author: LAMM, C. J.

text:
    THE STATE ex rel. FREDERICK E. FISCHER, GREAT WESTERN LIFE INSURANCE COMPANY and INTERNATIONAL LIFE INSURANCE COMPANY v. WILLIAM C. THOMAS, Judge.
    In Banc,
    March 28, 1913.
    1. PROHIBITION: Motion by Person Not Party: No Notice. Where suit was brought in the circuit court by stockholders of an insurance company, praying for an injunction and asking for the appointment of a receiver, and a receiver was appointed, and before the company appeared, a writ of prohibition against the judge was applied for, and issued by the Supreme Court, and an order was made restoring the status quo, and thereupon the injunction was dismissed, a motion thereafter filed by the receiver in the Supreme Court, without notice, asking for an order for a return of the properties of the company to him, or the payment of a sum sufficient to pay his expenses and costs, in case it be held that the preliminary rule in prohibition was improvidently made, will be stricken from the files — first, because no notice was given, and, second, because movent is not a party to the prohibition suit.
    2. -: Dismissal of Circuit Court Case: Costs: Moot Case. Where plaintiffs, after the preliminary writ in their suit of injunction was issued and a receiver was appointed and defendants had applied for and obtained from the Supreme Court a preliminary writ of prohibition prohibiting the judge of the circuit court from proceeding further in the cause and restoring the status existing at the time the injunction was brought, voluntarily dismissed their suit in the circuit court and final judgment was entered, the prohibition suit becomes a mere moot case, involving at best only the undisposed of question of the taxation of costs in the lower court, and will be dismissed.
    Prohibition.
    Dismissed'.

      Brownrigg & Mason for relators.
    This court should make the writ of' prohibition final because: The court below, by dismissing the suit as to the relators and ordering that they go hence without day and have judgment for all costs, has put it ont of its jurisdiction to make any order concerning receiver’s fees or other costs in the case affecting the relators or either of them or which can he a claim or lien on any property of either of the relators.

      Robinson, Goodrich & Robinson and Willard P. Hall for respondent.
    The circuit court, in ordering the dismissal of the receivership case on the motion of plaintiffs herein, properly resumed jurisdiction to settle the accounts of the receiver, to make allowance in the receiver’s favor, and to.make all other further and proper orders in the receivership. The expenses of the receivership are chargeable against the fund. The dismissal of the suit in which there is a receivership does not ipso facto discharge the receiver. The receiver continues in office until his accounts, can he settled, allowances in his favor made, and the offices of the receivership orderly wound up. And all the expenses of the receivership are dischargeable against the property in the possession of the receiver. The fund hears the cost of the receivership. This would he perfectly clear after a receiver had been in office for a long time, say for a year, administering a large and intricate estate, in the doing which large expenses had been incurred. In such a case plaintiffs could dismiss the suit and end the necessity of the receivership, but there'would still remain the receivership to he ended by the court’s orders, after settlement with the receiver. The same rule applies to all receiverships alike, the big and the little. 34 Cyc. 174, 452; 17 Ency. PI. & Pr. 844; Alder-son on Beceivers, sec. 632. Even where the order of appointment is reversed, the receiver is not thereby discharged.' Neither is he deprived of the right to compensation and expenses, to be paid out of the fund. Matter of Murray Hill Bank, 14 N. Y. App. Div. 318, 152 N. Y. 199; 34 Cye. 172. If the receiver was legally appointed, the fact that plaintiffs in the receivership case adjusted their differences with the International cannot change these elementary rules of practice. The International by means of the consolidation obtained all the property of the Great Western and became liable for all the latter’s debts. If this court should reach the conclusion that the provisional rule issued by it was improvident, and that it should be vacated and relator’s petition dismissed, it should make the necessary orders to authorize the circuit court to settle the accounts of the receiver, to allow compensation for the receiver, and to discharge the receiver so as to release the receiver’s bond. And this court should further adjudge the costs and expenses of the receivership against the International, which has all the property of the Great Western.
   LAMM, C. J.

The Great Western Life Insurance Company was a domestic corporation in the line of business imported by its title. The International Life Insurance Company was the like. The two took steps heading to a consolidation. To that end a petition was presented under Revised Statutes 1909, section 6936, as amended in 1911 (Laws 1911, p. 264) to the Honorable Frank Blake, Superintendent of the Insurance Department of the State, accompanied by an exhibit of the agreements and plans for consolidation with the reasons therefor. Said superintendent, as authorized by the statutes referred to, had called to his assistance the insurance commissioners of two other States to “form a commission” to hear and determine whether the consolidation should go on the terms proposed, or on others to be substituted, or at all. Due notice had been given and a partial hearing had by the commission at a named place in St. Louis on a day set in the notice, to-wit, November 11, 1912. Objections developing, and the matter being wholly in fieri at the close of the St. Lonis hearing, the commission adjourned to meet In Kansas City on November 25, to complete the hearing and make findings. Four days before it met pursuant to that adjournment, a Mr. Green and three other stockholders of the Great Western (holding four shares of stock in the one thousand outstanding) brought a suit against the two companies, a Mr. Fischer and one Stevenson in the Jackson Circuit Court, charging fraud and corruption in the scheme for consolidation, and injury to stockholders; policyholders and creditors, with a maladministration of Great Western corporate affairs, and praying for an injunction and a receiver. A receiver (a trust company) was appointed by respondent without notice, and ordered to take possession of the properties, offices, books, etc., of the Great Western on giving bond, and defendants were ordered to appear and show cause why the receivership should not be made permanent on a hearing, the date to be fixed upon application. Giving bond mstanter, the receiver took possession of the offices, assets and books of the Great Western as ordered. Two days later said insurance companies and Fischer filed their suggestions here for a writ of prohibition against íespondent, the gist of them being lack of jurisdiction to entertain the bill for an injunction and a receivership while the question of consolidation was before the commission in usual course of orderly administrative detail under said statutes relating to consolidation of insurance companies.

We passed a preliminary rule citing respondent to show cause. As a part of that rule the statu quo ante helium (to borrow a warlike term) was re-established, and the books, offices and properties of the Great Western were ordered restored to that company until our further order. Our rule being served and those things done, thereafter plaintiffs in the receiv-ersbip suit, on November 27, dismissed that suit by entry, reading:

“Now on this day come the plaintiffs, in open court, and upon application of plaintiffs, this cause is by the court dismissed without prejudice.
“Wherefore, it is ordered and adjudged by the court that this cause be and the same is hereby dismissed; that said defendants and each of them go hence discharged without day and have and recover of and from the said plaintiffs all costs herein, and that execution issue therefor.
“And it is further ordered and adjudged that this court retain jurisdiction of the receivership with power to settle the receiver’s, account, to allow compensation to the receiver herein, and to make all other, further and proper orders in relation to the receivership herein.”

Thereafter respondent made return to our rule and relators filed a motion for judgment on the pleadings. Thereafter, without notice, the receiver filed a motion here for an order for return of the possession of the property, or payment of a sum sufficient to cover his expenses and compensation, in case our rule was held improvidently made. This last motion stricken from the files. As said, no notice was given thereof and besides that, movent is not a party to the suit in this court. See ruling on Seibel’s. motion in Gass v. Evans, 244 Mo. 329. So, our jurisdiction to graft in the main stem of the suit an issue of the sort outlined in that motion is not clear. [Wait v. Railroad, 204 Mo. l. c. 504, et seq.]

It is suggested in a brief filed for respondent that the parties to the litigation in the circuit court ‘ ‘ settled their differences.” It is suggested in that of relators that the judgment of dismissal has no such significance, contra, that the parties suing for a receivership presently, after our rule was served, went into the Federal court with a bill for like relief (to cut behind the jurisdiction of the State courts) and that court moved by comity was disinclined to proceed since the State court had assumed jurisdiction; that thereupon plaintiffs dismissed their suit to clear the deck for action in the Federal court. Those .contentions are mere makeweights and coloring matter. We lay them out of view.

A formidable array of questions is discussed in-briefs — e. g.: Some, relating to the sufficiency of the petition for prohibition; some, to the sufficiency of respondent’s return; some, to the office of a motion for judgment on the pleadings as a demurrer and thé office of a demurrer in searching prior pleadings; some, to the jurisdiction of the circuit court in the receivership suit; some, to the proper construction of insurance statutes involved; some, to whether those statutes oust the jurisdiction of a court of equity in such consolidations where the Superintendent of the Department of Insurance is proceeding to determine the right to and terms of a consolidation, as here; some, to the merits of the controversy raised by the recalcitrant stockholders anent the consolidation. They one and all are reserved for consideration in a live case turning on them. This case has become a mere moot case, or, at best, an undisposed of question of the taxation of costs below in a cause that has reached its end in the circuit court by a final judgment of voluntary dismissal.

We do not sit as a moot court to determine speculative questions for the benefit of some other case in judgment at some other time. Mark the actual situation. If we prohibited the circuit court from proceeding — cm bonof It has effectually done that by itself. The receivership suit is dead, and henceforth is of no use (except to point a moral). If we held the circuit court had jurisdiction to proceed with that suit— wherefore? It has effectually tied its own hands and could not lift a finger in proceeding to adjudge the merits. Yet if we proceeded to judgment on the merits we would have to do one or the other of those two things and in either event our judgment would amount to the same thing, viz., nothing. Shall a court that is (and has been invited to be) about the serious business of settling a grave question of jurisdiction,' turn aside to emit a mere squeak on costs as the be-all and end-all of the matter? We do not sit in the comedy of Much Ado About Nothing, if we know it in advance.

As to costs, while the circuit court by its judgment has determined the liability for costs generally, it has not ruled on the taxation of that part of them relating to the compensation and expenses of its receiver. When it does tax- them as costs, if ever, will its action not be open for review in the ordinary way in the proper appellate court on the appeal of the injured party? Why should we put it in leading strings in advance? Or assume it will err if left to itself? If it be said that by our order and rule we have taken the “fund” away from the receiver out of which it could, might or should reimburse itself for its expenses, etc., thus protecting plaintiffs from being mulcted, the answer is plain, viz.,- plaintiffs in that suit, if fearful the cost shoe might pinch in the future, should have thought of that before dismissing the receivership suit, thereby putting a barrier up to our restoring the property to the receiver to be administered upon. Count the costs! Look before you leap, are precepts of use in, as out of, court. The expenses and compensation of a receiver are but costs (R. S. 1909, sec. 2020) to be taxed and paid as such. The will of the lawmaker in that- regard stands for its own reason. When a suit for a receivership is disposed of by a judgment against the moving party, expenses and compensation do not always come out of the assets of the successful party. [State ex inf. v. Bank (Spencer, Receiver), 197 Mo. l. c. 612, et seq., and cases cited.]

On the reasoning and authority of the three very late cases of State ex rel. v. Imel, 243 Mo. 174, 178 and 180, and cases therein cited and followed, this has become a moot case to all intents and purposes and should be dismissed. It is so ordered.

All concur.


source: Caselaw Access Project

author: BBOWN, J. GRAVES, J. WOODSON, J.

license: Public Domain

text:
    JENNIE BOYD v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    March 28, 1913.
    1. DAMAGES: Sec. 5425: Verdict in Excess of $2000: Matters Considered. In arriving at a verdict in excess of $2000 under Sec. 5425, R. S. 1909, the jury are not restricted to a consideration only of the circumstances attending the negligence, un-skillfulness or criminal intent of the corporation causing the death of plaintiff’s husband; the legislative intent was that the jury, in exercising its discretion as to the amount for which a verdict in excess of $2000ushould be rendered, should also consider the necessary injury sustained by plaintiff.
    2. -: -: -: Word “Penalty:” Substance and Effect of Statute. While the word “penalty” inserted in the amendment of 1905 to present Sec. 5425 might of itself indicate a legislative intent that the recovery was to he penal and not compensatory, it is the substance and effect of a statute, rather than its form, that is to be considered in determining whether it is penal.
    3.-: -: -: Discretion. When courts or juries are clothed with power to exercise discretion in the performance of duties cast upon them by the law, the right to acquire a full knowledge of the facts upon which that discretion must operate is necessarily implied. Where the statute makes the amount a plaintiff, can recover depend upon “the discretion of the jury,” that necessarily implies that they should be made fully acquainted with the facts of the case; for a discretion, in such case, means freedom to do what is fair, just and right, in view of the circumstances and enlightened principles.
    4. -: -: Both Penal and Compensatory: Earning Capacity of Deceased: Loss to Plaintiff: Negligent Act of Defendant. A recovery under Sec. 5425, R. S. 1909, is penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all, in excess of that sum up to $10,000, is remedial and compensatory; and the jury and court, wliere a sum in excess of $2000 is demanded, in exercising the wise and just discretion which the statute authorizes, should consider evidence of the age, condition of health and earning capacity of the deceased, and the consequent loss to the plaintiff, together with the circumstances attending the killing. ^Overruling, so far as conflicting, Young v. Railroad, 227 Mo. 307; and Boyd v. Railroad, 236 Mo. 54.]
    5.-: Under Secs. 5425 or 5426: Election by Instruction. Where plaintiff’s petition attempts to state a cause of action under both Secs. 5425 and 5426, R. S. 1909, she elects to base her recovery on Sec. 5425 by asking an instruction fixing the amount of her damages at not less than two nor more than ten thousand dollars.

      Held, by GRAVES, J., with whom PARIS, X, concurs, that, the principal act of negligence charged being that of the foreman in running his hand-car upon the fixed time of the regular train which it met and where the section-hand was killed, the negligence alleged does not bring the case under Sec. 5425, but under Sec. 5426, if Honea v. Railroad, 245 Mo. 621, and 247 Mo. 542, was correctly ruled.
    6. -: Hand-Car is a Car: Under Sec. 5425. Under Sec. 5425, R. S. 1909, authorizing recovery for death caused by the negligent operation of any “locomotive, car or train of cars, or any street, electric or terminal car or train of cars, . . . or any stage coach, automobile, motor-car or other public conveyance,” a hand-car is a “car.”
    7. NEGLIGENCE: Collision Between Hand-Car and Train: Necessity to Prove Negligence in Operation of Train. Where a hand-car and a freight train, on a very foggy morning, met in a narrow cut, and a track laborer on the hand-car was killed, it is not necessary to prove negligence in the operation both of the freight train and hand-car; the petition charging negligence on the part of the foreman in charge of the handcar carrying the track laborers, proof that the act of the foreman in placing said laborer in such a perilous position that he could not escape being killed by the freight train established defendant’s liability.
    8. —--: -: Assumption of Risks. Where plaintiff’s husband, a track laborer, riding on a hand-car, was killed when the hand-car, going at a rapid rate, on a foggy morning, in a narrow cut and curve, met a rapid freight train running on schedule and not seen until the hand-car was within 120 feet of it, and the hand-car was under the control of the foreman of the track laborers and he had been warned of the danger of a collision, but ignored it, plaintiff’s husband did not assume the risk, and upon proof of these facts she was entitled to go to the jury.

      Held, hy WOODSON, J., dissenting, that, owing to the dense fog that shrouded the track and train, plaintiff’s husband assumed the risk.
    9. - — : -: Instruction: Assuming That Deceased Was Using Ordinary Care. An instruction telling the jury that if they find the act of the foreman of the hand-car carrying plaintiff’s husband, “in going around the curve in a heavy fog without stopping to listen or sending a man forward to ascertain whether or not a train was coming, was such an act as a person of ordinary #care and prudence as such foreman would not have done, then they should find for plaintiff,” was erroneous, the principal act of negligence alleged being the running by the foreman of a hand-car on the fixed time of a regular train coming from the opposite direction, and the answer pleading contributory negligence on the part of plaintiff’s husband in failing to jump from the hand-car and in negligently remaining on the track until killed, and there being evidence that the other men on the car did jump and escape injury and that deceased did not use ordinary care. This instruction ignores that issue, and directs the jury to find that the alleged negligence of defendant’s foreman in running the hand-car into the cut was the cause of deceased’s death. The instruction assumes that plaintiff’s husband was without negligence and did try to avoid being struck after he discovered his peril.

      Held, by GRAVES, J., concurring in the result, that the instruction does not cover any negligent act charged in the petition.

      Held, by WOODSON, J., dissenting, that the law did not impose upon the defendant the duty to send a man in front of the hand-car to notify those thereon of the approaching train.
    10. -: -: -: Ignoring Pleaded Defenses. The omission from plaintiff’s instructions of defenses pleaded by the answer is mere non-direction, and is not error. If .defendant wishes his defenses to be specifically called to the attention of the jury, it is its duty to ask proper instructions embracing them.
    Appeal from Barton Circuit Court. — Hon. B. G. Thurman, Judge.
    REVERSED AND REMANDED.'

      B. T. Bailey and Scott & Bowher for appellant.
    (1) The petition in this ease, in one count, attempts to state a cause of action both under Sec. 5425 and 5426, R. S. 1909, and for this reason appellant's demurrer and motion to elect should have been sustained. Casey v. Railroad, 205 Mo. 72Í; Peters v. Railroad, 150 Mo. App. 721; King y. Railroad, 130 Mo. App. 368. (2) It is the duty of the section men to look out for the approach of trains and for their own safety while on or near the track. Degonia v. Railroad, 224 Mo. 564; Evans v. Railroad, 178 Mo. 517; Ring v. Railroad, 112 Mo. 220; Sissel v. Railroad, 214 Mo. 515 ; "Williamson v. Railroad, 139 Mo. App. 481; Van Dyke v. Railroad, 230 Mo. 259; Hitz v. Railroad, 152 Mo. App. 687. (3) Where the servant has the same knowledge as the master the servant assumes the risk or is guilty of contributory negligence in working in a dangerous place or with a dangerous instrumentality-. Hirsch v. Freund Bros. Co., 150 Mo. App. 162; Jewell v. Bolt & Nut Co., 231 Mo. 176. (4) There was evidence in this case to support the answer in the pleas of assumption of risk and contributory negligence. Jewell v. f?olt & Nut Co., 231 Mo. 176; Sissel v. Railroad, 214 Mo. 515 ; Degonia v. Railroad, 224 Mo. 564; Maynard v. Railroad, 155 Mo. App. 352; Nivert v. Railroad, 232 Mo. 626; Gunnochio v. Railroad, 155 Mo. App. 163; Evans v. Railroad, 178 Mo. 517. (5) Under Sec. 2864, R. S. 1899, now Sec. 5425, R. S. 1909, the only actionable-negligence provided for is negligent acts in the actual operation of a train or cars, etc., therefore plaintiff was not entitled to recover under said section under the facts stated in her pleadings or instructions to the jury. Casey v. Railroad, 205 Mo. 721; Higgins v. Railroad, 197 Mo. 300; Gray v. Railroad, 157 Mo. App. 92; Peters v. Railroad, 150 Mo. App. 721; Anderson v. Railroad, 196 Mo. 465; Cuelsi-ton y. Railroad, 140 Mo. 63; Crumpley y. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Anderson v. Railroad, 196 Mo. 464. (6) See. 5425, R. S. 1909, under which a recovery was held in this case, is a purely penal statute, and the court erred in admitting testimony as to the wages of deceased, the number of his children, his age and expectancy, and in instructing the jury thereon. Young v. Railroad, 227 Mo. 307; Casey v. Transit Co., 205 Mo. 721; Cray v. Railroad, 157 Mo. App. 92; Ervin v. Railroad, 158 Mo. App. 1; King v. Railroad, 130 Mo. App. 368; Casey v. Transit Co., 116 Mo. App. 235; Adams v. Railroad, 67 Vt. 76 ; Marshall v. Railroad, 46 Fed. 269; Crohn v. Telephone Co., 131 Mo. App. 313; Nicholas v. Kelly, 159 Mo. App. 20; Moyes v. Railroad, 158 Mo. App. 461; Richmond v. Railroad, 97 Ala. 280 ; Childress v. Railroad, 141 Mo. App. 667. (7) The court erred in giving instruction 1 in behalf of the plaintiff for the reason it predicated a right of recovery in the plaintiff, without requiring the jury to find the negligence provided for in the instruction was the proximate cause of the injury and death of plaintiff’s husband. The jury was permitted by the instruction to return a verdict against thep defendant for certain alleged acts of negligence, without finding they caused the death of the decedent. This was error.

      Edwin L. Moore, John H. Taylor, and Mathew McBride for respondent. .
    (1) Plaintiff’s petition states a cause of action under Sec. 2864, R. S. 1899, as amended by the Act of 1905, p. 135', now Sec. 5425; R. S. 1909. Boyd v. Railroad, 236 Mo. 54; Peters v. Railroad, 150 Mo. App. 721. (2) The doctrine that it is the duty of section men to look out for the approach of trains and for their own safety while on or near the track does not apply to a section man riding on a hand-car going to and from Ms work by direction of the foreman. Schroeder v. Railroad, 108 Mo. 322; Honea v. Railroad, 245 Mo. 621; Boyd v. Railroad, 236 Mo. 80. (3) The deceased was not guilty of contributory negligence. Schroeder v. Railroad, 108 Mo. 322; Adams v. Railroad, 74 Mo. 533; Dickson v. Railroad, 124 Mo. 151; Pratt y. Railroad, 139 Mo. App. 502; Clark v. U. I. & P. Co.,-234 Mo. 436; Boyd v. Railroad, 236 Mo. 54. (4) The deceased was not guilty of contributory negligence nor did he assume the risk. Schroeder v. Railroad, 108 Mo. 322; Briscow v. Railroad, 130 Mo. 521; Philpot v. Railroad, 196 Mo. 321; Lee v. Railroad, 112 Mo. App. 372; Gibson v. Bridge Co., 112 Mo. App. 597; Pratt v. Railroad, 139 Mo. App. 502; Dickson v. Railroad, 124 Mo. 151; Burkard v. Rope Co., 217 Mo. 466; Dean v. Railroad, 156 Mo. App. 639; Clark v. IT. I. & F. Co., 234 Mo. 436; Boyd v. Railroad, 236 Mo. 54; Honea v. Railroad, 245 Mo. 621. (5) A hand-car is a car within the meaning of Sec. 5425, R. S. 1909. Peters v. Railroad, 150 Mo. App. 727; 3 Elliott on Railroads, sec. 1354; Boyd v. Railroad, 236 Mo. 54. (6) Sec. 5425, R. S. 1909, under which recovery was had, is both penal and compensatory and testimony as. to the number and ages of his children, the wages he received, his age, and expectancy was properly admitted and the jury instructed thereon. Boyd v. Railroad, 236 Mo. 82;. Hartnett v. Railroad, 162 Mo. App. 554; Hegberg v. Railroad, 164 Mo. App. 548. (7) Instruction 1 correctly defines the law of the case. Boyd v. Railroad, 236 Mo. 92; Henry v. Railroad, 76 Mo. 293; Montgomery v. Railroad, 181 Mo. 498. Plaintiff in good faith offered instruction 1 approved by the highest court of this State. Defendant offered no instructions, and cannot now complain. Morgan v. Mul-hall, 214 Mo. 462; Schuepbach v. Gas Co., 232 Mo. 611; Sec. 1850, R. S. 1909; Sec. 2082, R. S. 1909; 2 Thompson on Trials, sec. 2341.
   BBOWN, J.

Action for damages. Plaintiff bad judgment below for $10,000 and defendant appeals.

By ber petition plaintiff demands judgment for $10,000 against defendant for tbe alleged negligent killing of ber husband, Charles J. Boyd, on July 29, 1905.

Deceased was an employee of defendant, working with an extra gang of track laborers, and at tbe time of bis death was riding on a band-car to bis place of work. This is tbe second appeal in this case. A full copy of plaintiff’s petition will be found in 236 Mo. 64, et seq. It is unnecessary to re-state tbe substance of said petition here.

Defendant pleaded contributory negligence and assumption of risk. It also attacked tbe constitutionality of section 5425, Bevised Statutes 1909, but tbe constitutional issues tendered have been abandoned.

Tbe evidence shows tbe plaintiff’s husband (Charles J. Boyd) was employed by defendant during a period of three weeks prior to July 29, 1905, working just north of tbe town of Liberal, Missouri, in surfacing tbe track of defendant’s road.

He was working under a section foreman by tbe name of Lee Mead. Mead left Liberal on tbe morning. of July 29, 1905, at about tbe hour of seven o’clock, using two band-cars to transfer bis crew of men to a point on defendant’s road some three miles north of Liberal. While tbe band-cars were passing through a cut one and three-fourths miles north of Liberal they were met by one of defendant’s freight trains known as tbe local freight, and plaintiff’s husband was by said train run over and killed.

There was a heavy fog at tbe town of Liberal and along defendant’s road on the morning of July 29, 1905. Two witnesses for plaintiff testified that the aforesaid local freight was due to arrive at Liberal from the north just after seven o’clock. One of them gives the time for. the arrival of said train at 7:05 a. m., and another at 7:20 a. m.

All of plaintiff’s witnesses state that a train came through Liberal from the north over defendant’s road between six and seven a. m. on July 29th. Witnesses did not know what train it was, but one of them testified that he suggested to Mead (the foreman) that it was not the local freight, but, inferentially, Mead seems to have thought it was, though he was not sworn as a witness.

Mead did not try to find out what train it was which had passed through just before he and his crew started with their hand-cars. There was no telegraph operator at Liberal station, and it does not appear how Mead could have ascertained the whereabouts of approaching trains had he tried to do so. He simply proceeded with his crew to his work as had been his custom for three weeks. There was evidence to the effect that Mead had not been stopping and listening, or sending a flagman ahead, to discover if there were trains approaching before running his hand-cars through the cut where plaintiff’s husband was killed. Witnesses could not remember of any other morning when there was such a heavy fog as prevailed on the morning of July 29, 1905. The defendant in its answer admits the existence of the heavy fog recited in plaintiff’s petition and testified to by the witnesses. •

All the witnesses agree that the fog was so heavy that they could not see a train more than 150 feet. Boyd (plaintiff’s husband) was riding on the rear end of the front hand-car, and the foreman (Mead) and one Tom Mulligan were on the front of said handcar. When they were approaching the cut where Boyd was killed, Mulligan told the foreman that they ought to have a flagman, that it was a good morning “to get caught.” The foreman made no reply, but proceeded with his hand-cars and men into the cut.

Four witnesses testified to the circumstances attending the killing of Boyd. Their evidence is substantially the same, except that some of them were not looking at Boyd'when he got off of the hand-car.

The hand-car was running about eight miles an hour when it came in sight of the freight, which latter was running thirty miles an hour. Neither the section men nor the foreman observed the approaching freight train until it was within 120- feet of the front hand-car. Upon discovering the approaching train one man jumped on the brake of the hand-car, and two jumped off in front, grabbing the front handles of the car and making an effort to pull it off the track before it had fully stopped. They succeeded in getting part of the hand-car off the track when the freight train struck only the handles of the rear end thereof. A witness who was applying the brake on the rear hand-car saw Boyd jump off the rear end of the front car and make an effort to catch the rear handles thereof. He (Boyd) failed to catch the handles of the car and fell upon the track. He made an effort to rise and fell again, at which instant the rear hand-car passed partly over his body, and the oncoming freight train collided with this rear hand-car, knocking Boyd sixty feet down the track, killing him instantly.

One of plaintiff’s witnesses testified that Boyd fell upon his back, and another that he fell face downward. It does not appear whether or not he was injured by the rear hand-car, nor is that material, as the defendant admits in its answer that Boyd was killed by the freight train.

One Harry Cooper testified that he had been a section foreman on defendant’s road for five years and was still working for defendant at the time of the trial. He testified that it was the duty of such foreman, when his men were on the hand-car, to keep a lookout for trains; that defendant’s agent who employed him (Cooper) directed Mm to “stop at any hazardous place and listen, and, if necessary, to go around the curve and see and satisfy ourselves that there were no trains coming close enough hut what we could come around in safety.” This direction seems not to have been given to' said witness until after the collision which resulted in Boyd’s death. Witness stated that he always considered it his duty in times of fog or when a train was expected, to stop his car and ascertain by listening or sending a flagman ahead whether a train was near before starting through a cut.

Plaintiff’s husband was thirty-nine years of age, in good health, and earning $1.40 a day when killed. He was living with the plaintiff (his wife), by whom he left five small children, one of them being born a few months after his death.

The defendant introduced no evidence and asked no instructions, except a general demurrer at the close of plaintiff’s evidence.

For reversal defendant relies upon the following alleged errors: (1) That the court erred in admitting evidence of the age, condition of health and earning capacity of deceased and the number of his children, and instructing the jury to consider that evidence in making up their verdict. (2) That plaintiff’s petition attempts to state a cause of action under both section 5425 and section 5426, Revised Statutes 1909, and, therefore, plaintiff should have been compelled to elect wMch one of said sections she would rely upon for recovery. That plaintiff’s petition does not state facts sufficient to support a recovery under section 5425, Revised Statutes 1909’ (Death from negligent operation of locomotives, cars, etc.). (3) That it was the duty of plaintiff’s husband as a section hand to look out for defendant’s trains and for his own safety. (4) That there was evidence to sustain defendant’s plea of assumption of risk and contributory negligence, and that said defenses should not have been ignored in plaintiff’s instructions.

OPINION.

I. Defendant’s first assignment calls for a construction of section 2864, Revised Statutes 1899, as amended by Laws 1905, p. 135, now section 5425, Revised Statutes 1909.

The court, over defendant’s objection, admitted evidence tending to prove the age, condition of health and earning capacity of' plaintiff’s hus-hand at the time of his death; also evi-denee as to the number of minor children left by said husband. The court also, at the request of plaintiff, gave the following instruction on the measure of damages:

“2. The court instructs the jury that if you find for the plaintiff you shall allow her a sum not less than $2000 and not more than $10,000', in the discretion of the jury, and in determining the amount you will allow her you may take into consideration the pecuniary loss occasioned to the plaintiff by the death of her husband, and you may also take into consideration the facts constituting negligence on the part of the defendant causing the death; and in considering the subject of her pecuniary loss you may consider' what would have been the value of her support from her husband from the time of his death during the time he would probably have lived and supported her, and you may also consider the additional burden, if any falls upon her, for the support of her minor children by reason of his death.”

If, as defendant contends, section 5425 is wholly penal in its nature, then it was error to admit said evidence and give said instruction numbered 2.

Prior to the amendment of 1905 said section 5425, supra, had often been adjudged to be a penal statute. It was accordingly held that parents of a minor son whom they had emancipated, and npon whose earnings they had no claim, conld maintain an action against a railroad company for negligently cansing snch minor’s death. [Matlock v. Railroad, 198 Mo. 495; Philpott v. Railroad, 85 Mo. 164.] The amount of recovery under said section was immovably fixed at $5000. and a party entitled to recovery for the death of a husband, wife, child, etc., could not waive a part of the penalty and sue for a less sum than $5000. [Casey v. Transit Co., 205 Mo. 721.]

This court has several times announced the doctrine that said section 5425 possessed compensatory features. [Philpott v. Railroad, 85 Mo. 168; Coover v. Moore & Walker, 31 Mo. 574; King v. Railroad, 98 Mo. 235.] However, the penal nature of the statute as it existed prior to 1905 has been quite uniformly held to overshadow its compensatory features, and the amount of recovery, when a recovery was allowed at all, was fixed at $5000 regardless - of the earning capacity or the age of the party killed.

In 1905, said section was amended by striking out of the same the words: “shall forfeit and pay for every person or'passenger so dying the sum of $5000’'’ and in lieu of the words thus stricken out the following words were inserted: “shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury.”

The question is, did this amendment convert said section into a compensatory statute, or leave it wholly penal in its nature as it had theretofore existed?

In the recent case of Young v. Railroad, 227 Mo. 307, the amendment of 1905, heretofore quoted, was, assailed on the ground that it was unconstitutional; and in upholding its constitutionality, Valliant, J., in speaking for Division No. One of this court, stated: “The words, ‘as a penalty’ inserted by the amendment add nothing to the meaning or effect of the section; we have always held it a penal statute.”

It was undoubtedly the intent of the General Assembly to continue the section now under consideration as a penal statute in so far as it authorized a recovery of not less than $2000 for the killing of a human being by the means and through the negligence, unskillfulness or criminal intent of the parties or corporations designated in said section 5425, but the more serious issue is what facts are juries allowed to consider in arriving at a verdict in excess of $2000.

It might be urged that they are to consider only circumstances attending the negligence, unskillfulness or criminal intent of the party or corporation causing the death for which recovery is sought, but it would be much more reasonable to suppose it was the legislative intent that, in exercising its discretion as to the amount for which a verdict in excess of $2000 should be rendered, the jury should also consider the necessary injury sustained by the party seeking the recovery.

The insertion of the specific word “penalty” in the amendment of 1905' furnishes some reason for the contention that the recovery was intended to be penal and not in any way remedial or. compensatory in its nature. However, “it is the substance and effect of the statute, rather than its form, that is to be considered in determining whether it is penal.” [36 Cyc. 1183.] Blaekstone says that in amending laws the old law should be first considered; second, the mischief which the old law failed to prevent; and, third, -the remedy necessary to make the old law complete and effective.

If the General Assembly considered this rule in 1905, it found a statute which permitted a recovery of only $5000 by a widow whose husband was killed through the criminal intent of a railroad company or its officers in the operation of its cars or trains. Evidence that the man killed was young and highly skilled in some useful occupation and was earning ten dollars, or even one hundred dollars, per day, could not he received to increase the verdict above $5000. On the other hand, if the man killed through the mere negligence of a railroad company, unaccompanied by any wantonness or criminal intent on its part, and though such party killed was sick or so old that he possessed no earning capacity and was a charge upon his family, the recovery by his wife under the old law could not be less than $5000. The lawmakers are supposed to have known of the highly inequitable results which the old law produced, and in amending that law so that the recovery might be reduced to $2000 or increased to $10,-000, it would most naturally base such sliding scale of recovery upon the age and earning capacity of the party killed.

If they desired to reduce the recovery below $5000 or increase it above that sum solely on account of the mitigating or aggravating circumstances attending the killing, it would have been the most natural course for the lawmakers to have specifically directed that the lower amount of $2000 should be awarded for the death of parties through ordinary acts of negligence, and the larger sum of $10,000 for death caused by acts of gross negligence or criminal conduct. No such guide for the jury is found in the statute as amended.

The language of the amendment authorizing the jury to exercise its discretion in fixing the amount of the verdict, if above the sum of $2000, and the failure to prescribe any rule for the exercise of such discretion, casts a serious doubt upon the meaning of the word “penalty” as used in said section for the first time in said amendment of 1905. It would be absurd to say that the Legislature believed juries so infallible that they could render correct verdicts without a knowledge of the facts upon which their discretion must operate; so we have a right to infer that by the use of the broad word “discretion” it was intended that the jury should he fully acquainted with the facts of each case, to the end that they might be prepared to exercise a wise discretion — a .discretion tending to promote justice.

In the case of State ex rel. Meinzer v. Diveling, 66 Mo. l. c. 379, it was said: “When the terms of the law are so ambiguous as to create a doubt, recourse may be had to the occasion of the provision, the mischief complained of, and the remedy sought to be applied by the lawmaker. When there can be no question as to the intent, it may be followed, though not strictly according to the letter of the law."

In Corrigan v. Kansas City, 211 Mo. l. c. 650, this court said: “In ascertaining the meaning of a law, whether organic or statutory, it is always permissible to consider the consequences of any construction proposed. In obedience to this wise and just rule of construction, this court has many times held that it is not to be presumed that unjust or unreasonable results are to flow from the law; and it should not be construed so as to accomplish such results if its terms will permit of an interpretation that is just and reasonable.” [See, also, Plum v. Kansas City, 101 Mo. 525, and Lamar Water & E. L. Co. v. City of Lamar, 128 Mo. 188.]

When courts or juries are clothed with power to exercise discretion in the performance of duties cast upon them by the law, the power to acquire a full knowledge of the facts upon which that discretion must operate is necessarily implied. Below we give some of the definitions of discretion required to be exercised by courts and other judicial bodies':

“Where something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute. ‘According to Lis discretion,’ means, it is said, according to the rules of reason and justice, not private opinion.” [1 Stroud’s Judicial Dictionary (2 Ed.), p. 542.]
“DiscketioN. The decision of what is equitable, judicious, or right, in view of and guided by the circumstances of the case and the wisdom of the magistrate, unfettered by specific rules of positive law.” [1 Abbott’s Law Dictionary, p. 385.]
“Discretion. A liberty or privilege allowed to a judge, within the confines-of right and justice, but independent of narrow and unbending rules of positive law, to decide and act in accordance with what is fair, equitable, and wholesome, as determined upon the peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles and analogies of the Jaw.” [Black’s Law Dictionary (2 Ed.), p. 375.]

The issues now under consideration incidentally arose, but were not decided by this court, in the case of Murphy v. Wabash Railroad Company, 228 Mo. 56. In the case of Young v. Railroad, 227 Mo. 307, Division One of this court, speaking through Chief Justice Valliant, said that the recovery to be had under section 5425, as amended in 1905, was wholly penal, and, consequently, the jury in fixing the amount of the penalty could only consider whether the conduct of defendant which caused the death “arose from mere inattention or was willful, wanton or reckless.” Division Two of this court, speaking through Roy, C., when this cause was here upon the first appeal, announced that the jury might and ought to consider the age, health and earning capacity of deceased, as well as the value of the support his wife would have received from him during the time he probably would have lived; and also the additional burden cast upon her by his death in caring for and supporting her minor children.

Upon a full consideration of this case In Banc we are convinced that it was the intention of the General Assembly by the amendment of 1905 to leave the provisions of section 5425> supra, penal in their nature, so far as said' section fixes the amount of recovery at not less than $2000, but where a plaintiff, as in this case, seeks to recover under said section a larger sum than $2000, the jury or court in preparing itself to exercise a wise and just discretion should receive evidence of the age, condition of health and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the killing, for which damages are sought to be recovered.

In other-words, a recovery under section 5425, Revised Statutes 1909, is penal up to the sum of $2000, but, the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section is remedial and compensatory. It follows that if this action is based on said section 5425, Revised Statutes 1909, the admission of the evidence complained of and the giving of plaintiff’s said instruction numbered 2 based on said evidence did not constitute reversible error. The cases of Young v. Railroad, 227 Mo. 307 and Boyd v. Railroad, 236 Mo. 54, in so far as they are in con-' flict with .the foregoing interpretation of said section 5425, supra, are overruled.

II. It is contended by defendant that. plaintiff's petition attempts to state a cause of action under both sections 5425 and 5426, Revised Statutes 1909, and therefore, plaintiff should have been compelled to elect as to which of said sections she relied upon for her recovery. It is evident that plaintiff did, by her conduct, elect to base her recovery upon section 5425, by requesting the court to give instrucfion numbered 2, which permitted a recovery for a sum not exceeding $10,000. At the date when plaintiff’s husband was killed a recovery could not be had under section 5426, supra, for a larger sum than $5000. [Laws 1907, p. 252.]

The decision of the point raised by defendant’s •second contention turns upon a proper construction of the aforesaid section 5425. If that sec-, ^ion authorizes a recovery for death caused by the negligent operation of a hand-car, then this action is under its provisions. On the other hand, if a hand-car is not a car within the purview of said section 5425' authorizing a recovery for death caused by the negligent operation of ‘ any locomotive, car or train of cars, or any street, electric or terminal car or train of cars, ... or any stage coach, automobile, motor car or other public conveyance,” then plaintiff’s action is not under that section.

If a hand-car when operated on a railroad track is a car within the letter and spirit of the foregoing statute, then plaintiff’s action is clearly founded on section 5425; otherwise, her petition only states a cause of action under section 5426, supra.

At first impression it might appear that the word car as used in said section 5425 was only intended to apply to cars used in transporting passengers, but the language of the statute does not warrant such a construction. The statute includes locomotives, construction cars and terminal cars, which are seldom or never used for the transportation of passengers. Webster defines a car as “a vehicle adapted to the rails of a railroad.”

Statutes of other States quite similar to ours have been held to embrace hand-cars under the general designation of “cars.” [Perez v. Railroad, 28 Tex. Civ. App. 255; Benson v. Railroad, 75 Minn. 163; Railroad v. Crocker, 95 Ala. 402; Railroad v. Artery, 137 U. S. 507.] The above cases and the statutes they construe are fully digested in Boyd v. Railroad, 236 Mo. 78, 79.

In a very recent case the Supreme Court of Alabama held that a motor car used upon railroad tracks in an underground mine was a car within the purview of the statute of that State which permits the recovery of damages for the negligent operation of a “car or train upon a railroad.” [Woodward Iron Co. v. Lewis, 171 Ala. 233.]

In Freeman v. Shaw, 126 S. W. 53, the Texas Court of Civil Appeals held that pushing a car by hand for the purpose of distributing ties was a part of the operation of a railroad. So it appears that the speed of a car or the manner in which it is propelled does not determine whether it can properly be classified as a car.

We hold that the provisions of said section 5425 embrace the right of recovery for death caused by the negligent operation of hand-cars.

Nor was it necessary under the pleadings and facts of this case to prove that defendant’s employees in charge of the freight train which killed Boyd were negligently operating said train. If the act of defendant’s section foreman in operating the hand-car placed Boyd in such a perilous position that he could not escape being killed by the freight train, then the defendant is liable,

III. It is further insisted that plaintiff cannot recover because it was the duty of her husband as a section hand to look out for defendant’s freight train and keep out of its way, regardless of any negligence of defendant’s foreman. In support of this contention defendant cites: Degonia v. Railroad, 224 Mo. 564; Evans v. Railroad, 178 Mo. l. c. 517; Ring v. Railroad, 112 Mo. 220; Sissel v. Railroad, 214 Mo. 515; Williamson v. Railroad, 139 Mo. App. 481; Van Dyke v. Railroad, 230 Mo. 259; and Hitz v. Railroad, 152 Mo. App. 687. In each of the cases above cited the employee killed was not riding upon a hand-ear, bnt was working, walking or standing npon a railroad track with no fogs to obstruct his view, and with full opportunity to observe and get out of the way of approaching trains.

The facts are entirely different in the case at bar, where the alleged negligence of defendant’s section foreman carried the man to a point where he had only a fraction more than two seconds to get off of a rapidly moving hand-car and out of the way of a still more rapidly approaching freight train.

If Boyd possessed the right or the physical power to stop the hand-car and get off the track before entering the cut those facts do not appear in the evidence. It was proved that defendant’s foreman was warned by another employee of the danger he would incur by going into the cut without first ascertaining if a train was approaching; and that the foreman paid no attention to such warning.

It is apparent that plaintiff’s husband could not have stopped the hand-car and alighted therefrom without first, in some way, overcoming the will of the man that defendant had placed over him as a foreman. Under the facts as pleaded and proved, the issue of negligence or no negligence on the part of defendant was for the jury. [Schroeder v. Railroad, 108 Mo. 322.]

In the case of San Antonio & Aransas Pass Railway Co. v. Stevens, 37 Tex. Civ. App. 80, it was held that a member of a bridge gang while riding on a hand-ear under the direction of a foreman did not assume the risk of colliding with a train. In the same case it was also stated that: “It cannot be questioned that to run a hand-car, freighted with human life, on the time of a passenger train, over the same track, is negligence of the most culpable character.”

There is no evidence in the case at bar which would have justified the trial court in holding as a matter of law that plaintiff’s husband assumed the risk of a collision with defendant’s freight train at the time and place where he was killed.

IV. Further error is assigned in the action of the trial court in giving instruction numbered 1, which is as follows:

"1. The court instructs the jury that it is charged in the petition and admitted in the answer that Charles J. Boyd, mentioned in the evidence, was, at the time of his death, the husband of the plaintiff, Jennie Boyd. That it is charged in the petition and admitted in the answer that the defendant on the 29th day of July, 1905, was a railroad corporation running its line of road through Barton county, Missouri. That it is admitted by the defendant that on the 29th day of July, 1905, plaintiff’s said husband, Charles J. Boyd, was a section hand on defendant’s road in Barton county, Missouri, and was killed on that day. It is also admitted by the parties that on the date aforesaid there was a heavy fog prevailing at the place where said Boyd was killed. It is admitted as charged in the petition that Lee Mead was defendant’s foreman of an extra gang at the time and place of said Charles J. Boyd’s death. Now; if the jury find from the evidence that the act of the foreman in going around the curve on a hand-car in a heavy fog without stopping to listen or sending a man forward to ascertain whether or not a train was coming, if they find he did this, was such an act as a person of ordinary care and prudence as such foreman, would not have done, then they should find for the plaintiff. Unless you so find your verdict will be for the defendant. ”

This instruction is assailed on the ground that it assumes the death of Boyd was caused by the alleged negligent act of defendant’s section foreman in carrying him (Boyd) into the railroad cnt on a hand-car where he was run over and killed, withont requiring the jury to find that said alleged negligence was the canse of the killing. We find that the defendant’s contention on this point ds sound and constitutes reversible error. Defendant in its answer pleaded contributory negligence on the part of Boyd, in that he carelessly and negligently jumped off of the rear end of the hand-car and remained on the track until killed, when he had time after the discovery of the approaching train to alight from the hand-ear and go to a place of safety.

As all the other employees working on the same hand-car with Boyd did escape from the track without injury we find that there was some evidence upon which the jury could have found that deceased was not using ordinary care, and under the evidence in this case whether he did use ordinary care was for the jury.

Whether it was Boyd’s duty to jump off of the rear end of the hand-car and assist in removing it from the track, whether there was a more safe place for him to have gotten off, or whether he had time to select a safe place to alight, were all questions for the jury, and, therefore, they should not have been commanded by the instruction given to find that the alleged negligence of defendant in running the hand-car into the cut was the cause of Boyd’s death.

Plaintiff’s instruction numbered 1 is also assailed on the further ground that it ignores the defenses pleaded by defendant. We do not think that objection can avail defendant. The omission to refer to defenses pleaded was mere non-direction, and if defendant thought its defenses should have been specifically called to the attention of the jury, it was its duty to ask instructions which would have accomplished that result.

In civil cases the law does not require the plaintiff or the defendant to request instructions. If they prefer to try a case without instructions they may do so, unless the court gives instructions of its own motion, which it is not required to do. [Sec. 1987, R. S. 1909; Coleman v. Drane, 116 Mo. l. c. 394; Brown v. Globe Printing Co., 213 Mo. l. c. 652; Minter v. Bradstreet Co., 174 Mo. 444, l. c. 491.] However, when a plaintiff procures instructions to he given they must correctly state the law and not assume that disputed facts are admitted to be true. [Neas v. Railroad, 138 Mo. App. 484.]

For the error contained in plaintiff’s instruction numbered 1, the judgment is reversed and the cause remanded for new trial.

Lamm, G. J., and Walker and Faris, JJ., concur in paragraphs one and two, and in the result; Bond and Graves, JJ., concur in paragraph one and in the result, Graves, J., in separate opinion in which Faris, J., concurs; Woodson, J., dissents in opinion filed.

CONCURRING OPINION.

GRAVES, J.

I concur in what Brother Brown says as to the construction to he given to section 5425, Revised Statutes 1909. I agree with him that such statute in its make-up is penal so far as the minimum of $2000 is concerned, and compensatory as to the amount which may he found above that sum, and that it is not only proper but mandatory to introduce evidence to enlighten the jury in the exercise of their discretion,- so far as the damages in excess of $2000 are concerned. I also concur in the result of his opinion, hut do not agree with him as to some other matters. To my mind, instruction numbered 1 for the plaintiff does not cover any negligent act charged in the plaintiff’s petition. I concur with Brother Woodson wherein he says that the failure to send a man forward does not constitute negligence. He, however, overlooks, in my judgment, the failure to stop and listen before entering upon the curve in the fog — this on the theory the evidence shows a duty in that regard. But this matter is not charged as negligence in the petition and of course should not he in the instruction. The petition so far as material reads:

“That at a point about one and three-fourths miles north of the said town of liberal there is' a sharp curve in the railroad track of defendant. That it was the duty of said Mead to see that the rear hand-car was not run in so close proximity to the front hand-car, on which the said Charles J. Boyd was, as to endanger the men riding thereon, and that it was the duty of said Mead to see that the said hand-cars were not rim upon the railroad track so as to come in collision with any train running on said railroad, and it was the duty of said Mead to so inform himself as to the movements of trains on said railroad track, that said hand-cars' should not be run so as to conflict with any such trains. That it was the duty of said Mead, before entering said curve, to discover whether or not a train was coming thereon.
“But the said Mead on the 29th day of July, 1905, being then and there in charge of said hand-cars as aforesaid, and the said Charles J. Boyd being engaged in running the front hand-car aforesaid under the superintendence, control and management of him, the said Mead, did run, operate and manage the said front hand-car so carelessly, negligently, recklessly and unskillfully on said railroad northward from the said town of Liberal on the time of a train, which the said Mead then and there knew or ought to have known was approaching from the north, and which he the said Mead then and there knew or ought to have known was liable to collide with the said hand-car going north, and the said Mead carelessly, negligently, recklessly and unskillfully caused and permitted said rear handcar to follow the front hand-car at a distance of about sixty feet, and carelessly, negligently, recklessly and unskillfully failed to discover whether or not a train was coming before entering said sharp curve aforesaid with the hand-cars aforesaid, that, at a point about one and three-fourths miles from the said town of Liberal and just after entering the sharp curve aforesaid, an engine and train of cars owned and operated by the defendant coming south on said track, without any' notice of its approach, was about to collide with said hand-car aforesaid on which said Boyd was employed, and while said Boyd was endeavoring to escape said collision and said approaching rear hand-car he was run over and killed by said engine and train of cars of defendant aforesaid.”

The petition therefore undertakes to specifically charge the duties of the foreman Mead, and also undertakes to charge specifically his neglect of duty or negligence, but the stopping and listening for an approaching train or the sending of a man forward is neither alleged to be a duty nor an act of negligence upon his part. Instructions must follow the issues made by the pleadings, and when specific acts of negligence are charged the plaintiff must recover upon one or more of such specified acts, of negligence and none other. It matters not that other acts of negligence may crop out in the case through the evidence, unless the petition is permitted to be amended to meet the proof. So I say this instruction numbered one does not present the case pleaded.

II. There is another question in this case. Does the negligence pleaded bring the case under section 5425, or is it under section 54261? It would seem that the principal act of negligence charged is that the foreman Mead was running his hand-car upon the fixed time of a regular train. This was the gravamen of the charge in Honea v. Railroad, 245 Mo. 621, and 247 Mo. 542, and that cause was brought under the compensatory section and not under what is now section 5425. We lield that the case was properly brought under the compensatory section, now section 5426, and mulcted the railway company in damage to the extent of $10,000. If that judgment is right, the principal negligent act in this case does not bring the case under section 5425. My brothers who were so firmly fixed in opinion in the Honea case should furnish some satisfactory solution of this question. It matters not under which section of the statute the petition states a case, it does not effect the question of remanding the cause, and for that reason I have, as above indicated, concurred in the result

DISSENTING- OPINION.

WOODSON, J.

I dissent from the majority opinion for the reason that even if it be conceded that Boyd was killed in the manner stated in the opinion, nevertheless, his widow is not entitled to a recovery for the reason, in my opinion, he was killed by one of the risks incident to his employment.

To my mind, with no intention to reflect upon court or counsel, it is the height of nonsense to hold that it was the duty of the defendant to send a man on foot in front of a hand-car to notify those on the car of approaching trains, for the reason: First, that he could not have walked as fast as the car would ordinarily have run, and consequently he would have been left far behind. Second, if it was the duty of the defendant to reduce the speed of the car to the gait of the man, then what, pray, would have been the use of the car; why not all of them walk? They could have reached their destination with pick and shovel as quickly or quicker without the car, than with it, under such conditions. And, third, because, conceding that the foreman had sent a man ahead, what good would have resulted therefrom? None earthly, I respectfully submit; for the simple reason that a great engine and train of cars could have been seen and heard much farther by the men on the hand-car, than they could have seen and heard the man sent forward.

Moreover, had he been sent forward under the circumstances, it would have taken as long or longer for him to have notified the men on the car, that the train was approaching, than it would have taken them to have removed the car after they received the danger signals given by said person.

Such conduct on the part of a railway company might with great similarity be likened unto an astronomer going out to view the sun with a tallow candle, or an army officer sending out a picket with a fire-cracker to explode, as a warning, that the sixteen-inch siege guns were being fired in the front.

Either the deceased assumed the risk, or the defendant was guilty of negligence as a matter of law for running the hand-car at all under the circumstances; and I apprehend the latter suggestion will not be contended for, because the more foggy the day, the greater would be the duty of the company to see that its roadbed and track were in good condition, which could only be promptly ascertained and repaired by its section men, traveling on a hand-car, which moves much faster than a man does on foot, but not too swiftly to prevent them from discovering defects therein, if they exist; while the train men, even if they could have seen such defects, which of course they could not have done, on such a day, running at the speed at which trains ordinarily move, would not have given them sufficient time in which to have stopped the train and thereby have averted the damage awaiting the train, crew, freight and passengers.

For the reasons stated, in my opinion, the evidence fails to show any negligence on the part of the defendant and consequently .it failed to show any liability on the part of the company.

I, therefore, dissent from the majority opinion.


author: LAMM, J. GBAVES, J. BOND, J.

text:
    H. B. MOTT et al., Appellants, v. LIZZIE MORRIS.
    Division One,
    March 28, 1913.
    1. CHARITABLE USE: Nominal Consideration for Deed. Whether or not the nominal consideration mentioned in a deed conveying property to a charitable use was actually paid, is of no significance.
    2. -: Conveyance to Trustees of Church: Right to Sell. Where the owners of lots, for a nominal consideration, conveyed them to four named trustees of one church and three of another, as a site upon which to build a church, to he owned and held by the trustees and their successors for the two churches named, and their deed provided that “neither church nor its trustees are to convey away its half interest for other than church purposes” and that “the building to be erected on said lot when completed is to be used as a house of worship by the denominations above mentioned, and when not occupied by either of said denominations said church building may be used by any other Christian church for public worship,” the trustees, long after the building was erected and when it was no longer used by any denomination, cannot sell the lot for other than church purposes. The deed created a charitable use, and prohibited a sale of the property for other uses.
    3. -: -: Reversion and Forfeiture. On the other hand, while the trustees could not sell said lots “for other than church purposes,” if they attempted to do so the lots and the building thereon did not revert to the donors or their heirs. When lands have been donated to charity and the title is vested absolutely in trustees for charitable uses, they are not only inalienable for other purposes, but they do not revert to the donor or to his heirs. Absent a provision in the deed to the contrary, a gift to charity is forever.
    4. -: -: Right of Heir to defend. The heir of the deceased donor, who conveyed land to a charitable use without power of alienation, has the right to ask the interference of a chancellor to preserve the trust.
    5. -: -: Uncertainty as to Beneficiaries. The law benignly aids a charitable use by recognizing that in a public charity uncertainty as to the individuals whom the benefit may reach is one of its essential features.

      6. -: Construction and Enforcement: By Suit to Quiet Title: Estoppel. Since the title of the property donated to a charitable use is now in the trustees, it is questionable whether a suit by them against the donor’s heirs to quiet title under old section 650 is appropriate to a decree construing the words creating the charitable use and denying to them the right of alienation and to the heir a reversion. But as the heart and life of the action is to test out the questions of alienation and reversion, the appellants cannot complain that the trial court decided the issue according to their prayer. Their consent tolled the error.

      Held, by GRAVES, J., concurring, that a suit to quiet title under old section 650 is not the appropriate action to determine the trustees’ right to sell, but as they voluntarily asked the judgment of the court upon that question they are estopped to question the judgment against them.

      Held, by BOND, J., dissenting, that the trial court under old section 650 could not entertain the trustees’ suit to construe the question of their power under the donor’s deed to sell the property, nor enter a decree vesting the title in the donor’s heir, and the trial court should have dismissed the action, and so should this court,
    Appeal from Clark Circuit - Court. — Hon. Charles D. Stewart, Judge.
    Affirmed {in part).

      J. A. Whiteside and W. T. Rutherford for appellants.
    (1) This is not a case where the property is conveyed for charitable purpose leaving the courts to say how far the title to the property is restricted by its having been donated for that purpose. The grantor conveyed the property by warranty deed and by a-clause in the deed, specified the restriction he placed upon the transfer of the title and it is this clause the court is called upon to construe. The clause was to prevent either of the two churches from conveying its undivided half interest in the property for other than church purposes, thereby destroying or interfering with the use of it by the other church for church purposes, Our contention is that two churches together can convey tlie property and make a good title whether the property is to be nsed for cbnreb purposes or not. In construing a deed the purpose is to ascertain the meaning of the grantor and this should be done from the words he uses. The intent of the parties to the deed should be determined. Long v. Timms, 107 Mo. 519; Linville v. G-rear, 165 Mo. 397; Hunter v. Patterson, 142 Mo. 318; Walton v. Drumtra, 152 Mo. 497. Such construction should, if possible be adopted as to render all parts of the deed operative and harmonious. Davis v. Hess, 103 Mo. 36. If the language of the deed will admit of two constructions, the one less favorable to the grantor is to be adopted, the grantee is to be given the benefit of the doubt. Linville v. Drear, 165 Mo. 397; Bray v. Conrab, 101 Mo. 337; Nelson v. Brod-hack, 44 Mo. 603. (2) There can be no forfeiture in this case. The grantor specified what restriction he placed upon the transfer of the title to the lot and strip of ground, and did not provide for any forfeiture or reverting of the title. No forfeiture can be construed unless so provided in the deed. Gratz v. Scenic Ey. Co., 165 Mo. 217; Studdard v. Wells, 120 Mo. 29; Morrill v. Railroad, 96 Mo. 179; McAnaw v. Tiffin, 143 Mo. 677.

      W. L. Berhheimer, Charles Hiller and John M Dawson for respondent.
    (1) The appellants have no right to sell and dispose of the property as alleged in their petition eveu if the respondent is not entitled to have the property revert to her and in that view of the case she asks that they be enjoined from so doing. A charity given for a particular purpose cannot be altered or diverted to any other. It must be accepted and retained upon the terms upon which it was given, and no concurrence among the donees can operate to transfer or apply it to any other purpose. McRoberts v. Moudy, 19 Mo. App. 26; 2 Story’s Equity, sec. 1175; Arnold v. Brockenborough., 29 Mo. App. 625; 1 Perry, on Trusts, secs. 251-254. (2) There is no provision in the deed authorizing the trustees to sell, incumber or alienate the lands therein described; Unless this power is given by the deeds the lands subject to the trust are inalienable. Lackland v. Walker, 151 Mo. 210. (3) There are other beneficiaries provided for in the deeds: ‘ ‘ Any other orthodox or Christian denominations.”- This land was deeded in trust to the trustees mentioned in the deeds in trust for the purposes mentioned in the deed. The petition and proof shows that it has been abandoned by the trustees and beneficiaries. In such case the title reverts to the donor or his heirs. Henderson v; Hunter, 59 Pa. St. 335; Kirk v. King, 3 Pa. St. 436; Appeal of Humbert, 110 Pa. St. 496; Venable v. Coffman, 2 W. Va. 310; Scott v. Stipe, 12 Ind. 74; Princeton v. Adams, 64 Mass. 129.
   LAMM, J.

The case is this:

In 1881 Mr. Cooper and his wife executed two deeds, for expressed nominal considerations, to‘ five named individuals as “party of the second part,” described therein as “trustees for the Methodist Episcopal Church of Wayland City and the Protestant Methodist Church of Wayland City, Clark county, Missouri.” These deeds conveyed one lot and part of another in that village, and ran to the named trustees and their “successors and assigns.” The habendum held the usual covenants • of warranty, covenanting to “warrant and defend the title to the said premises unto the said party of the second part and unto their successors and assigns forever,” etc. In the body of the deeds it. is set forth that a one-half interest is conveyed to “said trustees in trust for the Methodist Episcopal Church aforesaid,” and the other one-half interest is conveyed “to said trustees for the Protestant Methodist Church aforesaid.” Next follows these provisions:

“This conveyance is made to said trustees, and said lot is conveyed to them for a site or lot upon which to erect a union church, to be owned and held by said trustees and their successors for the two churches above named; neither church nor its trustees are to convey away its half interest for other than church purposes.
“It is further understood and agreed that the church building to be erected on said lot when .completed is to be used as a house of worship by the denominations above mentioned and when not occupied by either of said denominations, said church building-may be used by any other orthodox- or Christian church for public worship.”

Say thirty years later seven named plaintiffs bring suit in the Clark Circuit Court. Three describe themselves as trustees of the Methodist Protestant Church, and four as trustees of the' Methodist Episcopal Church, both churches being “unincorporated associations.” They impleaded defendant as the only heir of the Coopers, who died intestate.

The ostensible object of the suit is to try, determine and adjudge title under former section 650, Revised Statutes 1899. To that end the fact of the execution and terms of the deeds, are set forth. It is alleged that a frame church building was erected on the land and thereafter used for church purposes, and that defendant is the sole heir of the grantors. Then follows this frank allegation (in a sense, the life of the bill and proclaiming its purpose), to-wit:

“Plaintiffs further state that they no longer have any use for said premises for church purposes and now desire to sell the same to be used for other than church purposes, but are upable to do so, for the reason that the defendant, Lizzie Morris, claims to have some sort of revisionary interest in said premises, and by reason of such claim, plaintiffs are unable to sell said premises.”

Defendant answered admitting that certain of the plaintiffs are trustees of the one and certain of them trustees of the other church; that both churches are unincorporated associations; that the conveyances were made by her ancestors with the provisions and for the purposes named in the bill; that a church building was erected thereon and used for church purposes; that she is the sole heir of the grantors, but denying all other allegations. It avers that no consideration was paid for the conveyances, that they were “a gift” to the named trustees for the uses and purposes mentioned in the deeds. The answer next repleads the provisions of the conveyances, setting them forth more fully than in the bill, concluding as follows:

“Defendant further answering says, that she is the only heir at law of the grantors of said lot, and has not, and never did claim any right, title or claim to said lot except as hereinafter mentioned, the reversion, to-wit: That so being the heir and daughter of the donors of said lot to said trustees, she has the right to have the wishes of her father and mother carried out so'far as they are stated and requested in said deed of conveyance and that the same be not diverted or put to any use except as the wishes of her said father and mother in that behalf in said deed of conveyances expressed. She further says*that there is nothing for this court to construe in said deed, as the provisions therein are plain and plainly express the purpose of the grantors therein and their express wishes as therein stated.
‘ ‘ Defendant further shows the court, that this suit is brought for the purpose of obtaining a decree of this court, allowing the said trustees and their successors to sell said lots and the building thereon erected to private parties for the personal purposes of said parties and not for the purpose of carrying out the wishes of said grantors, hut for the express purpose of diverting’ said charitable trust for other and different uses and purposes than those expressed in said deed and for the purpose of diverting the uses and purposes of said charitable trust, and that the said trustees are threatening and will, unless restrained by a decree of this court, sell said lots and the buildings thereon erected to private persons for their own private uses and in direct opposition and contrary to the trust therein created by said deed.
“Wherefore this defendant asks that said deed be construed as therein provided, and that this court refuse to construe said deed and the provisions thereof so as to enable said trutees and their successors in office from diverting said trust estate and from selling the same for other purposes than expressed in said trust deed and that they and their successors be forever enjoined and restrained from selling said buildings and the lots upon which they are erected to anyone or to any persons contrary to the terms of said trust as created in said deed and to vest title in defendant and for other proper relief.’”

The trial proceeded on admissions in pleadings and those made ore terms; thus it was admitted that the land was a “donation” to the trustees of the churches for a “nominal consideration;” that the Methodist Episcopal Church do not use the building in question as a place of worship, but now have their own independent church in Wayland; that the Protestant Methodist Church have not “sufficient congregation to have services and for that reason are not occupying the church and that all denominations that hold services at Wayland have houses of worship and that this church is unoccupied and vacant. ’ ’

(Note: A question being sprung below on the scope and import of the foregoing admissions, testimony went in fro and con on the issue whether any money consideration was actually paid. On one side it tended to show that none was paid; on the other to show that the two dollars expressed in one deed and one dollar in the other, as money considerations, were actually paid. The chancellor held that no money consideration was paid, that the only consideration was the charitable use. In the view we take of the ease the law would be the same if there was or was not a nominal money consideration passed. What is a nominal consideration in the eye of equity but one in name only? Hence, 'the issue is put aside as frivolous.)

The decree found, inter alia, that the conveyances were made for a site for a union church to be held and owned by the named trustees and their successors; that the building was built and used for church purposes; that the present trustees desire to sell the premises for other than church purposes; that defendant claims a reversionary interest in the land if the same be sold and diverted from the uses for which it was conveyed and that she is the sole heir of the grantors. Following those findings it was decreed that plaintiffs as trustees or their successors in office or either of them were without power to sell or convey the premises for any purpose or use other than mentioned in the Cooper conveyances, or otherwise divert 'the trust. Then follows this clause in the decree:

“The court further finds that if said trustees or their successors, or said churches should sell, convey, or attempt to sell or convey said lot and premises for any other purpose, than as provided in said deed of conveyance, then and in that [event] the said premises shall revert and vest in the said, Lizzie Morris, the defendant herein.”

From that decree, plaintiffs appeal.

On such record the questions here are two, viz.:

(1) Are plaintiffs donees of power to sell the premises for other than church purposes? (2) In the case of such, sale, has defendant a reversionary interest?

Those questions are so important and delicate in some possible ramifications, related phases and contingencies that the finger of wisdom points unerringly to one thing, viz., the determination only of the precise case in hand, eschewing a discussion of principles of law applicable to some other case that might be brought looking to other form of relief. We may in part get at what the case is by distinguishing it from what it is not, as questions in logic are determined, or equations in algebra resolved, by elimination.

(a) Assuming that the Coojier deeds conveyed the land to trustees for the purpose of a charitable use, that the grant was accepted, the church built and used and that such was a public charity as contradis-tinguished from a private charity, then our case is not one in which the powers of a court of chancery are invoked to regulate a mere administrative detail of the use. Nor is it one where the powers of a court of chancery (charity being a ward of chan-eery) are invoked to enforce the beauti- * ' ful doctrine of cy pres, the doctrine of approximation in charitable trusts whereby the intent of a testator or grantor (being impossible or impracticable literally) may be carried out as near as possible or as near as may be. Nor is it a case where the Attorney-General is a party as representing the State in the matter of the protection or execution of a public charity. Nor is it a case where, under the pleadings and admissions, the execution of the use has become impossible in fact. The student of jurisprudence curious in that behalf (so that, in order to know the law properly, he may know it by its reason), may consult on such phases: Gaskins v. Williams, 235 Mo. 563; Lackland v. Walker, 151 Mo. 210; Women’s Christian Association v. Kansas City, 147 Mo. 103; Sappington v. School Fund Trustees, 123 Mo. 32; Hadley v. Forsee, 203 Mo. 418.

Nor is it a case where the conveyance to a charitable use provided in terms for a re-entry by the grantor, his heirs and assigns upon a breach of the trust, such as was considered in Bredell v. College, 242 Mo. 317. Nor is it, in principle, like that cited by respondent (Henderson v. Hunter, 59 Pa. St. 335) where the land was granted for the erection of a house of worship for the use of the Methodist Episcopal Church “so long as they use it for that purpose, and no longer, and then to return back to the original owner,” etc., where it was held that the words of limitation accompany the creation of the estate, qualify it and prescribe the bounds beyond which, it shall not endure. [P. 340.] Nor is it a case where the doctrine of rescission could be invoked on the grounds of an entire failure of consideration because of a breach of mutual and dependent covenants; nor one where there were conditions subsequent, the breach of which worked a forfeiture. See Reynolds v. Reynolds, 234 Mo. 144; Haydon v. Railroad, 222 Mo. 126, on such phases.

Our case is simply one where, either on the terms of the Cooper deeds, or on general principles of law, appellants say they have the right to sell, for other than church purposes because they desire so to do, and they “desire” so to do because they have “no longer any use "for said premises for church purposes.” On defendant’s side that right is denied, but defendant also says that if it is exercised then the land reverts to her as sole heir of the grantors.

(b) It is first argued by appellants that, on a proper construction of the cold words of the deed, they have the right to sell and convey for other than church purposes in a given contingency, to-wit, when both groups of trustees jointly make the transfer. That the interdiction in the deed against a sale for other than church purposes by either group was intended to protect one group or one church against the other, to prohibit a sale for profane purposes by only one and thereby debase or incommode the pious use of the other, and not to inhibit both alienating at one stroke. But is not that view of it more ingenious than sound? If either is prohibited are not both prohibited? The good sense of the thing lies in the answer ilústrate in a homely fashion: If a father prohibit either of his two boys from riding a horse, Bucephalus, under the pains and penalties of punishment, would the youths expect to be acquit of disobedience if they rode Buceph-alus double? If a mother prohibit to either of her two daughters the reading of Don Juan, would it be allowable for them to construe the interdiction so that they might read it in concert? We opine the construction put on the words of the deed by appellants is too narrow, in that it quite ignores the large question, the master fact, viz., the pious use to which the land was devoted. Such strained and unnatural construction smacks of wringing the words so hard the meaning extracted is bitter, even as the wringing of the nose brings blood. [State ex inf. v. Woods, 233 Mo. l. c. 379.] It is referable, maybe, to the adage: The wish is father to the thought.

(c) That the grant was to a charitable use cannot be gainsaid. [Strother v. Barrow, 246 Mo. 241.] A use to charity is favored by the law. So, perpetuity is of the essence of such use. [Strother v. Barrow, supra; Lackland v. Walker, 151 Mo. l. c. 250.] Absent provisions to the contrary, a gift to charity is forevei. It is on such premises that the general rule is deduced that when lands have been donated to charity and the title is vested absolutely in trustees for charitable uses, as here, they are inalienable for other purposes. Not only so, but in Missouri the rule is, whatever it be in some jurisdictions,. that they do not revert to the donor or to his heirs. [Women’s Christian Association v. Kansas City, 147 Mo. l. c. 126-7; Lackland v. Walker, 151 Mo. l. c. 250; Academy of the Visitation v. Clemens, 50 Mo. l. c. 171-2.] Whatever the powers of a conrt of chancery to regulate or preserve in some form a charitable use, the terror of forfeiture is not one of them, except under the guarded limitations that there is no escape from that construction. We cannot say that appellants’ power to sell for other than church purposes prospers on any limitation on the general rule known to us.

Take the case at bar. The record shows the value of the land at the time of the original grant was $70 or $80. Presumably the church was built by subscriptions from members of the two associations and the public at large — the widow’s mite here and the dollar there. What natural equity could there be in the proposition, that (absent an express provision of forfeiture in the grant itself, as here) those subscriptions, now in the form of the church building, only sprang as mist from here and there to finally descend in consolidated form as a bountiful and fruitful shower of rain upon the estate of this heir to enhance it? And all because the trustees have taken or in the future might take an erroneous view of their powers? Equity is not so lame and halting that it can afford no relief but forfeiture.

(d) Take another view. Conditions subsequent are not favored, because they tend to unsettled estates. Nor are forfeitures favored. Where there is no clause of reverter or forfeiture, as here, conditions subsequent do not arise in deeds by mere implication unless the implication is a necessary one. So, whether a provision in question in a deed is a condition precedent or subsequent, or only 4 covenant, is to be determined in each individual case under no general rule, but only by getting at the intent of the grantor by applying the good sense of the thing and looking to the language of the grant in the light of correct rules of interpretation. [Studdard v. Wells, 120 Mo. 25; Haydon v. Railroad, 222 Mo. l. c. 138, et seq.; Reynolds v. Reynolds, 234 Mo. 144.]

The premises all considered, we are of opinion that plaintiffs are without power to alien the trust estate for any except church purposes, and, on the other hand, that defendant has no reversionary interest under the terms of her ancestors’ grant. This does not mean, however, that she has ho right to ask the interference of a chancellor to preserve the trust created by her ancestors.

In coming to this conclusion we have not been unmindful of the rule invoked, to-wit, that in cases of doubt a deed must be construed most favorable to the grantee; nor of other propositions urged, viz., that an instrument is to be construed by its four corners, that the intent is the principal thing, that that intent is to be spelled out from all the provisions of the deed, that those provisions are to be harmonized if possible, that when ascertained the intent must be given effect when practicable and not contrary to law. [Hunter v. Patterson, 142 Mo. l. c. 318, et seq.; Linville v. Greer, 165 Mo. l. c. 397; Walton v. Drumtra, 152 Mo. l. c. 497.] There is no ambiguity in this deed. The intent of the grantors and of those who took under the grant is plain. Mere rules in aid of construction fill little office where construction is not necessary. -

One observation more: There is a pretty conceit, maybe not without some basis in fact, viz.:

“Never, believe me,
Appear the Immortals,
Never alone.”

Accordingly in the analysis and classification of virtues a trio is made, thus: And now ábideth faith, hope and charity, these three; but the greatest of these is charity. Agreeable thereto, as said heretofore, the law favors and nonrish.es charity. The beneficiaries of it may be somewhat uncertain, the grant a little indefinite, .but the law benignly aids the charitable nse by recognizing that in a public charity uncertainty as to the individual whom the benefit may reach is one of its essential features. [Hadley v. Forsee, supra, l. c. 427; Chambers v. St. Louis, 29 Mo. l. c. 590.]

In this view of it, if we adopt appellants’ contention, what becomes of that feature of the charity, nominated in the Cooper deeds, to-wit, the use of the church by other orthodox or Christian churches when it is “not occupied by either of said denominations?” In construing the deeds thaf particular use is to be neither ignored, destroyed nor curtailed. The right of alienation claimed is totally blind to it, and for that reason, also, must be judicially repudiated.

To sum up results: In so far as the decree gave defendant a reversionary interest it should be reversed. In so far as it denied the .right and power of plaintiffs to sell for other than church purposes it should be affirmed. As the title is now in plaintiffs in trust for the charitable uses named in the . Cooper deeds, it is questionable whether the form of the action under section 650 is appropriate to a decree construing the deeds and denying the right of alienation for purposes other than church purposes now or in the future. But as the heart and life of this action was the avowed purpose of testing out that very question to clear the way for a sale and conversion of the trust estate now or in the future, plaintiffs can with ill grace complain that the chancellor took them at their word and decided the issue. If it be error to go so far (a question we reserve) then the maxim applies, Consensus tollit errorem.

Let the decree be reversed in part and affirmed in part as indicated, supra. It is so ordered.

Woodson, P. Jconcurs, Graves, J., concurs in separate opinion in which Woodson, P. J., and Lamm, J., concur; Bond, J., concurs in separate opinion.

CONCUSSING OPINION.

GBAVES, J.

I concur in the opinion of Lamm, J., and put my concurrence on this ground: I do not think the action under old section 650 is a proper action in which to determine the question of plaintiffs ’ right to sell the trust property, hut they have voluntarily asked the judgment of the court upon that question in such form of action.and ought now

to be estoppel from questioning the judgment entered in such form of action, if the judgment can otherwise be sustained upon the facts. That the facts in a proper form of action would justify that portion of the judgment which precludes them from selling the property for use other than church purposes, is thoroughly demonstrated by the opinion of my brother. That defendant lias no title is also made plain by the opinion. I therefore concur in the result reached by my brother Lamm, and also in most of his opinion. I simply add that plaintiffs are estopped from questioning the form of action which determined their rights upon the question of their powers.

Woodson, P. J., and Lamm, J., also concur in these views.

SEP ASATE OPINION.

BOND, J.

The purpose of this suit, under the guise of an action to try title to land (now section 2535, R. S. 1909), is to construe and enforce a charitable trust by the application of the doctrine of cy pres. This is not an apt proceeding for that purpose, especially in view of the fact that this suit was brought prior to the amendment to the act in question, now shown in the revision of 1909. Hence, the trial court should have dismissed the plaintiffs’ suit. That tribunal fell into the error of entertaining the snit and undertook to render a judgment in favor of the defendant, who, admitting by her answer that she had no title to the land but that it was vested in the plaintiffs as trustees, yet set up that in the event it was sold the title would revert to her. The plaintiffs would not be entitled to a decree, even in a proper suit in equity to construe their powers as trustees, to make a sale of the lands, to which they hold the dry title as trustees, for non-charitable purposes. And if such a suit is hereafter brought, doubtless that would be the judgment of the court. The trial court, however, in the present ease undertook to vest title in the defendant which could not have accrued at the time of the trial, which, under her answer, she could only acquire upon a contingency which has not happened — the sale of the property in question for a non-charitable purpose. Plainly, therefore, the respondent had no concrete case calling for decision, and the judgment in her favor was erroneous. Under the present .state of the pleadings, respondent’s interest, if any, has not accrued and is not before this court for review.

I think the judgment of the lower court should be reversed and remanded, with directions to dismiss this suit; and to that extent only I concur in the view of my learned brother.