text:
    JOHN POWERS v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    March 19, 1907.
    1. CONTRIBUTORY NEGLIGENCE: Stepping in Front of Car: Demurrer. If the railroad company was not itself guilty of negligence contributing to the injury to plaintiff’s wife, a pedestrian crossing the street, her failure to look and listen for the approach of the car before stepping upon the track, or her stepping upon the track immediately in front of the moving car, was such negligence as to preclude a recovery by her husband. But, if the facts bearing on the issue of her negligence in not looking or in stepping on the track are disputed, or are undisputed but admit of different constructions and inferences, no demurrer to the evidence should be sustained, but the case should go to the jury.
    2. -: -: Assumption: Excessive Speed. A pedestrian about to cross a street in front of a car has the right to assume-that it is not being run in excess of the maximum ordinance speed.

      3. -- — : -: Looking for Car: Presumption. The presumption is that a pedestrian about to cross a street railway track in front of an approaching car, looked and saw the car, that is, was in the exercise of due care, hut whether or not she did look is a question for the jury, where the evidence is in dispute.
    4. CROSSING TRACK: Excessive Speed: Stopping Car: Looking: Demurrer. If a pedestrian did not know, or in the exercise of due care could not have known, that a street car was running at an excessive speed, she is not guilty of negligence in proceeding to cross the street in front of the car, using ordinary care and caution in so doing. And if the evidence shows that the car was running at an excessive speed when she left the sidewalk, and looked to see (as the law presumes she did) if the car was approaching; and if the- car was then nearly a block away and she walked in a diagonal direction towards the track; and if from the time she left the sidewalk the motorman saw her, hut continued to- run his car at an excessive speed, and despite his sounding of the hell and other signals she paid no attention and seemed unconscious; and if he could have stopped the car in 20 or 25 feet running as he was, he must have seen her perilous position in time .to have avoided injuring her, and the case should go to- the jury.
    5. -: Presumption of Looking: Overturning Evidence. The presumption is that a person about to cross a street railway track in front of an approaching car did look and did see the car, even though there is no positive testimony that she saw it. And that presumption is not overcome by the testimony of the motorman that “she did not seem to look or notice anything” or by that of the conductor that he “did not see her look hack at all,” for that testimony is wholly negative, and it is not unreasonable to suppose that she looked though they did not see her look.
    6. -: Getting Across in Safety: Inference. Though there is no direct evidence that a pedestrian would have gotten across the track in safety had the car been running within the ordinance rate, that she could have done so may he inferred from the facts and circumstances in evidence — the width of the street, the distance she had to travel before reaching the track, the car’s rate of speed at the time, its distance from her when the motorman saw her, and the distance the car traveled after striking her.
    7. -: -1; Slacking Spee.d of Car. It is the duty of a motorman to slacken the speed of his car or to stop it as soon as possible after he sees a pedestrian in front in a place of danger, even though she may he guilty of negligence at the time.

      8. -: -: Excessive Speed: Assumption. Unless the car is being run at a lawful speed when tbe motorman sees a pedestrian about to cross tbe track in front, be bas no right to assume that she will remain off of the track in a place of safety.
    Appeal from St. Louis City Circuit Court. — Row. John A. Blevins, Judge.
    Affirmed.

      Boyle & Priest, Edward T. Miller and George T. Priest for appellant.
    (1) The court erred in overruling defendant’s demurrer to the evidence. When the evidence conclusively shows that the negligence of the injured party alone caused the injury, or when the evidence fails to disclose any negligence on the part of defendant, a demurrer to the evidence should be sustained. The failure to look and listen before stepping on railway tracks for the approach of a car, or stepping on railway tracks immediately in front of a moving car, is such negligence on the part of plaintiff as will bar a recovery. Boring v. Railroad, 194 Mo. 541; Schmidt v. Railroad, 191 Mo. 215; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Ries v. Railroad, 179 Mo. 1; Markowitz v. Railroad, 186 Mo. 350; Horn-stein v. Railroad, 195 Mo. 440; Boring v. Railroad, 194 Mo. 541. The demurrer to the evidence should have been sustained for two reasons: first, because the evidence conclusively shows that the injury to plaintiff’s wife was caused by her own negligence in not looking for and in stepping upon the tracks immediately in front of defendant’s car; secondly, because the evidence fails to establish any negligence on the part of defendant. (2) The court erred in giving plaintiff’s instruction 2. The instruction is erroneous because it is based upon facts not in the evidence and because it rests upon inference and conjecture. There is no evidence that deceased saw the approach of defendant’s car. The testimony on behalf of plaintiff upon the question whether she looked or not is furnished by the motorman, and by him alone. It was to the effect that she did not look. He was positive about that. His being the only testimony on behalf of plaintiff upon this issue, plaintiff is bound absolutely by it. Reno v. Railroad, 180 Mo. 483. The instruction is erroneous for the further reason that there is no evidence that plaintiff could have gotten across the track in safety if the car had been running at the rate of eight miles an hour. As to that question it all rests upon conjecture and inference. There was no testimony as to- how fast she was going of how fast she would have to walk to get across the track to avoid a car running at eight miles an hour, and no evidence how far in front of the car she would have to start to cross, to get across safely, if the car had been running at eight miles an hour.

      A. B. Taylor for respondent.
    (1) The law is that if a pedestrian is about to cross a public street, and looks and sees a car at a distance away sufficient to allow.the pedestrian a safe passage if the car shall not be run faster than the law or ordinance permits, and the pedestrian does not know, or in the exercise of ordinary care would not know, that the car was run at a speed in excess of the lawful rate, then he or she is guilty of no negligence in proceeding to cross the street using ordinary care and expedition in doing so. Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 180 Mo!. 188; Eckhard v. Railroad, 190 Mo. 613. (2) The law presumes in favor of a person injured that he or she was exercising .ordinary care, and whilst this is a rebuttable presumption, it is upon the tortfeasor to rebut it by evidence sufficient to overcome the presumption. In this case the evidence produced by defendant to rebut this presumption is flatly contradicted by the evidence for plaintiff. Thus, defendant’s evidence to1 rebut the presumption is that its servants gave warning by bell— slowed down the car — hallooed. The evidence for the plaintiff tended to prove the contrary, so that the presumption of care remained to be considered by the jury. Buesching v. Gas Co., 73’ Mo. 233; Weller v. Railroad, 164 Mo. 180; Riska v. Railroad, 180 Mo. 168; Eckhard v. Eailroad, 190 Mo. 613; Rapp v. Railroad, 190 Mo. 144; Goff v. Railroad, 199 Mo. 694. (3) It is the settled law of this State that although a person may, through his or her negligence, be in a position of peril, yet if the party inflicting the injury saw the party in peril, or by the exercise of ordinary care, would so have seen the peril of the party, and thereafter could, by the exercise of the care required by law, have averted the injury and neglected to do so, then in that event the party inflicting the injury is liable, notwithstanding the negligence of the injured party. After a gigantic struggle throughout the courts of this country, the result is as declared above. Reardon v. Railroad, 114 Mo. 406; Chamberlain v. Railroad, 133 Mo. 599; Klockenbrinck v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 1. c. 707; Goff v. Railroad, 199 Mo. 694. This case was tried absolutely and precisely in accord with the authorities above cited. The instructions followed the announcements of the above-cited cases, and this case we submit is free from criticism, if the Riska case, the Eckhard case, the Scullin case, the Goff case, and the other cases cited are the law of this State.
   BURGESS, J.

Plaintiff, the husband of Mrs. Maggie Powers, deceased, prosecutes this action under section 2864, Revised Statutes 1899, to recover five thousand dollars damages for the killing of his wife, by reason of the negligence of the defendant’s employees in charge of its ear, on the 27th day of November, 1900, at á point on South Seventh street south of Rutger street in the. city of St. Louis.

The petition alleges in substance that defendant, at the times alleged, was a corporation by virtue of the laws of Missouri, and used and operated the railway and car mentioned for the purpose of transporting persons for hire from one point to another in the city of St. Louis. That at said times South Seventh street at the places mentioned was an open public street within the city of St. Louis. That plaintiff was the husband of Maggie Powers at the time of her death as mentioned in the petition. That on the 27th day of November, 1900, the plaintiff’s wife was lawfully crossing South Seventh street about ninety feet south of Rutger street, in the city of St. Louis, when defendant’s servants, its motorman and conductor in charge of its south-bound car on South Seventh street, carelessly and negligently, and without using any care to watch for persons on defendant’s track, or moving towards it, and in danger of being injured by said car, and without using any care to give any signal by bell or otherwise to plaintiff’s wife of the approach of said car, and without using any care to control the movements of said car or stop same to avoid injury to plaintiff’s wife, and whilst running said car at a high and reckless speed, and without using any care to control the fender of said car to prevent the plaintiff’s wife from being injured by said car, caused and suffered said car to run upon, drag, crush and kill the plaintiff’s said wife.

And for another and further assignment of negligence, the plaintiff avers that at time of the injury and death of said wife, there was in force within the city of St. Louis an ordinance thereof, by which it was provided that motormen and conductors of street cars should keep a vigilant watch for persons on foot either on the track or moving toward it, and upon the first appearance of danger to such person the car should be stopped within the shortest time and space possible; yet the plaintiff avers that‘defendant’s motorman and conductor in charge of said car failed to keep such vigilant watch and failed to stop said car within the shortest time and space possible, which violation of said ordinance directly contributed to cause the injury and death of the plaintiff’s wife. And for another and further assignment of negligence the plaintiff avers that at the time of the injury and death of his wife there was in force within the -city of St. Louis an ordinance thereof, whereby it was provided that such cars should not be run at a speed in excess of eight miles per hour in the city of St. Louis; yet the plaintiff avers that at the time of and before said car ran upon and killed his wife, as aforesaid, said car was being run by defendant’s motorman and conductor at a speed greatly in excess of eight miles per hour, to-wit, from fifteen to twenty miles per hour, in violation of the ordinance of the city of St. Louis, which excessive speed and violation of said ordinance directly contributed to cause the death of the plaintiff’s wife. That by the death of his wife, as aforesaid, an action has accrued to the plaintiff to sue for and recover five' thousand dollars according to the statute in such cases. Wherefore, plaintiff prays judgment for five thousand dollars.

The answer was a general denial, and a plea of contributory negligence upon the part of plaintiff’s deceased wife, in that she failed to' look or listen for defendant’s car, and in allowing herself to be placed in a position of danger upon defendant’s track when it was too late for those in charge of its car to stop the same and avoid striking her.

The reply to the answer was a general denial. The trial resulted in a verdict and judgment in favor of plaintiff for the sum of five thousand dollars. In due time defendant filed motions for new trial and in arrest of judgment, which were overruled, and defendant appealed.

Mrs. Powers, according to the evidence, was walking across Seventh street, from the east to the west side thereof, at a point from .ninety to one hundred feet south of the intersection of South Seventh and Rutger streets, a!bout 11 o’clock a. m., on the 27th day of November, 1900, and while crossing the track of defendant its south-bound car ran upon and so injured her that she died from said injuries three days thereafter. The rate of speed fixed by the ordinance of the city, 'which was read in evidence, was limited to not exceed eight miles per hour, while the evidence tended to show that the speed of this car was from ten to eighteen miles per hour. The evidence also tended to show that defendant’s motorman saw the deceased when she stepped off of the sidewalk and walked across the street towards the track on which the car was moving, and saw her continuously until she stepped upon the track, four or five feet in front of the car-, and saw that she was paying no heed thereto-. The street was about fifty feet between the curbs, and as deceased was walking across it diagonally,' or in a southwesterly direction, she- must have walked about thirty feet between the time the motorman saw her step off of the sidewalk and the time she was struck by the car. An ordinance of the city of St. Louis, requiring the motormen and conductors of street cars to keep á vigilant watch for persons on foot, either on the track or moving toward it, and, upon the first appearance .of danger to such persons, to stop the ear within the shortest time and space possible, was put in evidence, as was also the ordinance prohibiting a higher rate of speed than eight miles per hour. Upon this showing plaintiff rested.

Thereupon defendant ashed an instruction in the nature of a demurrer to the evidence, which was refused, and defendant excepted.

Mrs. Charles Anderson, in behalf of the defend.ant, testified as follows:

“Q. Where do you live? A. At that time 2839 South Seventh.'

“Q. How long have you lived there? A. I couldn’t say how long I had lived there; only a few months.

“Q. How long have you lived in St. Louis? A. Since 1900.

Q. Were you a passenger on the car going south on Seventh street on November 27th? A. Yes, sir.

“Q. That collided with Mrs. Powers? A. Yes, sir.

“Q. Do you know where Rutger street is? A. Yes, sir.

“Q. How was the car running along there? A. Why, I don’t think it was ruiming so very fast; running rather slow to me.

“Q. Was it running slow? A. Yes, sir.

“Q. Now, tell just what you saw and heard about this accident? A. I was sitting in the rear end of the car and I never saw the lady at all until they took her out from under the car.

“Q. The car, you say, was running at a moderate rate? A. Yes, sir.

“Q. Well, what, if anything, did the motorman do? A. The motorman kept ringing the bell, and he hallooed twice, but I never looked up to see what was happening.

“Q. How soon was the car stopped after he hallooed? A. It didn’t seem but a second to me.

“Q. Very short? A. Yes, sir.

“Q. Would you undertake to say in how many feet? A. No, sir; I couldn’t, because I was sitting in the rear end of the car and I couldn’t tell anything about it.

“Q. ‘Very short’ would be the best definition that you could give? A. Yes, sir.

‘ ‘ Q. How did the stop affect the passengers ? A. It didn’t affect them very much.

“Q. It didn’t shake anybody out of their seats? A. No, sir.

“Q. Do you know anything about stopping cars? A. No, sir.

“Q. And the stop was made within a few feet, would you say? A. I couldn’t say; I was in the rear end of the car; I wasn’t paying much attention; I heard the ringing of the bell, and I heard him halloo, but my attention was drawn to my baby, and I didn’t look up.

“Q. You didn’t get out of the car? A. No, sir.”

Mary Shenkle testified as follows:

“Q. Were you a passenger on the 27th of November on the car on South Seventh street that collided with Mrs. Powers? A. Yes, sir.

“Q. How was that car running? A. Oh, it was not running so fast, not slow and not fast, either.

‘ ‘ Q. What, if anything, did you see the motorman do or hear him do before this accident? A. I heard the motorman halloo; he hallooed and rung the bell; that is all I seen and heard of it.

‘ ‘ Q. How far did the car go after he hallooed? A. Oh, not much; he stopped as quick as he could.

“Q. Did you see Mrs. Powers before she got hurt? A. No, sir.”

On cross-examination, she stated as follows:

“ Q. You don’t know how fast the car was going, do you? A. No, sir.

“Q. In stopping the ear it didn’t disturb you in your seat, at all? A. No, sir.”

On redirect examination she said:

“Q. Did you see the woman after she was injured? A. Yes, sir; I went out to see her, and I seen her lying on the sidewalk.

“Q. She was. on the sidew.alk? A. Yes, sir.

“Q. You didn’t see her while she was under the car? A. Yes, sir; I seen two men pull her away from there and lay her on the sidewalk.

“Q. The front wheels hadn’t reached her? A. I can’t remember no more. I couldn’t look at it much. I felt funny and I didn’t stop to look.”

Charles Holt, in behalf of defendant, testified as follows:

“Q. Where do you live? A. 1918 Oregon avenue. x

‘ ‘ Q. What is your business ? A. I am in school, at present.

“Q. What was your business in November, 1900 ? A. I was working for the Transit Company — conductor.

“Q. Were you in charge of the oar that collided with Mrs. Maggie Powers, as conductor? A. Yes, sir.

‘ ‘ Q. What part of the car were you on at the time of the collision? A. Rear platform.

“Q. You may.tell the jury about the rate of speed of the car as it approached the place where the accident happened? A. Well, I should say it was about ten miles an hour — ten or twelve miles an hour, something like that.

“Q. Did you see Mrs. Powers? A. Yes, sir.

“Q. Where was she when you saw her ? A. Well, she was just on the north-bound track.

- “Q. How far from the car? A. Well, that would be about ten feet — eight or ten feet.

“Q. What did the motorman do there? A. Well, he drew my attention to it by the sounding of the bell.

“Q. You may state whether he sounded it loud or otherwise? A. Yes, sir; it was an unusual sounding , was the reason that I noticed it, and he then also hallooed two or three times; but it was the sounding of the bell that I noticed was something wrong • and happened to look up. '

“Q. What did Mrs. Powers do? A. She was walking at an angle across the street with a shawl over her head, and seemed to be just walking along, that was all.

££Q. I mean what did she do after, you saw her— what became of her? A. Disappeared from the front of the car, or from the comer, rather.

“Q. Which side of the car was she on? A. The east side.

££Q. She was coming from the east side of the street towards it? A. She was coming from the east, or rather northeast — she was kind o’ slanting across.

££Q. From the east going to the northwest? A. Going to the southwest.

££ Q. Then what did the motorman do shortly after he hallooed or you heard the bell rung? A. Well, he was making all efforts to stop the car.

££Q. What did he do? A. He was winding on the brake, and he throwed off the power, of course.

££Q. How far did the car go after it struck her? A. I should judge fifteen feet — that is, after the woman left my sight, you see?

££Q. You think the car went fifteen feet after the woman left your sight? A. Yes, sir.”

On cross-examination, the witness stated:

££Q. As you saw it she was walking diagonally across to the southwest? A. Yes, sir.

££Q. And had a shawl over her head? A. Yes, sir.

“Q. You didn’t see her look back, at all? A. No, sir.”

“Defendant rests.”

The above was all the testimony offered.

Thereupon, the defendant offered the following peremptory instruction at the dose of all the evidence, to-wit:

“The court instructs the jury that under the pleadings and all the evidence in the cause they should find for the defendant.”

Which said instruction the court refused to give the jury; to which refusal of the instruction thus prayed, the defendant, by counsel, duly excepted, at the time.

Among other instructions, the court gave the following: “The court instructs the jury that there is no evidence in the case that would justify them in finding that the motorman in charge of the car failed or neglected to keep a vigilant watch for persons either upon the track or moving towards it. ”

Defendant insists that the court erred in overruling its demurrer to the evidence. It is argued that the evidence conclusively shows that the negligence of Mrs. Powers alone was the cause of her injury, and that as it fails to show any negligence upon the. part of the defendant, the demurrer should have been sustained; that her failure to look and listen before stepping upon the track for the approach of a car, or her stepping tipon the track immediately in front of the moving car, was such negligence on the part of Mrs. Powers as to preclude a recovery by her husband.

That this is the general rule, in case the railroad company is not itself guilty of negligence contributing to the injury, is clearly shown by the authorities cited by counsel for defendant in their brief, viz: Ries v. Railroad, 179 Mo 1; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Markowitz v. Railroad, 186 Mo. 350; Schmidt v. Railroad, 191 Mo. 215; Boring v. Railroad, 194 Mo. 541; Hornstein v. Railroad, 195 Mo. 440;

The question, therefore, is, was the evidence all one way? In other words, did it conclusively show that the injury to plaintiff’s wife was caused by her own negligence in not looking for, and in stepping upon the track immediately in front of defendant’s car? If so, the demurrer should have been sustained. But, on the other hand, if the facts bearing on the issue are disputed, or are undisputed but admit of different constructions and inferences, it must be left to the jury to decide the question of negligence. [Berry v. Railroad, 124 Mo. 223; Eckhard v. Railroad, 190 Mo. 593; Marshall v. Schricker, 63 Mo. 308; Ostertag v. Railroad, 64 Mo. 421; Mauerman v. Siemerts, 71 Mo. 101; Charles v. Patch, 87 Mo. 450; Tabler v. Railroad, 93 Mo. 79; Fletcher v. Railroad, 64 Mo. 484; Huhn v. Railroad, 92 Mo. 440; Railroad v. Ives, 144 U. S. 408; Roddy v. Railroad, 104 Mo. 234; Bell v. Railroad, 72 Mo. 50; Nagel v. Railroad, 75 Mo. 653; Petty v. Railroad, 88 Mo. 306.]

The only evidence that Mrs. Powers did not look for the approaching car was that of the motorman, who testified that she did not look, while the presumption is that she was in the exercise of due care; that is, that she looked and saw the car (Buesching v. St. Louis Gaslight Co., 73 Mo. 219; Weller v. Railroad, 164 Mo. 180; Riska v. Railroad, 180 Mo. 168; Eckhard v. Railroad, supra; Rapp v. Railroad, 190 Mo. 144; Goff v. Railroad, 199 Mo. 694); but assuming, as she had a right to do; that the car was not being run at a rate of speed in excess of that prescribed by ordinance, and she did not know, or, in the exercise of ordinary care; could not have known that it was so running’, she was not guilty of negligence in proceeding to cross the street, using ordinary care and caution in so doing. Whether she looked or not was, of course, a question for the jury. The evidence all shows that the car was running at an excessive rate of speed when deceased left the sidewalk and looked to see, as the law presumes she did, if the car was approaching, which at that time must have been nearly a block away. She walked not directly towards the track, but in a southwesterly direction. Prom the time she left the sidewalk, until struck by the car, the motorman saw her, and when he apprehended danger to her he threw off the power, began sounding the bell and hallooing to her, but she paid no attention to either, seemed unconscious of danger, and took no notice of the warning. The motorman could have stopped the car in from twenty to twenty-five feet had it been running at the rate of eighteen miles an hour, and in a much shorter space had the car been running at a rate of speed not exceeding eight miles per hour. If the motorman saw the deceased all the time after she left the sidewalk until struck by the car, he must have seen her perilous position in time to have checked up the ear and avoided the injury.

After due consideration of all the testimony adduced upon the trial of this cause, and of the proper and legitimate deductions to be drawn by the jury therefrom, we are unwilling to say that the court committed error in overruling the demurrer to the evidence.

It is claimed that plaintiff’s instruction numbered 2 is erroneous and should not have been given. It is as follows:

“The court instructs the jury that if the plaintiff’s wife, as she started and walked across to defendant’s south-bound tracks, saw defendant’s south-bound ear mentioned in the evidence approaching going south; and if the said car was at such a distance as not to imperil her in crossing said track, if said car was not running faster than eight miles an hour; and if the plaintiff’s wife did not know that said car was running at a speed in excess of eight miles an hour, and in the exercise .of ordinary care in looking and listening would not have so known; and if said car was in fact running at a speed in excess of eight miles an hour, then the conrt instructs the jury that plaintiff’s wife had a right to cross said track, relying on said car not being run in excess of eight miles an hour, and using ordinary care and expedition in doing so, and if she was doing so, she was not negligent. ’ ’

It is said that this instruction is erroneous because based on facts not in evidence, and because it rests upon inference and conjecture. That there is no positive evidence that deceased saw the approach of defendant’s car is true, but the presumption is that she was in the exercise of due care and did look and did see it, while the only testimony upon the question is that of the motorman and conductor, the former of whom stated in his deposition that she “did not seem to look or notice anything, ’ ’ and the latter testified that he ‘ ‘ did not see her look back at all;” and it is contended by defendant that plaintiff is absolutely bound by this testimony. But this testimony by no means proves that the deceased did not look for and see the car, for, at most, it is merely negative testimony, and is wholly insufficient to overcome the presumption that deceased looked and saw the ear. It is not unreasonable to-suppose that she looked, even though neither the motorman nor the conductor saw her do so. In Reno- v. Railroad, 180- Mo. 469, so confidently relied upon by defendant, it was held that a woman about to cross a street car track could not indulge the presumption that the car would not be run at a rate, of speed in excess of the maximum rate prescribed by ordinance, and that she could, therefore, cross in safety, if she did not see the approaching car or -did not look for it, for she had no foundation on which to base such a presumption. But that case differs from the case at bar, in that here the presumption is that deceased looked and saw the approaching car before attempting to cross the track, and, therefore, had the necessary foundation upon which to base such a presumption, while in that case she had not.

As to the contention that the instruction is erroneous for the further reason that there is no evidence that Mrs. Powers could have gotten across the track in safety if the car had been running at the rate of eight miles per hour, it must be said that there was no direct evidence as to that fact; but there were facts and circumstances in evidence, such as the width of the street, the distance' or approximate distance she had to travel before reaching the railway track, the rate of speed of the car at the time, its distance from the deceased when the motorman saw her, and the distance the car traveled after striking her, from all of which it might be inferred that she could have gotten across the track had the car been running at that rate of speed.

A final contention is that the court erred in refusing to give instruction numbered 8 asked by defendant, which instruction is as follows: ■

“The court instructs the jury that the motorman was unde'r no obligation to' slacken the speed of his car or stop the same because plaintiff’s-deceased wife was approaching the track, hut he had the right to proceed with his car on the assumption that plaintiff would' remain off the track in a place of safety.”

Such an instruction would be misleading, in that it says that the motorman was under no obligation to slacken the speed of his car or to stop the same because deceased was approaching the track, while entirely ignoring the fact that it was his duty to slacken the speed of or stop his car as soon as possible after he saw her in a place of danger, even though she might have been guilty of negligence at the time. Nor had the motorman the right to proceed with his car, which at the time was runnirig at an excessive speed in violation of law, and to assume that the deceased would remain off the track in a place of safety. If the car had been running at a lawful rate of speed when the motorman saw deceased approaching the track, this part of the instruction would present correctly the law upon that question, but, under the facts disclosed by the evidence,' it is not correct.

Our conclusion is that the judgment should- be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    EVANS v. HOLMAN et al., Appellants.
    Division Two,
    March 19, 1907.
    1. IMPOUNDING ANIMALS: Redemption: Paying Impounding Fees. Under the ordinances of the city, in this case, the owner of a cow, which had escaped from his pasture without any negligence on his part and without his knowledge or consent, and had been taken up by the city marshal and kept for three days, was not entitled to recover possession of the cow until he paid the reasonable expense for keeping her.
    2. -: -: -: Ordinance. One section of the ordinance provided that “whoever shall permit his domestic animals to run at large within the city limits, shall, upon conviction thereof, be deemed guilty of a misdemeanor and fined in a sum not exceeding one hundred dollars.” The next section made it the duty of the marshal to taire up all domestic animals found running at large within the city limits and impound them and keep them in said pound until sold or redeemed, and another section provided that when any animal was taken up and impounded for running at large within the city limits the owner might redeem the same at any time before sale by paying the officer all costs accrued at the time of redemption. Held, first, that the first section is quasi-criminal, and for a violation thereof the owner may be convicted and fined, but to sustain a conviction it must be shown that the animal was permitted to run at large within the city with his knowledge and consent; second, the other sections are independent of that, and under them the marshal who had impounded a cow running at large on the street, although she may have escaped from the owner’s pasture without his knowledge or consent and without any negligence on his part, may retain her until the owner pays the reasonable costs of impounding' and keeping her. It is of no consequence, in such case, that the animal escaped and ran at large without the owner’s knowledge or permission. [Distinguishing Spitler v. Young, 63 Mo. 42, and McVey v. Barker, 92 Mo. App. 498.]
    3. -: -: -: Power of Cities. Cities of the fourth class have the undoubted right and authority, under the provisions of law applicable to them, to remove domestic animals running at large upon tbe streets, to care for them for their owner, and to make a reasonable charge against him for so doing.
    ■Transferred from Kansas City Court of Appeals.
    Reversed (with directions).

      J. H. La Motte for appellants.
    (1) Plaintiff’s theory of this case and the theory adopted by the court is that unless plaintiff permitted and consented for his cow to run at large, defendants could not impound her. This is error, for this is not a criminal proceeding. McVey v. Barker, 92 Mo. App. 498; Schell v. Murray, 49 Mo. App. 233; Sloan v. Hubbard, 34 Ohio St. 583; Paris v. Hale, 13 Tex. Civ. App. 386. (2) The ordinance in evidence provides under section one for the punishing by fine of one who permits his animal to run at large in the city, and under section two the marshal is directed to impound said animals, under pain of being fined and put out of office for a failure to do so, and charge for same as directed by the subsequent sections. Now, to subject one to fine under section one the proof must be that he permitted the animal to run at,large, but to justify the marshal in taking the cow up and disposing of her under the ordinance, the proof need be only that she was running at large upon the streets or alleys, etc. MeYey v. Barker, 92 Mo. App. 498. This case is strictly on all fours with the McYey v. Barker case. (3) The court erred in giving declaration 1 on the part of plaintiff, as it is not warranted by the evidence. Messrs. Hammett and Evans both say that they had no' talk with defendants until the 31st, two days after the cow was taken up— that was not “immediate explanation the next morning” — and an instruction or declaration where there is no evidence to support it is error. McAtee v. Manlandingham, 75 Mo. App. 45. (4) The cow was in possession of Holman, the marshal, when suit was brought, and judgment should not have been against Burge.' Possession at time of bringing suit is essential before judgment can be rendered against a defendant. Myers v. Lingenfelter, 81 Mo. App. 251; Feder v. Abrahams, 28 Mo. App. 454; Donis v. Randolph, 3 Mo. App-. 454.

      Martin & Terrill and Aubrey B. Hammett for respondent.
    (1) Appellant filed an answer to respondent’s petition by which he is bound, and in which he fails to state facts sufficient to constitute a defense, in this, that he fails to state that the cow was running at large on the streets, which is the language of the statute and ordinance under which he justifies the taking up of the. cow. The allegation of the answer should at least be as broad as the- ordinance and statute he relied upon. ' (2) Appellants having asked the court in their declaration 3, which was given by the court, to declare the law as announced in Spitler v. Young, 63 Mo. 42, to be the law of this case, and having tried the case upon that theory throughout, cannot now be heard to complain of said declaration of law. (3) The court properly declared the law of this case to be that if the cow escaped from the pasture without any fault of respondent and by means of some power over which he had no control, etc., they should find for respondent. Spitler v. Young, 63 Mo. 42. (4) Under proper declarations of law, the finding of‘facts by a jury upon conflicting testimony will not be 'disturbed by the appellate court. Much more deference is due to the finding of facts by the court sitting as a jury, at the request of both parties, and especially so when the court has twice heard the entire case.

      J. H. LaMotte for appellants in reply.
    (1) Appellants do not concede that the Spitler case, 63 Mo. 42, is the law of this case, as respondent says. The Spitler case is good law for cases that fit it. (2) The bane is that respondent’s declarations 1 and 2 do not come within the scope of the Spitler case or any other case yet decided. They are in substance the same, and it will suffice to look at No. 2; it says the city marshal of the city of Huntsville has no- right, under the law, to take up and hold stock found in the city limits and collect fees, and expenses of the owner for such taking up and holding of the same, unless the owner of such stock permitted them to run at large in the city; and if plaintiff’s cow was by him placed in a pasture to graze and keep her enclosed, and without his knowledge or consent she escaped therefrom by reason of someone leaving gates leading to the said pasture open, unbeknowing to plaintiff; and as soon as plaintiff learned of her escape he went in search of her and found her in the city pound; then plaintiff was not guilty of permitting his said cow to run at large, and defendant had no right to hold her, etc. This declaration goes by leaps and bound's beyond the Spitler case, and all others, and is error. McVey Case, 92 Mo. App. 498; Jeans v. Morrison, 99 Mo. App. 208; Dorton v. Burks, 99 Mo. App. 165.
   FOX, P. J.

This cause was certified to this court by the Kansas City Court of Appeals for the reason, in the opinion-of the court, the conclusions reached were in conflict with the rules announced by the St. Louis Court of Appeals in McVey v. Barker, 92 Mo. App. 498.

This appeal is from a judgment of the circuit court of Randolph county, Missouri. It is a suit for the claim and delivery of personal property, commonly called an action of replevin. The property involved was a cow belonging to the plaintiff. This cow was in the possession of J. R. Holman, marshal of the city of Huntsville, Missouri, and he justifies such possession under the provisions of ordinances of such city. Plaintiff’s cow had escaped from a pasture and went upon the streets of the city where she was found and taken charge of and put in the city pound by city officers. The officer refused to surrender the cow to the plaintiff unless he would pay the costs incident to impounding her. Plaintiff1 refused to pay such costs and brought the present action of replevin for the recovery of his property.

We deem it unnecessary to undertake to detail all of the testimony introduced upon the trial of this cause.- It is sufficient to say that there was evidence tending to show that the escape of plaintiff’s cow from the pasture was by reason of some: of the gates being left open and not with his knowledge and consent, nor was such escape by reason of any negligence on his part. The cow was taken up by the city officials on the streets on the evening of May 28, 1900, and it was not until May 31st that the plaintiff, through his counsel, demanded the possession of her. There was some evidence tending to show that this cow had been found upon the streets and taken up on previous occasions.

It was agreed between the parties to this action that the city of Huntsville is a city of the fourth class, duly incorporated under the general statutes of the State of Missouri relative to the incorporation of cities, towns and villages.

The first section of an ordinance of the city provides that whoever shall permit his domestic animals to run at large within the city limits shall be deemed guilty of a misdemeanor.

The second section provides that the city marshal shall take up and impound any animal found running at large within the city limits and section three provides that he may sell it on proper notice.

Section four'provides that whenever any animal is taken np and impounded, the owner at any time before sale may redeem it by paying the proper costs of impounding, but that such redemption would not prevent his being prosecuted for permitting it to be at large.

At the close of the evidence the court declared the • law as in its opinion was applicable to the facts, and under the' declarations of law and the evidence introduced, the court sitting as a jury, found for the plaintiff, and entered judgment against the defendants in the sum of one cent damages and for the possession of the cow.

Timely motions for new trial and in arrest of judgment were filed, and by the court overruled, and from the judgment in this cause the defendants in due ' time and proper form prosecuted their appeal, and the record is now before us for review.

OPINION.

The respective contentions of respondent and appellants upon this cause as disclosed by the record, may thus be briefly stated: Upon the part of the respondent it is earnestly insisted that the facts developed at the trial of this causé bring it directly within the rules of law announced by this court in Spitler v. Young, 63 Mo. 42. On the other hand, appellants contend that the law as announced in McVey v. Barker, 92 Mo. App. 498, is decisive of the propositions disclosed by the record before us.

The case at bar is identical in principle with the ease of McVey v. Barker, supra. It follows, therefore, if the rules of law as applied in that case are sound, they should be followed and should control the conclusions in the case before us. It is insisted1, however, by respondent that the case of McVey v. Barker, supra, is in conflict with Spitler v. Young, heretofore cited. We have carefully considered the opinion of Judge "Wagner, in Spitler v. Young, and in our opinion it is readily to be distinguished from the MeVey case and the case at bar. There is a marked distinction in these cases and this distinction is clearly pointed out by Judge Barclay in the MeVey case. He said, respecting the action of the lower court, that:

“The trial court was obviously endeavoring to follow the doctrine of Spitler v. Young, 63 Mo. 42. The circumstances of that case were peculiar and! they differ essentially from those presented in the case at bar. Spitler, the plaintiff, who claimed the hogs which wandered into the town of Trenton, was declared not guilty of any fault because the pen in which he had kept his hogs was washed away by a flood, ‘a power over which plaintiff had no control,’ in other words, by the act of God. It further appeared that the plaintiff made every requisite effort to recapture the animals; and, though they were ‘physically found’ in the streets of Trenton, it was held that the spirit of the ordinance of that town did not reach them or their owner for the purpose of punishment. Therefore, a recovery of the hogs by plaintiff was sustained. The escape of the hogs in the first place from the owner’s premises was viewed as unavoidable, and his attempt to reclaim them exhibited ‘ requisite diligence. ’ So' the court held that plaintiff was not subject to the penalties imposed by the local ordinance under the charter of Trenton. [Laws 1874, p. 409.] ”

Further marking the distinction, Laddonia being the town involved in that case, it was said by the court speaking through Barclay, J., that:

“Laddonia is governed, however, by the general charter for cities of the fourth class which confers on the board of aldermen certain broad powers in relation to this subject, viz.: They may ‘regulate or prohibit the running at large of cattle, hogs, horses, sheep, goats and other animals and domestic geese, and cause such as may be running at large to be impounded and sold in such manner and time as may be provided by ordinance; they m!ay also provide penalties for the owners who shall permit snch animals or geese to run at large. The board of aldermen may also provide for the erection of all needful pounds, pens and buildings for the use of the city within or without the city limits, and appoint and compensate keepers thereof and establish and enforce rules governing the same. ’ [R. S. 3899, sec. 5959.] There is a distinction to be noted between a statute which attaches a penalty to the act of ‘permitting animals to run at large,’ and one which makes it the duty of some official of a municipality to take up an animal found running at large in the public streets. Where the gist of the. offense defined by the law is permitting an animal to run at large, it is ■obviously necessary to show some negligence, at least, on the part of the owner to bring the latter within the reach of the penalty denounced. But, where there is due sanction for such local regulations, it is competent for a municipality to ordain that animals found running at large may be taken up, irrespective of the question whether the .owner is at fault or not in permitting them to be at large on the public street. The right by ordinance to exercise the police, power of a municipality in taking up stray animals is beneficial, not merely for the preservation of good civic order, but also for tbe benefit of the owner of such animals which would be exposed to greater risk of destruction by being left to wander than by being impounded at a small expense. The above-quoted provision of the charter of cities of the fourth class clearly defines the distinction referred to.. It authorizes the impounding of animals running at large and charges upon them the expense thereof, which the owner may pay at any time before the sale authorized in event the costs be not promptly forthcoming. But no penalty is to be imposed upon the owner except when he ‘ shall permit’ such animals to run at large. The language of the law governing Laddonia shows an obvious purpose to establish a different rule from that declared in Spitler v. Young, 63 Mo. 42, so far as concerns cities of the fourth class. The right to impound horses found at large in the public streets is distinctly given to the city. The right to exert that power is severed with equal distinctness from the right to impose a penalty on the owner for permitting the animal to run at large. The Legislature evidently intended to invest these municipalities with adequate authority to keep stray animals out of the public thoroughfares, irrespective of any inquiry why they got there. So far as concerns the safety, good order, cleanliness and appearance of the street, it is of no consequence how the animals came to be at large. The city has authority to remove them, to take care .of them .for whom it may concern, and to make a reasonable charge for so doing, in the exercise of its police power. That animals running at large in city streets may be impounded and reasonable charges for their restraint may be enforced, under the sanction of proper charter authority, was expressly held by this court in Sherrell v. Murray, 49 Mo. App. 233. The same doctrine has been lucidly expounded elsewhere. [Sloan v. Hubbard, 34 Ohio St. 583; Paris v. Hale, 13 Tex. Civ. App. 386, 35 S. W. 333.]”

It will be observed in Spitler v. Young the town authorities were undertaking to exercise their powers under the provisions of law to prevent or abate nuisances on public or private property, and the ordinances under which the city authorities in that case undertook to justify their possession of the hogs taken by the city marshal running at large in the street, declared all hogs running at large within the corporate limits to be nuisances, and the owner of such animals were made liable to pay to the town a penalty for every twenty-four hours such animals were permitted to run at large, in addition to the fee of the marshal for taking them np. It is clear in that proceeding that the marshal was holding the possession of the hogs in controversy by reason of the provisions of the ordinance which imposed a penalty npon the owner of snch hogs. In .other words, -the owner of the animals, was found to be guilty of permitting his hogs to run at large within the corporate limits, which- was declared by the ordinance to be a nuisance. In the case’ at bar it will be observed that the first section of the ordinance of the city of Huntsville provides that “whoever shall permit his domestic animals to run at large within the city limits, shall, upon conviction thereof, be deemed guilty of a misdemeanor and fined in any sum not exceeding one hundred dollars.” The second section of the ordinance provides that it shall be the duty of the city marshal to take up any and all horses, mules, asses, cattle, swine, sheep or goats or other domestic animals found running at large within the said city limits and securely impound the same in some suitable pound to be provided by the city for that purpose, and keep said animals in said pound until sold or redeemed, during which time the person in charge of said pound shall feed and water all such animals so impounded.” Then follows in said section a penalty upon the officer of ten dollars for a failure to perform his duty.

It is manifest that the marshal in the case at bar is not holding the possession of the cow of plaintiff in this case under the provisions of the first section, for failure to pay any fine imposed by that section, for there is an entire absence from this record of any reference to any proceeding to convict the plaintiff and impose the fine provided by that section. It is equally manifest that the officials of the city of Huntsville were simply holding possession of this cow under the provisions of section two, which makes it the duty of the city marshal to take up all domestic animals found running at large within the said city limits and securely impound the same in some suitable pound to- be provided by the city for that purpose. • Then follows section four, which provides that' when any animal is taken up and impounded for running at large in the city lim|its, the owner or person in control of such animal may redeem the same at any time before the sale thereof by satisfying the officer in charge of such animal that he is the owner thereof and is entitled to the possession thereof and by paying to said officer all costs accrued at the time of redeeming said animal. And .to emphasize the fact that this provision is independent and has nothing to do with the imposition of any penalty, it is expressly provided that nothing in this section shall be construed as exempting such owner or person in charge of any animal so taken up- and impounded from being prosecuted for a misdemeanor as provided in section one of the ordinance.

It is apparent, under the ordinance as introduced in evidence in this case, that there are two- separate and distinct methods of procedure. You may proceed against the owner of the animal under section one, which provides for the imposition of a fine for permitting the animal to run at large. That is a quasi-criminal proceeding, and under that proceeding the contention of respondent can very well be maintained, for in order to authorize the imposition of a penalty for permitting the animal to run at large within the limits of the incorporated city, it must appear that such running at large by the animal in the streets of the town was with the' knowledge or consent of the owner. In other words, that he in fact permitted such animal or animals to run at large upon the streets. The other method is under the provisions of section two, which makes it the duty of the city marshal to take up any and all domestic animals found running at large within the city limits and securely impound the same in some suitable pound to be provided by the city for that purpose. This is simply the exercise of a police power by a municipality in taking up animals running at large upon the streets. In our opinion it has clearly the right to exercise such power, and as was said in the McYey case, “not merely for the preservation of good civic order, hut also for the benefit of the owner of such animals which would, be exposed to greater risk of destruction by being left to wander than by being impounded at a small expense.”

Under this section of the ordinance no penalty is imposed, but merely the nominal expense, which attends the taking up of the animal and securely impounding it, and no penalty can be imposed, except where it is made to appear that the owner permitted the animals to run at large. The distinguishing features as applicable to this case are plainly and correctly pointed out in the McYey case, and the rules of law announced in that case are clearly applicable to the case at bar and must be held decisive of it.

That the cow of plaintiff involved, in this controversy was running at large within the limits of the city of Huntsville, and that she was taken up and impounded for that reason, there is no dispute, and the only demand made upon the plaintiff, in order to secure the possession of his cow, was to pay to the officer the sum of $2.60 as costs attending the taking up and impounding of the animal. This was reasonable and the plaintiff is not entitled to recover the possession of that animal until he complies with that demand. We are unwilling to interpret the law as applicable to cities of the fourth class that they are powerless to take up horses, cattle or hogs' running at large in the public streets of the city and are powerless to tax reasonable costs for the taking up and impounding of such animals, except in eases where the owner permits them to run at large. It is the plain duty of the municipalities to provide for the safety, good order and cleanliness of their streets and they have the undoubted right and authority under the provisions of law applicable to such cities to remove animals running at large upon the streets, to care for them for whom it may concern, to make a reasonable charge for so- doing, in the exercise of their police power. In the exercise of such power, where no, penalty is imposed upon the owner, it is of no consequence how the animal came to he at large, whether with the knowledge, consent or permission of the owner of such animal.

The judgment in this cause should have been for the defendants, and it is therefore ordered that the judgment of the trial court in favor of plaintiff he reversed, with directions that judgment he entered for the defendants.

All concur.


author: GANTT, J.

text:
    HIMMELBERGER-LUCE LAND & LUMBER COMPANY, Appellant, v. J. T. BLACKMAN and NEW MADRID COUNTY.
    Division Two,
    March 19, 1907.
    1. SPECIFIC PERFORMANCE: Suit to Set Aside County Patent. A suit to set aside a patent issued by the county to defendant, on the ground that the county had previously contracted the land to plaintiff and defendant had taken the land with notice of such contract, is in reality a suit for a specific performance of that contract.
    2. -: --: Swamp Lands: Contract for Drainage Ditch: Notice. By contract with the county plaintiff’s assignor agreed in 1885 to construct a large drainage ditch and was to be paid therefor in swamp lands, at the rate of $1.25 per acre, in certain townships, in which was included the eighty acres in suit. The work was to be completed in 1894', and the contractor dying the contract was renewed to his heirs in 1893 upon condition that “any person in actual possession of any of the lands, who has made improvements and is now residing thereon, shall have the right to purchase” eighty acres of the same at $1.25 per acre at the time patents are issued to the contractor for lands in payment for the improvement, and this renewal contract was assigned to plaintiff. In 1887 one Shelfer settled on the eighty in controversy, fenced and put in cultivation fifteen or eighteen acres thereof, erected a house thereon, and lived there till 1898, when he sold and conveyed it to defendant, who in 1899 applied for a patent thereon, and over the protest of plaintiff and after a hearing by the county court a patent was issued to him. Held, that plaintiff’s assignor had no right to a patent in 1893 when the contract was renewed, nor did plaintiff have such right in 1899 when the patent was issued to defendant, nor is plaintiff in a position to complain that the county agreed to the substitution of defendant to the right of Shelfer, since the county stood ready to turn over to plaintiff the $1.25 per acre paid by defendant. Held, also, that, since the contract did not specify the particular acres which were to be conveyed in satisfaction of the work, and since the townships named contained if full more than 400,000 acres, and only 213,691 acres have been earned by the contractor, for that reason, plaintiff is not entitled to specific performance as to this particular eighty acres.
    3. -: Discretion of Chancellor. The discretion of the chancellor as to whether or not he will grant a specific performance, is not an arbitrary or capricious one, but is a sound judicial discretion controlled by established principles of eguity applicable to the facts of the case.
    Appeal from New Madrid Circuit Court.— Hon. Henry C. Riley, Judge.
    Affirmed.

      Oliver & Oliver for appellant.
    (1) The county court had no power to determine the rights of settlers under the contract of May 20, 1893, or to issue patents thereunder to- any one other than the Luce heirs, their executors, administrators or assigns. The contracts with Charles L. Luce and his heirs expressly provided that upon completion of the work the county would convey to- him .or them, or their assigns, all of the county’s rights, whether then owned or thereafter acquired, in and to the lands covered by the contracts, whether such interest was vested or contingent, or ■whether said county was possessed of the legal title to the same or not. Clause 11 of the contract of May 20, 1893, was a contract made for the benefit of third persons, and is limited to the persons and upon the conditions therein specified. The clear meaning and intention of this provision was that the lands were to be patented, as provided by the contract to the Luce heirs, and that persons who. were then actual settlers, residing on the lands, should have the right to protect the improvements which they had then made, by purchasing from the Luce heirs, at the. price stated. It is equally clear that it is not intended that such settlers’ rights should be assignable; or that persons other than actual settlers should have the. benefit thereof, or that lands thus settled should be excepted from the patents, or that the county court should be empowered to determine who were entitled to rights under the contracts. If any settler came within the provision of the contract, he was entitled to> enforce his right in any court having jurisdiction, upon tender of his purchase price, in an action against the. Luce heirs or their assigns. (2) There is no general jurisdiction in the county court to determine questions of title between conflicting claimants to lands. Much less is there equitable jurisdiction in the court to undertake to decree specific performance of a contract, which was in effect what was done. Sec. 1771, R. S. 1899; Coil v. Pitman’s Admr., 46 Mo. 51; State ex rel. v. Madison County Court, 136 Mo. 323, where it is said, “The county court is of statutory origin, having neither common law nor equitable jurisdiction;” Valle v. Fleming, 19 Mo. 459. The county court recognized the ownership of the lands in question to be in the Luce heirs or their assigns, the ITimmelberger-Luce Land & Lumber Company, for it provided by its decree that the proceeds of the lands which they attempted to1 convey should be paid to the clerk of the county court, to be held by him for the Luce heirs, or the Himmelberger-Luce Land & Lumber Company. Surely that court is possessed of no jurisdiction to compel the owner of lands to exchange it at a given price for money, or to determine upon a contest who is entitled to the benefit of the contract. Although a court of record, the jurisdiction of the county courts in Missouri is limited to the power conferred by the Constitution and statutes. They possess no common law jurisdiction, and no constitutional or statutory jurisdiction in suits of an equitable nature between third persons to determine title to real property. Sec. 1771, R. S. 1899; State ex rel. v. Madison County Court, 136 Mo. 323; Valle v. Fleming, 19 Mo. 459. The subject-matter of the controversy with respect to the right to these lands was one which was not within the jurisdiction of the county court, either as between third parties claiming them adversely to one another, or claiming them adversely to the county. State ex rel. v. Elkin, 130' Mo. 90'; Coil v. Pitman’s Admr., 46 Mo. 51; State ex rel. v. Madison County Court, 136 Mo. 323; Bauer v. Franklin Co., 51 Mo. 205; Sturgeon v. Hampton, 88 Mo. 203. (3) Clause eleven of the drainage contract conferred the rights of purchase to persons: (a) In actual possession of the lands at the time of making the contract (May 20, 1893), and (b) Who then had improvements thereon, and (c) Who were then residing thereon. Blackman was neither of these. Blackman never had actual personal possession of the lands. He did not have improvements thereon at the time of making the contract and he never resided thereon. He had no interest whatever in the lands, or the improvements until he attempted to purchase the same from one Shelter, in 1898, three years after the contract was made. And after that time he never resided thereon or had1 constructive possession through a tenant. The lands upon which such improvements had been made were; of course, the very best lands in the entire body to be conveyed. Consequently, speculators eagerly sought to secure the best lands at the smallest price. The county courts, in the disposing of swamp lands, are but the agents of the county, with powers limited and defined by law, and their acts, when they exceed these powers, are void. Railroad v. Hatton, 102 Mo. 145. (4) Blackman was not one of the “persons” provided for in clause 11 of the contract of May 20', 1893, and was not, and is not, entitled to this land'; and in no event could New Madrid county make him a valid patent to this land, under its contract with Luce. Crawford v. Elliott, 78 Mo. 498; Black River Lumber Co. v. Warren, 93 Mo. 375; Goode v. St. Louis, 113 Mo. 257; Lovelace v. Travelers ’ Protective Association, 126 Mo. 104.

      H. G. O’Bryan for respondents.
    The county court was clearly authorized to' dispose of these lands. The evidence shows that the interest which appellant had was the $100 and was to receive $1.25 per acre; that Blackman’s interest, measured by the value of his improvements, as sworn to by appellant’s witness, was $400-. If appellant had been granted a patent, Blackman would have been remediless to recoup his loss, but by granting patent to Black-man appellant was protected in its contractual right, for the settlers.’ lands were exempt, and in lieu thereof appellant contracted that the settler- pay $1.25' per acre, which was done; so that appellant is not in anywise injured, nor is its contractual rights abridged or diminished in any respect. The county court had the sole right to dispose of these lands and to pass upon the rights of settlers. Laws 1868, p. 71, sees. 14,15,16 and 17, which were amended in 1879; R. S. 1879', secs. 6162, 6163, 6164, 6165. This law was in force on December 1, 1885, when C. L. Luce made the- first contract with the county. This law recognized that the settler had property rights to any quality of lands, including their improvements, not exceeding eighty acres. Laws 1879, sec. 8162. Nor were these rights limited to the cultivated or enclosed fields. R. S. 1879, sec. 6162. And the county courts were charged and empowered to mate such rules in relation to settlers as would protect their rights. R. S. 1879, sec. 6165. These laws ,of 1879 relating to settlers’ rights were re-enacted in the Revised Statutes of 1889 without change. R. S. 1889, p. 1521, sees. 6472-3-4-5. And again" re-enacted in 1899 without change. R. S. 1899, p. 1925, secs. 8206-7-8-9. So it has been the settled policy and the settled law since 1868 to recognize the rights of settlers, and county courts have been invested with the power to-mate rules for the protection of such claimants. It is a property right, and with the right goes the protection that the law throws around it. These statutes were in force when the contract under which the appellant claims was entered into between the heirs of C. L. Luce and the county of New Madrid, on the 20th of May, 1893, and clause 11 of said contract cannot and should not be construed as a limitation ,of said statutory property right, but must be construed in harmony with the statute referred to except in so far as where the Luces waive the necessity of the settlers ’ possession antedating the contract, for they had the power to make such waiver for themselves and the county court to require it in protecting the rights of settlers. On the same principle the county court could protect one who bought another’s improvements, as Blackman had in this case. It must be borne constantly in mind that the contract with the Luce heirs in 1893 is a renewal of the old contract of 1885 made with O. L. Luce-, and they must be read together.
   GANTT, J.

This is a bill in equity brought by the plaintiff against New Madrid county and J. T. Blackman, to set aside a patent issued'by New Madrid county to the defendant Blackman.

The land in suit is a portion of the land originally granted to the State of Missouri by the act of Congress of September 28, 1850,-and is a part of the swamp lands granted to New Madrid county by the State of Missouri by various acts of the Legislature from 1855 up to and including 1869. The plaintiff’s right to the said land is deduced through a contract made between the county of New Madrid and one Charles L. Luce on the first day of December, 1885', whereby Luce agreed to dig a certain ditch or canal in said county from the Iron Mountain railroad in a southern direction and along Little river a distance of twenty-three miles, and about forty feet wide and ten feet deep, for the purpose of draining and reclaiming the swamp and overflowed lands of said county. By said contract the work of digging said ditch was to be paid for by the county of New Madrid at the rate of ^fourteen cents per cubic yard, in swamp and overflowed lands at the price of one dollar and twenty-five cents per acre. It appears from the petition that the original contractor, C. L. Luce, began the digging of said ditch, but died on the 15th of September, 1886, without having made any great progress towards its completion. By the terms of the contract, the work was required to be completed on or before the first day of January, 1894. On the 20th of May, 1898, the widow and heirs at law of Charles Luce, recognizing that they could not complete it by the first of January, 1894, applied to the county court of said county for an extension of said contract, and1 on said date the said contract, upon consideration and terms therein agreed upon, was extended until the first day of January, 1899.

By the eleventh article of said contract, it was provided: “It is further agreed that any persons who are now in actual personal possession of any of the lands, the legal title of which is now in New Madrid county, and who' have made improvements and are now residing thereon, shall have the right to purchase said lands at the time the same are patented or conveyed to the parties of the first part,- their heirs, executors, administrators or assigns, at and for the price of $1.25 per acre, hnt this provision shall only apply to improvements made at- this time and shall in no- event entitle any snch person to more than eighty acres.”

It was further provided in the original contract with Luce, and the said provision was continued in the new contract with his heirs, that the purpose of the said contract was, “to provide for the sale and conveyance to said Charles Luce, his heirs and assigns in payment for the work to be done by him or them, of the entire interest which said county then had or might thereafter acquire in said lands, or so- much thereof as might be necessary to pay for said work at the prices thereinafter specified. ” This contract of 1893 was not completed within the time specified, but by an additional contract was further extended.

Afterwards, on the 30th of November, 1895, the heirs of Charles Luce sold, assigned and set over all their right, title and interest in and to the said contracts, to the Himmelberger-Luce Land & Lumber Company, the plaintiff in tins case. Thereafter, in 1899, the court appointed three commissioners to inspect the work on the said drain and ditch, and to make a report to the court, and at the May term., 1899', the said commissioners reported that the work had been constructed and completed in compliance with the contracts, and the court approved the commissioners’ report. And thereupon at the said May term, the plaintiff herein filed its petition in the county court, in which it alleged that according to the report of the engineer in charge of the work, it was entitled under the said contract to $267,-114.18 in payment for the work so done, which sum was payable in swamp lands at one dollar and twenty-five cents per acre, less any conveyance theretofore made to it under said contract, and prayed that the work be accepted by the court and that the amount of credit to -which, it was entitled should be ascertained and determined, and that “all right, title and interest, legal or equitable, which New Madrid county had December 1, 1885, or had since acquired in and to the swamp and overflowed lands situated in the townships and ranges in said contracts specified, except so far as actual settlers thereon were entitled to enter the same by the terms of said contracts, upon the payment to it of one dollar and twenty-five cents per acre therefor, ’ ’ be conveyed to it in payment for said work. Thereupon the court found that the work had been completed and approved and accepted the same and found that the work so done amounted under the contract price at the rate and upon the basis of fourteen cents- per cubic yard to $267,114.18, which amount was payable to< the plaintiff or its assigns in swamp, or overflowed lands at and for the price of one dollar and twenty-five cents per acre, in the manner provided in said contract. And it was ordered that patents or deeds be- issued for such lands as the parties might be entitled to under said contract. At the said May term, it was ordered by the court that a patent or deed be prepared to embrace all the lands mentioned in the said contracts except such as are claimed by settlers under section 11 of the contract of May 20, 1893, and the said deed be made to John H. Himmelberger as prayed for by the plaintiff.

On the 27th of June, 1899'. it appears that the defendant J. T. Blackman applied to the court for a patent to the eighty acres in suit in this case, upon the payment by him of one hundred dollars therefor. The proceeding in said court is entitled, “James T. Blackman v. The heirs of C. L. Luce et al., defendants,” and the court found that the defendant was entitled to purchase the east half of the southwest quarter of section 29, township 23, range 12 east, containing eighty acres, at and for the price of one dollar and twenty-five cents per acre, and it was ordered that a patent be issued to him for said land to be signed by the presiding judge of the county court, and attested by the clerk, upon the payment to the county clerk of one hundred dollars, said sum to be held subject to the order of the legal representatives of Elmira 0. Luce and others, according to the terms of the said contract of Mav-20,1893, and said sum having been paid as ordered, a patent in due and legal form was issued to the defendant, and was recorded on the 30th of June, 1899.

It was admitted that the clerk of the court was appointed by the county court to receive money from claimants of land. It was admitted that the defendant in May or June, 1899, applied for a patent to the land in dispute under section eleven of the contract of 1893, and that the plaintiff at the time protested against issuing it to him, and that he had notice when the patent was obtained by him that plaintiff claimed the land under its contract with the county, and the county court heard proof pro and con upon the question of issuing this patent to defendant, and that plaintiff protested against the hearing of said testimony. The testimony tended to show that one T. E. Shelfer settled upon this eighty acres in controversy, some time in 1887, and lived on it until some time in 1898; that he had erected a house thereon and cleared out about fifteen or eighteen acres, which he put in cultivation, and had fenced a portion of it, and had occupied portions of both forties of said eighty-acre tract, and that some time in 1898, Shelfer by deed conveyed, sold and delivered said premises to this defendant, who' has since been in possession thereof, cultivating and using the same by and through a tenant of his. It also appears in evidence that Shelfer applied for and received a patent to another forty-acre tract of said land. It further appeared that the defendant was a physician and lived about one mile from the land in question, at Wylie crossing. After hearing all the evidence, the court found the issues for the defendant and dismissed the plaintiff’s bill, and from that decree the plaintiff has appealed to this court.

I. The hill in this case is in reality one for specific performance. While it seeks to set aside the patent to the defendant, it proceeds on the theory that the plaintiff was entitled to a deed from New Madrid county 'to it for this specific eighty acres, and that defendant took the same with full knowledge of plaintiff’s right to such a conveyance under and by virtue of the contract of 1885 with Luce and the extension of that contract in 1893 with his heirs. It is perfectly obvious that if plaintiff has any equity, it must be worked out through those two contracts. Upon a careful consideration of the article eleven in the contract of 1893, with the heirs of Luce, we have reached the conclusion that by that article New Madrid county reserved from any future obligation to convey said heirs any portion of its swamp lands, all such portion thereof as were at the date of the execution of the contract of 1893 in the actual possession of a settler who had improvements thereon. At that time it was unknown whether plaintiff’s grantors, the heirs of Luce, would comply with their contract and complete the said drain so as to entitle them to any portion of the swamp lands belonging to said county, but if they did, it was equally unknown how much excavation would be required and how many acres of swamp lands would be required to fulfill the county’s contract at the rate of one dollar and twenty-five cents per acre. For many years prior to the making of the said contract the laws of this State gave a pre-emption right to actual settlers on swamp lands, which had been given to the various counties by the State, and it seems obvious that the county court was mindful of this general statutory provision, which gave a pre-emption right to those who were settlers in 1879, and the inherent equities of the case suggested to' the court that a like protection should be offered to' those actual settlers who did not come within the express provisions of section 6162, Revised Statutes 1879, and section 6472, Revised Statutes 1889, hence the court reserved by expressed stipulation from the contract of 1892, a right of pre-emption to those persons who were then in actual possession of any of said swamp1 lands and who had made improvements thereon, and1 by mutual agreement the court and the heirs of Luce provided that, in case the contract with Luce should require a number of acres in excess of those excepted from the contract, the county would pay over to Luce the one dollar and twenty-five cents per acre for such preempted lands, and the heirs of Luce would receive the same in lieu of a deed or patent to such lands. That Shelfer was an actual occupant of the eighty acres in controversy in this suit at the date of the said contract of 1893, and had previously made valuable improvements thereon and put some fifteen or eighteen acres thereof in cultivation and fenced the same, there can be no sort of question. The heirs of Luce then never had a right to a patent to this specific eighty acres of land, but by their contract might have become entitled to the purchase money which Shelfer or his assignee should pay to the county therefor. In our opinion, the plaintiff as the assignee of the contract rights of the heirs of Luce was from the date of that contract in no position to demand a conveyance of this eighty acres, nor does it lie in its mouth to complain that the county court agreed to the substitution of the defendant Blackman to the right of Shelfer, so long as the county stood ready to compensate them by turning over to them the purchase money for said eighty acres. As it is conceded that the money was tendered to plaintiff and is lying in the treasury of the county for plaintiff, it has suffered no injury by the conveyance of the land to the defendant Blackman. While it is sometimes said that it is discretionary with the chancellor in each case whether he will grant a specific performance, it is settled doctrine that this discretion is not an arbitrary and .capricious one, but is a sound judicial discretion controlled by established principles of equity as applicable to the facts of the case. Looking at this contract and all of its terms and the attitude of the several parties affected thereby, we are of the opinion that it would be unjust and inequitable to deprive the- defendant of the legal title which was vested in him by the patent from New Madrid county, and to vest in the plaintiff a title to improvements which it had never earned and for which it has paid nothing. For aught that appears in the allegations of the bill, and in the findings of the county court, there may be thousands of acres of swamp lands belonging to the county which were not required to carry out the contracts of the county for the conveyance of swamp lands in payment for the ditch. Nowhere in the petition or in the proofs is there any finding of how many acres is contained in the eighteen townships out of which the county was to get the requisite number of acres to fulfill its contract with the heirs of Luce, or the plaintiff as their assignee. If the townships are full they must contain over four hundred thousand acres of land, ■ whereas according to contract and the report of the chief engineer in charge of the work, the heirs of Luce had only earned 213,691 acres. As already said, the contract by the county with the plaintiff nowhere specifies the particular acres which were to be conveyed in satisfaction of the work in making the ditch, but only that the county court out of the general description of its swamp lands would convey swamp lands enough to make up the price of constructing the said drain at one dollar and twenty-five cents per acre, and at the rate of fourteen cents per cubic yard, and for this additional reason, we are of the opinion that the plaintiff was not entitled to the specific performance for which it prays, and that the judgment 'of the circuit court was clearly for the right party, and accordingly it is affirmed1.

Fox, P. J., and Burgess, J., concur.