author: BROWN, C. GEAVES, J.

text:
    JOHANNA LUEDERS v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    December 6, 1913.
    1. CONSTITUTIONAL LAW: Sec. 5425, R. S. 1909: Damages for Negligent Killing. Sec. 5425, R. S. 1909, providing for damages in certain cases when death results’ from injuries caused by operators of public conveyances, is constitutional.
    2. RIGHTS OF PUBLIC UPON RAILROAD TRACK LAID IN CITY STREETS. One who goes upon a railroad track laid in a public street of a city is not a trespasser, nor-does he depend for his right upon the railroad’s permission.
    3. -: Use of Track by the People and the Road: Negligence. A railroad that operates upon tracks in the public streets of a city must have due regard to the- safety of those walking on the track, and the pedestrian must not unnecessarily expose himself to danger from the lawful use of the railroad’s engines and cars, nor unnecessarily embarrass the railroad in the performance of its duties to the public.
    4. --: -: -: Regulating Speed by Ordinance: Presumptions that May be Indulged by Pedestrian and by the Road. A city ordinance limiting to five miles per hour the speed of .trains moving on tracks laid in the city streets is reasonable and valid, and while the railroad still has the right in the lawful use of its franchise to assume that its warning signals will be obeyed, yet a pedestrian has the right to assume that trains will not exceed five miles per hour while running in said streets.

      5. COURTS: Assumptions of Fact: “Telegraph Poles:” Distance-Courts may assume that a “telegraph pole,” in railroad nomenclature, ordinarily represents a distance of as much as one hundred and fifty feet. [GRAVES and LAMM, JJ., dissenting.]
    6. NEGLIGENCE: Exceeding Speed Limit. Plaintiff seeks damages for the killing of her husband and alleges that his death resulted from defendant’s negligence in running its train in a city street in excess of the speed limit set by ordinance at five miles an hour. The answer was a general denial and a plea of contributory negligence in going upon defendant’s tracks and in failing to step off when he saw the train and was warned of its approach. Plaintiff’s husband was killed by defendant’s train while he was walking upon a track laid in Aquamsi street in Cape Girardeau. The track ran north down Aquamsi street across Good Hope street, then across William street, 520 feet from Good Hope, and then on to the north. The deceased, old and feeble, went upon the track 150 feet south of William street and walked north until he reached a point 180 feet north of William street, where he was struck. William street is 70 feet wide, so the deceased had moved altogether about 400 feet. Defendant’s engineer, running as-he said at a speed of eight or ten miles an hour, or perhaps less, shut off steam at Good Hope street, preparatory to drifting down the one per cent grade to the north. He saw, as he says, no one on the track ahead as he crossed Good Hope and he whistled four times to call attention to his signals. Then he gave his attention to his engine for two or three seconds and when he looked up he says he saw the deceased about seventy feet ahead of him on the track, whereupon he put on the emergency brakes and blew the whistle. Meantime the deceased, having been warned, stepped almost off the track, but was struck and killed by the’ bumper beam of the engine. Held, that upon all the evidence the jury were warranted in finding for plaintiff on the ground that defendant’s train was exceeding the speed limit set by ordinance and that such excessive speed contributed directly to cause her husband’s death.
    7. -:--: Presumptions: Contributory Negligence. A pedestrian has the right to presume, when he goes upon a railroad track laid in a city street, that the railroad will conform the speed of its trains to the requirement of city ordinances — in this case five miles an hour, and this presumption will continue until he shall become aware or have reason to believe that the railroad is violating or will violate the ordinance. After he has seen an approaching train it is his duty to give it the right of way hy making all reasonable efforts to get off the track. If the jury find that deceased could not have escaped by reasonable effort then it becomes their duty to inquire whether the train was exceeding the speed limit. If they find that it was, it remains fpr them to determine whether, if it had been observing the speed limit from the time he first saw it, deceased could and would have escaped.
    8. -: -: Duty of One in Danger Who Attempts to Save Himself: Instructions. In an action for damages for the negligent killing of plaintiff’s husband by defendant’s employees in charge of a train, the question is not what the de- • ceased could have done to save himself in the light of all' the facts and circumstances developed at the trial, but whether he acted' as a reasonably careful man would have done in trying to escape, and therefore an instruction was rightly refused which told the jury they should find for defendant if they found that he took the wrong side of the track when attempting to leave it and could have escaped by taking the other side.
    Appeal from Cape Girardeau Court of Common Pleas. — Hon. R. G. Raney, Judge.
    Affirmed.

      Moses Whybarh, W. F. Evans and A. P. Stewart for appellant.
    (1) (a) See. 5425-, R. S: 1909, violates See. 28, Art. 2, of the Constitution of Missouri, in that it deprives the defendant in a civil action of the right of trial hy jury as heretofore enjoyed. Bartling v. Jami-son, 44 Mo. 141. (b) Said section further violates Sec. 30, Art. 2 of the Constitution in that it deprives this defendant of property without due process of law. (c) Said section further violates See. 10 of Art. 2 of the Constitution, in that it prohibits the court from setting aside the verdict of the jury because the amount of damages assessed is not supported by the evidence, or because the damages awarded are excessive. Bart-ling v. Jamison, 44 Mo. 141. (2) Running the train in excess of the speed fixed by ordinance was not the proximate cause of the injury. Moore v. Railroad, 176 Mo. 528; Schmidt v. Railroad, 191 Mo. 215'; Laun v. Riailroad, 216 Mo. 563; Pope v. Railroad, 146 S. W. 790. (3) Even though the train was running in excess of the speed fixed by ordinance at the place of the accident, still the negligence of the deceased was such as directly contributed to his injury, and there can be no recovery for his death. Green v. Railroad, 192 Mo. 139; Moody v. Railroad, 68 Mo. 470; Schmidt v. Railroad, 191 Mo. 215; Yancey v. Railroad, 93 Mo. 433; Laun v. Railroad, 216 Mo. 578; Sims v. Railroad, 116 Mo. App. 579. (4) It requires more than a showing of the mere possibility that the accident might have been avoided in order to bring a case within the humanitarian doctrine. Markowitz v. Railroad, 186 Mo. 359. (5) It is the settled law of this State that it is such gross negligence as precludes a recovery for a person to step on a railroad track directly in front of an approaching train, or so close as to render it impossible to stop the train in time to avoid injury. And this is true even if the train is running at a rate of speed in excess of the maximum rate permitted by law. Peterson v. Railroad, 156 Mo. 560; Moore v. Railroad, 176 Mo. 544; Ries-v. Railroad, 179 Mo. 7; Mockowik v. Railroad, 196 Mo. '560; Laun v. Railroad, 216 M01. 563. (6) Defendant’s demurrer to the evidence should have been sustained. Authorities under Point 51. (7) The court erred! in refusing instruction numbered 6, asked by defendant. Authorities under Point 3'.

      Orren Wilson and Wilson Cramer for respondent.
    (1) The grant of the privilege to operate a railroad on Aquamsi street did not exclude the public from the use of the street. Plaintiff’s husband was therefore not a trespasser, but bad tbe right to go upon any part of the street, including that occupied by defendant’s track. Riska v. Railroad, 180 Mo. 190. (2) The passage of a speed ordinance for trains is a recognition of this right, its purpose being to protect the public in its concurrent use of the street. (3) Plaintiff’s husband had the right to assume while walking on the track in Aquamsi street that the defendant company would not run its trains at a greater rate of speed than that prescribed by ¡ordinance. Weller v. Railroad, 164 Mo. 199 ; Riska v. Railroad, 180 Mo. 190; Eckhard v. Transit Co., 190 Mo. 613. (4) The law presumes that he was exercising due care in going upon the track. Weller v. Railroad, 164 Mo. 198; Riska v. Railroad:, 180 Mo. 188. (5) Operating a railroad train in a public street at a rate in excess of that prescribed by ordinance is-negligence per se. This is so well settled in this State that we refrain from citing authorities. (6) Contributory negligence is an affirmative defense, so pleaded in this case, and the burden rested upon the defendant to overcome the presumption of due care on the part of the deceased. Defendant utterly failed to rebut this presumption. There is nothing in the record bearing on this point. In Eckhard v. Transit Co., 190 Mo. 613, this court says: “ ‘And in order to overcome the presumption and to defeat plaintiff’s action, it devolved upon defendant to show, by the weight of the evidence, a failure on the part of deceased to exercise ordinary care to avoid the injury, and that his failure to exercise such care was its proximate cause, and so direct ¡and immediate that, but for the want of such ordinary care, the injury would not have occurred. ’ In Buesching v. Gaslight Co., 73 Mo. 219, it was said: ‘ The presumption of due care always obtains in favor of plaintiff in an action to recover damages for an injury sustained by him through the alleged negligence of another. ’ The rules of law announced in the cases above cited were fully reviewed by this court as well as the St. Louis Court of Appeals in the recent cases of Risica v. Railroad, 180 Mo. 168, and. Deitring v. Railroad, 100 Mo. App. 524, and unqualifiedly approved. ’ ’ (7) Plaintiff’s husband, after being warned of the approach of the train, had reached the ends of the ties and was just in the act of taking another step when he was struck. The slightest movement forward would have taken him beyond the end of the bumper beam. No unprejudiced mind can reach any other conclusion than that the speed of the train was the cause of the accident,
   BROWN, C.

This suit was brought in the Cape Girardeau Court of Common Pleas August 23, 1907. plaintiff, respondent here, is the widow ^ Henry Lueders who was killed by a train of the defendant in the city of Cape Girardeau, May 1, 1907. She sues to recover, on account of his death, $10,000, the maximum penalty prescribed by section 2864 of the Revised Statutes of Missouri, 1899, as amended by the Act of April 13, 1905, being section 5425 of the Revised Statutes of 1909. The negligence charged is the' violation of an ordinance of the city limiting the speed of railway engines, cars and trains within the city to five miles per hour and prescribing a fine for its violation.

Defendant demurred to the petition on the ground that the statute is. unconstitutional because it vests in the jury an absolute and arbitrary discretion as to the amount of the recovery, depriving the court of the power to control it, thereby denying to the defendant the right of trial by jury as theretofore enjoyed, and depriving it of property without due process of law; and also that it closes the court against, and denies certain remedy to, the defendant for injury to his property. The demurrer was overruled and the point was again made from time to time in the progress of .the trial. The question of constitutional construction so presented is the foundation of the jurisdiction of this court.

The defendant answered with a general denial and a plea of contributory negligence by going upon defendant’s tracks, and by failing to step off the track when he saw the train and was warned of its approach.

The accident occurred on Aquamsi street, a travelled street in the city of Cape Girardeau upon which defendant’s track had been laid and operated for many years along the wieist bank of the Mississippi Elver. The defendant’s shops and roundhouse and the trackage connected therewith were situated on a tract of land adjoining" the river in the southern part of the city through which its main track extended, from the southern limits, more than three quarters of a mile south of William street, reaching the river bank where Morgan Oak street .abutted on a levee; thence north to Good Hope street, a distance of one block of about 450 feet; thence across Good Hope street to William street, about five hundred and twenty feet further; .thence north along the levee in Aquamsi street some six hundred and thirty-five feet further, and thence in the same general direction to defendant’s passenger station and through the city. The freight depot was a considerable structure situated on the east side of the track toward the river between Good Hope and William streets, and between the main track and the depot, extending from Morgan Oak street to a point between the south side of William street and the north end of the depot, was a sidetrack used for loading and unloading cars. The grade of the main track from Morgan O'ak to Good Hope street was nearly level; and from Good Hope street north to and beyond the place of the accident descended one per cent, or one vertical foot in each one hundred horizontal feet. At the time of the accident a train stood on the sidetrack west of the-depot consisting of a conple of freight cars, a caboose and the engine, wbicb was headed south so that the cars-cleared the switch of William street. The foot travel along Aquamsi is indicated to some extent by the testimony of the engineer who said that at the time he saw Mr. Lueders on the track there were several other people walking along a little beaten path by the west end of the ties. Mr. Carleton, a witness of the accident, said that he would pass up and down the track sometimes a dozen times a day, and Mr. McKee, another witness said he walked up and down the track every morning.

Mr. Carleton was a transfer man, and testified that he was at the freight depot on business the day of the accident, and first saw Mr. Lueders at a little, road that crosses from Aquamsi street into the freight house-about two-thirds of the way north from Good Hope street to William street, walking north; that witness-came out from the north end of the freight house and Mr. Lueders was walking on the track north of it, and witness passed him. He seemed to have a cane or fish-pole, he could not say which. The witness thought a man as feeble as he looked to be w,a,s in danger and had no business there. He was old and feeble and seemed to be nervous and that is h'ow he came to notice him so-much. The witness was on the north side of William-street when he first heard the- train, it was then south of Good Hope street and had not yet whistled for the-crossing. He walked on something like ten steps and turned around and saw the old man still walking, and about that time the train came around the curve and blew for the crossing — four whistles. The old man was then down almost to- William street. He did not look back when they blew for the crossing and the witness thought perhaps he might be deaf, and started back and motioned to him. He thinks he saw him and finally looked back — looked directly south, toward the train, which was in full view. He then turned around facing north and walked diagonally toward the edge, put one foot outside the rail on the tie, and stopped and looked back again over his shoulder in the direction of the train. The train was not very far from him at that time, probably (witness indicating) “from here to that •door.” He made no effort to get any further, and remained standing practically in the same position until it struck him. The train whistled the alarm probably two telegraph poles from him and continued to whistle short blasts right up to the time they struck him, and applied the air something in the neighborhood of one telegraph pole from him.

Mr. Pish, the engineer, testified that he was running north into Gape Girardeau with an engine and caboose on the schedule and as first-section of a passenger train, with signals displayed indicating that a second section was- following. Eighty rods south of Good Hope he whistled for that crossing, and when he approached it he saw the train standing at the depot and.called attention to his own signals with two blasts of his whistle. The engineer of the standing train, the engine of which was heading south, did not respónd and on crossing the street he blew the same signal again making four blasts all together. The other engineer then appeared from the left side of his engine, came around the pilot and gave the necessary signal with his hands — two- movements as if he ware pulling the cord— and Mr. Pish passed on. He had shut off the steam before signaling the standing train, so as to drift down the hill, which gave him better control of his engine in case it should become necessary to make an emergency stop. The top of the grade was at Good "Hope street. Before shutting off the steam he had glanced ahead and seen nobody on the track. After shutting it off his attention was drawn to the front of the engine to look at the air and water gauges. It was necessary to look at the water gauge because the water sometimes recedes, when the engine stops working the steam from the boiler, and he looked at the air gauge to make such that he wiould have the necessary pressure in case of emergency. His attention, he said, was properly drawn to the front of the engine for those purposes two or three seconds during which he would say that his-engine had moved .a couple of car lengths possibly. The length of the average car is thirty-four feet inside and about thirty-seven feet outside, which includes the couplings. He then looked up and saw Mr. Lueders walking about two car lengths — somewhere near seventy feet ahead of him. He then applied the air in emergency and grabbed the signal and whistled the warning. To put his hand on the brake valve and apply the air would probably consume two seconds and to-reach the whistle rope about a second or so. It would consume from about two to four seconds and the train would move in that time four or five car lengths. He sounded the whistle immediately. Mr. Lueders heard it. It was the first intimation he had, apparently, that the train was there. He hesitated, looked back over his shoulder and started over the rail on the right hand side. He got both feet over the rail. He got his-feet to the end of the ties but in a stooped position. His body stuck back and he was feeling with a cane as-though for a place to set a foot when the bumpier beam of the pilot struck him. This is a heavy beam across-the front of the engine flush with the outside of the cylinders or perhaps an inch outside them to protect them. The end of this struck him in the region of the hip, he stood stooped over like this (illustrating); with the cane like this (illustrating); the bumpier beam struck him right in here (indicating), ¡and turned him around and knocked him in the direction and he fell into a pile of rocks down on this side of the dump-. The engine was drifting under control. Had the man shown up in the middle of the track when he shut off he could have stopped easy enough hut after he looked at the gauge and looked out and saw him he could not. The engine stopped two or three ear lengths, not to exceed three car lengths, after striking the man. The engineer testified that south of Good Hope street he had béen running at eight or ten miles an hour but in coming around the curve it slowed up to some extent when he crossed the street. As to the speed when he struck Mr. Lueders the following question was asked andi answer given.

“ Q. At whiat rate of speed were you going when you struck him? A. I stated at one time I was making eight or ten miles, but since I have looked over the ground and seen the distance in which I stopped and seen the gentleman and stopped after I struck him, I don’t think I was running that fast, but I did state at the coroner’s inquest I was going that fast, because when anything like that happens a man will naturally judge his speed faster than any ordinary time.”

Mr. McKee testified that he was living on Aquamsi street and had for six years before the trial, about thirty feet from the street, behind the Catholic Church and pretty near the center of the block between William and Merriwether streets. He was at home the afternoon of the accident and saw them bring Mr. Lueders up the bank and put him in the caboose. The’ point from which they brought him was across the track and perhaps four feet further north than the northeast corner of’the witness’s house.

I. The appellant calls attention to the fact that since acquiring jurisdiction of this appeal we have upheld the constitutionality of the seetion of the statute: upon which the suit is founded in Young v. Railroad, 227 Mo. 307 (decided March 31, 1910), and Boyd v. Railroad, 236 Mo. 54 (decided July 1, 1913), and reminds us that we have also held that having obtained jurisdiction upon- the constitutional question we will retain it; citing Pope v. Railroad, 242 Mo. 232, which 'was decided in April, 1912. It still insists, however, upon the question. We know of no better way to meet this contention than by quoting from the last named case the following: “Since the trial of this case the constitutionality of section 5425', Revised Statutes 1909, on which the action was based, has been sustained by this court, and therefore appellant’s attack thereon need not be further considered.” We are still of the same mind. .

II. Did the court err in refusing to direct a verdict for defendant? If there was substantial evidence tending to prove that the plaintiff, while in the exercise of that reasonable care which the law requires of persons acting under like circumstances and conditions, was struck by defendant’s train because it was being run in Aquamsi street in the city of Cape Girardeau at a speed exceeding five miles per hour, then there was no error in that respect; for the killing and the existence of the ordinance limiting the speed' of trains to five miles per hour are admitted for all the purposes of this hearing, and no excuse is offered for the violation of the ordinance, if it were violated, which is denied. It is seldom we have a case more free from difficulty as to the physical facts, for the stories of the three witnesses, each from his own standpoint, of which we have made the foregoing consecutive synopsis, naturally give us a clearer and more vivid impression of the details than we could have gained with our own senses from any single point of view. To qualify ourselves for the proper application of these facts, however, it will be helpful to first consider the legal situation of the parties at the time of their occurrence. Mr. Lueders was not there as a trespasser, nor did he have to depend for his right upon the permission of the defendant. The locality was a public street of the city, dedicated to the purposes of public travel by the public at large, on foot and on horseback as well as by the more complicated and cumbersome means of locomotion. The use by the defendant was an extraordinary one in that its vehicles were confined to an immovable track, so that they could not turn out to avoid obstacles, 'and were so heavy that their momentum could not be readily overcome when moving even at normal speed. For these reasons the Legislature very naturally forbade the laying of railroad tracks in the, public streets of cities without municipal permission. The easement so granted has been described by this court as “carved put of the people’s common inheritance, to-wit, the right to safely come and go on a public thoroughfare.” [Riggs v. Railroad, 216 Mo. 304, 317.] In the same case the court continued “Showing the pre-existing, dominant idea of public use, it has been held that a city council has no authority to establish a street for the use of a business corporation or ian individual, but that the right to establish a street is traced back to the need of the public at large. [In re Twenty-first Street (Kansas City v. Hyde), 196 Mo. 498; see, also, Scullin v. Railroad, 184 Mo. l. c. 704. et seq., and cases cited.] ”

When the city of Cape Girardeau authorized the defendant to lay its track in the city and upon Aquamsi street it placed it upon an equality with plaintiff so. far as the use of the street wias concerned. Each had the right to use it, having due regard to the rights of the other and the nature of the use which was to made of it by each. Public safety and the public interest demanded that the defendant should have due regard to the safety of those who should use it in a more primitive and less deadly way, and demanded of the plaintiff that he should not unnecessarily expose himself to danger from the lawful use of the defendant’s engines and cars, nor unnecessarily embarrass the defendant in the performance of the duties to> the public on which its right was founded. As the city might have imposed any regulation of this character a,s a condition of its grant (Railway v. Kirkwood, 159' Mo. 239), so it might afterwards, and did by the speed ordinance in question, make reasonable regulations for such mutual use. And all such regulations, whether they re>sult from the salutary principles of the common law, which come to the rescue'in case of so many deficiencies in human foresight, or from direct legislative or municipal action as in this case, are mutually binding upon all parties to the transaction. As the defendant had the right in the lawful use of its franchise to assume, in the absence of any appearance to the contrary, that its signals to insure the safety of the public would be heard and obeyed, so the plaintiff- had the right, in the lawful use of the street, to assume that all those things which the law required for his protection would be faithfully observed. It would be a travesty to require that the defendant move its trains at a speed of five miles per hour through the city for the protection of the public using its streets, and refuse the people any advantage from such protection, but compel them to act as if no such protection existed; to be in a constant state of qui vive expecting the law to be violated.

From this standpoint we have to approach the killing of Lueders. He came on the track at a private way leading across it into the station one-third of the block or one hundred and fifty feet south of the south line of William street and near the rear of the little train that stood there with its rear car clearing the switch. Mr. Carleton, who was in the depot and saw him come on the track, left the building from the north • end and got on the track behind him after he had passed the switch on his way north to the place of the accident. Lueders being old and feeble and very nervous, Mr. Carleton overtook and passed him and went on north of William street, when he heard the train coming np from the south. Feeling anxious for the old man on account of his evident infirmities he. turned round, saw him still coming down the track and then the train came round the curve and blew for the crossing — four whistles. The old man did not look back; and Mr. Carleton started back, motioning to him. The old man then looked around and started to the east side of the track, where he was hit. The train whistled the alarm about two telegraph poles from Mr. Lueders and put on the air about one telegraph pole away from him. Since railways measure the distance from mile to mile by the number of telegraph poles, directing public attention to the system and its resulting information by painting upon the: poles, and a nomenclature has come into general use in which ‘ telegraph poles” and “ear lengths” are used as units of distance, the courts may -assume, without subjecting themselves to the imputation of arrogance, that a telegraph pole ordinarily represents a distance of as much as one hundred and fifty feet; so that, interpreting the ■statement of Mr. Carleton into the latter terms, it is ■safe to say that it means that the engineer whistled to alarm Mr. Lueders when he was yet three hundred feet away, and that he put the air on his brakes in emergency a hundred and fifty feet away.

Keeping these things in mind, we will look for a moment from the point of view of the engineer on the locomotive. He moved at least a half mile through the town at a speed of from .eight to ten miles per hour, whistled four blasts for the crossing at Good Hope street while yet a quarter of a mile away, and as he was approaching it he shut off the steam, and looking ahead saw nobody on the track, but did see a train standing at the freight house in the block north of Good Hope. He whistled twice to call attention to his signals and after waiting for a response and not receiving one he repeated his signal and it was answered. Up to this time he had not been hurried. If moving only ten miles per hour between Morgan Oak and Good Hope streets it took him a full half minnte to reach the south line of the latter, and from there it would take him still longer, thirty-five seconds, to reach the south line of William street, although here he was drifting down a stiff grade without steam or brakes and would naturally pick up speed. At a point not more than one hundred and fifty feet north of Good Hope street the front of the two engines met. The communication between the two engineers was necessarily finished and we will leave him there for a few moments while we locate Mr. Lueders and then we will go back and pick him up. Mr. McKee’s house, so the defendant’s map shows us, was in the middle of a thirty-foot lot fronting on Aquamsi street immediately north of and adjoining the lot of the St. Vincent church one hundred and sixty-five feet; wide on the north west corner of William and AquamsiMr. McKee saw the injured man brought up the bank and located the point as being a few feet north of the north line- of his house. All previous observations described by the witnesses had been taken while conditions were changing with lightning-like rapidity, but here the victim had become still, the place where he fell was marked by a pile of stones described by the engineer, and the defendant has perpetuated it by a mark upon the map in its abstract, so that we are at perfect liberty to take it as a starting point. The old gentleman was struck, then, at least one hundred and eighty odd feet north of William street, which is seventy feet wide and one hundred and fifty feet north of the wagon way where he entered upon the track. All these points are easily ascertained and plainly described in the evidence, and show that he had, at the time he was struck, walked along the track in his feeble way about four hundred feet. South of where he went onto it, stood the other train consisting of its three cars and engine, which according to the figures given in the testimony of Mr. Fish occupied a hundred and fifty-three feet more. Here we get back to his own engine running at the rate of ten miles per hour, or fifteen feet per second, with five hundred and fifty feet to go before overtaking Mr. Lueders. This would take him, at the rate given, nearly thirty-seven seconds, and it is fo.r this time and distance that he tries to account in his testimony. He had a perfectly straight track before him, with the old gentleman in plain view, several' hundred feet ahead of him. "We will assume that up to that time he had neglected to look at his gauges. His attention, he said, was probably drawn to the front of the engine two or three seconds during which he would say that it possibly moved a couple of car lengths. Ignoring the fact that this movement would indicate a speed of at least seventeen miles per hour, we accept it as it is given us, and find that when his attention was released, and he found himself at perfect liberty to take up his lookout along the track he still had four hundred and seventy-five feet of track between him and the place of the accident. He then looked up and saw Mr. Lueders on the track seventy feet ahead. What had become of the remaining four hundred feet of track he does not say, unless there is some hint of it in the statement that when he saw the old gentleman he applied the air in emergency, and grabbed his signal and whistled a warning. That to put his hand on the brake valve and apply the air would probably consume two seconds, and to reach the whistle rope about a second or so. It would consume from two to four seconds, he says, and the train would move in that time four or five car lengths. These figures would require a speed, in round numbers, of from twenty-five to sixty miles per hour. There is no reason why the jury should not, and many reasons why they should, have believed the statement of Mr. Carleton that the engineer of the defendant’s train saw the deceased, and whistled the alarm while still three hundred feet away from him, and that he failed to apply the air nr attempt to g;et his train under control until too' late to save Mm. The engineer’s testimony is a story of recMess disregard of human safety in running upon a public street under the circumstances which he details, without even sufficient outlook to> discover a man walking on a straight track ahead until he gets within seventy feet of him, although in plain sight of him for at least a minute and a half. This, however, constitutes no ground for recovery, as the plaintiff, in her petition has put herself fairly upon the ground that the cause of the death of her husband was the running of the train at a speed in excess of five miles per hour contrary to the provisions of the city ordinance.

III. That the.evidence tended to prove that the train was running, at the time it struck Mr. Lueders, more than five miles per hour is not disputed by the appellant, and, in our opinion, it tends strongly to show that it was running! at even greater speed than ten miles per hour, the maximum mentioned by Mr. Fish. It says, however, that “the facts show that the failure to observe the ordinance of five miles per hour was not the proximate cause of the injury. ’ ’ Upon that question there is ample evidence tending to show (1) that if the train had been running at the rate of five miles per hour Mr. Lueders would have had ample time to and would have saved himself by clearing the train with his body in the effort he actually made to escape. Fiad the jury believed from the whole evidence, as they might well have believed, that the train was running at the rate of ten miles per hour, the old gentleman would have had as much time in which to take the last step for which he was feeling with Ms cane, as it had already taken him, after his warning, to escape to that point. Had the warning been received while the engine was only seventy feet away he would still have had five seconds in which to take this step. The jury had the right to come to the sensible conclusion that he would! have taken it, and had time to spare before the engine would pass him. (2) They might have found from the evidence that the engineer saw the old man and recognized his danger while he was still three hundred feet (two telegraph poles) away, and that excessive speed was the only thing in the evidence tending to account, on any reasonable hypothesis, for the failure to put the train under complete control, and stop, if necessary to save him. Or (3) they might well have adopted the engineer’s own theory eloquently expressed from the witness chair, that had it not been necessary to examine the water and air gauges to guard against the explosion ¡of his boiler, and to prepare for just such emergencies as the one he encountered a moment afterward entirely unprepared, he would have had ample time to. have looked out for Mr. Lueders, and to have saved him. Although this may seem ridiculous as an excuse in its application to the occurrences on Mr. Fish’s engine from the time it passed the engine in front of the freight house to the place of the accident, yet it contains the pith that gives life to all such regulations, enabling all parties to enjoy their rights without interfering with their opportunity for forming that calm and deliberate judgment indicated by the nature of the situation, and acting accordingly. If the jury should believe every word of his testimony it would not be difficult for them to find from it that it was the speed of his train which made it impossible to perform the other duties crowded upon him and look out for Mr. Lueders, and that even ten or fifteen seconds added to his time would have •enabled him to save him.

We think that from the evidence the jury would have been justified in finding not only that the speed the train was excessive in view of the orclinance, but that the fact contributed directly to his death in any or all of the three ways we have indicated.

IY. The question whether Mr. Lueders by his own negligence contributed directly to his death is simplified by the fact that .it is specially P^eaded in the answer as follows: ‘‘That if plaintiff’s husband was killed as alleged in the petition, the same was the result of his own carelessness, and neglect by going upon the railroad track of the defendant and walking thereon, when he knew, o.r by the exercise of ordinary care might have known, that the trains of the defendant were constantly passing thereon; and that after the train which it is alleged struck him was in view, he saw the same and could have stepped off of the track, and out of its way without injury, but he neglected and failed to do so, although he saw the said train, and in addition thereto, was warned of its approach.”

As we have already seen, Mr. Lueders had the right, notwithstanding the municipal permission to the defendant to lay its track upon and move the trains along it, to use the street even where the defendant’s track is laid, for purposes of ordinary travel, in a manner consistent with the right of defendant; and the defendant’s right is measured by the permission by which it is created, and such lawful ordinances as may have been enacted defining and regulating its úse, so that the deceased' was under no obligation to anticipate that the defendant would use the street with its trains otherwise than to thiei extent of its said right, and might therefore presume, upon going upon the track, that it would conform its speed to the requirement of the ordinance. Being so in the use of this track, the presumption would continue until he should become aware or have reason to believe that the defendant was violating or would violate the ordinance. After he saw the train and had been warned of its approach, it was his duty to give it the right of way by making all reasonable efforts to get off the track sio that it might pass without striking him. Under this plóading we are not called upon to consider to what extent the duty of watchfulness rested on him, for he actually saw the train, and the question is whether after he saw it he could, by the exercise of reasonable care, that is, by making a reasonable effort, considering all the circumstances, including his own condition and ability, have escaped it. The testimony of the engineer affords interesting and ample material for the enlightenment of the jury on that question. If they found that he could not have escaped by reasonable effort then it became their duty to inquire whether the train was exceeding the speed limit of file miles per hour. If they found that it was, it remained for them to determine whether, if it had been observing the speed limit from the time he first saw it, he could and would have escaped. ■ These questions were all within the peculiar province of the jury, and there was no error in submitting them.

Y. The defendant complains of the refusal of the court to give at its .request the following instruction:

“6. 'You are further instructed that although you may find from the evidence that the train which struck the deceased was running in excess of five miles an hour, yet, if you further find that the deceased was conscious of his danger m time to avoid the same, and he could have done so by stepping over the west rail and off the track, but instead of taking that course, he walked across the railroad track to the east, and undertook to leave the track on the east side, and in doing so he did not get off the same in' time to avoid the train, then and in that case you will find the issues for the defendant. ’ ’

It is sufficient to say of this instruction that the question is not what the deceased could have done to save himself in the light of all tbei facts and circumstances developed at the trial, but whether he acted as a reasonably careful man would have done in trying to escape it. The court committed no error in refusing it.

The judgment of the Cape Girardeau Court of Common Pleas is affirmed.

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

All concur. Graves, J., in separate opinion in which Lamm, J., concurs. Woodson, P. J., in separate opinion.

SEPAEATE CONCUSSING OPINION.

GEAVES, J.

I concur in the result of the opinion by our learned commissioner, and in the opinion itself, except the following language:

“Since railways measure the distance from mile to mile by the number of telegraph pole's, directing public attention to the system and its resulting information by painting upon the poles, and .a nomenclature has come into general use in which ‘telegraph poles’ and ‘car lengths’ are used as units of distance, the courts may assume, without subjecting themselves to the imputation of arrogance, that a telegraph pole ordinarily represents a distance of as much as one hundred and fifty feet; so that, interpreting the statement of Mr. Carleton into the latter terms, it is safe to say that it means that the engineer whistled to alarm Mr. Lueders when he was yet three hundred feet away, and that he put the air on his brakes in emergency a hundred and fifty feet away.”

This language is in effect announcing that we will take judicial notice of the fact that telegraph poles are not set less then 150 feet apart. This is a matter of proof and there is no proof in the record. We can’t judicially know this fact, and as to the foregoing language I dissent. Lamm, J., concurs in these views.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    S. R. BOOTHE et al. v. STEPHEN M. and MARY E. CHEEK, Appellants.
    Division One,
    December 6, 1913.
    3. PARTITION: Adverse Possession: Petition in Prior Suit: Evidence. 'A petition filed by the defendants here as plaintiffs in an earlier suit for partition of the land sought to be partitioned by this action is competent evidence, upon the issue of their adverse possession, to show that they were not holding adversely but were recognizing the rights of • their cotenants to half of the land. The rule that an estoppel to be available as an independent defense must be pleaded, does not affect the competency of the petition as evidence of the nature of their claim.
    2. -: Cotenancy: Possession of one Cotenant not Bar. Mere possession by one cotenant is not enough to force his fellows to proceed to judgment in ejectment before they can maintain a suit in partition.
    8. -: -: Adverse Possession: Evidence. Evidence held not to show such adverse possession in one cotenant as would preclude the institution of proceedings in partition against him by his cotenants.
    4. TRUSTS: Taking Title at Execution Sale: Scheme to Defraud Owner’s Creditors. Where one buys lands at an execution sale, the purchase price having been furnished by the owner and the purchaser agreeing to hold the title for him, in execution of a plan to defraud the owner’s creditors, equity will raise no trust in the lands in the purchaser’s hands.
    5. -: Devise of Equitable Interest: Conveyance by Trustee Before Probate of Will. A trustee’s conveyance, made to a third party by direction of the devisee of the equitable interest, and before the probate of the will, becomes fully effective upon probate of the will and passes the whole title.
    6. COURTS: Trials: Governed by Facts Pleaded, not by Pleader's Conclusions of Law. A court is to be governed by the facts as set out in the pleadings and not by conclusions of law which the pleader may draw from the facts.
    Appeal from Boone Circuit Court. — Hon. N. D. Thurmond, Judge.
    Aebtbmed.

      N. T. Gentry for appellants.
    (1) Error was committed by the trial court in entering a judgment of partition, as the undisputed evidence showed that the defendants Stephen M. Cheek and Mary E. Cheek, his sister, were holding this, land adversely to the plaintiffs, and to all others, claiming title thereto by virtue of the deed from Sophia E. Hutts, to Stephen M. Cheek, and by virtue by the will of John Hutts deceased. On that subject, our Supreme Court said: “It is well established in this State that where one is in the possession of land claiming it adversely against all others, one out of possession cannot maintain a suit against him for partition without first establishing his right in an action of ejectment, but after having done so he may maintain his action for partition against the person or persons in possession.” Estes v. Nell, 140 Mo. 650; Wommack v. Whitmore, 58 Mo. 448. Not only did the defendant Stephen M. Cheek and his witness testify that he was holding possession of this land adversely, but the plaintiff J. H. Boothe (the only plaintiff who testified in this case), testified that defendant Cheek had been holding possession of the land ever since the death of John Hutts, that said defendant had collected the rents, paid the taxes, and that the plaintiffs could not get possession from him. And as early as 1858, the same doctrine was enunciated by Scott, J., who said: “Where one is in the adverse possession of land, claiming it exclusively against all others, one claiming title and out of possession cannot maintain a suit for partition. He must first try his right in an action of ejectment, and after that is established he may institute his proceedings for partition.” Lambart v. Blumenthal, 26 Mo. 474; Snell v. Harrison, 131 Mo. 503. And the court further said: “If,- therefore, defendants were at the time of the institution of this suit in the exclusive adverse possession of the land, claiming the same as their own, and there had been an onster before that time, then plaintiffs, although claiming as cotenants, cannot maintain this action and must resort to their action of ejectment in order to settle the question of title, before they can do so.” Iíutson v. Hutson, 139 Mo. 235; Chamberlain v. Waples, 193 Mo. 96; Shaw v. Gregorie, 41 Mo. 410; Rosier v. Griffeth, 31 Mo. 173; Coberly v. Coberly, 189' Mo. 16; 21 Am. & Eng. Ency. Law (2 Ed.), 147; Holloway v. Holloway, 97 Mo. 628; Colvin v. Hauenstein, 110 Mo. 575; Snyder v. Arn, 187 Mo. 165. The fact that the defendants asked the court to construe a deed and to reform a deed did not deprive them of the right to object to the partition of this land, especially as they alleged in their answer that they had been and were holding the same adverse to the plaintiffs. (2) The plaintiffs offered in evidence the petition for partition, which was filed by the defendant Stephen M. Cheek, prior to the institution of the present action. But that petition is no evidence against said defendant, for the reason that the will of John Hutts, deceased, had not then been probated. The defendant Cheek did not then know that said will could be probated, and did not know that the interest which said testator owned would go to Sophia E. Hutts, and thereby enure to him. This was testified to by defendant Cheek, and the dates and circumstances corroborated him. But even if said petition was evidence against him, as claimed by counsel for the plaintiffs, the plaintiffs are not in a position to get the benefit of such evidence, as they did not plead an estoppel either in their petition or replication. All of our authorities hold that an estoppel, to avail a party, must be .specially pleaded. McClannahan v. Payne, 86 Mo. App. 284; Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 255; Avery v. Railroad, 113 Mo. 561; Sanders v. Chartrand, 158 Mo. 352; Chase v. Jennings, 159 Mo. 544; Casler v. Gray, 159 Mo. 588 ; Warden v. Baldwin, 51 Wis. 450; Anderson v. Hubble, 93 Ind. 570; Hudson v. Railroad, 101 Mo. 29; Ransom v. Stan-berry, 22 Iowa, 334; Bigelow on Estoppel, pp. 453 and 544; Cbitty on Pleading, .pp. 543, 544; Bliss on Code Plead. (2 Ed.), sec. 364. (3) Error was also committed by the trial court in entering judgment for the plaintiffs, which judgment does not correspond with the allegations of plaintiffs’ amended petition, the petition upon which the judgment was rendered. All of our authorities hold that a plaintiff cannot recover more than asked for, and that his recovery must be according to the allegations of the petition.

      Gillespy & Conley and Don C. Garter for respondents
    (1) The law is well settled in this State (a) that one tenant in common is. presumed to hold possession for himself and his cotenants; (b) his simple possession without more and collecting rents and paying taxes are not acts showing a hostile holding; (c) before his holding can be said to be hostile there must be some overt, hostile act or conduct brought home to his cotenants showing that he asserts title in himself alone, and the title he claims must be from an independent source from the instruments under which he becomes a cotenant with plaintiffs. The following cases cited by appellant in bis brief support the above propositions: Wommack v. Whitmore, 58 Mo. 448; Holloway v. Holloway, 97 Mo. 643; Coberly v. Coberly, 189 Mo. 17. Also the following cases: Chapman v. Kullman, 191 Mo. 247; Seibert v. Hope, 222 Mo. 630; Collier v. Gault, 234 Mo. 457; Colvin v. Hauenstein, 110 Mo. 575; Hutson v. Hutson, 139 Mo. 229; Rozier v. Griffith, 31 Mo. 171. Where both parties claim under the same instruments their rights under the same may be determined in a partition suit, though defendants’ contention is that the instrument gives bim the whole estate. Wommack v. Whitmore, 58 Mo. 448. In which, case defendant claimed under a deed, the construction of which, he alleged, gave him the fee and also plead adverse possession and exclusive ownership. O’Brien v. Ash, 169 Mo.. 300; Shepperd v. Fisher, 206 Mo. 208; Thomas v. Black, 113 Mo. 66; Shaw v. Gregone, 41 Mo. 410. Defendants themselves in this case put the title to this land in issue and asked the court to determine the title and cannot complain that the court did what they asked. As they do not seriously contend hut what their possession follows their title, the finding against them as to title was necessarily a finding against them also as to possession. Plaintiffs petition alleges facts which show an equitable title in the heirs of Mrs. Hutts. Defendants’ answer invokes the aid of a court of equity. So this entire proceeding is equitable in its nature. Under such circumstances adverse possession is no defense to a proceeding in which equitable titles are asserted and the power of a court of equity is invoked. Coberly v. Coberly, 189 Mo. 18; Holloway v. Holloway, 97 Mo. 640; Barnard v. Keathley, 230 Mo. 209. Where the possession is subordinate to the true title, there can be no adverse possession. Coberly v. Coberly, 189 Mo. 17; Shaw v. Gregorie, 41 Mo. 410; O’Brien v. Ásh, 169 Mo. 300. Plaintiffs have been in the constructive possession of the land since Mrs. Hutts’ death through their cotenant Cheek. It will be found from an examination of the cases cited by appellant and all others in the reports that the defense of adverse possession has never been sustained except in those cases where the eotenant claims under a title from an independent source, as by limitations. (2) It seems almost too plain for argument that the Heed was intended to and did convey a one-half interest only. And if we consider the other evidence in the case, it helps rather than makes questionable this construction. It appears that Mrs. Hutts acquired a one-half interest from Drain at her own request, and Cheek thought he had. only received a one-half interest because that it what he conveyed as his entire interest four years later. As pointed out in the statement the deed shows through three expressions that one-half was the interest intended. The words “which is one-half interest,” limit and define the previous words which are general. General provisions must give way to particular. Utter v. Sidman, 170 Mo. 299; Johnson v. Johnson, 170 Mo. 34. The deed is written just like any careful lawyer would have drawn it who was trying to convey a one-half interest. Rules of construction have practically been reduced to one, and that is, that the intentions of the grantor are - to be gathered from the four corners of the instrument. (3) The petition did not constitute an estoppel, but was merely evidence to show how Cheek was holding the land at the time the petition was filed. The reason for the rule that estoppels must be pleaded is that they constitute an independent defense to the whole issue as to which they are pleaded. Under the code a pleader is not required to plead evidence only and such pleading is condemned. Notwithstanding this petition plaintiff could still have proved that he was in adverse possession after it was filed and the petition alone did not and could not defeat his whole claim of exclusive possession. It was offered and considered as evidence only. It is the duty of the court in partition cases to ascertain and determine and declare all the conflicting rights, titles and interests of the parties inter se. R. S.. 1909, sec. 2572; Beedle v. Rebenack, 137 Mo. 185; Holloway v. Holloway, 97 Mo. 633; Thompson v. Holden, 117 Mo. 125; Hamilton v. Armstrong, 120 Mo. 597; Gunn v. Thurston, 130 Mo. 344; Lindell R. E. Co. v. Lindell, 142 Mo. 83. From which authorities it is evident that the court is not limited in its findings to the titles asserted in the petition nor must the petition be dismissed if the titles, as .alleged, are not all proved, nor must it fail to find for a defendant because it would also have to find the interests for plaintiffs more favorably than they ask, which is this case. Partition cases are now all embracing and adjudicate all questions between the parties to them, as they necessarily should. And if plaintiffs have failed to claim as much as they should have claimed, so also defendants by their own evidence alone offered to support their answer and the prayer thereof to determine title have supplied all the facts from which the court made its finding (i. e. the sheriff’s deed and the evidence of Drain) of title in the heirs of John Hutts. There was a fraudulent conspiracy between Drain and John Hutts to defraud the Kinkade heirs. Such being the case Drain never held the title under any trust, but was the absolute fee simple owner and could give it away as he pleased. Hutts could not have shown his title, nor could those claiming under him, ■either his heirs, or his wife claiming under him or those claiming under her without showing his fraud. Miller v. Davis, 50 Mo. 572. Also it appears that John Hutts did not claim an equitable fee, but told ' Drain that at his, Hutts ’ death, he wanted the longest liver to have the land. “Equity neither creates nor •enforces such a trust, contrary to the ascertained intention of the parties capable of acting for themselves.” Morris v. Clare, 132 Mo. 232. If the title in fee was in Drain, then the common source of title is his •deed and the judgment follows the estates created by that deed.
   BLAIR, C.

This appeal is from a decree of the e^rci1^ court of Boone county partitioning one hundred and twenty acres of land.

John Hutts formerly owned the land, but in 1876 a judgment for $1628.65 against him was obtained by the administrators of John Kinkade and the land was sold under execution in April, 1877. Hnder an arrangement with Hutts, George T. Drain bought in the land for him with money which the weight of the evidence shows Iiutts furnished. The price paid was less than half the judgment. There is evidence this plan was adopted by reason of other debts Iiutts owed and to prevent the subjection of the property to their payment. Drain held the title thereafter, Hutts retaining possession and repaying to Drain the sum expended for taxes. Drain several times urged Hutts to take the title, saying it was not his (Drain’s) land and he wanted it “fixed up.” Hutts told him it was as he desired and said he wanted him to have it if he, Drain, outlived him.

Hutts died in March, 1901, leaving a will he had executed in Virginia in 1862, whereby he devised all his property to his wife, Sophia Hutts, who survived him. The couple was childless.

In November, 1901, Drain, at Mrs. Sophia Hutts’ direction, executed a deed to the land in suit whereby he conveyed to her a one-half interest in the land in fee and a life estate in the remaining one-half interest, remainder in fee to the heirs of John Hutts. At this time Mrs. Hutts knew of the existence of the will mentioned, but one of the witnesses testifies she thought it was too old to be effective.

In December, 1901, Sophia Hutts executed a deed whereby she conveyed to appellant Stephen M. Cheek “for and in consideration of love and esteem and one dollar . . . her interest, which is one-half interest in the undivided tract or parcel of land described” as in the petition, the deed then reciting that Mrs. Hutts reserved “full control of said land and all of the profits thereof during her natural life.”

October 26, 1905', appellant Stephen M. Cheek, for a recited consideration of $700, executed a deed whereby he conveyed to his sister and coappellant, Mary E. Cheek, “the following described tract or parcel of land, situated in the county of Boone, in the State of Missouri, to-wit: All of my undivided interest in,” describing the land in snit and proceeding’: “This deed is given subject to the lifetime dower now held by Sophia Hntts. This deed is also given with the understanding that in case of the marriage or death of the said Mary E. Cheek the land herein described is to go to Stephen M. Cheek.”

In October, 1906, Sophia Hutts died, and thereafter at some time prior to the February, 1907, term, of the Boone Circuit Court, the present appellants, Stephen M. and Mary E. Cheek, instituted a suit to partition the land here involved. The original petition in that suit was not offered in evidence in this, but on March 7, 1907, an amended petition was filed in which plaintiffs, the present appellants, alleged they owned jointly an undivided one-half.of the lands now in snit and that they were “informed and believed” that those made defendants, the heirs at law of John Hutts, owned the remaining half.

In May, 1907, appellant Stephen M. Cheek caused the will of John Hutts to be probated, but it does not appear when, if at all, the partition suit, instituted by him and his sister, was dismissed.

In May, 1908, this suit was instituted. The plaintiffs and defendants constitute all the heirs at law of Johri Hutts and Sophia Hutts. June 1,1908, these appellants filed in this suit an answer in which the will of John Hutts and the deeds executed by Drain and Sophia Hutts are set up; and it is averred, among other things, that “whatever right, title or interest plaintiffs (the heirs of John Hutts) acquired under the aforesaid deed of the said George T. Drain inured to the benefit of these defendants (the appellants here) or to the heirs at law of the said Sophia Hutts,” and prayed that certain other heirs of Sophia Hutts be brought in, which, it appears, was done.

In April, 1909, a second amended petition was filed. The parties plaintiff are all the heirs of John Hntts except Geneva and Leroy Hnlen, who are made defendants. Plaintiffs, excepting- Mollie Hntts and P'atrick PIntts, are the children, and defendants Geneva and Leroy Hnlen are children of a deceased daughter of J. H. Boothe, who was a brother of Sophia Hntts and whose wife was a sister of John Hutts.

Plaintiffs, excepting Patrick and Mollie Hntts. and defendants Geneva and-Leroy Hnlen are, therefore, heirs at law of both John Hntts and Sophia Hntts, his wife.

The second amended petition proceeds somewhat upon the theory of the original answer filed in this case by appellants, alleges that by the deed from Drain, providing that at the death of Sophia Hntts an undivided one-half of the land in suit should go to the heirs of John Hntts, these heirs took nothing but “whatever title they acquired inured to the benefit of Sophia Hntts who was their equitable owner,” etc., and prayed that the property be partitioned, one-half to appellants and one-half to the heirs at law of Sophia Hntts.

Appellants’ amended answer “admitted” that Sophia Hntts took the whole under Drain’s deed, prayed that the deed from Sophia Hntts to Stephen M. Cheek be reformed by striking out the words “which is one-half interest,” and averred that appellants were in the adverse possession of the land. The minor defendants answered, denying all allegations in the petition.

A reply, denying all allegations of new matter in appellants’ answer, was filed.

The weight of the evidence showed that Drain executed the deed to Sophia Hntts by her direction and by his deed in November, 1901, conveyed the land as she desired it conveyed. The evidence offered by appellants to show that Sophia Hntts intended by hel deed of December, 1901, to attempt to convey to appellant Stephen M. Cheek the whole of the land in suit, has a very clear tendency to the contrary. It consisted of her declaration that she intended he should have “all she owned,” “al'l she possessed,” “her interest” in and “her part” of the land.

The evidence on the issue of adverse possession will be adverted to in the course of the opinion.

The trial court found appellants to be entitled to one-half the land, that the heirs at law of John Hutts were entitled to the remaining half, and found that partition in kind could not be made, and ordered the land sold and distribution of the proceeds made accordingly.

Stephen M. Cheek and his sister are the sole appellants.

Counsel contends (1) that appellants were in such adverse possession as to preclude partition; (2) that the court erred in admitting in evidence the petition filed by appellants in the suit previously instituted by them; (3) that the deed from Sophia Hutts to Stephen M. Cheek should be either (a) construed to convey the whole of the land or (b) reformed; and (4) that there was error in awarding to plaintiffs a larger share of the land than' claimed in' the petition.

I. (a) The petition filed by appellants in the suit they previously instituted was competent upon the issue of adverse possession as an admisgion by appellants that they were not hold-mg adversely but were, m fact, recognizing the rights of their cotenants to one-half the land. The authorities cited are to the effect that an estoppel to be available as an independent defense must be pleaded. That rule in no way affects the competency of the petition as evidence of the character of the claim appellants were making.

(b) Tbe trial court expressly found against appellants on the issue of adverse possession. Appellant Stephen M. Cheek lived from child-h°°d with John and Sophia Hutts until they died, and after the death of the latter remained in possession of the land. His mere possession, however, was insufficient to force his cotenants to proceed to judgment in ejectment before they could maintain a suit in partition. Neither appellant testified to claiming the land adversely, though ]yp Qiiee|c did testify he paid the taxes and leased the land and collected the rents. One of the plaintiffs testified that plaintiffs could not get possession and. that Stephen M. Cheek had had pos7 session since the death of Sophia Hutts, but also testified that formerly Stephen M. did not claim the land but that it “seemed” lie-was claiming it, at the time of the trial. Considered together with the petition filed in the suit appellants instituted and the original answer filed in this case, in neither of which any claim is made except in accordance with their view df. the record title, the former expressly setting up the interests of the heirs at law of John Hutts and the latter conditionally recognizing interests in the heirs at'law of Sophia Hutts, there is no foundation for the claim that appellants werp in such adverse possession as wpuld preclude-the institution by plaintiffs of partition proceedings. [Collier v. Gault, 234 Mo. l. c. 465; Coberly v. Coberly, 189 Mo. l. c. 16, 17; Chapman v. Kullman, 191 Mo. l. c. 247; Rozier v. Griffith, 31 Mo. l. c. 174; Shepperd v. Fisher, 206 Mo. l. c. 249.]

II. (The evidence clearly shows that the deed Drain executed was drawn, and executed at the instance of and in conformity to directions given by Sophia .Hutts.

(a) The trial court expressly held that Drain held the fee simple title. This finding was doubtless based upon the court’s conviction of the truth of the evidence, offered by appellants, tending to show that Drain bought in the land in 1877 under an arrangement with . Hutts, the purpose of which was to defraud the creditors of the latter. If that evidence is true, then equity would raise no enforceable trust in the property, and, for the purposes of this case, neither Hutts nor his general devisee, Sophia Hutts, had, before the conveyance of Drain, any interest in the land, and the finding of the court was right. No complaint that the evidence is insufficient to support that finding is made in the briefs. If Drain had the fee simple title, then his conveyance in 1901 vested a half interest, in remainder, in the heirs of John Hutts, and the decree gives appellants all to which they have any claim.

(b) If it be conceded, however, that the allegations of the petition were of a character precluding a finding on the ground of fraud against the validity of the trust, there is yet a reason which discloses that appellants have no interest in the land save that the decree gives them.

Whatever equitable interest John Hutts had passed by his will to Sophia Hutts, she became the beneficiary in the trust, if trust there was. Had John Hutts had the full title then a conveyance by Sophia Hutts delivered prior to the probate of the will under which she was sole devisee would not have been fully effectual upon delivery, but upon the subsequent probating of the will, it would have taken effect by relation as of its date. It would have conveyed an equitable interest, subiect to be defeated by a final rejection of the will. This is the clear import of those decisions in this State to the effect that the institution of contest proceedings restores the status, so far as the operation of the will is concerned, existing before the will is offered for probate, and that a conveyance by a devisee during contest of a will carries his interest subject to the judgment in the contest proceedings (McIlwrath v. Hollander, 73 Mo. 105; Hughes v. Burriss, 85 Mo. 660; Hines v. Hines, 243 Mo. l. c. 496; Robertson v. Brown, 187 Mo. l. c. 458 et seq.), and the principle is in full harmony with many other decisions and authorities. [Richards v. Pierce, 44 Mich. l. c. 446, and cases cited; Scott v. West, 63 Wis. l. c. 552; Will of Dardis, 135 Wis. l. c. 461; Hanley v. Kraftczyk, 119 Wis. l. c. 356, 357; Flood v. Kerwin, 113 Wis. l. c. 680; Walton v. Ambler, 29 Neb. l. c. 643; Mackey v. Mackey, 71 N. J. Eq. 688; Miller v. Douglass, 30 Ohio Cir. Ct. Rep. l. c. 668; Ives v. Allyn, 13 Vt. l. c. 630; Ex parte Fuller, 2 Story, 327.]

There is nothing in our statute expressly postponing the vesting (sufficiently to support a conveyance) of devises until probate of the will, and one section (6315, R. S. 1909) by implication recognizes the operative effect, in case of actual notice, of unproved wills. If this is not true, the provision in that seotion relating to wills unproved, but recorded prior to 1887, imparting notice after the lapse of a year, is meaningless. An intimation of like effect is found in Keith v. Keith, 97 Mo. l. c. 230.

Sophia Hutts, at the time of the execution, at her direction, of the deed by Drain, had full knowledge of the existence of her husband’s will and of its provisions, and was advised by the probate judge, through the' interposition of appellant Stephen M. Cheek, according to his testimony, that the will could be “renewed” but that some expense would be necessary to procure the evidence of the witnesses who lived in Virginia, She purposely, therefore, withheld the will from probate, but there is no reason to doubt her knowledge of its validity in view of Stephen M. Cheek’s testimony, despite the testimony of another witness that he heard her “say something about it;” that it was too old.

By the will Sophia Hutts became the sole beneficiary in the trust, if trust there was, before the probate of the will. A conveyance by her would have passed her equitable interest, subject to be defeated by the final rejection of the will. She could not have compelled, or conveyed to another the right to compel Drain to convey the legal title before the will was probated, but it can hardly be doubted that either she or her grantee could have accepted a voluntary conveyance from Drain which upon the probate of the will would have taken effect by relation as of its date. That difficulties might, in such a situation, arise upon the rejection of the will cannot affect the argument as to the effect of the conveyance if made.

A cestui que trust, of full age and under no disability, entitled to a conveyance, may direct it to be made to another, and the whole title will thereby pass (Matthews v. Thompson, 186 Mass. l. c. 18, 19; Rogers v. Tyley, 144 Ill. l. c. 666; Altschul v. Casey, 45 Oregon, l. c. 188, 189; Cotton v. Ward, 3 T. B. Monroe, l. c. 311, 312; Witter v. McCarthy Co., 43 Pac. (Cal.) 969); and there is no reason for saying that Sophia Hutts, who, upon the assumption that a trust existed, could have herself conveyed, might not accomplish directly her purpose by directing a conveyance by the trustee, nor for saying his voluntary conveyance executed by her direction would not draw to itself the equity she might have conditionally conveyed at that time and be as effectual to pass the title, subject to be defeated by the rejection of the will, as her own conveyance would have been or, after the will was probated, as conclusive as if the will had first been probated and then Drain had conveyed at Mrs. Hutts’ direction.

With full knowledge, of full age and under no legal disability, Sopbia Hutts saw fit to divide tbe remainder in tbe land equally between appellants (her kinsmen) and the heirs at law of her husband. ..That she knew the will was valid is evidenced by the fact that she had Drain to convey to her a greater interest than she could have claimed in a case of her husband’s intestacy. She intended to divide the property as the decree finds she did divide it, dealt with it on the theory she had so divided it, and died doubtless in the belief that one-half of the land her husband had acquired would go to his kinsmen and one-half to her kinsmen, the appellants here.

Of the disposition she made of the property her other heirs at law cannot complain, and her grantees, though also heirs, cannot take more than she had to convey. Her .own intent to convey to Stephen M. Cheek but one-half of the land is clear from the deed to him and the declarations proved.

Whether there was or was not a trust equity will recognize, the trial court’s decree properly describes and defines the interests of the parties.

III. It is insisted, however, that the court erred in awarding certain of plaintiffs greater interests than the petition alleges they own. The petition sets 011t the facts on the theory of a valid J " trust of which Drain is alleged to be the trustee. The conclusion of law that Drain’s deed was ineffective is not an allegation of fact nor an allegation the trial court was obliged to notice. It is a mere statement of a conclusion- of law. Upon the facts, the trial court performed its duty, i. e., determined the interests of the respective parties and decreed accordingly. The judgment is affirmed.

Brown, C., concurs.

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

All the judges concur — Lamm, J., in result.


author: BROWN, C.

text:
    J. M. MAHAFFEY v. LEBANON CEMETERY ASSOCIATION, Appellant.
    Division One,
    December 6, 1913.
    1. ABSTRACT: Narrative Form: Requisites: Showing Appeal. An abstract of the record which shows the date of the suit, sets out the pleadings in haee verba and, after the statement “Entries of the Court,” follows with the judgment an an abbreviated narrative of the proceedings thereafter and closes by saying “End of Record Proper,” is not rendered defective by the use of the abbreviated narrative style — rather should that style be commended. And the appeal is sufficiently shown by an entry that appellant on a stated day “filed in due form its affidavit for appeal . . . and the trial court finding the same sufficient (after approving the appeal bond)” granted the appeal.
    2. -: Amendments: Bill of Exceptions. Respondent’s additional abstract, a certified copy of the entire record proper, demonstrated that the entries in appellant’s abstract of the record showing the extension of the leave to file the bill of exceptions so as to cover the time of its actual filing, and the order showing that it was signed and filed, were not to be found in the records of the trial court. Held, that, under the. circumstances of this case, amendments to the appellant’s abstract must be disallowed which consist of a copy of a written order of the judge of that circuit, made in vacation, extending the leave for filing the bill of exceptions, and of a certificate of the clerk that the bill had been filed in vacation, which amendments were submitted to the Supreme Court after the final submission of the case. It follows' accordingly that the bill of exceptions cannot be considered by the Supreme Court.
    3. APPEAL: No Bill of Exceptions: Record Proper Examined. • Where the bill of exceptions cannot be considered the Supreme Court will examine the record proper and if no error is apparent therein the judgment will be affirmed.
    Appeal from Laclede Circuit Court.- — Hon. L. B. Wooclside, Judge.
    Affirmed.

      W. I. Wallace and Silver. $ Dumm for appellant.

      L. C. Mayfield for respondent.
   BROWN, C.

Suit instituted in-the Laclede Circuit Court at the August term, 1908, under the provisions of section 650, Revised Statutes 1899, to ascertain and determine the estate, title and interest of the parties to the north half of lot seventeen, block ten of the cemetery of the appellant. The petition states that plaintiff is the owner of the land with the right to possess and use it for burial purposes against all other persons whomsoever; that he purchased it from the appellant in 1901 for ten dollars which he fully paid and took possession of the half lot, buried one of his children on it and held it until May, 1908; that he is informed and believes that the defendant is making some claim to the lot.

The answer consists of a general denial, with a speecial plea, amounting, in substance, to a denial that the lot had been paid for and asserting that it had been forfeited under the rules of the'association subject to which whatever right the plaintiff had was acquired. The answer asked the court, in substance, to adjudge the title in the appellant and that the plaintiff has no title or right of possession to the land.

The cause was tried on August 13, 1908, during the same term at which it was instituted, and resulted in a judgment for the plaintiff, the substantial part of which is as follows:

“It is by the court ordered and adjudged and decreed that the plaintiff purchased of the Lebanon Cemetery Association the following lot, viz.: North half of lot seventeen (17), block ten (10) in the Lebanon Cemetery Association and took possession of the same and buried his child thereon and that his right of burial remain in full force and effect.. It is therefore ordered and decreed that the plaintiff has full burial privileges in the north half of said lot and the exclusive right of interment on said north half of said lot seventeen (17).”

From' this judgment the defendant has appealed and brought the record here by the short transcript provided in section 2053, Eevised Statutes 1909, and in due time filed his abstract of the record. The cause was docketed and set for hearing at the October term, 1912, in Division No. 1, on October 17th, the ninth day of the term, and was heard and submitted on that day.

The respondent in due time filed an additional abstract, and on October 8, 1912, filed his motion “to dismiss appeal or affirm judgment,” a copy of which, with notice of his intention to file it, was served on appellant on October 2, 1912. It has been submitted and taken under advisement with the case. It states as grounds for such action (1) that the printed abstract of the record proper fails to show that there was an affidavit for an appeal which complied with -the law; (2) that it fails to show that there was an appeal granted by the court, or that such an order was ever spread upon the records of the court; (3) that it fails to show that the bill of exceptions was presented to and filed in the circuit court while in session, or that leave was given to file the bill of exceptions or that it was ever signed or filed.

As a matter of fact the abstract was constructed on the following plan: (1) A copy of the petition, (2) a copy of the answer, (3) a statement that the cause came on for trial on August 13, 1908, during the August term of the trial court, and a copy of the judgment. Preceding this copy are the following words: “The entries of the court are as follows:” After the judgment comes a narrative statement of the filing of the motion for a new trial and its overruling on August 13, 1908; the same reference to the motion in arrest of judgment on the same date; then the following:

“Appeal. — Thereafter on said 13th day of August, 1908, and at said August term, 1908, the defendant, the Lebanon Cemetery Association, filed in due form its affidavit for appeal to the Supreme Court of Missouri, and the trial court finding the same sufficient (after approving the appeal bond) did on the same day last aforesaid grant said appeal to said Supreme Court.

“Bill of Exceptions — Leave to File Same. — Thereafter, on said August 13, 1908, and at the same term of the trial court last aforesaid, the trial court by its order duly entered of record proper, did grant leave to the defendant, the Lebanon Cemetery Association, to file its bill of exceptions in this cause ‘within one hundred and twenty days from the 13th day of September, 1908,’ which leave to file said bill of exceptions was thereafter, on November 4,1908, extended by the court, with the consent of the parties to this cause to February 10, 1909.

“And the defendant, the Lebanon Cemetery Association,' on February 6, 1909, and within the time so allowed by the court, did present to the court its bill of exceptions and the same was signed by the Hon. L. B. Woodside, judge thereof, and was duly filed on said February 6, 1909-, as shown by the record entry of the court.”

Then the following words: “End of record proper.” Then follows the bill of exceptions, preceded by the statement: “Filed by entry of record proper February 6, 1909.” The bill of exceptions contains everything generally incorporated in such a paper, including the evidence, the court’s finding of facts, the instructions given and refused, the motion for a new trial and in arrest of judgment, the exceptions, and closes without signature, and with the following words:

“And thereafter and at .the same term of the trial court, at which said motion in arrest of judgment was filed, court overruled said motion and to its action in so doing defendant thereupon objected and excepted.

“Said bill of exceptions was duly signed on tbe 6th day of February, 1909, by L. B. Woodside; circuit judge, and was duly filed on the same day as part of the record in this cause.”

Respondent’s additional abstract consisted of a certified copy of the entire record, showing that the only order of the court referring in any inanner to the bill of exceptions is, omitting caption, as follows:

“Now on this day comes the defendant herein, by attorney, and files motion in arrest of judgment in, this cause, which is by the court overruled, and 120 days allowed defendant to file their bill of exceptions in this cause.”

On October 15-th the appellant filed an application to amend his abstract so as to show that the time for filing the bill of exceptions was extended by order of Judge Woodside of the Laclede Circuit Court, and not by the court. This was supported by affidavit of Mr. Edwin Silver saying that the error had been made by him through a misapprehension of the facts and not with any intention of deceiving or misleading the court. Two days after the submission of the case in this court, and on October 19, 1912, the appellant gave to one of the judges a certificate of the-clerk of the trial court to the effect that the bill of' exceptions had been filed with the clerk of that court-on February 6, 1909, and at the same time filed with-the clerk of this court an application to amend his abstract so as to show that fact.

I. The appellant’s abstract was prepared, in so far as form is an element, with care and attention to such suggestions as have been made from time to time by this court. The date of the institution of the suit, together with the pleadings in haec verba, and the judgment, complete the necessary elements of the record proper. They do not have to be incorporated in it by exception, and it is our duty to examine.them whenever properly brought before us for review. Mindful of the requirement of this court, often repeated, that the abstract should separately show the record entries with respect to those matters which are done in open court and about which its permanent records must speak, and which should be abstracted separately from the things that become matters of record only because they are excepted to during the progress of the proceedings and written down in the bill of exceptions, the appellant grouped them under the heading “The Entries of the Court,” and wrote at their end, “End of Record Proper.” We can imagine no reason why we should refuse to understand this plain language and definite arrangement. In abstracting these entries the appellant dropped into the style recommended by this court in State ex rel. v. Broaddus, 216 Mo. 336, where we said with reference to the abstract then under consideration, invoking the support of a liberal citation of authorities, “.it sets out those record facts, not by literal copy, which would be unnecessary, but in abbreviated narrative form, which is sufficient and preferable.” He then states, in the form so recommended, various proceedings succeeding the judgment, -including the foregoing order approving the appeal bond and granting the appeal. It would be a perversion of language to say that this does not carry on its face the assertion that it is the substance of an entry appearing on the “record proper,” through which only, the court can speak with reference to the matters involved. To require more would be like requiring the statement that a man said so and so to be supplemented with the explanation that he said it with his mouth.

That the statement above quoted shows that a sufficient affidavit for the appeal had been filed is also decided in State ex rel. v. Broaddus, supra. [See also Elliott v. Delaney, 217 Mo. 14, 26; Hutchinson v. Patterson, 226 Mo. 174, 181.] Assuming, then, that it is required by the statute and the rules of this court made in accordance therewith, that the abstract of the record should show the order of the circuit court granting the appeal, we hold that the order, together with the .presumption that the affidavit upon which it was made complied with the statute, is sufficiently .shown in this abstract. While we assume, for this purpose alone, that this burden rests upon the appellant, we do riot so decide. While we may not always have been absolutely consistent on this question, we have frequently said in substance, as we said in words in Bank v. Hutton, 224 Mo. 42, “that we would read into the abstract the certified copy of the judgment and order granting the appeal;” and in the later case of Nickey v. Leader, 235 Mo. 30, 37, Judge Graves, who wrote the opinion, collected our cases to the same effect, and we then indorsed them. It follows that the appeal is sufficiently shown in the record before us.

II. A more difficult question is whether the bill of exceptions is presented for our consideration. The filing by respondent of his additional abstract, consisting of a certified copy of the entire record proper, demonstrated that the record entries abstracted by the appellant showing the extension of the leave to file the bill of exceptions so as to cover the time of its actual filing, and the order showing that it was signed and filed, were myths existing in the imagination of the attorney who prepared the bill, and not in the record books of the court. Before the case was heard in this court the' appellant presented to us a copy of a written order of Judge Woodside, made in vacation, extending the leave theretofore granted by the court, but this leaves us still without any evidence that the bill of exceptions was either signed or filed. After the case was submitted, the appellant attempted to supply the last of these two omissions by a certificate of the clerk that it had been filed in vacation, but we are still in ignorance as to whether or not it was signed by the judge who tried the case. The respondent, during all this time, has stood and still stands on his objections to the abstract as originally presented and .has filed no brief upon the merits. While this court may, in its discretion, at a proper time, under proper circumstances and upon proper terms, for good cause shown, permit the amendment of an abstract of the record, after the lapse of the time prescribed in the statutes and rules of the court for its filing, there is nothing in this case to call for the exercise of such discretion. This abstract presents a purely imaginary condition of the reGord, which the attorney who prepared it had evidently never seen; and the amendments asked, some of the most important of which were not suggested until after the final submission of the case, present an entirely new state of facts. The respondent promptly availed himself of his right to object to the condition as it existed at the time he prepared his ease, and to now inject new elements for which he was not called upon to prepare, and has not prepared, would be to punish the diligent for the benefit of those who offer no excuse for their negligence other than that they did not intend to deceive or mislead the court. It follows that the amendments to the abstract must be disallowed. [Everett v. Butler, 192 Mo. 564, 569; Harding v. Bedoll, 202 Mo. 625, 634 et seq.; Nickey v. Leader, 235 Mo. 30, 36; Tipton v. Davidson, 40 Mo. App. l. c. 423; Realty Co. v. Brewing Co., 247 Mo. 29, 32.]

We still have the record proper before ns which raises the single question whether or not the judgment rendered is supported by the plead-ings. The petition, by which we must judge it, states, in broadest terms, the title of the respondent and asks the court to define and adjudge the title, interest and estate of the parties in the land. The answer asserts the title of appellant in terms as broad, and asks that it be defined and adjudged. The issue was well framed under the statute. So far as the pleadings are concerned, the whole title was at stake and. the judgment determines it as to both parties. There being no error apparent in the record proper the judgment will have to be and is affirmed,

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

All the judges concur.