text:
    FRED WIESE v. JOHN THIEN et al., Appellants.
    Division One,
    September 27, 1919.
    1. PRIVATE ROAD: Easement at Common Law. The doctrine of private ways existed at common law, and was usually founded on a presumption of grant or reservation; as where one sold a close surrounded by his own estate he was presumed to grant the easement of access, or if he sold his surrounding estate and reserved the close a reservation of the same easement would be presumed. And it was this doctrine of presumed easement which the State recognized and perhaps enlarged in Section 20 of Article 2 of its Constitution.
    2. -: Pleading: Accessible. The statute (Sec. 10447, R. S. 1909), prescribing the manner in which an easement of access by a private 'road may be acquired, prescribes no formula of words in which the petitioh must set forth that the petitioner is the owner of the tract of land for which the easement is desired and that no public road passes through it or touches it. Any words that expressed these facts in plain and unmistakable terms are sufficient; and if it uses such words, the petition is not defective or insufficient for that it does not employ the work “accessible” used in the statute.

      3. -: Character of Easement and Lands. The right to an easement of access to private lands is not personal, but pertains to the land to which it becomes appurtenant; and the right does not depend upon the extent of the tract, nor the number of acres owx-ed by petitioner, nor upon the lines of Government subdivisions, but it may be invoked where the petitioner owns lands on both sidüs of an impassable stream, and for the benefit of that part of the tract which lies on the opposite side of the stream from a public road which touches the part on that side at one corner.
    4. -: High Bluffs: Prohibitive Expense. The fact that the part of petitioner’s tract on the side of an impassible stream, which part is touched at one corner by a public road, consists of high bluffs and craigs, and that the expense of constructing a road on • ■ that side would be prohibitive, is a strong reason for creating a private way of access to the part of the tract on the opposite side.
    6. -: Pleading: Showing Present Access. And the mere fact that the petitioner in his petition has described that part of his tract on the side of the impassable stream, which at one corner is touched by a public road, does not preclude him from presenting his claim to a private way to .the part of the tract on the opposite side.
    Appeal from Gasconade Circuit Court. — Hon. R. A. Breuer, Judge.
    Appirmeu.

      W. S. Pope and Robert Walker for appellants.
    (1) Neither the petition nor the. evidence shows that petitioner is the owner of a tract of land not passed through or touched by a public road. Under the admitted facts, petitioner is not entitled to the private road petitioned for. Sec. 10447, R. S. 1909; Chandler v. Reading, 129 Mo. App. 63. (2) Under the admitted facts, the private road petitioned for is not a way of strict necessity. Colville v. Judy, 73 Mo. 651; Cox v. Tipton, 18 Mo. App. 450; Barr v. Flynn, 20 Mo. App. 383; Coberly v. Butler, 63 Mo. App. 556. (3) The facts in the case do not come within the purview of the provisions of Sec.. 10459, R. S. 1909.

      J. W. Hensley and Clarence G. Baxter for respondent.
    (1) The petition in this case states a cause of action: (a) Under the common law as applicable in this State. Tiedeman on Real Property (2 Ed.), sec. 609; (b) Under Sec. 20, Art. 2, Mo. Constitution; (c) Under Sec. 16, p. 658, Laws 1913; (d) Under Sec. 28, p. 661, Laws 1913. (2) Private property may be taken for private use for private ways of necessity. Sec. 20, Art. 2, Mo. Constitution. This section of .the Constitution is self-enforcing. Householders v. Kansas City, 83 Mo. 488; Hickman v. City of Kansas, 120 Mo. 110; McG-rew v. Railroad, 230 Mo. 548. (3) The Constitution of Missouri must be construed according- to its obvious meaning. Hamilton v. St. Louis County Court, 15 Mo. 3. (4) Technical terms such as “ways of necessity” should be read and construed along with and in the light of the common law. Lowe v. Summers, 69 Mo. App. 637. (5) The Constitution of Missouri seems more liberal in the matter of granting-private ways of necessity than the common law, because the common law required that ways be of “strict necessity.” Belk v. Hamilton, 130 Mo. 299; Tiedeman on Real Property (2 Ed.), sec. 609. (6) Courts are not bound by legislative construction of the Constitution, neither did the Legislature intend to limit the constitutional right to private way of necessity by the enactment of Sec. 16, p. 658, and Sec. 28, p. 661, Laws 1913, or either of them, for the reason that these statutes seem to be declaratory of two instances of ways of necessity, defining same, and do not preclude the idea that there may be other instánces of what might be in fact a way of necessity. Householders v. City of Kansas, 83 Mo. 488. (7) Excessive expense in procuring another way would make the way petitioned for in this case a' way of strict necessity. Tiedeman on Real Property (2 Ed.), sec. 609. (8) The statute under whch the petition is drawn (Sec. 16, p. 658, Laws 1913), in its use of the words “public road,” contemplates an accessible public road. Where there is no accessible public road passing through or touching petitioner’s land where he lives and farms, then within the meaning of the law, there is no public road. A road that cannot be used by petitioner is, so far as he is concerned, no road.
   BROWN, C.

This is a proceeding to open and establish a private road over the. lands of appellants, connecting the lands owned and occupied by the respondent with a public road running some distance to the west of it. It was begun in the County Court of Gasconade County, in which county the petitioner resides and all the lands involved are situated. The road' was laid out and established in due course by -the county and damages regularly accessed. An appeal was taken from that court to the Gasconade Circuit Court where the matter was retried, and the court made its findings as required, which are fully sustained by the evidence. The findings and judgment of the circuit court were made and entered at the January term, 1916, and are as follows:

“Now on this day the above cause coming on to he heard, and the plaintiff, Fred Wiese, appearing in person and being represented by counsel, and the defendants, John Thein and Vineenit Skornia, both appearing to this suit in person and being represented by counsel, and the matters in issue being taken up and considered by the court, and the court, after seeing and hearing the evidence adduced by the plaintiff and the defendants and each of them, finds for plaintiff, Fred Wiese; finds that the said Fred Wiese is an inhabitant of Gasconade County, in the State of Missouri; that he is the owner of the south half of the northeast-quarter of Section 21, Township 41 North, Range 4 West, in Gasconade County, Missouri, upon which he resides with his family; that the Bourbois Rivet-crosses the east end of his said lands in a general north to south direction, about 200 'yards west of and nearly parallel to the east boundary line of plaintiff’s said lands, and that plaintill’s residence, barn and all his buildings and all his tillable lands lie on the west side of said river, and that all that part of his lands lying on the east side of said river consists of and is a very high, rough and rugged bluff, rising steep and rocky from the water’s edge, the lower part of which consists of ledges of wall rock, the other and top part of which is rough and uneven, and mostly covered with huge boulder rocks; that the east end of plaintiff’s land abuts on the Franklin County line, and that no public road passes through or touches plaintiff’s said lands, except on top of said bluff at the southeast corner of his said lands for a distance of sixty-nine feet; that it would be impracticable to build and construct a roadway from plaintiff’s tillable lands and residence on the west side of said river, to the east and across said river over' any part of said bluff to said public highway, at the southeast corner of pláintiff’s said lands; and if such could be done, it would require an excessive expenditure of approximately four thousand dollars of money, and would be confiscatory of plaintiff’s said lands, and further should this be done the ford of the river would be impracticable, because during a large portion of the seasons it would not be fordable on this part of the river, and such roadway from any point along this part of said river over any part of said bluff to the public road at the southeast corner of plaintiff’s lands would necessarily be steep, and that after reaching the public road at this point, plaintiff could only travel in one direction, and then going nearly in an opposite direction from school, post office and trading point, as this public road starts at this point and runs in a southwest direction a distance of one and one-half mile to and across the river, thence west to and connecting Avith a south-to-north public road, which runs about one mile west of plaintiff’s said lands, over the Bourbois bridge, through the tirwn of Tea to Owensville and Rosebud, plaintiff’s trading points on the Chicago, Rock Island & Pacific Railroad, and that this road crosses the said river at Tea post office about two miles northwest of plaintiff’s farm, over the bridge over said river; and that should plaintiff be forced to the last described route, he would in addition to incurring the excessive expenses aforesaid be required to cross said river twice, at impracticable fords not bridged, and be made to go a distance of three and one-half miles to public school, four and three-quarter miles to store and post office and about fifteen miles to trading stations on railroad, making- the distance to said points at least three miles further than by the route asked for in plaintiff’s petition; that plaintiff’s lands lie within twenty miles of the Chicago, Rock Island & Pacific Railroad, o railroad running from east to west across said country, *’ rou^h Owrnsville and Rosebud, trading points about deven miles north of plaintiff’s farm; that there is no public road passing through or touching plaintiff’s said lands except as aforesaid, which said way would be entirely impracticable, and that plaintiff has no other road or outlet from his said premises except over the lands of others; that the way herein petitioned for would be practicable, providing for plaintiff a way to school of less than one mile distance, and to railroad ten or eleven miles distance, and to store and post office two miles distance, and by giving the way petitioned for he would not have to cross said river in going to school, and in going to postoffice and railroad he could cross same by way of a bridge built by the taxpayers of said county for the convenience of all the people .of the community where the parties to this suit live; the court further finds that the way and road herein prayed for is practicable, and a way of necessity within the meaning of the Constitution and laws of this State; that at a former trial of this, matter in the county court in which all the parties to this suit appeared in person and by counsel, damages were awarded to John Thien as follows: No damages; and that damages five dollars by the jury trials, and that in the trial of were awarded to Vincent Skornia in the sum of seventy-this ease in this court it was agreed by all the parties to this suit that the damages awarded to the defendants in the county court were fair and reasonable, and that the same should be taken and adopted as the damages to be found and awarded in this trial in the event the issue should be found for the plaintiff.

“It is therefore ordered and adjudged by this court that the said private road be established according to the prayer of the petition and plat of same, to-wit:”

Here follows the description of the center line of the road twenty feet in width as located by the commissioners. The remainder of the judgment relates to the payment of damages and costs.

The petition is in two counts. The -first asserts that the petitioner is an inhabitant of Gasconade County; that he owns the south half of the northeast quarter of Section 21 and all that part of the northeast quarter of the southeast quarter of Section 21 lying west of the Bourbois River, in Township 41 north, of Range 4 west, in said county; “that he has no road from said lands and premises except through gateways and over the lands of others.” The second count states “that no accessible public road-passes through or touches said land.” Each count sets out in detail the necessity and use for a private road leading west from the premises described.

I. It will be seen from the foregoing statement that the only issue between these parties is a naked right of the petitioner under the Constitution and laws of this State to have access to the farm on which he resides through and over the. lands of the defendants. There is no' question of damages. These were ad’mitted to be just and reasonable, and include all those elements which the law recognizes as subjects of pecuniary compensation. Whether the vigorous defense proceeds from a desire for a holiday in court or from a patriotic impulse to vindicate the law can make no difference. The question involved is important, as well as interesting, and is here for our consideration.

The framers of our Constitution were not inventors of the doctrine of private ways of necessity. They existed by the common law, and were usually said to be founded upon a presumption of grant or reservati°n; as where one sold a close surrounded by his own estate he was presumed to -grant the easement of access, or if he sold his surrounding-estate and reserved the close a reservation would be presumed of the same easement. In Snyder v. Wavford & Thomas, 11' Mo. 328, the same doctrine was said to apply to the United States as an original proprietor in the disposition of the public lands. Judge Napton speaking for the court said: “The United States being- the proprietor of a section of land, entirely surrounded by eight other sections, sells the section so surrounded; the purchaser acquires, by the common law, a right of way to the land he has bought, as a necessary incident of the grant. The case is not altered by the United States selling the surrounding land to, different individuals. The purchasers take it subject to the burden imposed on it whilst it belonged to the Grovemment, the original proprietor.” The State did not exceed its jurisdiction over private property within its limits by recognizing and perhaps enlarging, the application of this principle in Section 20 of Article 2 of the State Constitution, by excepting private ways of necessity from its guaranty of inviolability and expressly vesting in the Legislature the power to prescribe the manner in which such easements might be acquired. It was in pursuance of the authority so conferred that Section 10447, Revised Statutes 1,909, by which this proceeding must be judged, was enacted. It prescribes no formula of words in which the petition must be set forth that the petitioner is the owner of thé tract of land for which the easement is desired, and that no public road passes through it or touches it.

wor(^s express these facts in plain unmistakable terms are sufficient. This petition for instance states “that no accessible public road passes through or touches said land.” The word “accessible” is relied on by appellants as rendering this petition insufficient and the judgment rendered upon it null and void. The argument implies that there could be such a state of facts that a public road might touch the land and still be absolutely inaccessible to it. This involves a distinction altogether too shadowy for application by a court. To relieve the law from the charge of absurdity we must assume that the Legislature intended such a contact with the premises involved as would give access to the premises and thus avoid the necessity upon which the legislative right is founded. The petition is good and needs only to be sustained by the facts.

II. As we have already seen the right conferred by this statute is not a personal one, but pertains to the land to which it becomes appurtenant. It is the situation of the land that calls for its application, and the owner for the time being is the instrument by which the proceeding is instituted. The statute requires that he be the owner of a tract or lot of land and that no public road passes through or touches it, and it is to this tract alone that .the right appertains. That the same proprietor has other lands- in the same or adjoining counties does not impair his statutory remedy. The lines of Government subdivision have no application, even though they may be used in his title deeds to describe the extent of his holding. For instance; it is a matter of common knowledge that the Government, in surveying the public lands, frequently meanders a stream, so that no subdivision line is permitted to cross it; while in other cases, as appears to have been done in this, the subdivision lines cross the stream so that its bed is included in the description of sectional subdivisions. The method adopted makes no difference in the rights of riparian proprietors in the bed of the stream, although these rights may perhaps be affected by the nature of the stream itself. But so far as the statute now under consideration is concerned, the fact that the proprietor who invokes its remedy with respect to lands bordering upon an impassible stream may also have lands on the other side cannot affect his right of access to either tract. The effect would be the same, in all respects, as if his holdings were separated by the lands of other proprietors.

In this case the farm of the petitioner is situated on the west bank of the Bourbois River at a point where the stream is unfordable throughout a considerable portion of each year. One of its Government subdivisions extends across the river a distance of about two hundred yards. The east bank of the river is formed by a palisade of perpendicular rock surmounted by boulders which cover practically the entire strip. On this bluff runs a road which touches the east line of the strip for a distance of sixty-nine feet, and then •passes southwesterly away from it. The court has found that to construct a road from its farm to the road on the top of the bluff, so that it could be used only during that portion of the year when the stream was fordable would cost approximately four thousand dollars, which would be conficatory of his land, which means as far as it means anything that the cost would amount to as much or more than the value of his farm. It is perhaps unnecessary to take into consideration the fact that by passing this ford and climbing the bluff his children attain a school house less than a mile from his residence by going three and one-half miles and recrossing the river at another ford during that portion of the year when -the stream is fordable. The same disparity of .conditions exists in reaching available trading and shipping ■ points. These facts force the conclusion that for the purpose to which the provisions of Section 10447 apply, the tract owned by petitioner on the east side of the river is, within the meaning of this section, as much a separate tract of land as if it were situated on the other side of a meandered navigable river or miles away across the level prairie. The prohibitive expense of connecting these tracts for purposes of access to the farm on the west side of the river might of itself produce that result. [Tiedeman on Real Property (2 Ed.), sec. 609 and cases cited.] Yet in this case we have the added reason that the access so obtained would be entirely inadequate to the purpose which the law is designed to serve. That purpose is such communication with the vicinage as makes the estate inhabitable under conditions indispensable to its appropriate occupation and use.

III. The only remaining question is whether the mere fact that the respondent in his petition has described his holding as including the bluff on the east side of the river precludes him from presenting the case in the aspect we have considered. We do not think so. The disclosure of the real situation in his petition has no other or greater effect than does the disclosure of the same facts in evidence. He simply presented his entire ease to the county court and called for the determination of his right, and the law will not punish him for that commendable course. We think that upon the whole case as presented in the petition and upon the trial he is entitled to the relief granted him in the circuit court and its judgment is therefore affirmed.

Ragland and Small, GG., concur.

PER CURIAM:

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

All of the judges concur; Bond, J., in .result.


source: Caselaw Access Project

author: RAGLAND, C. PER CURIAM:

license: Public Domain

text:
    THE STATE at The Relation and To The Use of ELBERTA PEACH & LAND COMPANY, Appellant, v. CHICAGO BONDING & SURETY COMPANY, Appellant.
    Division One,
    October 10, 1919.
    1. RECEIVER: Suit for Funds Converted by Predecessor: Proper Relator. A receiver appointed under Sec. 2018, R. S. 1909, cannot maintain a suit in his own name against the sureties on the bond of his predecessor; but where the order appointing the original receiver directs him to take possession of the property and with leave of court to bring such suits as shall be necessary to recover the assets, and the same power is given to the successor receiver, with nothing in the record showing an attempt to vest the legal title in either receiver, the suit to recover from the surety on the first receiver’s bond for moneys converted or misappropriated, should be brought, not in the name of the successor receiver, but in the name of the' company for whom the receiver was appointed.
    2. BOND:' Liability for Funds Converted by Receiver: Deposit in Bank. A bonding company cannot discharge its obligation as surety by pointing out some other person who is also legally liable for a loss. So where a receiver was appointed for an industrial company and authorized to take possession of its assets, including money on deposit to its credit, .and defendant as surety executed its bond, obligating itself that the receiver would faithfully and truly account for all moneys, assets and other property that should come into his hands, and thereafter the receiver caused to be transferred on the bank’s books to his credit as receiver a deposit previously made to the credit of the industrial company, and thereafter by checks signed by himself as receiver and payable to himself drew out the deposit and converted it to his own use, the bonding company is liable to the company for the amount so misappropriated, and cannot escape payment on the theory that the bank had actual knowledge that the deposit was a trust fund and that the company was the real owner thereof. The legal title of the fund was in the company, but the right to possession after its redeposit was in the receiver, and the bank was bound to pay his checks when in proper form, and therefore the surety must account for the money misappropriated; and although the industrial company, upon a showing that the bank knew that the receiver was converting the fund to his own use and with such knowledge aided him in so doing by honoring his checks, might in a proper proceeding recover from tho hank, still the surety must respond upon its guaranty that the receiver would faithfully account for the money and other assets reduced to his possession.
    3. BILL OF EXCEPTIONS: Withdrawn and Another Allowed. Tho allowance of a bill of exceptions by the court in term time, like any other act or proceeding, is in fieri during the term and can be modified or set aside. So that where a bill of exceptions was allowed and filed on the 17th and then by leave and order of court withdrawn, another approved and ordered filed in open court and actually filed on the 18th and made a part of the record was regular.
    4. VEXATIOUS DELAY: Damages and Attorney’s Fees: Suit on Guaranty Bond. It is true that Section 7068, Revised Statutes 1909, authorizing the recovery of damages and an attorney’s fee for vexatious refusal to pay applies only to actions against (1) an insurance company for loss on (2) a policy of insurance; but it embraces policies of “fidelity, indemnity ... or other insurance,” and those words are broad enough to include a company licensed to do “fidelity and surety insurance” for a consideration, and in an action on the judicial bond of such a company by which, for a consideration or premium paid, it guarantees that a receiver appointed hy the court will faithfully and truly account for all moneys, assets and other property that may come into his hands, it is proper for the court or jury to allow damages and a reasonable attorney’s fee for its vexatious refusal to pay the principal sum converted by the receiver to his own use.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Reversed and remanded (with directions) as to plaintiff.
    Affirmed as to defendant.

      Luther Ely Smith for plaintiff.
    1. Defendant is an insurance company engaged in writing insurance contracts. 2 Bouvier’s Law Dictionary (3 Ed.), p. 1613; Laws 1885, p. 41; Sec. 6013, R. S. 1879; Sec. 7042, R. S. 1909; 2 R. S. 1879, secs. 5987-6010. (a) Defendant was organized as an insuranee company under the laws of Illinois. The act under which it is formed subjects it to the constant supervision of the Insurance Commissioner of Illinois. No agent of defendant may write a single policy for defendant without incurring a penalty, unless he has gained authority to act from the Superintendent of Insurance of Illinois. Laws Illinois 1899, pp. 260-265; 2 111. Ann. Stat., secs. 2544-2558, pp; 1610-1614. (b) Defendant is admitted to do business in Missouri as an insurance company. It may do “fidelity and surety insurance” in Missouri and nothing else, (c) Defendant’s agent for service of process in Missouri is the Insurance Commission of Missouri, 111. Laws 1899, p. 263, sec. 10; 2 111. Ann. Stat., p. 1613, sec. 2552; 2 Bouvier’s Law Diet. (3 Ed.) p. 1614; Sec. 7068, R. S. 1909. (d) Defendant, as a condition of its admission to do business in Missouri, comes in subject to all the insurance provisions of the State affecting companies other than life. (2) The use of the term “bond” instead of the term “policy” is not conclusive. The law looks to the substance, not to the form. Laws 1911, p. 274; Secs. 6997, 7100, 7099, 7068, R. S. 1909; Frost on Guaranty Insurance (2 Ed.), pp. 18, 64 and 621-694; Industrial & General Trust Co. v. Tod, 67 N. Y. Supp. 363; People v. Rose, 174 111. 310; People v. Feitner, 166 N. Y. 129; Nye Schneider Fowler Co. v. Bridge Hoye Co., 98 Nebr. 863, 155 N. W. 235; People v. Potts, 264 111. 522; U. S. Fid. & Guar. Co. v. Natl. Bk., 233 111. 475; Ilormel & Co. v. American Bonding Co., 112 Minn. 288, 33 L. R. A. (N. S.) 513; State v. Hogan, 8 N. D. 301,' 73 Am. St. 759; American Surety Co. v. Folk, 124 Tenn. 139, 25 Am. & Eng. Ann. (1912D) 102*4; First Natl. Bk. v. Fidelity Co., 110 Tenn. 10, 100 Am. St. 765; Roaph v. Trust Co., 130 Mo. App. 401 { State ex rel. v. Ogden, 172 S. W. 1172. (3) The contract in suit is a contract or policy of insurance within the meaning of the statute. Sec. 7068, R. S. 1909; U. S. Fid. Co. v. Natl. Bk., 233 111. 475; Amer. Bonding Co. v. Morrow, 80 Ark. 49; Remington v. Fidelity Co., 27 Wash. 429; Granite Bldg. Co. v. Saville, 101 Va. 217; Ice Mfg. Co. & C. Co. v. American Bonding & Trust Co., 115 Ky. 863; Willoughby v. Fidelity Co., 16 Okla. 546; Guarantee Co. v. Mechanics Savgs. & Trust Co., 80 Fed. 766; American Credit Indemnity Co. v. Athens Woolen Mills, 92 Fed. 581; American Trust Co. v. Burke, 36 Colo. 49; Frost on Guaranty Insurance (2 Ed.), sec. 243, p. 622. (4) Defendant is estopped to deny its liability to pay the penalties it has deliberately incurred. Sec. 7068, R. S. 1909; Fidelity Mut. Life Assn. v. Mettler, 185 U. S. 308, 326. (5) Vexatious refusal to pay was amply shown. Defendant, without the shadow of excuse, refused to pay one penny upon a $20,000 fidelity policy covering defalcation and embezzlement, when defalcations and embezzlement to the extent of $8036.87 was promptly shown to defendant. On the contrary, defendant relies for its defense upon the fact that the defalcations occurred through checks drawn on a bank that, as defendant contends, ought to have known that the Receiver was in the act of embezzlement when he drew and presented the checks. To describe such conduct on defendant’s part as “vexatious refusal to pay” might well be termed flattery. It is the hyperbole of euphemism. R. S. 1909, sec. 7068; Cascarella v. Life Ins. Co., 175 Mo. App. 130; Brown v. Ry. Assurance Co., 45 Mo. 221; Williams v. Ins. Co., 189 Mo. 70 ; Keller v. Ins. Co., 198 Mo. 440; Fay v. Ins. Co., 268 Mo. 373; Barber v. Ins. Co., 269 Mo. 21; Stix v. Indemnity Co., 175 Mo. App. 180. (6) Ten per cent statutory penalty and attorney’s fees should be added to the judgment for vexatious refusa.' to pay. R. S. 1909, sec. 7068; Laws 1911, p. 282; Cascarilla v. Life Ins. Co., 175 Mo. App. 130. (7) Defendant’s obligation was direct and primary. It was not discharged, and could not be discharged, except upon the principal’s “truly accounting for all moneys, assets, property and effects which should come into his hands and possession, and should in all respects faithfully perform all the official duties of said receivership.” If Haydel did those things, then “this obligation shall be void, otherwise it shall remain in full force and effect.” Haydel did not do those things; he did not account for all moneys that came into his hands or possession. On the contrary he appropriated to his own use the sum of $8936.87. Alderson on Receivers, sec. 165; Baltimore Assn. v. Alderson, 99 Fed. 489; Black on Receivers (2 Ed.), sec. 200; Heralson v. Mason, 53 Mo. 211; Lyon v. H. S. Co., 48 Mont. 591; Weems v. Lathrop, 42 Tex. 207; Westerfelt v. Mohrenstecker, 76 Fed. 118; Baylies on Sureties (1881), p. 3; Ice Mfg. Co. v. American Bonding Co., 115 Ky. 863; Otis Elevator Co. v. First Nat. Bank, 124 Pac. 704; Pingrey on Suretyship (2 Ed.), sec. 4; Stearns on Suretyship (2 Ed.), sec. 6; Kerr on Receivers (1872), p. 254; Yan Slyke v. Bush, 123 N. Y. 47; Rankin v. Tygard, 198 Fed. 795; Commonwealth v. Gould, 118 Mass. 300; White v. Smith, 33 Pa. St. 186; Phillips v. Ross, 36 Ohio St. 458; High on Receivers (4 Ed.), sec. 130; American Surety Co. v. Lawrenceville Cement Co., 96 Fed. 25; Aultman & Taylor v. Smith, 52 Mo. App. 351; Frost on Guaranty Insurance (2 Ed.), secs 281, 283. (b) Even if defendant’s position were sound, that the bank was put upon notice, it is no compliance with the terms of the bond to show that we could recover our money by suing the bank. We are not obliged to exhaust our remedies before proceeding against the surety. Heralson v. Mason, 53 Mo. 211, and authorities, supra. (8) Defendant is entitled to subrogation to any rights that the obligee and beneficiaries in the bond might have against the bank. If defendant’s position is sound, it has furnished additional reasons why it, as surety, should have made prompt payment, for it has, according to its own showing, a complete case against the bank in subrogation to the rights of the obligee and beneficiaries under the bond. Clark v. First Nat. Bank, 57 Mo. App. 277; Berthold v. Sarpy, 46 Mo. 557; Furnold v. Bank, 44 Mo. 336; Fidelity Co. v. Jordan, 134 N. C. 236; National Surety Co. v. State Sav. Bank, 156 Fed. 21; American Bonding Co v. Mechanics Bank, 97 Md. 598; Saussenthaler v. Surety Co., 197 Mo. App. 112. (9) When the receiver, drew out money from the bank he did not draw out the bank’s money, but money to which he had a legal right as trustee. Natl. Bk. v. Ins. Co., 104 U. S. 54. (10) The suit is properly brought in the name of the State at the relation and to the use of the corporation in receivership. State ex rel. Fichtenkamm v. Gambs, 68 Mo. 289. But if even defendant’s contention as to the proper relator were in point of fact meritorious, it was not properly raised. It could not properly be raised by objection to the introduction of evidence. It should have been raised directly by plea or answer Having failed to do so, the objection is waived. No motion in arrest of judgment was filed. In any event, the proper plaintiff is the obligee of the bond, namely, the State of Missouri, and it is in the name of this plaintiff that the suit is filed. Furthermore, even though the court should find that the successor receiver should have been named as relator, the defect is one susceptible of amendment in this court before final judgment in this court. R. S. 1909, sec. 2120; Scott-Force Hat Co. v. Houts, 127-Mo. 392; Mechanics Bank to use. v. Gilpin, 105 Mo. 17; Hunter.v. Kansas City Sav. Bank 158 Mo. 262; Weil v. Simmons, 66 Mo. 617; Cruchon v. Brown, 57 Mo. 38.

      Holland, Rutledge & Lashly for defendant.
    (1) Where a trustee has a bank account in his name as such trustee and executes and presents checks payable to himself, such checks are void; and if the bank pays same it does not by so doing iu any way lessen the indebtedness of the bank to the cestui que trust. Miller & Co. v. Hobdy, 159 S. W. (Tex.), 96; Duncan v. Jaudon (U. S. Sup. Ct.), 21 L. Ed. 142; Mechanics Mfg. Nat. Bank v. Furniture Co., 70 L. R. A. 311; Lee v. Smith, 84 Mo. 304; Bank v. Edwards, 243- Mo. 564; Kitchens v. Teasdale Co., 105 Mo. App. 463; Johnson v. Knight, 56 Mo. App. 257; Bank v. Orthwein 'Co., 160 Mo. App. 369; Gerard v. McCormick, 1.4 L. R. A. 234; Dickett v. National Mechanic’s Bank, 86 Md. 400. (2) Where a trustee carries an account in a hank in his name as such trustee and presents a check to the bank payable to his own order, the bank is placed upon its notice. In such case the bank is dealing with an agent, with knowledge that the latter is recreant to his trust, and if it honors such a check by paying the amount specified therein to the trustee in his individual capacity,.it honors a check that is void. And the bank does not thereby lessen its indebtedness tc the cestui giie trust or to a successor trustee. Authorities supra. (3) The referee erred in overruling appellant’s objection to the introduction of any testimony in this case. Where a receiver is appointed and qualified and is guilty of a breach of his bond, if' any loss results, suit should be brought in the name of the successor receiver and not in the name of the corporation that has been thrown into the hands of a receiver. (4) When after a case is tried and an appeal taken from a nisi prius court, a bill of exceptions is allowed by the court and filed by a losing party, the trial court thereby loses its jurisdiction in the matter of allowing a bill of exceptions; and cannot thereafter amend such bill of exceptions so filed or allow the filing of a new one. Ross v. Railroad, 141 Mo. 390; Reed v. Colp, 213 Mo. 577; Coy v. Landers, 146 Mo. App. 413; Atchison v. Chicago & Alton Ry. Co., 94 Mo. App. 572; City of Weston v. Bank of Greene Co., 192 S. W. 126; State ex rel. v. Tower Grove Yerien, 206 S. W. 242. (5) The statute in reference to penalty for vexatious delay, Laws 1911, p. 282, applies only to actions against insurance companies upon policies of insurance, and has no application to actions against bonding companies upon bonds. Sams v. Railroad Co., 174 Mo. 53.
   RAGLAND, C.

This is an action on a receiver’s bond. It was brought in the name of the State of Missouri at the relation and to the use of the Elberta Peach & Land Company against the Chicago Bonding & Surety Company. On motion of defendant a reference of the whole issue was directed by the court, on the ground that the trial would require the examination of a long account. The facts as found by the referee, and as to the correctness of which no question is raised, are substantially as follows:

On January 28, 1915, in a certain cause pending in the Circuit Court for the City of St. Louis, entitled Boyd, Administratrix, et al., v. Elberta Peach & Land Company, a corporation, et al., the court appointed one Henry L. Haydel receiver, authorizing and directing him as such receiver to take into his possession all of the real estate and personal property belonging to the said Elberta Peach & Land Company, including money on deposit to the credit of said company. The order of appointment was conditioned upon the giving of a bond in the sum of twenty thousand dollars to be approved by the court. Thereafter, on January 30, 1915, -said Haydel presented a bond as receiver, executed by himself as principal and the defendant as surety, in the sum of twenty thousand dollars, conditioned that if said Haydel as such receiver should faithfully obey such orders as the court might make in relation to said trust and should faithfully and truly account for all moneys, assets, property and effects that should come into' his hands and possession and should in all respects perform all the official duties of said receivership, the obligation to be void. The bond as presented was duly approved by the court and ordered filed and Haydel entered upon the discharge of his duties as receiver, taking into his custody and possession all of the real and personal property and assets of different kinds belonging to relator.

At the time of the receiver’s qualification as such, relator*had deposited to its credit with the Central National Bank in St. Louis the sum of $9166.35. On or about February 9, 1915, “Henry L. Haydel, Receiver of Elberta Peach & Land Company,” opened an account with said Central National Bank with an initial deposit of $9166.35, which account so appeared on the books of the bank and was so manifested by the issuance of a pass book in the name aforesaid, showing said sum as credited. The referee was unable to determine from the evidence whether the relator closed its balance with the bank by check in favor of the receiver, or whether upon the request of the receiver and upon the exhibition of the order of his appointment the bank closed by debit the account in the name of the Elberta Peach & Land Company and opened a new account to balance said debit in the name of the receiver, but he found that one of these two courses was pursued. After the opening of this account Haydel from time to time deposited to his credit as receiver rents accruing from relator’s real estate and collected by him as such receiver, and drew checks against the account which he signed “Henry L. Haydel, Receiver, Elberta Peach & Land Co.” The total amount of assets that came into Haydel’s possession for which he was bound to account was $10,209.90. This amount was made up of the bank credit of $9,166.35, rents collected in the sum of $869.37, and 32 cents allowed as interest on bank deposits. Of the total assets that came into his hands Haydel faithfully administered and accounted for the sum of $2,173.03; the remainder, $8,036.87, he converted to his own use. Of this amount $7,815 was obtained from the Central National Bank by means' of checks drawn from time to time against his account as receiver. There were seven of these checks in all; they were all precisely alike except as to dates .and amounts and except that in some of them H. L. Haydel was designated as payee, while in others Haydel Realty Company was designated payee. The Haydel Realty Company was a corporation in which Haydel was the sole party in interest. One of these checks is as follows:

Central National Bank.
Saint Louis, Feb. 11th, 1915. No. 2.
Pay to the order of H. L. Haydel ....................$400.00
Four Hundred and 00/100 ......................Dollars.
H. L. Haydel.
Receiver Elberta Peach & Land Co. (Endorsement on back):
H. L. Haydel Haydel Realty Co.
H. L. Haydel, Pres.

The remainder of the fund embezzled, $221.87, never found its way into the bank. Haydel died May Í, 1915, leaving no real estate or assets whatever other than those to which his widow was entitled as her absolute property. May 5, 1915, the court appointed Elmer E. Pearcy successor receiver in the place of Haydel. Pearcy duly qualified and in his first inventory and report to the court disclosed that the balance of $8036.87 was due from Haydel. The court approved the report and directed Pearcy to make demand upon the defendant Surety Company for said sum and to prosecute said claim against the defendant to compel the payment of said sum. The successor receiver made demand which was refused, arid he then instituted this suit.

The defendant is in the general surety and bonding business for hire. It is incorporated under the laws of Illinois and is duly admitted to do business in this State under the insurance laws thereof. The referee further found as follows:

“I think it entirely clear the principal has not faithfully accounted for the funds coming into his hands, and it must have been absolutely plain, precisely what the shortage was. ... It is not in evidence that it ever made known or discussed the contention that it was not liable, because the bank still had the funds. No authorities have been presented by it applicable to its defense under such a bond. No tender has ever been made of the amounts with which the bank question is not concerned. If the statute for penalty applies, I find vexatious refusal to pay the loss, and assess plaintiff’s damages therefor at ten per cent of the amount of the loss, and an attorney’s fee of seven hundred and fifty dollars.”

The defendant admits that if it is liable for an attorney’s fee, seven hundred and fifty dollars is a reasonable allowance therefor.

The petition, after pleading all necessary matters of inducement, alleges the execution of the bond and assigns as breach that said Haydel used said funds of relator that came into his custody as receiver and appropriated the same to his own use, thereby embezzling said funds of relator. It further alleges a vexatious refusal to pay the loss. The prayer is for the penalty of the bond, and an assessment of relator’s damage at $8036.87, with interest, and in addition thereto ten per cent thereof for vexatious refusal to pay and a reasonable attorney’s fee.

The answer is a general denial, with this further statement:

■“Further answering defendant states that whatever moneys or assets came into the possession of Henry L. Haydel as receiver of the relator were fully and completely accounted for by said Henry L. Haydel as receiver to the relator by lawfully and properly expending and disbursing a portion thereof in behalf of relator and by returning the balance to the relator, or by leaving it in a bank or banks in such manner that relator has since come into possession of same.”

At the inception of the hearing before the referee the defendant objected to the reception of any evidence on the ground that the petition, did not state a cause of action, in that, the right of action, if any, is in the successor receiver and not the Elberta Peach & Land Company. The objection was overruled.

The referee recommended judgment for the penalty of the bond and an assessment of damages in relator’s favor at the amount of its loss caused by Haydel’s defalcation, with interest, amounting to $8738.54, not allowing attorney’s fee for relator or the additional ten per cent for vexatious refusal to pay. Numerous exceptions were timely filed by" both plaintiff and defendant. All of these the court overruled and rendered judgment for the penalty of the bond and awarded • relator execution for damages in accordance with the referee’s recommendations. Both sides appeared and stipulated that the two appeals be consolidated and heard as one cause in this court.

All of defendant’s exceptions to adverse rulings of the referee and the trial court were properly saved for review, and in the final analysis present but two questions for decision on defendant’s appeal. The first is whether the suit is properly brought at the relation and to the use of the Elberta Peach & Land Company ; the second is whether either the relator or successor receiver sustained any loss by the Central National Bank having honored Haydel’s checks as above set out and charging them against his account as receiver.

The referee reported as one of his conclusions of law, that the statute of Missouri, Laws 1911, with reference to vexatious delay, has no application to this action. Plaintiff filed written exceptions to the report in this respect. This was overruled by the court. If the record shows that exception was made and saved to this ruling, its correctness is for determination on plaintiff’s appeal. On March 17, 1919, plaintiff presented to the trial court in which the cause was tried its bill of exceptions; it was signed by the judge and an order of court' entered of record making the bill, so allowed, signed and sealed, a part of the record in the cause. On the following day the plaintiff discovered the deficiences of the bill of exceptions, and upon its motion, the order, made on the day previous, allowing, signing and sealing plaintiff’s bill of exceptions, and making the same a part of the record, was by the court ordered vacated and set aside. Thereupon the plaintiff presented its bill of exceptions and the same was allowed, signed, sealed and made a part of the record. Whether the bill of exceptions presented on March 18, 1919, is a part of the record is the first question for decision on plaintiffs appeal.

I. Taking up for consideration the questions raised on- defendant’s appeal, its first contention is that the cause of action, if any, did not accrue to the Elberta Peach & Land Company, but- to the successor receiver. This contention is based on the proposition “the main purpose of the orginal suit was to divest the Elberta Peach & Land Company of any jurisdiction over its assets and of any right to collect unpaid claims, and to place the legal■ title exclusively in the receiver in order to protect both creditors and stockholders.” In this connection it is pertinent to observe that “the main purpose ol tiie original suit” is not disclosed by the record. All that appears is that in a certain pending cause in which the Elberta Peach & Land Company was a party defendant, said company was in receivership; that the original receiver was by the order appointing him authorized and directed to take into his possession all of the real estate and personal property belonging to said company including money on deposit to his credit, and, with leave of court, to bring such suits as should be necessary to recover its assets and debts due it, and that the successor receiver was invested with the same duties and powers. That part of the order directing the receiver with leave of court to bring suits is by no means tantamount to an authorization to bring such suits in his own name, hence it is not shown that either the receiver or his successor had any but the powers usually and ordinarily vested in such an officer of the court. The present receiver, therefore, did not by virtue of his appoinntment become vested with the legal title to either the choses in possession or the choses in action of the Elberta Peach & Land Company. Whether the court had the power to invest him with such title, it is not necessary to decide. It is apparent, therefore, that the manner of instituting this suit by him is governed by the rule generally and ordinarily applicable in such cases. “The weight of authority clearly supports the proposition that the receiver must sue in the name of the person having the legal right, and that when neither the Laws of the State nor the order of his appointment 'authorize him to proceed in his own name, he can only proceed in the name of the person in whom the right of action existed before the receiver’s appointment.” [High on Receivers (4 Ed.), sec. 209.] The rule applies even though the order of his appointment authorized him to prosecute suits for the collection of such choses in action as may come into his hands and he must still proceed in the name of the legal owner and can not sue in his own name. [Battle v. Davis, 66 N. C. 252.] This is the long established pratice of courts of equity and still obtain unless changed by statute. This is in effect the ruling in State ex rel. v. Grambs, 68 Mo. 289, in which it was held that a receiver appointed under what is now Section 2018 of the Practice Act cannot maintain a suit in his own name against the sureties on the bond of his predecessor. It is true the receiver may maintain an action for the conversion of property and injury thereto after the same has come into his possession, but this is on the ground that his possessiin and not his appointment gives . him such a qualified and special interest in the property as to enable him to maintain such an action. In this case, as the right of action arising out of the original receiver’s misappropriation, if such is the fact, of the funds of the Elberta Peach & Land Company accrued before the appointment of the present receiver, the company had the legal right thereto, and, as the right was not divested by the receiver’s appointment, the suit was properly brought in the company’s name.

II. The defendant’s next point is that, conceding that Haydel as receiver “committed wrongs in connection with the bank account which he had as such receiver at the Central National Bank, the relator has in no way been injured by sucb wrong, because it has sustained no loss. In other words, it, is a case of damnum absque injuriaDefendant’s contention seems to be this: that as the bank had actual knowledge that relator was the real owner of the fund represented by the credit, and as checks drawn by the receiver against the same gave notice of such facts as put the bank upon inquiry, and which, had they been followed up, would have disclosed that the receiver was converting the fund to his own use, it should not have honored the checks, and by paying the same it in no wise lessened the bank’s debt to the relator; that notwithstanding the bank’s forms of bookkeeping, it still has relator’s money and that all that it is necessary for the relator’s receiver to do to recover it, is to make a demand of the bank therefor, and, if the bank arbitrarily refuses to pay, sue it. This all sounds well, if the extraordinary notions entertained by the defendant regarding its duties in the premises and the proper discharge thereof be for the moment forgotten, but it certainly involves a misconception both of the facts and the applicatory rules of law.

"When Haydel was appointed receiver the fund to relator’s credit in the bank was $9,1666.35. The relator sustained the relation of depositor to the bank, whereby the bank was indebted to it in that sum. The legal title to this chose in action was in relator. The appointment of the receiver per se did not change this status. Haydel as receiver, however, withdrew this fund from the bank, and, regardless of the method employed, that is what he in effect did. This he had a right to do in the lawful performance of his duty, for he was merely taking into his possession this part of relator’s assets. When Haydel redeposited the money to his own credit as receiver, he in his representative capacity, and not the relator, became the depositor. The bank was then indebted to him as receiver, and in that capacity he had the legal title to the bank credit. [Michie on Banks and Banking, sec. 130 (d); Anderson v. Walker, 49 S. W. (Tex.) 937; Union School Twp. v. Bank, 102 Ind. 464.] And the hank was hound to pay his checks when in proper form, for the contract between a bank and its depositor is that the former will pay according to the checks of the latter. [Cen. Nat. Bank v. Life Ins. Co., 104 U. S. 54.]

The equitable doctrine of following a trust fund has no application to this case. The assets of the bank have not been enriched to the extent of relator’s loss. The fund is not in . the bank. Haydel withdrew and appropriated it to his own use. The only theory upon which it can be held that the bank is liable to relator is that of aiding in and thereby becoming a party to the conversion of the fund. Haydel had a right to check the fund out of the bank in the lawful performance of his duty; what he did not have a right to do was to use it for his own benefit when so withdrawn. The bank was bound to honor his checks unless it had actual or constructive knowledge that Haydel when he presented the checks for payment was then and by means thereof intending to divert the fund. If this latter hypothesis is true, the bank is liable to relator for its participation in Haydel’s breach of trust. [Miller v. Hobdy, 159 S. W. (Tex.) 96; Duckett v. Mechanics’ Bank, 86 Md. 400; Duncan v. Jaudon, 21 L. Ed. (U. S. Sup. Ct.) 142.]

It is elementary that the defendant may not discharge its obligation as surety by pointing out some other person who is also legally liable for relator’s loss. If, however, the entire fund had stood on the bank’s books to Haydel’s credit as receiver at the time of his death, the defendant would not have performed its duty by merely saying to the court, “The money is in the bank to Haydel’s .credit; go get it.” In the first place the fund would have been payable only on the cheeks of Haydel’s executor or administrator, notwithtanding its trust character (Schluter v. Bank, 117 N. Y. 125), and in the second place it would not have been a performance of the conditions of the bond. It was Haydel’s duty on the termination of his authority, and after his death, that of his executor or administrator, to “account for” the assets that had come into his hands as receiver. This was his duty under the law and it wasi a condition of the bond, and to “account for” is a condition not satisfied short of paying- the fund into court or according to the court’s order. [State v. Williams, 77 Mo. 463, 471.] This same duty devolved upon defendant as Haydel’s surety. Under the bond in suit it was bound with its principal as- an original promisor and, net having- accounted for a portion of the funds entrusted to its principal, it is liable to that extent. [Pingrey on Suretyship (2 Ed.), sec. 4; Delmar Inv. Co. v. Lewis, 271 Mo. 317; Loewenthal v. McElroy, 181 Mo. App. l. c. 405.]

III. On plaintiff’s appeal defendant’s contention is that the bill of exceptions allowed, signed and filed on March 18th is a nullity and no part of the record in the cause, because the court’s statutory authority to allow and sign a bill of exceptions, tendered by plaintiff, was exhausted by the allowance and sign-™g' of one on the 17th. The situation might be as defendant contends had the bill of the 17th been allowe'd and signed by the judge in vacation. That is not the case here, however. The bill having been allowed by the court, its action in so doing, like any other act or proceeding, was in fieri during the term, and could be modified or set aside altogether should the court be moved so to do. On the 18th and during the same term, when the court vacated and set aside the order of the 17th, allowing the bill, it thereupon became a mere paper filed in the cause without vitality as a bill of exceptions, because in legal effect it had never been “allowed” as such by the court. Prom this it follows that the bill allowed, signed and filed on the 18th, within the time limited by the statute, became a part of the record in the cause.

IY. Plaintiff, as appellant, complains of the action of the trial court in adopting the referee’s conclusion of law that the statute allowing damages and attorney’s fee for a vexatious refusal to pay has no application in this case. The statute in question is Section 7068, Revised Statutes 1909, as amended by the Act of 1911, Laws 1911, p. 282, and reads as follows: “In any action against any insurance company to recover the amount of any loss under a policy of fire, cyclone, lightning, life, health, accident, employers’ liability, burglary, theft, embezzlement, fidelity, indemnity, marine or other insurance, if it appears from the evidence that such company has vexatiously refused to pay such loss, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not to exceed ten per'cent on the amount of the loss and a reasonable attorney’s fee,” etc.- A reading of this section makes it apparent that an action to be within its' terms must have two characteristics: First, it must be against an insurance company; and, second, it must be to recover a loss under a policy of insurance. The questions for decision, therefore, are (1) whether the defendant Bonding & Surety Company is an insurance company, and (2) whether the receiver’s bond which it executed as surety is a policy of insurance,, both within the meaning of said section. To ascertain what companies and what contracts were intended by the Legislature in the use of the terms “insurance company” and “policy of . . . other insurance,” the sections should be considered in connection with the unwritten law of insurance as administered by the courts at the times of its original enactment and subsequent amendment, and with the statutes with which it is in pari materia.

The domain of insurance law is no longer limited to the interpretation and enforcement of fire, life and marine insurance contracts. In recent years a multitude of other forms of insurance have obtained, covering almost every conceivable risk incident to modern business and industrial life. Concurrently with, the extension of the insurance business there has been a corresponding, development of insurance law through the application to the new and varied forms of insurance contracts of the fundamental rules and principles governing the older ones. By this means there has come into existence, with many others, a branch of the insurance law known as gauranty insurance, which embraces “fidelity,” “commercial” and “judicial” insurances. Of these, commercial or indemnity insurance and judicial insurance, so called, are of the more recent origin, [Frost on Guaranty Ins. (2 Ed.), 11.] In the bonds or policies of guaranty insurance, the more natural attitude of a “surety” is assumed, but they are contracts of insurance none the less. [Guarantee Co. v. Bank and Trust Co., 80 Fed. 766.] In fact the contract of suretyship is inherently that of insurance. The surety is an.insurer of the debt, the fidelity, or the undertaking of his principal. (Pingrey on Suretyship and Guaranty, sec. 2), and when he engages in the business of furnishing surety for hire, his obligation is no longer construed under the strictissimi juris rule, but is subject to the rules of construction applicable to insurance policies generally. So that speaking generally, the contracts of suretyship issued by surety companies, origanized for the purpose of furnishing surety for hire, such as the defendant, are contracts of insurance. In current decisions dealing with such contracts the courts continually refer to them indifferently as “bonds,” “indemnity contracts,” “insurance bonds,” “insurance contracts” and “guaranty policies.” [Roark v. Trust Co., 130 Mo. App. 401; Boppart v. Surety Co., 140 Mo. App. l. c. 683; Rule v. Anderson, 160 Mo. App. 347; Association v. Am. Bonding Co., 197 Mo. App. 430; People v. Rose, 174 Ill. 310; Remington v. Fid. Dep. Co., 27 Wash. 429; Industrial & Gen’l Trust Co. v. Tod, 67 N. Y. Supp. 362; People v. Potts, 264 Ill. 522; State ex rel. v. Ogden, 172 S. W. 1172; Am. Bond. Co. v. Morrow, 80 Ark. 49.] The statute in question was originally enacted many years ago when all of the business in this State was done by foreign companies. Its provisions covered in terms actions on policies of fire, life and marine insurance, practically the only forms of insurance in vogue at the time. Subsequently in 1869 a statute was enacted authorizing the incorporation of companies to do an insurance business other than life. The insurances, expressly named in this statute were fire, marine, live stock, health, accident and fidelity, but it included “all other kinds of legitimate insurance business.” It has since been amended from time to time to include lightning, hail, windstorm, burglary and theft insurance. In 1885 a law was passed authorizing any company having a paid up capital of not less than $209,000, incorporated under the laws of this State or any other state or foreign government, for the purpose of transacting the business of becoming surety on the bonds or obligations of persons or corporations, or of insuring the fidelity of persons holding places of public or private trust, to become and be accepted as surety on the bond, recognizance or other writing obligatory of any person or corporation in or concering any matter in which the giving of a bond is authorized, required or permitted by the laws of the State. It provided however, that no company not incorporated under the laws of this State should engage in such business until it complied with all the provisions of the law relating to insurance .companies other than life. In the Revised Statutes of 1889, 1899, and 1909, this act appears as a part of the article relating to insurance other than life in the chapter on insurance, becoming Section 6997, Revised Statutes 1909. In 1911 that section was amended by adding a proviso: “That no domestic corporation shall be licensed to do the business aforesaid, until it has deposited $200,000 with the Insurance Superintendent of the State, in trust for the protection and security of its policy holders, No corporation, organized or incorporated under the laws of any other state . . . shall be licensed to do the business aforesaid, unless it has on deposit . . a like deposit of $200,000 for the protection and security of its policy holders in the United States.” [Laws 1911, pp. 274, 275.]

The • same Legislature in 1911 amended said Section 7068 so that it included actions on policies of cyclone, lightning, health, accident, employers’ liability, burglary, theft, embezzlement, fidelity and indemnity insurance.

The defendant was chartered under the laws of the State of Illinois “to conduct a surety company business and for a consideration to guarantee the fidelity of persons holding public or private places of trust, and the performance of contracts, bonds, recognizances, undertakings of every kind, and of becoming surety on bonds required by law and on every kind of contract, obligation and undertaking of persons, firms and corporations.” In that state it operates under .the supervision of the insurance department thereof. It was admitted under the insurance laws of this State to do herein only the business of “fidelity and surety insurance,” and is subject to the visitorial powers of the State Superintendent of Insurance as an insurance company. From the character of business which the defendant is authorized to do, and which it does do, from the necessary implications of the statutes referred to and from the construction put thereon by the executive departments of the State and by the defendant itself, the conclusion is irresistible that the defendant is an insurance company within the intent and meaning of the statute under consideration.

The referee and the trial court following him were unable to reach the conclusion that a judicial bond, such as the receiver’s bond, in this case, is a policy of insurance. It is true that a judicial bond is in the precise form and verbiage when executed by a compensated surety company as when executed by .an accommodation surety, and it is also possibly true that the same rules of construction applicable to the latter should be applied to the former. But the construction of the bond, that is, a delimitation of the boundaries of liability thereunder, is not involved in this case. The only question here is whether it is a policy of insurance within the meaning of the statute permitting recovery of damages for a vexatious refusal of an insurance company to pay a loss. If the bond in suit were one to insure the fidelity of 'a bank cashier, or to guarantee the performance of a contract for a public improvement, it would be unquestioned, that the one would be a policy of indemnity insurance and the other a policy of fidelity insurance. The bond here insures the faithful performance by the principal of all the official duties of'the receivership, and is essentially of the same character as the fidelity bond and the indemnity bond. All three are issued by the defendant in its business as a surety company; for the execution of all three it receives a money consideration, known as a premium, proportioned to the* amount and term of the liability to be insured; in all three the obligees are characterized as policy holders by the statute authorizing the defendant to do business in this State, and requiring it to iqake a deposit for their security; in all three the obligees or beneficiaries are injured in precisely the same way by a vexatious refusal of the surety company to pay a loss, so that, the premises considered, it seems unreasonable to suppose that the Legislature intended to provide a remedy for those having actions on fidelity and indemnity bouds and not for those having actions on judicial bonds. Under statutes very similar to ours the Appellate Division of the Supreme Court of New York held that a bond to stay execution pending an appeal, executed as surety by a surety company, having identically the same charter powers as the defendant, was a contract of insurance. [Industrial & Trust Co. v. Tod, supra.] After reviewing the authorities and discussing the questions at length, Mr. Frost in his illuminating work on guaranty insurance comes to the conclusion that judicial bonds of the kind executed by the so-called surety companies for compensation can be properly termed contracts of insurance. [Frost on Guaranty Insurance (2 Ed.), sec. 243 et seq.] With that conclusion we agree, at least for the purposes of this case.

The statute nowhere speaks of judicial bonds or' judicial insurance in eo nomine; but it designates actions “on policies of . . . fidelity, indemnity . . . or other insurance.” Judicial bonds and fi-

delity and indemnity insurance contracts are ejusdem generis, in that, they are all species of guaranty insurance. It follows that the receiver’s bond on which this action was instituted.is a policy of “other insurance” within the meaning of the statute.

Our conclusion on the whole is that this action is within the terms of the statute, and the court should, on the facts found by the referee, in addition to the loss and interest, have allowed relator as damages ten per cent of the loss and an attorney’s fee of seven hundred and fifty dollars.

On defendant’s appeal the judgment is affirmed; on plaintiff’s appeal it is reversed and remanded to the end that the trial court may enter judgment for plaintiff in accordance with the views herein expressed, which that court is liereby directed to do.

Brown and Small, C.C., concur.

PER CURIAM:

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

All of the judges concur; Bond, J., in the result.


author: MOZLEY, C. PER CURIAM:

text:
    JAMES McCORD, Administrator of Estate of ORVIS McCORD, v. CHARLES E. SCHAFF, Receiver of Missouri, Kansas & Texas Railway Company, Appellant.
    Division Two,
    October 14, 1919.
    1. NEGLIGENCE: Engineer: Vice-Principal. The engineer operating a locomotive engine on defendant’s railroad is a vice-principal of defendant, and if his conduct in failing to supply- with sufficient water the boiler of the engine which exploded amounted to negligence, contributing in whole or in part to the death of the fireman, the defendant is liable in damages, because the engineer’s negligence was the defendant’s negligence.
    2. -: -: Defective Appliances: Irrelevant: Allegata et Probata. If the action for damages was tried on allegations that it was the duty of the engineer in charge of the engine which exploded to see that it was properly supplied with water, that he negligently failed to perform that duty, that such failure was the proximate cause of the explosion of the boiler and that the death of the fireman resulted from such negligence, defective appliances could not affect the case, and expert testimony and speculation .as to whether the appliances for supplying water to the boiler were defective were irrelevant; but, it being conceded that the explosion was due to an insufficient amount of water in the boiler, the whole issue, under such charge, was whether it was' the duty of the engineer to see to it that the boiler was properly supplied.
    3. -: -: Supplying Boiler With Water. There being no evidence beyond the merest speculation that the fireman who was killed when the engine exploded for lack of water had made any attempt to pump water into its boiler, or had asked or been directed to do so, and it being the unquestioned duty of the engineer to pump it, the engineer’s failure to do so, thereby causing the explosion and the death of the fireman, was a negligent act, for which the railroad company must respond in damages.

      4. -: -: -: Failure to Call Witness With Knowledge. The failure of a party to call witnesses within his power who know vital facts affecting the issue on trial is to be taken as a strong circumstance against him. So where a locomotive engine exploded because of a lack of a proper amount of water in its boiler and such explosion caused the death of the fireman, and the main issue at the trial was whether it was the duty of the engineer to see to it that the boiler was properly supplied with water, the fact that the railroad company, when sued for damage's by the fireman’s father, did not call the engineer, or a student fireman who was on the engine, neither of whom was injured, or account for its failure to call them, is a strong circumstance against the defendant, in the absence of any testimony that the fireman was directed' or .as^red or assumed to pump water into the boiler.
    5. -: Damages: Compensation: Life Expectancy of Paintiff. An instruction on the amount of damages which a plaintiff may recover as compensation for the negligent death of another is erroneous which bases the damages solely on the life expectancy of the deceased and does not require the jury to take into consideration the plaintiff’s expectancy in determining said amount; and where a father sues for the loss of his adult son, the instruction should take into consideration the life expectancy of the father alone.
    6. -: -: -: Prior Contributions. In a suit by a father for compensation by way of damages for the negligent killing of his adult son, the testimony should develop the exact number of months the son contributed to the support of his parents, and the amount contributed each month, or in some other way establish an exact basis for calculating what the son would have contributed to their support during their life expectancy had he lived.
    Appeal from Saline Circuit Court. — Hon. Samuel Davis Judge.
    Reversed and remanded.

      J. W; Jamison for appellant.
    (1) The court erred in overruling defendant’s peremptory instruction to find for the defendant. The specification of negligence on which plaintiff went to the jury was in substance and effect that the explosion was occasioned solely by the negligence of the engineer in failing to see that the engine was properly supplied with water. Plaintiff must stand or fall under the foregoing specific charge of negligence. Northam v. United Rys. Co., 176 S. W. 229; McNamee v. Ry. Co., 135 Mo. 447; Yall v. G-illham, 187 Mo. 498; Roscoe v. Ry. Co., 202 Mo. 588; Kirkpatrick v. By. Co., 211 Mo. 83; Davidson v. Transit Co., 211 Mo. 361; Price v. By. Co., 220 Mo. 454; Applegate v. By. Co., 252 Mo. 197. (2) If the explosion resulted from defects in the water glass and gauge cocks or other appliances, plaintiff cannot recover, because he elected to abandon that theory and relied solely on alleged negligence on part of the engineer. Authorities supra; Cunningham v. Journal Co., 95 Mo. App. 47; Jones v. Cooperage Co., 134 Mo. App. 324; Armour & Co. v. Arbuckle, 123 C. C. A. 435. (3) The inference is clear that the low water in the boiler was due to the negligence of the'fireman, and, therefore, plaintiff has no case. Va. By. Co. v. Linkous, 144 C. C. A. 386; Louisville By. Co. v. Short, 73 So. 17; Gr. Northern By. Co. v. Wiles, 240 U. S. 444. (4) The evidence was insufficient to justify the court authorizing the jury to award the father and mother of deceased any amount as compensation on the theory that they had sustained a substantial pecuniary loss on account 'of the death of their son. The evidence, at most, merely showed that the deceased son made only occasional gifts of small amounts to his father and mother. An occasional contribution from a son to a parent does not establish a condition of dependency. Bortel v Northern Pac. By. Co. Ill Pac. 788; Garrett v. By., 235 U. S. 313; Yining v. Bexford, 120 C. C. A. 418. (5) The evidence was not sufficient to authorize the giving by the court of plaintiff’s instruction authorizing the assessment of any damages. Moreover, neither the facts nor the law warrant the giving of said instruction. No tables of mortality, or other evidence, were offered tending to show the expectancy of life of the deceased son. No proof was offered as to the expectancy of life of the father and mother of deceased to each of whom the jury in its verdict awarded damages in the sum of $5000. No evidence was offered of the present cash value of the future benefits of which the beneficiaries were deprived by the death, making adequate allowance according to the circumstances for the earning power of money. Chesapeake & Ohio R. Co. v. Kelly, 241 IT. S. 458; Stevens v. L. & P. Co., 208 S. W. 630; Smith v. Pryor, 195 Mo. App. 259; Jones v. Railroad, 78 So. 568. (6) The verdict of the jury in awarding the father and mother of deceased each the sum of $5000 was grossly excessive. Panhandle Ry. Co. v. Huckabee, 207 S. W. 329; Bagley v. St. Louis. 268 Mo. 259.

      Claude Wilkerson and E. P. Sizer for respondent.
    (1) It is claimed the evidence was not sufficient to justify an award of damages to the father and mother. The trouble with appellant on this point is that he starts with the erroneous assumption that the evidence “at most only shows occasional gifts.” This might be true as to the “dress patterns” and gifts to the mother and sister, but not so of the monthly payments of five to fifty dollars — “and other times he would send every pay check; the largest amount was $50.” “Then as he would have good or bad months it would range five, ten and twenty dollars per month.” This is a substantial showing of pecuniary loss and should support the verdict. Railroad v. Callard, 185 S. W. .1108; Railroad v. Thome, 185 S. W. 840; Rains v. Railroad, 85 S. E. 294; Dooley v. Railroad, 79 S. E. 970. The case of Smith v. Pryor, 195 Mo. App. 259, cited and relied upon by appellant, ,is not in point, as deceased in that case left no children or parents and his only “next of kin” was a half sister, who.had been married and was 47 years old. It is only when the action is prosecuted under the Federal Act for “next of kin” other than widow, children or parents, that it is necessary to show dependency of the beneficiaries. Dooley v. Railroad, 79 S. E. 970; Smith v. Pryor, 195 Mo. App. 264. (2) Appellant contends that it was error to give instruction 3 on measure of damages, because of the alleged failure to introduce the mortuary tables to show expectancy of the deceased and the parents. The case of Railroad v. Kelly, 241 IT. S. 458, nowhere lays down the rule that the tables must be introduced. While such tables might be competent testimony under certain restrictions, they are not the absolute guide and are only advisory. Railroad v. Putnam, 118 U. S. 545. But as wise as are the judges of the Supreme Court of the United States, that court in the Kelly case, in the concluding paragraph, refuses to hazard even a guess at what should be the proper formula to submit to a jury the question of the pecuniary loss, and contents itself with subjoining an interminable list of decisions from the various states to show how hopelessly in conflict are the appellate courts. Railroad v. Kelly, 60 L. Ed. 1123. The nest decision relied upon by appellant is the case of Stevens v. K. C. Light Co., 208 S. W. 630. This case is plainly authority for respondent instead of appellant, and shows the wisdom • of refusing to follow such tables as absolutely guides. (3) Defendant is now precluded from raising any objection to the instruction on the measure of damages, because if he wanted a more definite instruction he should have requested such; and having failed to do so, is now precluded. Frisco v. Brown, 69 L. Ed. 970; Railroad v. Skaggs, 60 L. Ed. 531; Railroad v. Ernest, 60 L. Ed. 1100. When plaintiff’s instructions are right as far as they go, the duty is on defendant to request more definite instructions before he will be permitted to convict the trial court of error. Browning v. Railroad, 124 Mo. 55; Minter v. Bradstreet, 174 Mo. 491; Smith v. Pordyce, 190 Mo. 31; Waddell v. Railroad, 213 Mo. 8; Armelio v. Whitman, 127 Mo. App. 698. (4) Under all the circumstances the verdict is fair and just and should not be disturbed. When we consider the value of all that McCord was doing for his parents, which was pecuniary, and that under the McCullough case, prospective gifts, etc., are elements of a pecuniary value to be taken into consideration by the jury, together with the natural increasing wants of the parents as age comes on apace, and the increasing ability of the son to support them, we respectfully claim the verdict is right and. just. McCullough v. Railway, 160 Iowa, 524; Dooley. v. Railroad, 79 S. E. 970; Railroad v. Dyer, 172 S. W. 18.
   MOZLEY, C.

This action was brought under the Federal Employers’ Liability Act and seeks to recover damages on account of the death of Orvis McCord, who was a fireman on an engine and an inter-state employee of defendant. On the 4th day of July, 1916, the engine on which McCord was working as fireman, when about fifteen miles from Sedalia, Pettis County, Missouri, pulling an extra freight, exploded, and so injured McCord that he died a few hours later without regaining consciousness. The explosion occurred by reason of not having sufficient water in the boiler of the engine. In addition to the fireman, the engineer and a student fireman were on the engine at the time, but there is nothing in the record of any injury, to either of them.

The petition was in two counts identical, except in count one it was sought to recover for alleged conscious pain between the time of the accident and the death of McCord a few hours later, but upon this count the jury found for the defendant. The second count was finally amended so that the cause of action was based upon the alleged negligence of the engineer in failing to see that said engine was supplied with sufficient water to the boiler to prevent an explosion. It is conceded, however, by both sides that the explosion happened because the water was allowed to get too low in the boiler to cover the crown shield.

At the time of the death of McCord he was 27 years of age, and the plaintiff, James McCord, was 56 years of age, and the mother, Laura McCord, 54 years of age. Trial of the case in the Circuit Court of Saline County where it had gone on a change of venue from. Pettis County, after demurrer to the evidence had been overruled, resulted in a verdict for defendant on the first count of the petition, and a verdict for plaintiff on the second- count in the sum of $10,000, apportioned by the jury $5000 to plaintiff and $5000 to the mother. Motion for new trial was overruled and the cause is properly lodged in this court on appeal.

I. The engineer on the engine that exploded was vice-principal of the defendant, and if his conduct amounted to negligence contributing in whole or in part to the death of McCord, the defendant is bound thereby, because, the engineer’s negligence was the defendant’s negligence. It is conceded that the explosion of the engine was caused by lack of sufficient water to cover the crown shield. A great deal of speculation, expert testimony, etc., was indulged in as to whether the appliances for supplying water to the boiler were defective, but as the case was tried before. a jury on a charge of negligence on the part of the engineer, in this, that he was in charge of said locomotive and that it was his duty to see that said engine was. properly supplied with water, that he negligently failed to perform that duty and the explosion resulting in the death of McCord proximated from such negligence, we are unable to see how defective appliances (and they were not defective) could affect the case. The whole question as we see it is, was it the duty of the engineer to see that the boiler was properly supplied with water? (Incidentally'we remark that the engineer did not testify at the trial, nor did the student fireman who was on the engine, although there is no evidence that either was injured). These appliances for furnishing water to the boiler were placed thereon by defendant for the express purpose of enabling the engineer, by their timely use, to avoid the catastrophe that happened. Under the rule of the defendant, No. 502, the dead fireman was under the direction and control of the engineer. The rule reads:

“Firemen when on the road, are under the supervision and direction of the engineer, and must obey the orders of the engineer respecting the proper use of fuel and the performance of their duties.”

As to whose duty it was, under the rule, to pump water to the boiler the following appears in the testimony of William Rothmeyer, road foreman of engineers for defendant:

“Q. What about pumping water? A. That is conditional with the engineer and fireman. We haven’t placed any restrictions on the fireman pumping the engine. If the fireman is qualified and the engineer wants to assume the responsibility of him pumping that engine, why, that is optional with the two, and if he asks to pump the engine he can do so.”

There is no evidence beyond the merest speculation that the dead fireman had made any attempt to pump water into the boiler or that he was directed to do so, or that he asked to pump said engine or assumed to do so, and it being the unquestioned duty of the engineer to pump it, his failure to do so, thereby causing the explosion and the death of McCord, was a negligent act for which defendant is responsible.

As stated above, neither the engineer nor the student fireman who were on the engine when the explosion occivred, was called by defendant as a witness at the trial of the case, notwithstanding each of them ■was in possession of the facts of the explosion and the movements of the deceased fireman just preceding the explosion. It has been held that failure of a party to call witnesses within his power who know vital facts, affecting the issue upon which the case is tried, is taken as a strong circumstance against such party. [Reyburn v. Railroad, 187 Mo. 565, l. c. 575; McClanahan v. Railroad, 147 Mo. App. 386, l. c. 411; Evans v. Trenton, 112 Mo. l. c. 404.]

Without pursuing this feature of the case further, we think there was sufficient evidence to go to the jury on the question of whether or not the engineer was negligent and their finding that he was negligent ought not to be disturbed.

II: A great many points are urged by appellant for a reversal of the case which are unnecessary to discuss or decide, since under our view it will have to be reversed and remanded on account of a vital-1 iy improper instruction given to the jury on behalf of plaintiff, on the measure of damages, Said instruction reads as follows:

“If you find the issues for the plaintiff under the second count of the petition you should, in assessing the damages, take into consideration the age and earning capacity of the deceased and the amounts, if any, that he had been contributing to his parents, and you should give such sum as you may believe to be a fair and just compensation, for whatever sum you may believe from the evidence the said Orvis McCord was reasonably certain to have contributed to his parents had he not been killed, and such a sum should be sufficient to compensate them for the pecuniary loss, if any, they have sustained by reason .of the death of the said Orvis McCord, but not to exceed the sum of twenty thousand dollars, the amount prayed for in the petition. ’ ’

The damages authorized to be recovered by this instruction are based solely on the expectancy in life of deceased, and does not take into consideration the expectancy in life of the plaintiff, or in anywise advise the jury that plaintiff’s expectancy is a matter necessary to take into consideration in determining what the amount of the verdict should be. It has been held in a number of cases which we think were well considered that the expectancy of the plaintiff must be determined by the jury and that failure to do so is error.

Under the proof in this case the expectancy of the plaintiff was vastly less than that of deceased, and it, therefore, became vital to a just verdict that the damages assessed be based upon the expectancy of plaintiff rather than upon that of deceased.

In the case of Illinois Central Railroad Co. v. Crudup, 63 Miss. 291, l. c. 393, it was held that the expectancy that the one who, according to the course of nature, would die first was the one upon which the damages awarded should be based. The court said: “If it be shown that the deceased in the course of nature would have died first, his expectation of life should control, for he could confer no benefit after his death; on the other hand, if the next of kin would die first, his expectation should govern, for he could not receive a benefit from any one after his death. Since the plaintiff, the father of deceased, would by all known probabilities have died in the course of nature before his son, his expectancy and not that of the son should control.”

In the case of Stevens v. K. C. Light & Power Co., 208 S. W. 630, l. c. 631, the cause was reversed and remanded, and we think properly so, on account of an instruction given to the jury by the court below. That instruction, like the one under consideration, made the basis of recovery the expectancy in life of deceased, wholly ignoring the expectancy of the plaintiff. The court (Kansas City Court of Appeals) passing on that instruction said: “There is this further objection to the instruction. It bases the damages to plaintiffs on the expectancy of life of the deceased alone, when in fact the expectancy of life of the plaintiff must also be considered. Her damages consisted in the loss of deceased’s support. There are two lives to be considered, hers and her deceased husband’s. She was only entitled to damages estimated on the length of his life, if she lived longer than he, for no damages could accrue to her after her death. The husband’s duty to support his wife ceases, of course, at her death. Therefore her loss in his death cannot reach beyond her own life.”

The jury was not advised, or directed as they should have been by the instruction under consideration, that the verdict should have been based solely on the expectancy in life of plaintiff, since, as above pointed out, his expectancy was vastly less than that of deceased and, according to the course of nature, he would die first. But it is manifest that the jury did base its verdict upon the wrong expectancy, without giving plaintiff’s expectancy any consideration whatever. This is made certain by the grossly excessive amount of damages awarded. Plaintiff was 56 years of age, his expectancy in life was, therefore, according to recognized mortality tables, 16.89 years. The extent of his right to recover was the support (in money) deceased would probably have given him during the life of his expectancy had not deceased lost his life.

What the record shows deceased had already given does not enter into the matter except in so far as it gives a basis to reckon from as • to what future contributions may have been. This court will take judicial notice of many things, but we think this rule has never been so far extended in its. application as to include matters known only to the plaintiff, matters which are vitally necessary to him by way of proof in making his case. We say this, because there is in the record nothing of certainty, disclosing what the monthly contributions were. It is passing strange that plaintiff who knew all the facts, and his counsel who questioned him on the witness stand, did not develop by the testimony the exact number of months during which no donations were made and the exact number of months during which donations were made and the amount eadh month and thus not have left the court to grope in darkness over a vital matter which it could not possibly know anything •about save what the record so meagerly discloses. The plaintiff furnished the whole of the testimony as to these donations, as follows:.

“Well, now, the amount of money he.sent me would depend entirely upon the amount of business on the road and the amount of salary he was drawing; some months he would not send anything; one month he sent $50, sometimes he would $20, sometimes $10, and sometimes $5.”

Further than this the record is absolutely barren. How many months during the year he sent nothing the record does not tell. How many months he sent $20, $10, or $5, the record is likewise silent, and we are left in -the dark without means of knowing the truth of the matter. We have no right to guess at it, since, as before stated, it was a part of plaintiff’s proof which was highly important to make clear by his testimony. We are not justified in guessing at it for him, nor will we do so. The record, so far as the proof justifies a statement, discloses a donation of $85 a year to the plaintiff, these being the amounts named, by the plaintiff as having been contributed. This sum multiplied by plaintiff’s expectancy equals $1435.65, and thus it is seen that the verdict returned was not only reckoned from the wrong basis, but in addition, as above stated, is grossly excessive. The jury not having been advised properly by the instruction supra, the verdict returned results in a miscarriage of justice and should be reversed and remanded. It is so ordered.

Bailey, G., not sitting; White, G., concurs.

PER CURIAM:

The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court;

Walker and Faris, JJ-, concur; Williams, P. J., dissents.