the Honorable Circuit Court of Adair County, Missouri. Our petitioner, in the above entitled cause, respectfully shows to the court and alleges that the defendant, Wabash Railway Company, is a railroad corporation, and has a principal business office at the City of Saint Louis, Missouri, and owns a line of railroad running north and south through the City of Kirksville, which said line of railroad, and right of way, runs across and over the following described lands situated in said city, to-wit: Beginning at a point in said city where the north line of Normal Avenue • (a public highway or street of said city formerly called, and shown on the plat of Dodson’.s Addition on file in the office of the Recorder of Deeds of Adair County, Missouri, Water Street), intersects the east line of the .defendant Wabash Railway Company’s right of way, and running from thence west to the east line of Fourth Street, and from thence south to a point in line with the south line of said Normal Avenue (formerly called Water Street), and from thence east to the east line of said railway company’s right of way, and from thence in a northeasterly direction to the place of beginning, and said lands are owned by said defendant, Wabash Railway Company; that said Normal Avenue, formerly called Water Street, is a public highway of said City of Kirksville, and now is and has been used as a public highway for many years last past both east and west of said described lands; that defendant, Walker D. Hines, is the Director General of Railroads and is in control of said line of railroad and of said railway company.
“Tour petitioner further states that where the said Normal Avenue crosses the above described part of defendant railway company’s right of way. and railroad track the grade of said railroad track is ten feet or more, to-wit, fourteen feet, higher than the surface of said Normal Avenue; that on, to-wit, the 18th day of August, 1919, the council of said City of Kirksville did duly pass and the mayor did duly approve and sign an ordinance numbered 3486 and which said ordinance is now in full force and effect, and wherein in and by said ordinance the above described lands were condemned for the purpose of extending said Normal Avenue across the same and under the track of said railway company for the purpose of public travel, and wherein by said ordinance it was provided that part of said Normal Avenue so made by extension across said lands or right of way be graded to the grade established by said ordinance, and said ordinance further provided for and defined the limits within which private property should be assessed to pay damages for such taking or damaging of property for public purposes, a duly certified copy of which said ordinance, is herewith filed, and the limits therein defined are as follows: . . . And it was further provided by said ordinance that the city attorney of said city begin the necessary proceedings to condemn said property and to ascertain the benefits and damages by reason of such taking or damaging of private property. . . . "Wheréfore your petitioner prays the appointment of three disinterested commis-' sioners, freeholders of Adair County, Missouri, to assess the damage. . . .”

The defendants appeared and demurred to the petition on the ground “that this court has no jurisdiction of the subject of this action, because exclusive jurisdiction thereof is vested in the Public Service Commission of the State of Missouri.”

The demurrer was sustained and final judgment rendered dismissing the cause. Prom that judgment plaintiff appeals.

I. Tlie City of Kirksville is a city of the third class. Under Section 9261, Revised Statutes 1909, it can take private property for public use “for the purpose of establishing, opening, widening, extending or altering any street.” The manner in which it may do so is prescribed by Sections 9262 and following. Under the broad powers so delegated to it, it can determine for itself, in the first instance, the necessity, expediency and propriety of exercising’ eminent domain in opening or extending its streets. Acting in good faith, it may, generally speaking, locate and establish streets whenever and wherever it elects and take private property within their boundaries for the use thereof, provided such use be in fact a public one. [Kansas City v. Hyde, 196 Mo. 498, 506; Simpson v. Kansas City, 111 Mo. 237.] There is, however, at least one limitation upon the power of appellant and other municipalities in this State to determine the location of their streets; they cannot say where they shall cross railroads. Sub-section 2 of Section 50 of the Public Service Commission Law (Laws 1913, p. 589) provides: “The commission shall have the exclusive power to determine . . . the particular point of crossing ... of each crossing . . . of a street by a railroad or vice versa.” The appellant could not, therefore, determine the particular point of crossing of the crossing of defendants’ railroad by its proposed street extension. It could not do so even subject to the approval or consent of the Public Service Commission, because it had no power at all in the premises. The commission is invested with the exclusive power.

According to the petition plaintiff seeks .to condemn, for the purpose of extending one of its streets, a specific parcel of land, therein described, occupied by defendants ’ right of way and railroad tracks. The petition does not allege that such parcel of land is the locus of the particular point of crossing of the crossing of defendants’ railroad by the proposed street extension as determined by the- Public Service Commission. If a municipality has no authority to determine the place of the crossing of a railroad by a street that it proposes to open or extend, obviously it cannot appropriate land for such a crossing unless and until the situs is determined by the tribunal invested with the power so to do. Such prior determination is, therefore, a condition precedent to the right to condemn. As it nowhere appears from the petition that the land therein described and which is sought to be condemned is at a place that has been determined upon and fixed by the Public Service Commission as the point of crossing of the railroad by the proposed street extension, the petition does not-state a cause of action.

As previously stated, the ground of the demurrer was “that the court has no jurisdiction of the subject of this action because exclusive jurisdiction thereof is vested in the Public Service Commission.” But evidently the court did not sustain the demurrer because it had no jurisdiction of the subject of the action, but because thé petition failed to state a cause of action. The judgment recites that “the plaintiff refuses to amend its petition, but elects to stand thereon.” In this particular cause the court did not have jurisdiction to grant the relief prayed for simply because facts entitling plaintiff to such relief were not stated in the petition and not because it had no jurisdiction of the subject-matter. There is nothing in the Public Service Commission Law to which our attention has been called, certainly nothing in Section 50 thereof cited by counsel, that warrants the conclusion that the Commission is in any sense invested with the power of eminent domain, or with authority to direct or control cities and other municipalities in the exercise of that power in establishing and opening streets. Questions relating to the necessity, expediency or propriety of establishing and extending streets and highways, even when they cross railroads, are not matters for its consideration. That power is lodged elsewhere. Speaking to the purposes of this case only, the Commission has the exclusive power, and no other, to determine the “particular point of crossing” of the crossing of a railroad by a proposed street. This is a police power to be exercised solely with a view to the public safety and is a limitation on the power of eminent domain delegated to municipalities. After the particular point of crossing has been determined by the Commission, a city of the third class has full authority to condemn the locus for a street and the circuit court has exclusive original jurisdiction of the proceeding, just as before the passage of the Public Service Commission Act.

II. When the Public Service Commission Statute was enacted, Section 10626, Revised Statutes 1909, was in force. It required railroad corporations to construct and maintain (at their own expense) good and sufficient crossings where their railroads crossed public roads or town streets, specified the manner in which grade crossings should be constructed and .provided for a separation of grades under certain conditions. Section 50 of the Public Service Commission Act gives the Commission the exclusive power not only to determine the particular point of crossing, but to determine and prescribe the manner of constructing crossings and to apportion the expense thereof. Section 139 of the Act declares that its provisions were not intended to repeal any law then in force, unless in direct conflict therewith, but to be supplemental to such laws. At the same session at which it passed the Public Service Commission Law, the Legislature repealed Section 10626 and enacted a new section in lieu thereof, in substantially the same language as the old, to be known as Section 10626 (Laws 1913, p. 696). By the new section the provisions of the old were made applicable to crossings in villages and cities of the third class in addition to those mentioned in the old one. This was practically the only change effected by the reenactment. It is the contention of appellant, as we understand it, that where the provisions of said Section 50 conflict with those of Section 10626, the latter must control and be given effect, because théy deal with particular subjects and specific conditions while those of the former are general in character. If this contention be sound, as to which we express no opinion, it would avail appellant nothing in this case. None of the provisions of Section 10626 is in any respect inconsistent with those of Section 50 conferring upon the Public Service Commission the exclusive power to determine the particular point of crossing. What construction should be given these statutes with reference to their several provisions dealing with the manner of constructing crossings and the expense incident thereto can be determined only in a case involving such questions.

The judgment of the circuit court, was for the right . party and should be affirmed. It is so ordered.

Brown and Small, CC., concur.

PER CURIAM:—The foregoing opinion of Rag-land, C., is adopted as- the opinion of the court.

All of the judges concur.


author: BLAIR, J.

text:
    MARGARET MOSBY and CHARLES V. MOSBY et al. v. AETNA INSURANCE COMPANY, AMERICAN INSURANCE COMPANY, and FREDERICK ESSEN, Trustee, Appellants.
    Division One,
    December 2, 1920.
    1. FIRE INSURANCE: Change of Title. Where the fire insurance policy contained the usual clause that “this entire policy, unless otherwise provided by agreement indorsed hereon or added thereto, shall be void, if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance," a conveyance, without notice to the company, before the fire occurred, by the execution, acknowledgement and delivery of a deed to third persons, subject to an existing mortgage for $2300, and by placing the grantees in possession, was in violation of the policy contract and invalidated it as to the insured, although a note for $700, evidencing the balance of the consideration for the deed, had not been paid at the time suit was brought.
    2. -: -: Avoiding Effect of Deed: Character of Proof. To avoid the effect of a deed and transfer of possession by the insured, the proof must be clear, cogent and convincing that the deed was not to • be delivered, but was placed in the hands of their mother for safe-keeping and to aid in the transfer of the property to the grantees (a sister and her husband) “without further trouble” in case anything happened to them on a contemplated trip to California; and the evidence in this ease does not satisfy the rule.
    3. -: Interest of Mortgagee: Valid Provision. Provisions in a fire insurance policy that the loss or damage shall be paid to the mortgagee as his interest may appear and that, where the policy has been invalidated as to the mortgagor, the company, upon the payment of the damage to the mortgagee, shall be subrogated, to the extent of the mortgage debt, to his rights, are not invalid. Neither positive law nor considerations of public policy prevent the parties from making such agreements if they choose, nor the courts from enforcing them.
    Appeal from St. Louis Circuit Court.—Hon G. A. Wurdeman, Judge.
    Reversed (with directions).

      Leahy & Saunders for appellants.
    (1) Under mortgage clause providing that the policy shall not he invalidated as to the mortgagee by the acts of the mortgagor, and providing for subrogation of the insurer to the right of the mortgagee, on payment of the loss, the insurer, where the policy has been invalidated as to the mortgagor, is entitled to subrogation to the extent of the mortgage debt, on payment of the loss to the mortgagee. Hackett v. Ash, 72 So. (Ala.), 54; Traders Ins. Co. v. Race, 142 111. 343; Insurance Co. y. Martin, 151 Ind. 209; Allen v. Fire Ins. Co., 132 Mass. 483; Canton Co-op. Bank v. Ins. Co'., 219 Mass. 135; Aetna Life Ins. Co. v. Fire Ins. Co., 98 Neb. 449; Hare v. Headley, 54 N. J. Eq. 548, 558; Badger v. Platts, 68 N. IT. 224; Ulster Comity Savings Inst. v. Leake, 73 N. Y. 165; Moulton y. Ins. Co., 36 S. D. 344; Fire Ins. Co. v. Davis, 25 Tex. Civ. App. 343; Gillespie y. Ins. Co., 61 W. Va. 177; 4 Cooley’s Briefs on Insurance (1 Ed.), p.3916; Fire Ins. Co. v. Beffrey, 48 Minn. 12. (2) Under the provisions of the policies, that they were void if the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be upon land not owned by the insured in fee simple, said policies were rendered void by the failure of respondent Margaret Mosby to disclose the interest of her husband in said property, when the policies were applied for. American Ins. Co. v. Barnett, 73 Mo. 367; Mers v. Franklin Ins. Co., 68 Mo. 131; Lochner v. Home Mutual Ins. Co., 17 Mo. 255; Koontzy- Hannibal Savings & Ins. Co., 42 Mo. 131; Ice & Power Co. v. American Fire Ins. Co., 196 Mo. App. 247; Holmes v. Kansas City, 209 Mo. 525; Turner v. Home Ins. Co., 195 Mo. App. 141; Genessee Falls Assn. v. Fire Ins. Co., 44 N. Y. Supp. 980 ; Schroedel v. Humboldt Fire Ins. Co., 158 Penn. 461. (3) Equity will reform a policy, upon parol evidence, only when the agreement really made between the parties, has not, through accident, mistake or fraud, been correctly incorporated in the written instrument; both agreement and mistake must appear by the clearest evidence, and the court will not supply an agreement that was never made. Tesson v. Atlantic Ins. Co., 40 Mo. 36; Grand Lodge v. Sater, 44 Mo. App. 453; Mead v. Westchester Fire Ins: Go., 64 N. Y. 455. (4) Had the decree in favor of respondents on the issue of reformation of the policies, been correct under the evidence and principles of equity, the finding of the court nevertheless should have been in favor of appellants because, by the clear weight and preponderance of the testimony in the case, it was shown that prior to the fire respondents conveyed their interest in the property to the Thieleckes. Chambers v. Chambers, 227 Mo. 284; Trabne v. Ins. Co., 121 Mo. 83 ; Dreher v. Aetna Ins. Co., 18 Mo. 135; Eddy v. Ins. Co., 21 Mo. 589; Wishart v. G-erhart, 305 Mo. App. 116; Roe v. Ins. Co., 78 Mo. App. 455; Loan Co. v. Brown, 59 Mo. App. 469; Mackey v. Basil, 50 Mo. App. 193; Marcus v. Ins. Co., 187 Mo. App. 336; Barnard v. Ins. Co., 27 Mo. App. 33. (a) Even a preponderance of the evidence is insufficient to overcome the effect of a notary’s certificate of acknowledgement; the evidence sufficient for this purpose must be clear, cogent and convincing. Springfield Co. v. Donovan, 147 Mo. 630; Fifer v. McCarty, 243 Mo. 47; Webb v. Webb, 87 Mo. 543; Barnett v. Davis, 104 Mo. 555; Rust v. Goff, 94 Mo. 518. (b) Respondents’ evidence showing an agreement to convey gave rise to a presumption that they executed a deed in conformity to such sale as in the usual course of business. Fitzgerald v. Barker, 85 Mo. 21; Fox v. Windes, 127 Mo. 511. (c) Possession of the instrument by the Thieleekes was shown, and such possession is prima-facie evidence of delivery. Pitts v. Sheriff, 108 Mo. 115; Scott v. Scott, 95 Mo. 308; Fontaine v. Boatmen’s Savings Inst., 57 Mo. 561. (d) The conveyance of the property back to the respondents, after the loss, did not work a revivor. Marcus v. Ins. Co., 187 Mo. App. 336.

      Fredrick H. Bacon for respondents.
    (1) Subrogation is a doctrine of equity intended to enable fire insurance companies which have paid a loss caused bv the wrongful act of a third party and for which the insured would have an action, to be substituted for the insured and recover the damages which might have been recovered by the insured. Being an equitable doctrine, courts will not enforce a claim for subrogation unless to do so would be equitable under the circumstances. Loewenstein v. Ins. Co., 227 Mo. 100; Traders’ Ins. Co. v. Race, 142 111. 338; 5 Joyce on Insurance, sec. 3537; Pomeroy, Eq. Jur. (2 Ed.) sec. 1419, note. (2) The payment in this case of the insurance to the mortgagee was a payment in satisfaction of the debt, which was thereby extinguished. Loewenstein v. Ins. Co., 227 Mo. 124; Ins. Co. v. Ramsey, 76 Ore. 570, 149 Pac. 542, Ann. Cases, 1917B, 1132,' L. R. A. 1916A. 556; Carpenter v. Ins. Co., 16 Pet. 495, 10 U. S. (L. Ed.) 1044; Cone v. Niagara F. Ins. Co., 60 N. Y. 619; Havens'v. Germania Ins. Co., 135 Mo. 649; Home Ins. Co. v. Marshall, 48 Kan. 235, 29 Pac. 161; Graves v. Hampden Ins. Co., 10 Allen (Mass.) 281; Burton-Lingo Co. v. Patton, 15 N. M. 304, 107 Pac. 679-, 27 L. R. A. (N. S.) 420. (3) In this case to enforce subrogation, and hold that the right of the mortgagors to have the insurance paid in satisfaction of the debt was lost, would be to enforce an unconscionable agreement. (4) The policies in question were issued payable to Margaret Mosby, instead of to her and her husband, because of a mutual mistake. It was the intention of the companies to make the policies payable to the owners of the property. The president of the Yeckel Agency Co. held a deed of trust on the property and also a certificate of title showing that the title to the property was in the name of Mosby and her husband jointly. Equity will correct a mistake whenever it is necessary to do so in the interests of justice. Hearne v. Marine Ins. Co., 20 Wall. 488; 1 Cooley’s Briefs on Insurance, 855; Clem v. German Ins. Co., 29 Mo. App. 673; Balen v. Fire Ins. Co., 67 Mich. 179; Leitensdorfer v. Delphy, 151 Mo. 160; Smith v. Canning Co., 14 Mo. App. 522; Williamson v. Brown, 195 Mo. 313 ; Meek v. Hurst, 223 Mo. 688; Mfg. Co. v. Car Co., 21Ó Mo. 715. (5) There is nothing in this case to show that the plaintiffs are guilty of any laches. Bucher v. Hohl, 199 Mo. 330; Meriwether v. Overly, 228 Mo. 242; Spurlock v. Sproule, 72 Mo. 511. (6) There was no change of title which, would violate the conditions of the policy. Terry v. Glover, 235 Mo. 544; Wimpey V. Ledford, 177 S. W. 302; TJlbrigh v. Stevenson, 237 Mo. 233; 2 Cooley’s Briefs, 1742; Whitney v. American Ins. Co., 127 Cal. 464; Schaeffer v. Fire Ins. Co., 113 Iowa,'652; Hogadone v. Fire Ins. Co., 133 Mich. 339; Humphrey v. Fire Ins. Co., 12 Fed. Cas. 883; Dean v. Equitable Fire Ins. Co., 7 Fed. Cas. 301; Brown v. Manufacturers’ Ins. Co., 156 Mass. 587; Baldwin v. Phoenix Ins. Co., 60 N. H. 164; Home Fire Ins. Co, v. Collins, 61 Neb. 198; Walton v. Phoenix Ins. Co., 162 Mo. App. 316.
   BLAIR, J.

This is an appeal from a judgment of the St. Louis County Circuit Court (1) reforming two policies of fire insurance, and (2) canceling a deed of trust, and notes secured thereby, which had been executed by respondents.

Respondents are husband and wife, and in 1910 took title to a lot in Webster Groves as tenants by the entire-ties. In May* 1913, they executed a deed of trust upon this lot to secure a note for $2,300, payable to Henry Wood. Respondents secured from each of these appellants a policy of fire insurance for $1,500, each of which policies by its terms insured Margaret Mosby, alone, against loss by fire on the dwelling house on the lot in question. Each policy contained a clause making it payable to the mortgagee as his interest might appear. A part of the “standard mortgage clause” will be particularly referred to later in this opinion. The dwelling' burned in February, 1915. Thereafter respondents brought this suit to reform the policies so that they would stipulate to insure both respondents as owners of the burned building and for judgment on the policies as reformed. Payment of the policies had also been refused by appellants, in so far as respondents were concerned, because of a claim that respondents had, without notice to appellants, conveyed the title to the property to third parties before the loss occurred. This, if true, was in violation of the policy contract and invalidated it as to the insured. Appellants paid "Wood the amount of his notes and took an assignment of them.

The two questions of fact tried were (1) whether the issuance of the policies to Margaret Mosby as sole owner was the result of a mistake justifying reformation, and (2) whether a deed to Henry E. and Amy V. Thielecke, admittedly bearing the signatures of respondents, had actually been executed and delivered, as a conveyance, by respondents. The principal question of law briefed concerns the effect of the mortgage clause to which reference has been made. Appellants contend the evidence did not show a mistake entitling respondents to reformation of the policies; that the policy was void -as to respondents under its provisions (1) because Margaret Mosby, the insured named, was not the sole owner, and (2) was rendered void as to respondents because of the deed to the Thieleckes; and that since it was void as to réspondents, they, appellants, are entitled to be subrogated to the rights of Wood under his mortgage, the debt secured by which mortgage appellants have paid.

I. Each policy contained the usual provision that: “This entire policy unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . . if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change- of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

Respondents do not question the invalidating effect of this provision (Trabue v. Ins. Co., 121 Mo. l. c. 80, 81; Dreher & Bumb v. Ins. Co., 18 Mo. l. c. 134, 135) in case it was violated, but contend that the Thielecke deed was never delivered, was therefore a nullity, and, consequently, did not constitute a violation of the quoted stipulation. [Terry v. Glover, 235 Mo. l. c. 550.] The deed whose invalidity is thus asserted was put of record in September, 1914, by Henry E. Thielecke. It was dated January 12, 1914, and appears to have been acknowledged January 27, 1914. Tht grantees therein were Henry E. Thielecke and Amy v. Thielecke, husband and wife. Mrs. Thielecke is the sister of respondent Margaret. Respondents say they neither acknowledged nor delivered the deed. They assert that the first time they heard of the Thielecke deed was some sixty days or more after the dwelling was burned. They testify that in August, 1913, they entered into an agreement with the Thieleckes whereby the latter were to move into the property and occupy it as a dwelling, assume the $2,300 mortgage, pay the taxes, keep up the repairs and get the title when they paid respondents the sum of $700; that a note for $700, payable to respondents and signed by the Thieleckes, was delivered to respondents about August 23, 1913, as a part of this transaction. Respondents still have this note. They admitted the signatures to the Thielecke deed are their genuine signatures, and, in effect, admitted that the signature of the notary whose name is appended to the acknowledgment is genuine. Their further testimony, in substance, is that in December, 1913, they contemplated a trip to California; that at this season it was a dangerous trip; that they had heard of accidents; that they concluded that if anything happened to them on the trip they wished the Thieleckes to have the property “without further trouble.” Having reached this conclusion they say they procured a warranty deed blank, signed it in this blank condition and then turned it over to the mother of respondent Margaret for safekeeping; that this was done in view of the dangers of the approaching California trip. They say they did not take the journey to California and never authorized the filling out or delivery of the deed.

Henry E. Thielecke testified that respondents sold him the property for $3,000; that he was to assume the $2,300 mortgage and pay an additional $700: that he and his wife executed and delivered the $700 note now in respondents’ hands, to cover the latter sum. (Respondents offer evidence that the $700 note was given in August, 1913, to constitute security that the 'Thieleckes would pay the taxes) The Thieleckes moved into the property and lived there for some time; they paid the taxes. They executed a second mortgage for $300 out of which they paid off some $200 hack taxes, running back to the acquisition of title by respondents in 1910, or earlier. As collateral for this second mortgage the Thieleckes took out an insurance policy for $300, which was paid after the fire and the proceeds used to pay off the second mortgage. Thielecke testified that the Mosby deed was delivered to him; that he neglected to record it for some months; that Mosby discovered this and urged him to record it at once, which he did. Thielecke got the impression that Mosby feared accruing taxes might be charged to him unless the deed was re-, corded. Mrs. Thielecke corroborated her husband as to the contract of purchase, and testified they had the deed at their home after they moved there; that her sister, respondent Margaret, “talked” her (the witness) “into inducing” her husband to buy the home and said it would be easy and “if the doctor’s” (respondent Charles’s) “business went well,” the $700 note would never have to be paid. Appellants’ counsel attempted to prove by Thielecke the reason for deeding the property back to the Mosbys. Respondents’ counsel objected, and the question was withdrawn.

Miss Pfeifer, the notary, testified she took the acknowledgment of both respondents to the Thielecke deed. She had know both for some years and had taken previous acknowledgments for them. Her office was in the same building with that of respondent Charles V. She produced a memorandum book in which she testitied she listed the names of persons whose acknowledgments or affidavits she took. A photographic copy of a page of this is in the record. It shows the names of respondents entered on the same date on which the ackowledgments purport to have been taken. These names are preceded and followed by the names of other persons, listed' under dates running in regular order. Miss Pfeifer testified she sometimes certified to names or signatures for minor matters, like applications for automobile licenses or for copy rights, but in no case certified to an acknowledgment to a deed of any kind unless the grantor personally appeared.

Mrs. Cavanaugh, the mother of respondent Margaret, in whose care respondent said they left the alleged blank deed they testified they signed, was shown to live, at the time of trial, at Cuba, Missouri. Respondents neither subpoenaed her nor offered her deposition, nor explained their failure to secure her testimony. There are discrepancies in the evidence on both sides of a minor character, but the above is the substance of the competent evidence on this question.

It seems to us to need no argument to show that respondents have not produced the requisite weight of evidence to show want of delivery of the Thielecke deed. Their own testimony is not convincing. Their interest is to be considered. The notary and Thielecke and his wife have no interest in this controversy. Their testimony has nothing on its face to discredit it. The testimony set out above seems to show clearly that respondents did not sustain their attack upon the Thielecke deed by evidence sufficiently “clear, cogent and convincing” to satisfy the applicable rule (Fifer v. McCarty, 243 Mo. l. c. 47), and we are of the opinion that this deed must, on the evidence, be held to constitute a transfer of title which invalidated the policy in so far as respondents are concerned. This conclusion renders it unnecessary to discuss the question whether the trial court was justified in reforming the policies so as to insert the names of both the respondents as the insured.

II. Appellants paid the Wood mortgage. This was the mortgage referred to in the policies-. The mortgage clause in each policy reads as follows:

“Mortgage Clause With Full Contribution.
“Loss or damage, if any, under this policy, shall now be payable to H. W. Kroeger, as a trustee mortgagee (or trustee) as interest may appear, and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy: Provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee or trustee shall, on demand, pay the same.”

Other provisions which need not be set out follow, and the mortgage clause concludes as follows:

“Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, .be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may, at its option, pay to the mortgagee (or trustee) the- whole principal due or to grow due on the mortgage with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of his claim.”

Neither postive law nor considerations of public policy prevent the making or enforcement of a contract provision of this sort. We see no reason why the parties are not free to enter into such an agreement if they see fit. The authorities, in cases -in which the facts are such, as those in the case at bar, are quite one way. They uphold and enforce, the agreement. [Allen v. Ins. Co., 132 Mass. l. c. 482, 483; Sterling F. Ins. Co. v. Beffrey, 48 Minn. l. c. 12; Ins. Co. v. Martin, 151 Ind. l. c. 220, et seq.; Hare v. Headley, 54 N. J. Eq. l. c. 556, et seq.; Badger v. Platts, 68 N. H. l. c. 224, 225; Ulster Co. Savings Inst. v. Leake, 73 N. Y. l. c. 165, 166; Alamo F. Ins. Co v. Davis, 25 Tex. Civ. App. l. c. 343; Gillespie v. Ins. Co., 61 W. Va. l. c. 175, et seq.; 14 R. C. L. sec. 569; 19 Cyc. pp. 895, 896; 4 Cooley, Briefs on Laws of Insurance, pp. 3916, 3917.] The cases are collected in notes to Milwaukee Mechanics’ Ins. Co. v. Ramsey (76 Oregon, 570) in L. R. A. 1916A, 556 et seq., and in Ann. Cases 1917B, l. c. p. 1140, et seq.

The decision in Loewenstein v. Ins. Co., 227 Mo. 100, will be found to be based upon a distinction which was thought by the court to exclude cases like that at bar from the influence of that decision. No valid objection to the enforcement of the quoted stipulation is advanced.

The judgment is reversed with directions to the trial court to enter judgment in accordance with the prayer of appellants’ cross-bill.

All concur.