author: WHITE, C. GRAVES, C. J. ROY, C.

text:
    VIOLET BOGY MOSELEY v. BERNARD P. BOGY et al; BERNARD P. BOGY, Appellant.
    In Banc,
    December 1, 1917.
    1. CURTESY: In Property Devised by Will. If the wife’s will gives an undivided half interest in fee simple in her property to her husband, and the other undivided half interest to their children in fee simple, the husband- is put to his election as to whether he will claim under the will or claim his curtesy devolved upon him by operation of law. The two claims are inconsistent, and he cannot have a half in fee simple, and a curtesy in the other half.

      Held, by WILLIAMS, J., dissenting, that the intention to exclude the husband from his legal right to curtesy must be clearly expressed; if it is doubtful, he is not excluded.
    2. WILL: Devise to Husband: Fee Simple Exclusive.of Curtesy. The first clause of-the will read: “Should I die leaving surviving me my husband and a child or children, then it is my will that my whole estate, real and personal, be divided between my husband and children, in the proportion of one-half to my husband and one-half to my child or children.” The third clause read: “Should I die leaving surviving me neither husband nor children, then and in such event I give, devise and bequeath my whole estate; both real and personal, to my mother, Anne El Griffith.” Held, that testatrix’s intention -was to devise to her husband a half interest in fee simple in her entire property, and a half interest in fee simple to her children, and not to devise the real estate subject to the husband’s curtesy,, even though the will. by its terms does not . attempt to dispose of his curtesy. The word “estate” did not mean the interest she had in the property, but meant the property itself; and 'that view is enforced by the third clause, which uses the same words to describe the property and gives her “whole estate, real and personal” to her mother, in case neither husband nor children survived her, it being clear that she intended to give a vendible fee simple title to her mother in such event.

      Held (by GRAVES, C. J., concurring) that the same view is further enforced by the second clause of the will by which testatrix declared that in case of her death leaving her husband surviving, but no child or children, her “whole estate, real and personal” is given in equal parts to her husband and mother, thereby making it clear that she did not intend to make the real estate given to her mother subject, to the husband’s lifetime enjoyment.

      Held, by WILLIAMS, J., dissenting, that the husband had an estate or interest in the'lands at the time the will was made, and the will by its very terms includes everything that was hers and excludes everything'else; and there being no clearly expressed intention to exclude the husband’s curtesy, he was not put to his election, but was entitled to hold both his estate by the curtesy and the half interest in the remainder devised to him by the will.
    3. -: Election: By Butting Will Into Effect. The husband, to whom his. wife’s will gave one half her property in fee simple, by presenting the will to the probate court and making the usual affidavit, by applying for letters testamentary and qualifying as executor, by filing an inventory of the, estate and swearing to same, in which he set forth the real estate and listed no personal property, by his final settlement reporting that there was no personal property for distribution and being discharged, by receiving a benefit under the will which gave to him a vendible fee simple title to one half of testatrix’s property, and by thus deliberately putting the will into effect with full knowledge of his rights under it and of all the property affected by its provisions, elected to take under the will, and cannot now elect to renounce it and take his curtesy in the entire estate.

      Held, by GRAVES, C. J., concurring, that a letter addressed to . his daughter’s lawyer in which he stated that at the time the will was probated he was informed by the court that he had “a fee simple in one half and a curtesy in the other half, as there were no conditions attached to the acceptance of the one half left me absolutely,” further shows that he was claiming under the will, one half the estate in fee simple and the other half for life, and manifested his election to take under the will.

      Held, by WILLIAMS, J., dissenting, (1) that the act of the husband in presenting the will for probate and acting as executor thereunder does not, in itself, constitute an election to claim under the will, and the fact that he was informed by the probate court when he presented the will for probate that he was entitled to one-half the estate in fee simple and to curtesy in the other half nullifies any inference of an election that may be otherwise drawn from qualifying as executor under the will; (2) that the fact that he claimed both curtesy and under the will does not of itself amount to an election to take under the will and relinquish his curtesy; and (3) that if the facts show an election they show an election to take the curtesy and not under the will, since he never received any property under the will, and there was no personalty, there has been no change in the ownership or possession of any of the realty since testatrix’s death, and he has claimed to be collecting the rents by right of his curtesy.
    Appeal from St. Louis City Circuit Court. — Hon. Rhodes E. Cave, Judge.
    Affirmed.

      S. T. G. Smith for appellant.
    (1) A married woman cannot by will dispose of ber real property except subject to the rights of tbe husband to his curtesy therein. Sec. 536, R. S. 1909. (2) Where a man and woman are married and issue capable of inheriting is born of said marriage, the husband, by operation of law, immediately becomes vested of a freehold estate in all real property of which the wife was seized at the time of her death. Myers v. Hansbrough, 202 Mo. 495; Donovan v. Griffith, 215 Mo. 149; Kennedy v. Koopman, 166 Mo. 87; Fitzgerald v. Brennan, 57 Conn. 743; Foster v. Marshall, 22 N. H. 491; In re Folwell’s Estate, 59 Atl. (N. J.) 467. (3) A provision in a will of a wife in favor of her husband will never be presumed to be in lieu of curtesy unless such a design is unequivocally expressed. Bryant v. Buford, 49 Mo. 546; Hasenritter v. Hasenritter, 77 Mo. 162; Richardson v. DeGiverville, 107 Mo. 422; Burnley v. Thomas, 63 Mo. 392; Pemberton v. Pemberton, 29 Mo. 408; 1 Jarman on AVills (6 Ed.), p. 547. (4) Where a testatrix owns a partial interest in real estate and devises the “whole of my estate,” all that passes by her will is that part of the fee simple which is left in the testatrix by the law after the curtesy right of the husband has been cut out of the fee simple, and such a devise does not convey, or attempt to convey, the curtesy right of the husband. Myers v. Hansbrough, 202 Mo. 495; Donovan v. Griffith, 215 Mo. 149; Pratt v. Douglas, 38 N. J. Eq. 510; Penn v. G-uggenheimer, 76 Ya. 839. (5) Where a testatrix has only a partial interest in real estate and in her will employs general words in disposing of same, such as “my whole estate,” “all my lands,” “all my estate,” no case of election arises which requires a devisee holding a part of the property to elect whether he will take under the will or keep what he already has. Keas v. Gross, 92 Mo. 647; Penn v. Guggenheimer, 76 Ya. 839; Tony v. Spragins, 80 Ala. 541; Charch v. Charch, 57 Ohio St. 561; Pratt v. Douglas, 38 N. J. Eq. 510; 1 Pomeroy on Eq. Jur., sec. 473. (6)’ The word “my” in a will used to describe property disposed of is expressive of restriction to the extent of the interest of the testator only. Sauvage v. Wanhop, 143 S. W. (Tex.) 259; Emery v. Haven, 67 N. II. 505; Estate of Mumford, 1 Myrick Prob. R. 134; Thomas v. Blair, 111 La. Ann. 683. (7) If the court should find that this case is a case for an election, it appearing that the appellant Bernard P. Bogy has never exercised his right of election, then he is still entitled to elect as to which he will take, his curtesy right, or the half given by the will of his wife, Eleanor M. Bogy. Pratt v. .Douglas, 38 N. J. Eq. 510; Shuster v. Morton, 187 S. W. (Mo:) 2; Stone v. Cook, 179 Mo. 534.

      Arthur G. Moseley and W. W. Herron for respondent.
    (1) The action for partition in this case should be sustained, although it might be held that the defendant has title by curtesy. R. S. 1909, sec. 2559; Atkinson v. Brady, 114 Mo. 202. (2) The rules of law with reference to curtesy and dower are closely analogous in this State, and a construction placed upon 1 he rights of the party in the one instance will, when it can be done, be placed upon the rights of the party in the other. R. S. 1909, secs. 120, 360, 361, 535, 536; Teckenhrock v. McLaughlin, 246 Mo. 717; Moore v. Hurd, 76 Kan. 826; Everett v. Kresky, 92 Iowa, 333. (3) Estates given by will are always regarded as vesting immediately unless the testator has clearly manifested an intention that they should be contingent upon a future event. Schofield v. Allcott, 120 111. 374. An intervening life estate in one of the donees was not contemplated by the testatrix making this will, and consequently not intended by her; am intervening life estate would delay the enjoyment of the provisions made in the will for the benefit of the three donees and cannot but be antagonistic to the provisions of the will and the intention of the testatrix as shown thereby. (4) Where the surviving husband who otherwise would be entitled to a curtesy in the lands of his deceased wife is left a part of her lands in the will, he is obliged under the law to elect whether or not he will take under the will or under the law, for he cannot take under both. Casler v. Gray, 159 Mo. 595; Young v. Boardman, 79 Mo. 186; Stone v. Cook, 179 Mo. 534, 64 L. R. A. 287; Fox v. Windes, 127 Mo. 511, 48 Am. St. 648; 1 Woerner, Am. Law of Adm. (2 Ed.), p. 500; Wood v. Trust Co., 265 Mo. 511; Schuster v. Morton, 187 S. W. (Mo.) 2; Clark v. Clark, 132 Ind. 25; Robertson v. Schard, 142 Iowa., 500; Clark’s Appeal, 79 Pa. St. 377; McBride’s Estate, 81 Pa. St. 305; Severson v. Severson, 68 Ohio, 656; Aschenford v. Chapman, 81 Kan. 312; Pearson v. Harrington, 32 Ala. 240; Allen v. Boomer, 82 Wis. 371; McReynolds v. Jones, 30 Ala. 101. (5) The will must be accepted as a whole. The donee cannot accept the part that is in his favor and reject the portion that may be against him. Wood v. Trust Co., 265 Mo. 211; Stoeckler v. Silberberg, 220 Mo. 270; Davidson v. Davis, 86 Mo. 444; O’Brien'v. Ash., 169 „ Mo. 300; Cunningham v. Cunningham, 30 W. Va. 604; Stone v. Cook, 179 Mo. 534; Ditch v. Sennott, 117 111. 367. (6) The appellant by his acts in probating the will, qualifying under it as executor, a>s' well as by other conduct with reference thereto, elected to take under the will, and now cannot relinquish. Davidson v. Davis, 86 Mo. 440; Allen v. Allen, 124 N. C. 334; Allen v. Boomer, 82 Wis. 372; Smith v. Wells, 134 Mass. 11; Mitchell v. Vest, 136 N. W. (Iowa) 1055; Craig v. Conover, 80 Iowa, 358; In re Frank’s Estate, 66 N. W. 919; Appeal of Coe, 64 Conn. 352; In re Melot’s Estate, 231 Pa. 520; Hydev. Baldwin, 17 Pick. (Miss.) 307; Weeks v. Patten, 18 Me. 47; Martin v. Battey, 87 Kan. 582; Hoggard v. Jordan, 14 N. C. 610; 6 Am. & Eng. Ann. Cas. 634; Schuster v. Morton, 187 S. W: (Mo.) 2. (7) Under the Married Woman’s Act a husband has no vested estate in his wife’s separate property during her life. Evans v. Lob-dale, 6 ILoust. (Del.) 215. (8) In the construction of a will the intention of the testator must prevail unless it is contrary to some rule of law. Borland on Wills, p. 296; Burnet v. Burnet, 244 Mo. 497. (9) The estate by curtesy is derived by the husband through his wife and contemplates a continuation of the estates of the wife in the husband during his life and makes no break in the succession, whereas title by will is an alienation and constitutes a passing of the title. 1 Washburn on Real Property, p. 159; Hayes v. Baprniger, 169 Fed. 224.
   WHITE, C.

The plaintiff sued in ejectment for a one-fourth interest in certain real estate in the city of St. Louis, and in a second count of the petition demanded partition of the same alleging that the plaintiff was entitled to an undivided one-fourth interest in fee simple in the premises; the defendant Bernard P. Bogy to an undivided one-half interest, and the defendant Bernard P. Bogy, Jr., to an undivided one-fourth interest. Plaintiff is the daughter, and defendant Bernard P. Bogy, Jr., is the son, of Eleanor M. Bogy, deceased, and defendant Bernard P. Bogy is the surviving husband of Eleanor M., and the father of Violet and Bernard P., Jr. Plaintiff claims under the will of her mother who died June 10, 1904. Defendant Bernard P. Bogy in his separate answer asserts his right to possession of the property in dispute, by virtue of his curtesy.

The plaintiff in reply set up the will of Eleanor M. Bogy, alleged that Bernard P. Bogy accepted its provisions, and elected to take under it, and further alleged that by such acts he was estopped to claim any interest in the real estate contrary to its provisions. The first clause of the will is as follows:

“First. Should I die leaving surviving me my husband and a child or .children, then it is my will that my whole estate, real and personal, be divided between my husband and children, in the proportion of one half to my husband and one half to my child or children. ’ ’

The third clause is as follows:

“Third. Should I die leaving surviving me neither husband nor children, then and in such event I give, devise and bequeath my whole estate, both real and personal, to my mother Ann E. Griffith.”

The fourth clause appoints Bernard P. Bogy executor and requests that he may serve without bond. The judgment of the circuit court was in accordance with the prayer of the petition.

I. If it was the intention of the testatrix by the first clause of the will to give her husband an undivided one-half interest in fee simple in the premises and to her children an undivided half interest in fee simple, and that intention clearly appears, then Bernard P. Bogy was put to his election. a.s to whether he would claim under the will or claim his curtesy devolved upon him by operation of law. The two claims are inconsistent. The children could not have their fee simple interest if his.curtesy should be carved out leaving them only a remainder, and he would not have a vendible, fee-simple, half interest in the property if he simply held his life estate in the whole.

The principle applicable here has been considered and discussed in all its important phases in recent adjudications of this court. The rule announced by this court may be stated thus: Where a testator by will attempts to dispose of property which the will cannot affect because by operation of the law it devolves upon another, and at the same time makes provision for such other out of property which the testator may devise, the other cannot accept the provision of the will without allowing his property to go as the will directs. [Stoepler v. Silberberg, 220 Mo. 258, l. c. 270; Wood v. Trust Co., 265 Mo. l. c. 525, and cases there cited; Lindsley v. Patterson, 177 S. W. l. c. 832; Schuster v. Morton, 187 S. W. 2.] All those oases, under varying circumstances and construing different statutes, announce the principle in similar general terms.

II. It is claimed by appellant that the will by its-terms does not attempt to dispose- of the curtesy of Bernard P. Bogy, and therefore he is not put to his election. Appellant contends with much subtlety and plausibility that the use of the expression ‘ my whole estate, real and personal, ’ ’ could not include the estate and interest of the surviving husband; and further that the testatrix under the terms of the will as a whole, and the circumstances surrounding, could not have intended to pass any estate except that which lawfully she might devise, and therefore the effect of the will was merely -to dispose of the remainder after the termination of the husband’s life estate, giving the plaintiff an undivided one-fourth in that remainder.

The term “estate” as used in instruments of this character does not necessarily mean the interest which one may have in certain property; it also has a popular significance, a general significance, to which the courts sometimes give effect. When applied to real estate the word is sometimes construed to mean the testator’s specific lands and not the quantity of interest he may have in them. [Godfrey v. Humphrey, 29 Am. Dec. 621, 18 Pick. 537.] “The word estate . . . may be used to express either the quantity of interest devised or to designate the thing devised.” [Hart v. White, 26 Vt. l. c. 267; Hudson v. Wadsworth, 8 Conn. 348, l. c. 358.] The word “estate” taken in this primary sense as used in a will has been held to be synonymous with the word “property.” [Foil v. Newsome, 50 S. E. (N. C.) l. c. 598.] According to some of the dictionary definitions it may mean “fortune,” “possessions.” So it does not necessarily follow that Because the testatrix speaks of her “estate” the word must be given its restrictive meaning which would include only her specific interest in the property. It is probable that when she used the expression “my whole estate, real and personal,” it was equivalent to saying “all my real estate and personal property.” Therefore, we may gather from 'the instrument, in the light of surrounding circumstances, what was the intention of the testatrix. Having ascertained that intention the solution of the question is at hand. [Burnet v. Burnet, 244 Mo. l. c. 497.]

Appellant argues that the husband’s curtesy is a life estate vested on the death of his wife by force of the common law, and she could not have had in contemplation to dispose of it, as might be the case if she had specifically described the property instead of mentioning her estate. It should be noticed that the terms used in the statutes and in rules laid down in decisions defining and describing -the curtesy of the husband at common law always mention it as an interest in his wife’s land. He acquires his right to the curtesy by virtue of it being “her land.” The statute (Sec. 536, R. S. 1909), empowering a married woman to devise land by will, mentions it as “her land,” and provides that such devise shall be subject to the rights of the husband to his curtesy. In all those instances “her land” is spoken of as designating the property which is under consideration and not her specific interest in it. The Married Woman’s Act óf 1889 applied to this property because the marriage took place in 1890. The husband’s common-law curtesy was a mere life estate, contingent on his outliving her. The wife had entire control and management of her real estate, and enjoyment of the usufruct free from her husband’s control. She could convey it without his joining in the deed and pass a fee simple title, subject only to the contingency that he might outlive her and claim his curtesy in it. [Farmers Exchange Bank v. Hageluken, 165 Mo. 443; Kirkpatrick v. Pease, 202 Mo. l. c. 490.] Yery naturally she would call it “my real estate,” and when she mentioned her “estate real and personal” in the will, she intended the words to have the same force as such words have when used in the statutes, and desired them, to be as inclusive as if she had used a specific designation and description of the property to be affected.

Furthermore, the third clause of the will provides that if her husband and children do not- survive her, her “whole estate, both real and personal,” shall go to her mother. Of course, it cannot be questioned that the third clause, if the conditions were such that it would apply, would pass the fee simple estate. There is no reason to suppose that by the use of those words in one clause of the will she meant to devise merely a remainder and in another clause she meant by the same words to pass the entire estate. Nor is it likely that she intended to pass a larger interest in the personal property than in the real estate when using the words, “my whole estate, real and personal.” And, when she expressed her desire in the will by saying, “it is my will that my whole estate, real and personal, he divided between nay husband and my children in the porportion of one-half to my husband and one-half to my child or children,” it is highly improbable that she thereby intended a higher and larger interest in the specific property should be vested in her husband than in her children. It would be unusual if she intended to restrict her children each to. an undivided one-fourth interest in remainder in the property when the law gave them the entire remainder. It is apparent that her purpose in making the will was to make some provision for the children in addition to what the law gave them, a provision which would go into immediate effect for their benefit.

III. It is asserted, however, that even if the husband is put to a election he has not elected and may yet do so. It is true that an election being a choice between two alternatives, there would be none

if the appellant merely claimed both under the will and his right by curtesy. [Cobb v. Macfarland, 87 Neb. l. c. 411; Whitridge & Alexander v. Parkhurst, 20 Md. l. c. 70-1.] It is also a rule that when one is put to an election between two inconsistent courses and he first adopts one by some unequivocal art, that is an election which he cannot afterwards recall. [Stone v. Cook, 179 Mo. 534; Carper v. Crowl, 149 Ill. l. c. 480.] The appellant in this case now claims both his curtesy in the property and an undivided half interest in remainder under the will. Eleanor M. Bogy died in 1904 and the defendant Bernard P. Bogy, after her death, continued in possession of the real estate. That act was consistent with either a claim of curtesy or a claim under the will, because by the terms of the will he was tenant in common with his children who were minors living with him at the time. [Hynds v. Hynds, 253 Mo. l. c. 33; Boothe v. Cheek, 253 Mo. l. c. 130; Stevens v. Martin, 168 Mo. 407, l. c. 412; Seibert v. Hope, 221 Mo. l. c. 635; Rodney v. McLaughlin, 97 Mo. l. c. 431.] At that time he performed no unequivocal act indicating an intention to claim his curtesy, but he did certain things which unequivocally indicated an intention to claim under the will. The will was in his possession at the time of his wife’s death. He presented it for probate to the probate court, making the usual affidavit. He applied for letters testamentary, making affidavit that he would ‘ ‘ faithfully execute the last will of the testatrix. ’ ’ He filed and swore to an inventory of the estate. This inventory sets forth the real estate here in dispute and lists no personal property. He filed his final settlement reporting there was no personal property for disbursement and was discharged.

The authorities are conflicting as to whether or not the mere qualifying and acting as executor is an election to take under the will. In California such acts are held insufficient to show election (In re Gwin, 77 Cal. 313; Estate of Frey, 52 Cal. 658); but in North Carolina the contrary is the rule (Mendenhall v. Mendenhall, 53 N. C. 287; Syme v. Badger, 92 N. C. 706): Many cases occur where such acts are noted as indicating an intention to elect, but are associated with other facts such as accepting a bequest. [Davidson v. Davis, 86 Mo. l. c. 444.] Many cases, cited in the text-books as holding that acting as executor is not an election, show facts which qualify the act: for instance, the case of Whitridge & Alexander v. Parkhurst, 20 Md. 62, where the executrix was claiming both under the will of her mother, of which she was executrix, and also under the earlier and conflicting will of her father; the case of Tyler v. Wheeler, 160 Mass. 206, where it was held the husband did not elect by qualifying as executor, because the will gave him nothing; the case of Kerrigan v. Conelly, 46 Atl. (N. J.) 227, where the surviving husband qualified as administrator with the will annexed, and he could carry out some provisions of the will which were not inconsistent with his claim under the law; the case of Reaves v. Garrett’s Admr., 34 Ala. 558, where the executrix qualified in ignorance of her rights; the case of Pace v. Pace, 271 Ill. 114, and In re Proctor’s Estate, 103 Iowa, 232, where the acts done as executor were not inconsistent with the claim under the law.

Often it has been held that any act or declaration of the widow plainly indicating a purpose to take under the will, or recognizing the force of the will, constitutes an election. [Craig v. Conover, 80 Iowa, l. c. 358; Melot’s Estate, 231 Pa. 520. See also Appeal of Scholl, 17 Atl. (Pa.) 206.] Where a widow filed a petition asking the court to carry the will into effect, she was held by that act to have elected. [Ashlock v. Ashlock, 52 Iowa, l. c. 322.] She could not afterwards reconsider the election so made, for the Supreme Court of Iowa in deciding the case said: “The moment she made such election, it appears to us that her relation to the estate, as well as that of the other devisees, became fixed.” [See also Mitchell v. Vest, 136 N. W. (Iowa) 1054; Robertson v. Schard, 142 Iowa, 500.]

In this case the acts of Bernard P. Bogy in proving the will and qualifying under it, are inconsistent with any theory except an election to take under it. The absence of personal property emphasized the character of his acts. He could not say that he might execute the will in any particular and leave the real estate intact. The only property to be affected by it, as he must have known when he proved it, was the real estate now in dispute. His only reason for probating it and qualifying as executor was to carry out its provisions relating to the real estate. He received a benefit under it, because he acquired the vendible fee simple title to the half interest which it gave him. He had full knowledge of his rights.. He knew what the law would give him independent of the will, and he knew what the will would give him. He knew all the property affected by the provisions of the will. Having that knowledge he deliberately chose to put the will into effect, declaring that he would execute its provisions; therefore he elected to take under it.

The judgment is affirmed.

Boy, C., dissents.

PER CURIAM: — The foregoing opinion of White, C., is adopted as the opinion of Court in Banc.

Bond and Walker, JJ., concur; Graves, G. J., Faris and Woodson, JJ., concur in separate opinion by Graves, G. J.; Blair, J., dissents; Williams, J., dissents, and adopts the opinion of .Roy, G-, as his dissenting opinion.

GRAVES, C. J.

(concurring)- — In this case I concur in the opinion of White, C., upon all of the questions therein considered. When this whole will is read (from its four corners, as we must, to get intent) there can be no question as to what the testatrix meant by the first clause of that instrument. She uses the terms “my whole estate, real and personal.” In the second clause she uses the same terms. In this second clause of the will she eliminates her prospective children (for she had no children when the will was made) and divides the property between her husband and her mother. It would be giving language a strained construction to say that, by this second clause, she meant that her mother should only take a remainder in one-half of the realty. She intended to provide substantially for her mother immediately upon her death. A mere remainder would not do this. To my mind nothing is clearer than that this testatrix under the second clause in the will had reference to a fee simple estate in all her lands, and that her husband and her mother should each have an undivided half interest therein in fee. Her mother 2s age would preclude from her mind the idea of forcing her to run a race of life with her husband to see whether or not the mother would receive a substantial heritage by the will. When the testatrix subscribed to this will (in my humble judgment) she had no other thought than to give her mother and her husband their respective interests in fee simple.

A consideration of this second clause throws much light upon the first clause, because the same words are used. If she used the words “my whole estate, real and personal” in the sense of a fee simple interest therein in the second clause of the will, she evidently used them in the first clause. But this is not all. When we reach the third clause of the will we find the same words, i. é. “my whole estate, both real and personal.” In that clause she is providing for the disposition of her estate in the event she had neither husband nor children at her death. She was giving a fee simple to the mother, and yet uses the same identical language. Reading the whole will, as we must, it is clear that the terms “my whole estate, both real and personal” were tised throughout the whole instrument in the sense of a fee simple estate. She therefore intended by the first clause to give to her husband one half of the real estate in fee simple, and the other half in fee simple was to go to her children. If then the husband desired to hold the life estate given him by the law, he was placed upon his election.

The next question is, has he elected? The facts of the case shows that he did. His letter to Judge Moseley of date November 18, 1912, speaks louder than his acts. This letter evinces the fact that he counseled with the probate judge, when he went in to administer upon this estate; that he was advised that the will gave him one half of the estate in fee simple and the other half for life; he proved the will and administered the estate on that theory; lawyers later advised him to the same effect. In fact, this letter shows that he was claiming one half the estate in fee simple and the other half for life. This kind of claim could only be based on the will. Under the law (without the will) he had only a life estate. "Whenever he claimed more than a life estate, he was claiming under the will and not under the law, and against the will. That he did make this claim of a fee simple title is shown by his letter. That letter reads: “Now, as to Y. ’s rights. At the time the will was probated I was informed by the court that I had a fee in one half and a curtesy in the other half, as there were no conditions attached to the acceptance of the one half left me absolutely. Since V..’s marriage I have consulted several lawyers, and they have all agreed to the above.” The italics are ours. That the husband from the time of probating this will to the time of writing this letter was claiming a fee in one half this real estate there can be no question, and if he was, he was claiming it under the will and not otherwise. He has therefore elected to take under the will. That the construction given by this court of this will may differ from his views of the meaning of the will, or the advice he received as to its meaning, cannot wipe out the fact that the husband did elect to take under the will. Plis views of the wiil were erroneous, and he may have lost in the transaction, but that he elected to take under the will because he thought (under his construction) that he was getting one half of the property absolutely, is clear. For these reasons, as well as for the reasons stated in the opinion, I concur fully in the opinion by White, C.

ROY, C.

(Adopted by WILLIAMS, J., dissenting) — Plaintiff’s petition is in two counts, the first being in ejectment for an undivided fourth of certain real estate in the city of St. Louis, and the second for the partition of the same property. There was judgment for the plaintiff in accordance with her petition, and the defendant Bernard P. Bogy has appealed.

The defendant Bernard P. Bogy and Eleanor M. Griffith were married February 5,1890.- There were born of that marriage two children, the plaintiff who was born January 15, 1891, and defendant Bernard P. Bogy, Jr., who was born November 12, 1894. During her lifetime the wife was seized in fee simple of the property in controversy, which' was and still is tenement property and under, lease to various tenants. Up to the. time of her death the rents were paid to the wife. She'died June 10, 1904. She left a will which was presented for probate by the surviving husband and was admitted to .probate by the probate court of said city on June 14, 1904.

The material parts of that will are as follows:

‘ ‘ First. Should I die leaving surviving me my husband and a child or children, then it is my will that my whole estate, real and personal, be divided between my husband and children, in the proportion of one-half to .my husband and one-half to my child or children.
‘ ‘ Second. Should I die leaving surviving me my husband, but no child or children, then it is my will that my whole estate, real and personal, be equally divided between my husband and my mother^ Ann E. Griffith, one-half to each.
“Third. Should I die leaving surviving me neither husband nor children, then and in such event I give, devise and bequeath' my whole estate, both real and personal, to my mother, Ann E. Griffith.
“Fourth. I hereby appoint my husband, Bernard P. Bogy, my executor and request that he be not required to give bond. ’ ’

The executor therein named thereupon qualified as such, and filed am inventory of the property of the estate, showing the property in controversy and no" other. There was no personal property of the estate. In due time the executor filed his final settlement of such estate, showing that he had received nothing, and had paid out nothing as such executor.

Immediately upon the death of the wife the husband began collecting the rents of the property, amounting to about $1200 a year. He did not account for any portion of the rents to his children.

This suit was begun February 24, 1914. Bernard P. Bogy, Jr., was made defendant and appeared by the defendant Bernard P. Bogy as his guardian ad litem.

The first count of the petition contains the following:

“That defendants thereafter, on, to-wit, the twentieth day of June, 1904, entered into and upon such premises and have since said entry and do now unlawfully withhold from plaintiff the possession of said premises, to her damage in the sum of one hundred thousand dollars; that plaintiff: was upon the said tenth day of June, 1904, and has been ever since said date legally entitled to the possession of said premises.”

The answer of defendant Bernard P. Bogy states that he is the owner of an estate by the curtesy in all said real estate, and that he is entitled under said will to onelialf of the remainder in fee, and that each of the other parties is entitled to a fourth of the remainder in fee under said will.

The reply alleges that such will disposed of the entire property in fee, giving to the father a half and to each of the children a fourth. It contains the following:

“That the said Bernard ’P. Bogy, defendant, accepted the devise so made to him in said will, and elected to take and enjoy the same, and now claims, and has claimed ever since the probating of said will, to be the owner in fee-simple of an undivided one-half interest in and to the real estate described in the petition, under and by virtue of the provisions of said will.
‘ ‘ That neither the plaintiff nor either of the defendants have or claim any other source of title to said real estate than by, through and under said Eleanor Bogy and by, through and under said will; and that the said Eleanor Bogy, deceased, is the common source of title.
“That said defendant Bernard P. Bogy elected to accept the devise made to him in said will, and is es-topped thereby to claim, assert or set up any right, title and interest in and to said real estate, or any part thereof, contrary to the provisions of said will or by reason of curtesy of the laws of this State, for that the claim of estate by curtesy in said land is antagonistic to the dispositions made in said will; and that the said Bernard P. Bogy, defendant, waived his right to claim title by curtesy to said real estate by reason of his assent to said will and his claim under the provisions thereof, as aforesaid, and by reason of his acceptance of the provisions of said will, as aforesaid, made in his favor, and his acceptance of the trust thereby created as executor and the probating thereof, for that plaintiff says that the assent to said will on the part of the said Bernard P. Bogy and acceptance by him of the fee-simple estate devised to him in said will are antagonistic to the claim now made by him of an estate by curtesy therein, and this she is ready to verify.”

On the trial the plaintiff introduced in evidence a letter written by the defendant Bernard P. Bogy to Judge Moseley, plaintiff’s attorney, dated November 18, 1912. It contained the following:

“Now, as to V.’s rights. At the time the will was probated I was informed by the court that I had a fee in one half and a curtesy in the other half, as there were no conditions attached to the acceptance of the one-half left me absolutely. Since Y.’s marriage I have consulted several lawyers, and they have all agreed to the above.”

It is agreed that “V.” mentioned in that letter is the plaintiff.

I. In Myers v. Hansbrough, 202 Mo. 495, Valliant, P. J., said:

“The particular title by which the plaintiff claims right to the possession of this land was never in his wife, it is an interest cut out of her title, subtracted from it, not by her leave or license, but by the arbitrary force of the law. It is an interest that could not be taken from the husband either at the will or sufferance of the wife. If a creditor of hers, after the estate by the curtesy initiate had vested in the husband, had obtained judgment against her and sold the land in her lifetime, the purchaser at the sheriff’s sale would have obtained what was hers, which, under the statute, included possession during her life, but the creditor would not by such sale acquire wdiat was not hers, what was beyond the reach of her will or sufferance.”

That case has been cited with approval in Donovan v. Griffith, 215 Mo. l. c. 162, and in Teckenbrock v. McLaughlin, 246 Mo. 711.

Mrs. Bogy owned an estate or interest in this land, but she did not have the entire ownership of it. The husband also had an estate or interest in it. Her will does not purport to dispose of any particular item of property, real or personal. It does not attempt to dispose of “my land.” It disposes of “my whole estate, real and personal,” no more, no less. By its very terms it includes everything that was hers and excludes everything else. The language used seems specially and peculiarly adapted to the purpose of leaving the husband’s curtesy estate unaffected by it.

If the wife entertained any intention of disposing of the entire ownership of the land including the husband’s curtesy estate, she did not express such intention in the language of the will. We find no authority anywhere holding that the words “my estate” can be construed to include the estate of others ¿a land not otherwise particularly described.

Godfrey v. Humphrey, 18 Pick. (35 Mass.) 539, is cited as upholding the contrary view. In that case the testator owned the land in fee, and the only question was whether the devise of his “estate” to the wife, without words of explanation, carried the fee or only an estate for the life of the wife. The question at issue here was not there involved. But the court in that case said:

“It has long been held, that the devise of all a man’s estate, where there are not words to control or restrain its operation, shall be construed not merely to mean his lands, but the quantity of interest which he has in them, so as to pass an estate of inheritance, if he has one. [Carter v. Horner, 4 Mod. 89, 1 Eq. Cas. Abr. 177.]”

Certainly it will be construed “to pass an estate of inheritance if he has one.”

In Graham v. Roseburgh, 47 Mo. 111, l. c. 114, it was said:

“The principle of election is frequently applied by courts of equity in cases of wills, and rests upon the obligation imposed on a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one, that he should not enjoy both.”

Note that the intention must be “clear.”

In Schorr v. Etling, 124 Mo. 42, it was claimed that a devise to a wife was in exclusion of her homestead estate. It was said:

“The intent to exclude the widow from her legal right must clearly appear; if it be doubtful, she is not to be excluded.”

In our opinion this is- not a case in which the surviving husband was put to his election, and that he is entitled to hold both his estate by the curtesy and the half interest in the remainder devised to him in the will.

II. For convenience it will be understood that when we hereinafter speak of the defendant it will mean Bernard P. Bogy, Sr., unless it is otherwise expressed.

Even if the law were such as to put the husband to his election, the act of the husband in presenting the will for probate and acting as executor thereunder does not, in itself, constitute such an election. [Benedict v. Wilmarth, 46 Fla. 535; In re Proctor’s Est., 103 Iowa, 232; Smith’s Admr. v. Smith, 6 Ky. L. R. 453; Kerrigan v. Conelly, 46 Atl. (N. J.) 227; Williams v. Boul, 184 N. Y. 605; Reaves v. Garrett’s Admr., 34 Ala. 558; In re Gwin, 77 Cal. 313; Whitridge v. Parkhurst, 20 Md. 62; Cameron v. Cameron, Ohio Prob. R. 157; Taylor v. Browne, 2 Leigh (Va.), 419; Pace v. Pace, 271 Ill. 114.]

The courts of North Carolina hold that where a widow qualifies as the executrix of her husband’s will, she cannot afterward dissent from the will and claim dower. [Mendenhall v. Mendenhall, 53 N. C. 287.] But the reason for that holding is there expressed in these words:

“The right to dissent is inconsistent with her act of qualifying as executrix, and the duties thereby assumed in this:
“1. The appointment and qualification of one as executrix, operates as an assignment in law, and vests the whole personal estate in such executor. If one executes a writing by which he appoints A. B. his executor, that is a will. A. B. thereby becomes the owner of the estate, and, after paying off the debts, is, by the common law, entitled to the surplus.
“If one executes a writing by which he disposes of his property after his death, without appointing an executor, that is a testament. If he does both, that is appoints an executor, and also disposes of his estate, or a part thereof, that is ‘a last will and testament.’ The executor becomes the owner of the estate, and after paying off the debts and legacies, is entitled, by the common law, to the surplus. Thus, it is seen that the office of executor is deemed in law of great importance; it draws to it the ownership, control and management of the entire personal estate, and gives a right (at common law) to the surplus. It is, therefore, manifestly inconsistent for a widow to claim the office and its rights and incidents under the will, and at the same time to enter her dissent and claim dower, year’s provision and a distributive share, as if her husband had died intestate; in other words, there is an inconsistency in claiming the office under the will, and at the same time claiming rights as if there was no will. ’ ’

The common law giving to the executor such surplus was in force in that State. It is the reason for such holding. We have no such law here, and therefore no such reason, and no such rule. There is a special reason in this casse, over and above what is shown in most of the other cases above cited. We have a right to assume that the court, at the time of the probating of the will, told the defendant that he was entitled to hold both the curtesy and under the will, for the fact that such advice was given was put in evidence by the plaintiff, and all. the evidence in the case is consistent with the fact that such advice was given. It would be remarkable if this court should now hold that he made an election by probating the will and serving as executor after the court had told him that he could take both estates without an election, and in spite of the fact that this court has held that no election is called for unless the will is clear and free from doubt on this point.

III. The fact that the defendant claimed both the curtesy and under the will does not in itself amount to an election to take under the will and' relinquish the curtesy. [Cobb v. Macfarland, 127 N. W. (Neb.) 378; Whitridge v. Parkhurst, 20 Md. 62; Schuster v. Morton, 187 S. W. (Mo.) 2.]

IV. If the facts in this case show an election it was an election to take the curtesy and not under the will.

The surviving husband has never received any property under the will. There was no personal property, and the interest in remainder devised to him has never been received by him. If he had gold and conveyed in fee an undivided half of the property and had appropriated to his own nse the consideration therefor, a different situation would confront us. But there has not been any change in-the ownership or possession of the property since the wife’s death, except that immediately after her death the husband went into possession and has been receiving the rents. He has claimed to be doing that by right of his curtesy estate. It is strictly in accordance with such estate. It cannot be presumed that he collected the rents for himself and his minor children in accordance with the will. It does not appear that he ever gave bond as their guardian. We note that he represents the minor son here as guardian ad litem and not as general guardian. In State ex rel. v. Staed, 143 Mo. l. c. 252, it was said:

“He was not living with his son, but his son was-living with him. The estate of the son was not derived from the father, and he had not, so far as the evidence shows, given bond or qualified himself to act as guardian or curator of the estate of the child as required by Revised Statutes 1889, section 5279. It cannot be said, therefore, that his possession-was the possession of the child, and it is clear that the fact that the child was living with his father in the premises did not change the character of the father’s original possession.”

It certainly cannot be held in this case that the possession of the property by the father was as a cotenant with his children in face of the allegation of the petition that he had ousted the plaintiff.

The judgment should be reversed and the cause remanded.

White, C., dissents.

The foregoing opinión of Roy, C., in Division, is adopted by Williams, J., as his dissenting opinion in Banc.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE ex rel. ELLIOTT W. MAJOR v. GEORGE H. SHIELDS, Judge, and NAT GOLDSTEIN.
    In Banc,
    December 1, 1917.
    1. DAMAGES: Governor’s Refusal to Issue Commission. A court has no authority to entertain or determine a proceeding which has for its object the assessment of damages against the Governor of the State for failing or refusing to issue a commission to an individual elected to an office.
    2. GOVERNOR’S EXECUTIVE DUTIES: Political: Controlled by Mandamus or Action for Damages. The power conferred upon the Governor to issue a commission to one elected to office is not ministerial, but political, and its exercise cannot be compelled by mandamus or otherwise controlled, and in consequence no action against him for damages for failure or refusal tc issue the commission can be maintained.
    Prohibition.
    Writ granted.

      Charles G. Revelle for relator.
    (1) Our form of State government is divided into three separate and distinct departments — the executive, legislative and judicial — and each is exclusively confided to a separate magistracy. Article 3 of Mo. Constitution. (2) The legislative power is vested in the General Assembly and in the people, and the exercise thereof is not subject to judicial arrest or control. Art. 4, Constitution; Pitman v. Drabelle, 267 Mo. 78; State ex rel. v. Gates, 190 Mo. 555. (3) The judicial power of the State is vested in the courts, and this power cannot be interfered with .by the legislative or executive departments. Constitution, art. 6, sec. 1; State ex rel. v. Equitable Loan, 142 Mo. 325; State ex rel. v. Locker, 266 Mo. 384; Poster v. State, 41 Mo. 61; Yail v. Dinning, 44 Mo. 210. (4) No civil action will lie against a judge of a court for a judicial act or a member of the Legislature for a legislative act, even though it he alleged that the act was done maliciously. Bradley v. Fisher, 80 U. S. 357; Spalding v. Yilas, 161 U. S. 494; Governor v. State, 127 Ind.'588; Larkin v. Newman, 19 Wis. 82; People v. Hill, 13 N. Y. Supp. 186; 15 Am. & Eng. Ency. Law, p. 1068. (5) In exactly the same degree that the judicial power is vested in the courts and. the legislative power in the General Assembly and the people, the executive power is vested in the Governor of the State. Sec. 4, art. 5, Mo. Constitution. (6) Every official act performed by the Governor of the State is executive as distinguished from ministerial. State ex rel. v. Stone, 120 Mo. 428; State ex rel. v. Governor, 39 Mo. 398. (7) It is the constitutional duty of the Governor to take care that the laws are faithfully executed, and in doing so his acts are always discretionary. Sec. 6, art. 5, Mo. Constitution. (8) The courts are entirely without power to directly or indirectly control the official acts of the Governor, whether through remedial writs or civil actions. State ex rel. v. Stone,120 Mo. 428; Governor v. State,127 Ind. 588; People v. Governor, 29 Mich. 320; Bradley v. Fisher, 80 TJ. S. 357 ; Spalding v. Yilas, 161 U. S. 494; Larkin v. Newman, Í9 Wis. 82; People v. Hill, 13 N. Y. Supp. 186; 15 Am. & Eng. Ency. Law, p. 1068; 6 Am. & Eng. Ency. Law, pp. 1006, 1014; 14 Am. & Eng. Ency. Law, p. 1106.

      Spencer & Donnell for respondent.
    (1) On the death of Charles R. Graves, in June, 1916, the office of circuit clerk of the city of St. Louis, which he held, became vacant, and the Governor appointed James Hagerman to fill this vacancy. This appointment, under the law, was until the next general election. Sec. 2674, R. S. 1909; State ex rel. v. Amick, 247 Mo. 271; State ex rel. v. Perkins, 139 Mo. 115. (2) At the general election of 1916 respondent, Nat Goldstein, was elected circuit clerk for city of St. Louis for the unexpired term of Charles R. Graves, deceased, and was entitled to the office immediately after this election, i. e., so soon as his certificate of election issued. (3) The certificate of election was promptly issued to Mr. Goldstein after the general election in November, 1916, and the results of the election were certified, as provided by law, to the Secreta? y of State, and it then became the duty of the Governoi to issue a commission to Mr. Goldstein. Constitution, art. 5, sec. 23; Sec. 2673, R. S. 1909. (4) The duty of the Governor to thus issue the commission was purely ministerial. He had no power to investigate or decide the result of the election. The commission was for the unexpired term of Chas. R. Graves. Every question, either concerning the election or the term of office or the duties thereof, were questions for the courts, not for the Executive. “The •questions involved are legal questions.” State ex rel. v. Amick, 247 Mo. 294. “The Governor, where he issues a commission for an elective office, is simply performing a ministerial duty, in which he must necessarily be. governed by the returns as they appear in the proper office at the seat of government.” State ex rel. v. Vail, 53 Mo. 112; State ex rel. v. Draper, 48 Mo. 215; State ex rel. v. Steers, 44 Mo. 227. ' (5) A commission was necessary because required by law. Secs. 2673, 10197, R. S. 1909. (6) The Governor, without warrant .of law, and for personal and party reasons, deliberately and with malice, denied to respondent his legal right, and deprived him of his salary, and wantonly kept him from the office to which he had been elected by the people. (7) A Governor who wilfully and maliciously injures another is liable for the damage he does. “Where the duties of the office [Governor] are ministerial, any individual injured by the official acts of such officer may resort to the courts for redress.” Drucker v. Saloman, 21 Wis. 629; Marbury v. Madison, 1 Cranch. 137; Moyer v. Peabody, 212 U. S. 78; 12 R. C. L. 1009. (8) Judges are responsible for wilful illegal misconduct in connection with ministerial duties. 23 Oyc. 538, and 571 and note; State ex rel. v. Graves, 8 Mo. 151; Knox v. ITunolt, 110 Mo. 75; Pike v. Megoun, 44 Mo. 496.
   WALKER, J.

This is a proceeding by prohibition to prevent a¡ circuit judge from hearing and determining a suit the purpose of which is to mulct a former Governor of this State in damages for his failure and refusal to issue a commission to one elected to the office of clerk of the circuit court of the city of St. Louis.

Upon the filing of the suit for damages the defendant therein, who is the relator here, interposed a demurrer based on the ground that the petition did not state a cause of action. This was overruled; whereupon relator petitioned this court for a writ of prohibition, alleging as a moving reason therefor, as in his demurrer below, that the petition did not state a cause of action and hence no jurisdiction existed in the trial court to hear and determine the case. Upon the issuance of a preliminary order the respondent made return thereto, setting up much extraneous and wholly irrelevant matter. The material parts of this return to which we will alone direct attention-are that the plaintiff in the damage suit had at the preceding election in November, 1916, been elected to fill out an unexpired term as clerk of the circuit court of the city of St. Louis and, as alleged in his petition, being otherwise qualified, had — stating his acts in detail — complied with the law entitling him to enter upon the discharge of the duties of said office upon the issuance to him of a commission by the Governor of the State; that the latter had as Governor refused to issue said commission, and plaintiff had thereupon instituted in the circuit court of the city of St. Louis in November, 1916, a proceeding by quo warranto against his predecessor, the then incumbent of said office as clerk of the circuit court, who had been appointed as such by the Governor until the general election in November, 1916; and that the said proceeding had been finally determined in favor of the plaintiff and that he had again applied to the Governor for the issuance of a commission, which had been refused until a short time before January 1, 1917, when said commission had been issued and he had entered upon the discharge of the duties. of the office; that he was damaged by reason of the refusal of the Governor to issue said commission which would have entitled him to take charge of the office immediately upon his election in November, 1916, instead of his right thereto being deferred until January, 1917. These facts, if not explicitly pleaded are to be gleaned from the record before us as the reasons urged by the respondent, why the peremptory writ should not issue.

Relator’s motion to strike out parts of this return we have, in effect, sustained by epitomizing only such portions of same as constitute a proper pleading in a case of this character. Thus freed of matters foreign to the issue, there is presented the question of jurisdiction; or, concretely stated, has a court authority to entertain and determine a proceeding which has for its purpose the assessment of damages against a Governor for failing or refusing to issue a commission to an individual elected to an office?

A determination of this question involves a discussion of the triune nature of our government; and as a consequence the relation of each of the departments, thus created, to the others. The origin of this form of government, diverting as a review of same might prove, is pertinent here only so far as same is necessary to an elucidation of the matter at issue. It will suffice to say that the germinal idea of a government of three coordinate branches is first found recorded in. Aristotle’s Politics where it said that “in every polity there are three departments; .first, the assembly; second, the officers, including their powers and appointment; and third, the judging or judicial department.”’ The wisdom of this classification and its appropriate application in the framing of the laws of a free government has been illustrated by its incorporation into our national organic law and subsequently into the constitutions of the several states. The central idea in the creation of a government of this form is that the powers created shall be coordinate in their relations towards each other; and while supreme within their respective orbits they shall so move as not to invade the plane of • activity of the others. Thus regulated friction in the conduct of public affairs is avoided and that harmony promoted which is most conducive to the stability of government and, as a consequence, to the welfare of the people. A contrariety of opinion is found in the rulings of courts of last resort in different jurisdictions as to what constitutes an invasion hy one of these governmental powers of another. This is notably true as to the power of the courts to eompehthe Governor by a remedial writ to perform an official duty. A compilation of the earlier oases on this subject will be found in State ex rel. Robb v. Stone, 120 Mo. l. c. 434, 436, in a well considered opinion by Sherwood, J., and in the notes to a later case (State ex rel. Irvine 1. Brooks, 6 L. R. A. [N. S.] [Wyo.] 750) in another jurisdiction. These variant rulings while assigning somewhat different reasons for the conclusions reached, are based primarily upon the construction placed upon the character of the duty sought to be controlled ; the right to the writ being limited to the control of such duties of the Governor as are denominated ministerial. What is meant by ministerial duty, as applied to judicial action, is usually not difficult of determination; but it is otherwise when it is attempted to thus classify executive duties. They are usually clearly defined and the power of their performance confided exclusively to the Governor. In their exercise a degree of discretion is necessarily required. They demand, therefore, no interpretation and are not subject to judicial control. If control is attempted to be exercised, under such a state of facts, it cannot prove otherwise than an invasion of power and hence contrary to the spirit and purpose of the law separating the government into three branches and defining the powers of each. But we are not left to abstract reasoning to determine that power thus conferred upon the Governor is not ministerial. In State ex rel. Bartley v. Governor, 39 Mo. 388, this court declared, under a state of facts parallel in all of their material features to those of the case at bar, that power conferred upon the Governor to issue a commission to one elected to an office is political and not ministerial in its character, and as such, aside from any other reason would not authorize the court in granting a writ to control the Governor’s action. In addition the court puts its refusal to so act upon a broader ground; namely, that the Governor’s duties devolve on him by law, under a higher authority than the order of a court, i. e., the mandate of the Constitution. The duties thus conferred are political and his acts are entirely independent of the judiciary and for a failure to perform same he is responsible to the people alone, his liability being that of impeachment. If this court can issue a writ of mandamus to compel the Governor to grant this commission which he improperly or from a mistaken view of the law withheld, by this course of reasoning he may be required by the court to see that the laws are enforced and obeyed. The danger of the assumption of this fact is dwelt upon on the part of the court in that if exercised in one case and a precedent therefor established, no limit thereto can be defined. If the Governor is clothed with political discretion in regard to the execution and enforcement of the law and other duties enjoined on him, so he is concerning the issuance of commissions to those elected to office; and the court has no greater power to prescribe the rule of his conduct in one ease than in the other. “This would,” says the court, “make the judges the interpreters of the will of the executive, and the independence of the executive department as a coordinate branch of the government would be virtually destroyed. ’ ’

In re Woodson, 58 Mo. l. c. 372, which was in response to an inquiry submitted by the then Governor to the judges of the Supreme Court, under the authority of a law then in force, the court said: “It is well settled that in issuing a commission the Governor acts in a political or executive ’ capacity, and he alone can judge whether the power should be exercised or not, and the courts can neither compel nor interfere with him in the exercise of this right.”

In State ex rel. Robb v. Stone, supra, the court announces the doctrine of non-interference even more broadly than in the two preceding oases, it being held that a mandamus would not issue to the Governor to compel the performance of any duty pertaining to his office, whether political or merely ministerial, commanded either by the Constitution or the statutes; and, says the court: While it was not expressly so decided in State ex rel. v. Governor, 39 Mo. 388, it was clearly intimated that in the acts authorized by law to be performed by the Governor “there was really no valid distinction between a political and ministerial act when considered with reference to the issuance of a mandamus against him. ’ ’

It remains to be considered to what extent the rule as here announced as to judicial non-interference with executive action may be considered persuasive or as a precedent in determining the matter at issue. A mandamus proceeding simply seeks to compel action. A denial of the right when directed against the Governor, upon the comprehensive grounds stated in the cases discussed, means simply that as thus sought to be invoked, the right to the writ does not exist. These rulings therefore accord full freedom of action to the Governor in all matters pertaining to the discharge of the duties of his office. If freedom of executive action is thus assured, can it be said that the failure of the Governor to act in a given case will render him liable for such inaction to an individual who claims thereby to have been damaged. To so hold would involve an absurdity, in that while according the Governor freedom of action we would nevertheless hold him liable at the behest of an .individual for non-action. The immunity to which the Governor is entitled, is as applicable in one class of cases as in the other. The complete absence of the statement of a cause of action, and the fact, evident from the averments in the petition, that no cause of action exists, gives the trial court no authority to proceed in the premises, from which it follows that the writ-prayed for should be made absolute, and it is so ordered.

All concur.


author: BROWN, C.

text:
    ABRAHAM MORRIS v. EDWARD PRYOR, Receiver of WABASH RAILROAD COMPANY, Appellant.
    In Banc,
    December 1, 1917.
    1. NEGLIGENCE IN CONSTRUCTION OF TRACK: Curve Near Coal Bin. A spur track passed along the north side of a poultry house . in a westerly direction, thence across the street on a thirty-degree curve to the south, which ended in a tangent a few feet west of the street, and extended from that point a distance of fifty-two feet along the north side of a coal bin of an electric light plant, in an almost straight line and at a practically uniform distance of four feet from the bin. The effect of the curved track was that a car forty-two feet long standing at the coal bin in a position to be unloaded stood at a distance sufficient to permit a switchman to stand or move between the car and the bin with safety, but when the car moved eastward, at his signal, its middle portion, owing to the curve in the track, swung in towards the inside of the curve and slowly moved nearer to the coal bin, and crushed him between the car and bin. Held, that under the circumstances the construction of the curved track so as to permit the switch-man to be injured in the manner he was injured was not a neglect of the master’s duty to provide a reasonably safe place in which the servant might perform his appointed work, there being no showing that the company did not do its best, consistently with successful operation, in the location and construction of the track on the line adopted.
    2. ,-: -: Reasonably Safe: Absolute Safety. The term “reasonably safe” does not mean that a railroad company is required to construct its track, in its relation to the physical features of the electric light plant it is required to serve, in such a manner that the operation of trains thereon will J>e absolutely safe, even to careful employees.
    3. -: -: Assumption of Risks. Railroad trainmen are surrounded with dangers to life and limb under the most favorable circumstances, the risk of which they assume in their employment.
    4. -: -: -: • Primary Duty of Railroad: Latitude of Judgment in Performance. The primary duty of a railroad is to render that service to the public which the law imposes as an incident to the calling and the exercise of its franchise. In the matter of supplying appliances to meet that duty under diverse conditions it must be allowed a latitude of judgment, since variable conditions are important stones in the foundation of the doctrine of assumption of risk; and" if its officers and servants undertake the work of performing that duty, under circumstances charging them with full knowledge of all the dangers and difficulties incident to its successful prosecution with the facilities available, without complaint or other expression of dissatisfaction, they assume the risk of injuries resulting from the use of such facilities, even though they would not have occurred in the use of some other instruments or situation designed to accomplish the same purpose.
    5. -: -: Experienced Employee: Heedlessly Choosing Dangerous Situation. The railroad company cannot be charged with negligence in constructing a curved spur track leading to a coal bin of an electric light plant, if the injured switchman, foreman of the crew, experienced in the performance of his work, knowing the tendency of the middle portion of a car to swing in towards the inside of the curve, heedlessly took his position between the car and the bin, when the other side was safe and customarily used, and gave the signal to move, and heedlessly turned his back to the car when it began to move, and was crushed when the car swung in towards the bin, when if he had exercised prudence for his safety a few steps would have enabled him to avoid the accident.
    Appeal from Randolph Circuit Court. — Hon. A. H. Waller, Judge.
    Reversed.

      J. L. Minnis, N. S. Brown and J. A. Collet for appellant.
    Defendant’s demurrer to the evidence should have been sustained, because: (1) There was no proof of actionable negligence of the defendant. Railroad v. Newell, 196 Fed. 868; Tuttle v. Railroad, 122 U. S. 189; Reece v. Railroad, 239 U. S. 463; Miller v. Railroad, 185 Mich. 432; Haring v. Railroad, 137 Wis. 367; Eliott v. Railroad, 204 Mo.- 17; Coin v. Lounge Co., 222 Mo. 506. (2) Defendant furnished'to plaintiff a proper and safe place in which to perform his duties, and he voluntarily selected a dangerous place in which to perform, the same, and was thereby injured. Cases supra; White, Personal Injuries, see. 358; Moore v. Railroad, 146 Mo. 572. (3) The maintenance of the spur track in its relation to the coal bin, as shown by the evidence, was not the proximate cause of plaintiff’s injuries. Railroad v. Wiles, 240 U. S., 448. (4) Plaintiff failed to prove a cause of action under the Federal Employers’ Liability Act. Railroad v. Behrens, 233 U. S. 478; Railroad v. Carr, 238 U. S. 260; Pennsylvania Co. v. Donat, 239 U. S. 50; Henoh v. Railroad, 246 Pa. 1; Molliter v. Railroad, 180 Mo. App. 84. (5) Plaintiff assumed the risk of injuries arising from the alleged improper maintenance of the track. Cases supra; Railroad v.- Horton, 233 U. S-. 492; Jacobs v. Railroad, 241 U. S. 229; Bradley v. Railroad, 138 Mo. 293; Hager v. Railroad, 207 Mo. 302; Moore v. Railroad, 146 Mo. 572; Railroad v. Jones, 241 U. S. 181; Southern Ry. v. Gray, 241 U. S. 339.

      M. J. Lilly and O. C. Phillips for respondent.
    (1) There was proof of actionable negligence of defendant. George v. Railroad, 225 Mo. 364; Murphy v. Railroad, 115 Mo. 118; Charlton v. Railroad, 200 Mo. 437; Fish v. Railroad, 263 Mo. 106. (2) Plaintiff was not guilty of negligence in using ah unsafe way furnished by the defendant unless the danger was obvious, even though there was a safer place in which he might have worked. Cases supra; Boehm v. Electric Co., 179 Mo. App. 663; Hutchinson v. Safety Gate Co., 247 Mo. 116. (3) The maintenance of the track in such situation that employees were endangered by the proximity of the building was the proximate cause of the injury. Cases supra. (4) Plaintiff proved a cause of action under the Federal Employers’Liability Act. The test is: “Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to he practically a part of it?” Shanks v..Railroad, 239 U. S. 556; Mondou v. Railroad, 223 U. S. 1; Pedersen v. Railroad, 229 U. S. 146; Railroad, v. Behrens, 233 U. S. 473; Railroad v. Seale, 229 U. S.' 156; Railroad v. Carr, 238 U. S. 260. (5) Plaintiff did not assume risks arising from the improper maintenance of the tracks which were not obvious to him and of which he had no knowledge or notice. Railroad v. Proffitt, 241 U. S. 462; Railroad v. Horton, 233 U. S. 504.
   BROWN, C.

This suit was instituted in the circuit court of Randolph County against the receivers of the Wahash Railroad Company, returnable at the February term, 1914, of that court. The appellant is the only remaining receiver. That portion of the petition charging the circumstances of the injury is as follows:

“That at all the times hereinafter mentioned the above named receivers were common carriers engaged in interstate commerce; that is, the transportation of passengers, goods and merchandise from points within the State of Missouri to points in other States of the United States and from points in other States in the United States to Moberly and other-points within the State of Missouri. That defendants now have in the city of Moberly, county of Randolph, State of Missouri, offices and agents in charge thereof for the transaction of their usual business.
“Plaintiff further states that on the 25th day of July, 1913, and for some time prior thereto, he'was a switchman in the employ and service of the receivers of the Wahash Railroad Company as aforesaid; that he was employed in and about the railroad yards and tracks operated by the receivers in Moberly, Missouri; that as a switchman it was his duty to and he continually was engaged in handling ears, both interstate and intrastate indiscriminately, and that at the time of his injury hereinafter set forth he was engaged in the movement of cars used both in interstate and intrastate commerce, some of which were loaded with merchandise and poultry from points without the State of Missouri, to Moberly, Missouri, and some of which were being loaded with merchandise and dressed poultry destined to points outside the State of Missouri.
“Plaintiff further states that in connection with the aforesaid railroad yards and lines of railway, defendants operated and maintained in Moberly, Missouri, a sidetrack or spur track extending from the yards and main line of said railroad company up to and past a coal bin belonging to the Moberly Electric Light Company. That the side of the coal bin adjacent to the said spur or side track extended in a straight line while the said spur or side track maintained and operated by the defendants herein extended in a curve, both before and while passing the said coal bin; that the construction of said coal bin and track in reference to each other was such that a car standing at said coal bin in a position to be unloaded stood at a distance sufficient to permit a man with perfect safety to stand or move between the side of the car and the side of the coal bin, but that when a car standing as aforesaid was moved forward, that is, toward the connecting tracks of the defendants herein, the curve in the tracks in connection with the straight side of the coal bin caused the side of the car -to be brought in toward and close to the side of the coal bin.
“Plaintiff further alleges that on the 25th day of July, 1913, this plaintiff, in the due course and discharge of his employment in the service of the defendants herein, was required to go in upon this spur or side track described herein and remove an empty coal car standing at the side of the aforesaid coal bin in the position herein-before referred to; that at the time he was engaged in removing this car and in connection therewith he was engaged in handling and moving six or seven other cars, some of which were being used in interstate commerce at that time. That this plaintiff in person and in the due discharge of his employment and duty as aforesaid, made the coupling between the ear standing at the coal bin and the cars which were being handled at the same time; that after making the coupling this plaintiff was standing between the side of the coal bin and the car in a position of apparent safety, the- tendency of a moving car to be drawn up against the side of the coal bin not being apparent to a man placed as this plaintiff was. Plaintiff further alleges that he had been in the employ of the defendants herein only for a short time and had never been in on this track before and was not aware of the dangerous conditions existing at that point; that he had never in his twenty years’ experience as a switchman seen a building and track constructed in the dangerous manner in which this coal bin and adjacent track were constructed. Plaintiff further states that after making the said coupling and stepping back into a place of ap parent safety he, as was his duty, gave a signal to the other employees working with him, to move ahead or out toward the connecting lines of this defendant; that said signal was communicated to the engineer in charge of the engine engaged in moving these cars, and in response thereto the said cars were moved forward, and on account of the conditions hereinbefore described, the ear which had been standing at the coal bin moved forward and at the same time the side thereof was quickly drawn in toward the coal bin before mentioned, and this plaintiff, without any fault or negligence on his part, was caught between the side of the moving car and the side of the coal bin and severely injured, as hereinafter more fully set forth. Plaintiff further states that the conditions with reference to the construction of the track and coal bin had existed for a long time and were well known, or by the exercise of ordinary care could have been known, to these defendants. Plaintiff further says that defendants were negligent in constructing and maintaining said spur or switch track with reference to said coal bin in the manner and condition hereinbefore set out, and that he was injured thereby and in consequence thereof.”

The answer was.a general denial, supplemented by pleas of contributory negligence and the assumption by his employment of the risk of the injury, upon which pleas issue was duly joined.

At the trial during the same term a verdict was returned for $10,000, upon which the judgment was entered from which this appeal is taken.

The plaintiff, at the time of the accident, which occurred July 25, 1913, was a switchman employed by the receivers in the "Wabash Railroad yards at Moberly, Missouri, where he had been working four months and six days. He was thirty-nine years old, had been engaged in that kind of work for nineteen or twenty years, and in his testimony questions neither his experience nor skill. The yards in Moberly were extensive, containing many platforms for receiving and discharging freight, classified as clearance and non-clearance platforms, the latter term being used to describe those so near to the tracks which served them that there was not room to stand between cars and platform. There were many of these in the yard. It is the duty of the switchman to ascertain whether there is clearance or not. This accident occurred in removing cars from a commercial track serving the electric light plant of the city. This plant was situated on the west side of Dameron Street, having a coal bin in the northeast corner extending about fifty feet southwesterly from the street along the line of the track. The track passed westerly across the street on a curve to the south of thirty degrees, past the coal bin, straightening approximately to a tangent a short distance west of the street and running thence parallel with its north wall, which consisted of a bulkhead constructed of posts driven in the ground and planks spiked to the inside of them. After passing the uoal bin it extended along the north wall of the electric light building and practically parallel thereto for a distance considerably greater than the width of the bin.

At the time of the accident there were five cars standing on the spur, the most westerly one of which was the forty-one foot coal car by which plaintiff was injured. It stood at the coal bin, the east end being a few feet west of its northeast corner at Dameron Street and near the point of the thirty-degree curve extending east. This car, which had been unloaded, was to be set out of the spur. There were four other cars on the spur east of it, the nearest of these being another empty coal car belonging to the Wabash, standing in Dameron Street nearly a car-length east of the one at the hin. Mr. Morris was foreman of the switchmen engaged in the movement and directed it. He stood at the east end of the car on the south side, next to the bin. Mr. Dnggins, one of his switch-men, stood east of-him in Dameron Street on the same side of the track,' while another switchman was still further east on the top of a car. To make the movement it was necessary that the four other cars should be coupled to pull out the long coal car. This was done and the engineer moved them back to the place where Mr.' Morris stood, who saw that the coupling was made and then told Mr. Duggins to go ahead. The latter signaled to the switchman on the top of the car, who transmitted it to the engineer, who began to pull out. Mr. Duggins was looking at Mr. Morris, who was giving directions as to the movements to be made, and when the long car swung into the curve so that its side began to approach nearer and nearer to the bulkhead he saw the danger and promptly began to try to reach the engineer with signals to stop, which were as promptly seen and obeyed, but too late to save Mr. Morris, who, in the act of trying to climb above the car sill, was caught about the pelvis and badly injured, both internally and externally, his life having apparently been saved by the promptness of Mr. Duggins in seeing the danger and acting, and of the engineer in responding.

It was optional with the switchman as to which side of the cars they should stand in doing this work. It was customary, all conditions being the same, to do the work on the right hand side, which is the engineer’s side of the enginé, where, with a clear view he could be seen, or if, on a curve to the left, to do it inside the curve, where the engine would be visible. In this case the view was equally obstructed on both sides.

In the view we take of the legal aspect of the case the foregoing facts, which are taken from the testimony given and offered by the plaintiff, and are undisputed, are' sufficient to its complete understanding, although we shall feel at liberty by way of illustration to refer to other statements of respondent in the course of our opinion.

I. This case is founded upon the Federal Employers’ Liability Act to recover from the defendant receiver damages for injuries sustained by the plaintiff, a switch-man in his service, from being crushed between the side of a coal car and the bin into which it had just been unloaded. The jury were properly instructed as to the distribution of damages under that act in cases of mutual negligence, so that the only question for our consideration is whether the receivers were negligent as to the plaintiff in the maintenance of the track at which the injury occurred. The track was a spur constructed to give service to two industries. The first of these and the nearest to the connection of the spur with its lead in the railway yard was the Stamper poultry house and the other an electric light plant having a coal bin on the track. A city street extending north and south lay between these two establishments, apparently ending against the railroad yard immediately north of' them. The spur passed along the north side of the poultry house in a westerly direction, thence across the street on a thirty-degree curve to the south, which ended in a tangent a few feet west of the street, and extended from that point along the north side of the coal bin and power house of the light company in a practically straight line. Throughout this whole length from the street west it maintained a practically uniform distance of something over four feet from the coal bin and north wall of the power house, the bin occupying* about fifty feet of that distance . The maintenance of the track in this relation to the coal bin constitutes the only negligence charged in the petition or relied on by respondent in his argument. It is claimed by respondent to have been negligent because a car being removed from- this track upon striking the point of the curve near the west line of the street was sharply deflected to the right by the curvature, so that while this deflection did not bring either the wheels or that part of the body which rested immediately over them any nearer to the wall of the coal bin than when it stood on the straight track, it did swing the body of the car between the wheels to the right, so that the middle of the ear, when at the point of the curve, instead of having its center line over the center line of the track, as is the case when it moves on a straight track, was much to the right of that position. It is plain that this departure from the line of the track would increase as the car increased in length between its trucks. In this case the car was forty-one feet long and the movement of its side toward the coal bin was so great that it caught the plaintiff, who was standing at that place and crushed him.

The respondent says, in substance, that it was the duty of the railway company to make the place in which he was required to do his work reasonably safe, and that permitting the conditions which caused the car to come so near the bin when, by his direction, it was moved forward, was a neglect of this duty. He makes no suggestion as to how the track should have been constructed at that point, but, as we understand him, invokes the rule applicable to those cases in which by reason of the obscurity of a dangerous condition the servant is led into it in the performance of his duty and injured.

II. In the construction of this track and in using it in the service for which it was designed, the railroad company and its receivers were acting in the performance of a public duty exacted by law. They not only had the right, but the duty rested upon them under proper conditions to put its track to this plant and to give it the service for the performance of which the railroad company was incorporated. That this work was not without difficulty is shown by the nature of the curve described in the pleadings and evidence. A thirty-degree curve in common talk as well as in technical parlance, means a curve with thirty degrees of tangental deflection in each one hundred feet. From the standpoint of practice its nature is illustrated by this case. From the standpoint of mere curiosity we may imagine that a track so extended would describe a complete circle on a block of ground approximately four hundred feet square. There is nothing in the evidence to indicate that the company did not do its best, consistently with successful operation, in the location and construction of this track on the line that it adopted, and we are compelled to presume it did. It was not required to so construct this track in its relation to the physical features of the industry in such a manner that its operation would be absolutely safe, even to careful unployees. Even if we ~~ the term reasonably safe it is a mere relative one, for safety in the operation of a railroad track has a different meaning from the same word when used with reference to the operation of a dry-goods store. ‘ Railroad people, like those who go down to the sea in ships, are, as official statistics show, surrounded with dangers to life and limb under the most favorable conditions, the risk of which they assume in their employment. This assumption of risk ordinarily incident to this particular employment we have lately said “is a living part of the law.” [Patrum v. Railroad, 259 Mo. 109, and cases cited.]

III. The primary duty of the public carrier by rail is to render that service to the public which the law imposes as an incident to the calling and the exercise of the franchises conferred for that purpose. The work is strenuous, involving the use of powerful and dangerous structures and machinery, requiring the highest skill and greatest care in their construction, maintenance and operation. Approach to the warehouses and docks of its patrons so that all parts of them may be utilized, often calls for the exercise of the highest degree of engineering skill. The curvature of tracks is sometimes the most difficult element of this problem, which involves not only the convenience of both parties, but the availability, use and value of the property to be' served. The curvature of the tracks affects not only the practicability of pushing loads over them with the power available, but the maintenance of the tracks themselves against the tendency to spreading and displacement from the operation of the very forces we are considering as the cause of this accident. A thought suggests these natural difficulties, and that to some extent at least they can be better met by the use of the skill available to the carrier than by the judgment of juries.

When we also consider that some of these carriers, although necessary to the public, must establish and maintain their service upon the limited resources of a' small'traffic which must therefore be handled, if at all, with inexpensive grounds, structures and appliances, while others with immense traffic that must be rapidly as well as safely handled are able to keep their property in a condition commensurate with its requirements, we are impressed with the latitude of judgment necessary to meet such diverse conditions, and that they are important stones in the foundation of the doctrine of assumption of risk as administered 'in this State. The carrier has the right to use its own judgment as to the manner in which it can best perform its duties with the means at its disposal, and its officers and employees represent it in the performance of their duties. If they undertake the work under circumstances charging them with full knowledge of all the dangers and difficulties incident to its successful prosecution with the facilities availablé, without protest, complaint or other expression of their dissatisfaction, they assume the risk of injuries resulting from the use of such facilities, even though they would not have occurred in the use of some other instrument or situation designed to accomplish the same purpose. In. such eases there is no negligence on the part of the employer, for it has fully performed its undertaking although the same act might have been negligence as to another who had not assumed the risk lying in the existing conditions.

IY. The plaintiff at the time of this accident had had nineteen years’ experience in the performance of such work, in which he had been employed by some of the great railway companies of the country. He stated that he had long before observed the tendency of the body of a car to move from its position directly over the track toward the inside of a curve upon which its wheels were moving, and even had he not observed it, a man of such experience and skill would be held to know the operation of so simple a law of nature. In his ^ testimony he said that he had ‘not kept it in mind. The situation lay directly before him. The point of the curve around which the wheels were about to pass lay right at his feet, and he would have known had he thought one moment, that the body of the car would soon be swung toward the bulkhead by which he stood. Had he raised his eyes toward the car as it slowly began to move he would have seen it slowly come toward him. It was but two or three steps to the open street and absolute safety toward which the open way lay right before him. Instead of observing this he turned his back toward the track and the car, and stood talking with Mr. Duggins until caught. Even when he told Mr. Duggins to pull out, he had his face to the coal bin and his back to the car. Had he even taken the trouble to look at the car in front -when it backed in for the coupling he could not have helped seeing indications of the same phenomenon.

V. There is nothing in the testimony to explain why the plaintiff went in on that side of the car to do the coupling. He was the foreman in charge of the operation, and could do as he pleased. The engine could not be seen from either side of the car, and Mr. Duggins, who was plaintiff’s assistant and testified for him in the case, testified that although he had previously worked in the same capacity at the same place he had never worked on the south side of the track before; that it was customary to work on the safe side; that it was the switch-man’s duty not to wait for somebody to tell him to take the safest place to work; and in doing a coupling where there is not sufficient room to make safety certain he should move out to a place of safety before giving the signal to move. All this testimony relates to rules and practices which illustrate the fact that the plaintiff, master of the situation and director of the entire movement, courted the accident by not only unnecessarily assuming the only position in which the danger existed, but by unnecessarily remaining there after the reason he assigns for taking it had ceased.

Although the respondent places his right to recover solely upon the maintenance of the track in the situation described, and cannot place it elsewhere because in all else he was the alter ego of the appellant directing the manner in which its work should he done, he makes no suggestion as to how the track could have been changed to serve the industry as then situated. The inference is that it should have required as a condition to putting in the service, the vacation of the land on which the northeast corner of this coal bin was situated. The answer is that this engineering and economic proposition had been considered and determined, and respondent was employed to obviate this expense and sacrifice of storage capacity by operating the spur in the condition in which he found it, which it is admitted by his evidence could have been easily done in perfect safety. His nineteen years of experience recommended him for the work. The situation was open to his inspection and the conditions which relate to this accident were simple and evident. .He represented the appellant in everything connected with this service, and if a change was needed it was his duty to suggest it and if he did not, to perform the duty which he had assumed to do at his own risk. We do not think it necessary to encumber this record with a list of our own authorities upon this point, as many of them are collected and cited in Patrum v. Railroad, supra. We will not refrain, however, from calling attention to Haring v. Railroad, 137 Wis. 367, in which the Supreme Court of that state deals with a similar situation. As much as we pity the respondent, whose heedlessness in a work requiring constant watchfulness has brought upon him this injury, we cannot see that the appellant, by negligence, has contributed to it in any degree.

VI. The respondent has cited the following cases in which this court has held that the duty of a railroad company to exercise ordinary care to provide reasonably safe conditions in which the employee may do his work, is not well performed when it permits stand pipes, telegraph poles, fences, buildings and other structures to be maintained so close to its tracks that employees, being on the outside of its moving cars or engines in the performance of their duties, are crushed by them: Fish v. Railroad, 263 Mo. 106; George v. Railroad, 225 Mo. 364; Charlton v. Railroad, 200 Mo. 413; Murphy v. Railroad, 115 Mo. 111. None of these cases relate to employees who heedlessly place themselves between such obstructions and the track and signal the cars to pass them while in that position. Nor do they hold that the railroad company may not adopt such methods in the performance of its public duties as will give the best service to its patrons within the reasonable limits of its ability with safety to its employees; nor that, when it employs experienced people to operate such facilities it has not the conventional right as between itself and such employees, to rely on them to use the obvious means it places at their disposal to secure their safety.

The judgment of the Randolph Circuit Court is reversed.

Railey, G., concurs.

PER CURIAM: — The foregoing opinion of Brown, C., is adopted by the Court in Banc as the opinion of the Court in Banc.

All the judges concur, except Bond, Woodson and Williams, JJ., who dissent.