author: GRAVES, J.

text:
    CITY OF ST. LOUIS v. CAROLINE E. CALHOUN and JOHN R. CALHOUN, Appellants.
    Division One,
    July 1, 1909.
    1. CONDEMNATION: Amendment of Charter: New Suit. An amendment to the city charter which does not change hut continues the substantive law relating to the condemnation by the city of private property for a public use, but relates only to matters of procedure, does not require the city to dismiss a suit already begun for the condemnation of private property for a public alley, and to begin a new suit. The property-owner has no vested rights in matters of procedure.
    2. -: Necessary Parties. Property-owners in the block, whose lands are not taken, but against whom benefits are to be assessed, are not necessary parties defendant in a suit by the city to condemn land for a public alley.
    3. -: Notice. The notice given by the city counsellor to the parties whose property was affected by the condemnation proceeding, setting forth the time and place for the assessment of benefits, is set out in paragraph 3 of the opinion, and is field to be in all things sufficient.
    4. -: Damages. Where the evidence is conflicting as to the amount by which the defendants’ property was damaged by the construction of the public alley, the award of damages allowed will not be set aside on appeal as inadequate, unless it is flagrantly inadequate.
    5. -: Both Benefits and Damages. It was proper in awarding to defendants damages for land taken for a public alley through their property to charge their property with reasonable benefits also. The charter contemplates, in case of alleys, that each lot abutting on the alley will be considered separately.
    Appeal from St. Louis City Circuit Court. — Hon. W. M. Kinsey, Judge.
    Affirmed.

      John W. Calhoun and Bernard Greensfelder for appellants.
    (1) The charter provisions under which this action was instituted having' been repealed and there being no saving clause providing for the continuation of suits pending at the time of the adoption of the amendment, the proceedings must fail. Had the revised charter intended that all proceedings should continue for alley or street openings instituted prior to the date of the amendment going into effect, a saving clause like that under article 16, section 4, of the Scheme and Charter, would have been inserted. Com. v. Marshall, 11 Pick. 350'; Com. v. Kimball, 21 Pick. 373; Norris v. Crocker, 54 U. S. 440; U. S. v. Tynen, 78 U. S. 88; Barton v. Incorporation of Gadsden, 79 Ala. 495; Naylor v City of Galesburg, 56 111. 285; In re Town of Rutherford v. Swink, 96 Tenn. 564; City of Burlington v. Estlow, 43 N. J. L. 13; Kansas City v. Clark, 68 Mo. 588; Yall v. Gillham, 187 Mo. 393; City v. Stoddard, 15 Mo. App. 178. (2) Though a subr sequent statute be not repugnant in all its provisions to a prior one, yet if the latter statute was clearly intended to prescribe the only rules which are to govern, it repeals the prior one. Davis v. Fairharn, 44 U. S. 636; U. S. v. Barr, 4 Sawy. 254; State v. Conk-ling, 19 Cal. 501; Gorham v. Luekett, 45 Ky. 146. The amendment of a statute operates as an absolute repeal of the old statute or section so amended even if the amendment takes nothing from the old law, but merely adds a proviso in certain cases. Billings v. Hurvey, 6 Cal. 381; Hoffman v. Hall, 102 Cal. 26; State v. Duval Co., 23 Fla. 483; Breitung v. Lindmer, 37 Mich. 217; In re Prime, 136 N. Y. 347; State v. Andrews, 20 Tex. 230 ; State v. Ingersoll, 17 Wis. 631. (3) The right of eminent domain is construed with the utmost strictness. Ells v. Railroad, 51 Mo. 200; Belcher Sugar Co. v. Grain Co., 82 Mo. 121; State v. Fanelly, 36 Mo. App. 282. The statute authorizing it must he strictly adhered to, and every prerequisite to the exercise of jurisdiction observed. Leslie v. St. Louis, 47 Mo. 474; Belcher Sugar Co. v. Grain Co., 82 Mo. 121; St. Louis v. Glensin, 89 Mo. 67; State v. Fanelly, 36 Mo. App. 282; Four v. Hope, 48 Mo. App. 254. (4) If city counselor’s notice is not in compliance with the city charter and municipal ordinances and all defendants were not served personally, or by ordinary order of publication, judgment is void. 2 Lewis on Eminent Domain (2 Ed.), sec. 367; City v. Roch, 169 Mo. 591; In re Central Park, 51 Barb. 277; State v. City of Elizabeth, 32 N. J. L. 357; Amackinbusch v. District of Columbia, 20 D. C. 308; "Williams v. Kirby, 169 Mo. 622; Simmons v. Dardiner, 6 R. I. 255. (5) The city can only acquire jurisdiction of the proceedings to lay out a highway by a strict compliance with the statutory directions, and no consent of the applicants for the highway or the persons through whose lands the same is laid out can validate the proceedings or estop them from questioning their validity, if the city has failed to comply with the statutory requirements. Ruhland v. Supervisors of Hazel Green, 55 Wis. 664; Austin v. Allen, 6 Wis. 134; York County v. Fewell, 21 S. C. 106; State v. Marble, 26 N. C. 318, (6) Where proceedings under a former law had been commenced and a warrant to the sheriff to summon a jury had been issued, but nothing further had been done, when a later act took effect, the city had no authority to proceed any further. Wade v. St. Mary’s Industrial School, 43 Md. 178; Asphalt Paving Co. v. Ullman, 137 Mo. 543. (7) The exceptions to the commissioner’s report should have been sustained for the reason that the award of the commissioners was not sufficient to properly compensate- the appellants for the damages sustaind by them, and for the further reason that no benefits should have been assessed against these parties.

      Charles W. Bates and James G. MeConkey for respondent.
    (1) The report of commissioners in a condemnation proceeding to open a highway should not be set aside unless the trial court is clearly satisfied that the commissioners have erred in the principles on which they made their appraisals, and unless the damages awarded by the commissioners were so flagrantly inadequate or excessive as to justify an interference by the court there is nothing for review, and their report should not be disturbed. What is here. said of the damages awarded applies with equal force to the benefits assessed. St. Louis v. Lannigan, 97 Mo. 178; Railroad v. Richardson, 45 Mo. 468; St. Louis v. Brown, 155 Mo. 567; St. Louis v. Abeln, 170 Mo. 324; 2 Lewis on Eminent Domain (2 Ed.), sec. 524; Mills on Eminent Domain, 246. Unless mistake, fraud, prejudice, or passion manifest themselves in the rendition of a verdict, the Supreme Court will not interfere in law cases by weighing the evidence on which the verdict is found, especially where the evidence is conflicting. St. Louis v. Lannigan, 97 Mo. 178; St. Louis v. Abeln, 170 Mo. 324; St. Louis v. Brown, 155 Mo. 567; Fulkerson v. Mitchel, 82 Mo. 22; Grove v. Kansas City, 75 Mo. 676; Krider v. Milner, 99‘ Mo. 145; St. Louis v. Lane, 110 Mo. 260; Mills on Eminent Domain, 246. (2) The city counselor’s notice in this case is in compliance with the charter and municipal ordinances. The block in which benefits are to be assessed is not only named by number, but bounded by the surrounding streets. Sec. 878, Revised Code of St. Louis (Woerner,1907); St.Louis v. Brinckwirth, 20'4 Mo. 304; St. Louis v. Rankin, 96 Mo. 506; St. Louis v. Koch, 169 Mo. 591. In a proceeding to establish and open an alley, the benefit district is defined by the charter, and confined to the block in which the alley is opened. Sec. 5, art. 6, charter of St. Louis; St. Louis v. Brinckwirth, 204 Mo. 304; St. Louis v. Rankin, 96 Mo. 506; St. Louis v. Koch, 169' Mo. 591. (3) It was not necessary to make all the persons who owned property in the block defendants in the condemnation petition in this case, irrespective of whether or not their land was to be appropriated. or damaged, but only such persons whose property was to be taken or damaged should have been made parties defendant in said petition. St. Louis v. Rankin, supra; St. Louis v. Brinckwirth, supra. (4) The changes made by the amendments in the mode of procedure, as set out in article 6 of the charter, were not such as to necessitate the dismissal of this suit. When the Constitution gave to the city the right to provide by charter for the condemnation of private property for public uses, it left to the city the right to prescribe in its charter and ordinances the manner in which the courts and parties should proceed when such property is to be appropriated for public uses under said charter provisions. K. C. v. Marsh Oil Co., 140 Mo. 472; State ex rel. v. Field, 99 Mo. 357. The mode of procedure provided for in the charter to govern in condemnation proceedings brought thereunder is found in sections 1 to 11, inclusive, of article 6 thereof. These are sections some of which were amended by the amendments of 1901. This mode of procedure takes the place of the general laws of the State relative to such proceedings, so far as it is in harmony with and subject to the laws of the State. K. C. v. Oil Co., 140' Mo. 472; State ex rel. v. Field, 99 Mo. 357; 1 Lewis on Eminent Domain (2 Ed.), sec. 247; Uwchlan Township Road, 30 Pa. St. 157; Hickory Tree Road, 43 Pa. St. 143; Rosenfeldt v. Railroad, 180 Mo. 564; State v. Jackson, 105 Mo. 199; Duncan v. Mo., 152 U. S. 382; Thompson v. Mo., 171 U. S. 388.
   GRAVES, J.

By Ordinance No. 20280 the Municipal Assembly of the city of St. Louis established a fifteen-foot alley through City Block No. 1307, the south line of said alley to be one hundred and thirty-five feet south of the south line of Geyer avenue. City Block No. 1307 is bounded on the north by Geyer avenue; on the south by Allen avenue; on the west by Longfellow boulevard, and on the east by Nebraska avenue. Defendant, Caroline E. Calhoun, is the owner of lots 1, 2, 23 and 24 in said city block, which are used as one tract and in one inelosure, having a fifty-foot front on Geyer avenue. Back forty feet from the building line there is situated a double house of two stories and a basement, forty-two feet in width, each side having ten rooms and a basement. These houses extend back to within about thirty-four feet of the proposed alley and the back steps to within about 22.5 feet of said proposed alley. The steps extend 11.5 feet further south than the walls of the house. To the south and west of the house and flush with Longfellow boulevard is a shed twelve by thirty feet, in which are located closet vaults for use from the downstair rooms of the two houses, there being toilet rooms on the upper story of the house. The proposed alley takes the northern portion of this shed and the northern portion of the vaults therein. The rear portion of the tract of four lots was used as a yard in connection with the houses, and was set with trees and shrubery, a portion of which would be taken by the proposed alley. The width of the tract, as above stated, is a fraction over fifty feet on Geyer avenue, and the depth a fraction over two hundred and seventy-one feet. Originally the tract was the same width on Allen avenue, but in the construction of Longfellow boulevard, the south end of the tract was reduced to a width of about thirty-five feet, a portion being taken off of lot 24, which at that end was originally twenty-five feet and now a fraction more than ten feet. Lot 23 was left intact at the construction of the boulevard.

Under said Ordinance No. 20280, the city of St. Louis proceeded under the provisions of article 6 of its charter to condemn property for this alley by proceeding in the circuit court. After the proceeding was begun and before final disposition of the matter the city charter was amended in several particulars.

Defendant, John R. Calhoun, is the husband of Caroline E. Calhoun. In the proceeding a strip of fifteen by fifty feet through defendants ’ property was condemned. The damages were assessed at $961.66 and the benefits at $79.50, leaving the net damages $882.16. These appealing defendants filed exceptions to the report of the commissioners as did also other defendants interested, which exceptions being by the court overruled, the Calhouns appealed, but the others abided the action of the court, nisi.

For a reversal of the judgment the defendants urge (1) that upon the amendment of the charter, the cause should have been dismissed and reinstituted under the new charter and that a failure so to do left the court, nisi, without jurisdiction; (2) that the damages allowed are wholly inadequate; (3) that there was no legal right to assess benefits, and the property was not benefited in fact; (4) that the city counselor’s notice to the parties setting the time and place for the assessment of damages and benefits was insufficient, and (5) that the petition did not contain the names of the property-owners in the block, both those whose property was taken and those whose property was not taken.

It will be well to here state that through the eastern portion of the block there was a private alley already in use. This sufficiently states the facts.

I. Going to the first contention of the defendants, it will he seen that they urge that certain sections of article 6 of the city charter were amended between the time this proceeding was instituted and the final adjudication therein, and that for this reason the action must fail. They, say that after these amendments the action should have been dismissed and another action reinstated under the amended charter, and this because there was no saving clause providing that pending actions under the old charter should be continued under the new charter. Counsel have pointed out the particular words added or the particular words stricken out of the old charter by the amendments of 1901. We hardly think it necessary to reproduce the old and new provisions of these sections in article 6 for the reason that each section thus pointed out relates merely to the matter of procedure, in cases of condemning private property for public use. The power to condemn is conferred by section 26 of article III of the charter, and this section is not amended. ' The right to levy, assess and collect the funds with which to pay for private property thus appropriated is contained in said section 26 of article III, so that it will be seen that the substantive law was the same throughout the proceeding. The right to condemn private property for public use, and the right to provide funds for the payment thereof was in no wise changed, and the changes made in the matter of procedure were mostly inconsequential.

An eminent authority, Lewis on Eminent Domain, vol. 1, p. 582, thus states the rule of law applicable to cases where the change of law goes only to matters of procedure: “The effect of a change or amendment of statute pending proceedings under it must depend largely upon the circumstances of the particular case. If the right to condemn or the jurisdiction of the particular court or tribunal before which the proceedings are pending is taken away, the .proceedings must necessarily fall to the ground; but if there is simply a change in the mode of procedure, then they may be continued under the new statute.”

A party litigant has no vested rights in mere matters of procedure. He may and often does have vested rights under substantive law, but the Legislature has the right to regulate matters of procedure, and such regulations do not affect any vested rights of party litigants. Such has been our rulings and they conform to universal precedent. [State v. Jackson, 105 Mo. 196; State v. Taylor, 134 Mo. 109; State v. Duestrow, 137 Mo. 44; Clark v. Railroad, 219 Mo. 524.]

But it is contended that these sections of the city charter were repealed and new sections were enacted in lieu thereof and, that there was thereby a total repeal of the old law. As stated above the new sections re-enacted the greater part of the old sections. In places words were added and in other places words were stricken therefrom. If these statutes relate to procedure merely as we have concluded, the discussion of this question is not required, because it might be conceded that vital changes had been made, which is not true in this case, and yet there would be no room for complaint and this for the reason that no vested rights of the party litigant' would be affected. So long as there remains a right to condemn private property and a right to levy, assess and collect funds from which to pay for such property, the substantive rights remain the same, and changes in matters of procedure, whether by amendment or new acts, do not affect the substantive right, or perhaps more properly speaking the right given by substantive law. In Lewis’ Sutherland on Statutory Construction (2 Ed.), sec. 674, it is said: “If before final decision a new law as to procedure is enacted and goes into- effect, it must from that time govern and regulate the proceedings. But the steps already taken, the status of the case as to the court in which it was commenced, the pleadings put in, and all things done under the late law, will stand unless an intention to the contrary is plainly manifested; and pending cases are only affected by general words as to future proceedings from the point reached when the new law intervened.”

. This case was begun under rights and powers given the city by its charter, which rights were in no way changed by the amendments. We do not think there is substance in this contention of the defendants and it is ruled against them.

II. Another contention is that certain property-owners whose lands were not to be taken, but against whom benefits were to be assessed, were not brought into the circuit court by summons and for this reason the proceeding is void.

This question was fully determined some years ago in the case of the City of St. Louis v. Ranken, 96 Mo. l. c. 507. In that case a party against whom benefits were assessed urged that he should have been made a party to the condemnation suit by summons from the circuit court, and that a mere notice from the city counselor for him to appear at the time and place fixed for the assessment of benefits was insufficient. In that case we then said: “It is not necessary that he should be made a party defendant by petition and summons in the condemnation proceedings. It is sufficient if he is made a party defendant to the tax-assessing branch of the proceedings, by the appropriate and characteristic notice usually given to the taxpayer, provided for in the charter and ordinances, and an assessment made in strict conformity to their requirements is a valid assessment.”

And in the late case of St. Louis v. Brinckwirth, 204 Mo. l. c. 303, we disposed of the same question in this language: “In the case at bar defendants claim that the proceeding is void for two reasons: First, they say that they were not parties to the condemnation suit, and for that reason the entire proceeding is void. This contention is not good. None of their property was to be taken or was in fact taken. Their property simply abutted on one of the alleys to be established. Had the alleys required the appropriation of any part of their land, then they should have been made parties to the condemnation branch of the proceeding. Otherwise they did not have to have notice of this suit. [City of St. Louis v. Ranken, 96 Mo. 497.]”

It therefore follows that this contention must likewise be ruled against the defendants.

IH. Neither is there force in another contention urged, to .the effect that the notice given by the city counselor was insufficient. The notice questioned thus reads- '

“St. Louis, May 15, 1902.
“To Whom it May Concern, Take Notice:
‘ ‘ The Commissioners, in the matter of opening an alley in City Block 1307, under Ordinance No.' 20280, will meet at room 234, City Hall, on May 22, 1902, at 3 p. m., for the purpose of assessing benefits occasioned by said opening, and all parties interested are invited to be present; when and where they have the right to be heard, and may except to the Commissioners’ report before the Circuit Court when it is filed.
"The taxing district for said opening includes the property within the following described boundaries:
"North by Geyer Avenue.
"South by Allen Avenue.
“East by Nebraska Avenue.
“West by Longfellow Boulevard.
“Chas. W. Bates,
“City Counselor.”

It will be observed that this notice not only gives the block, constituting the benefit district, but gives the boundaries thereof. The street upon each side is given. This notice is unquestionably sufficient. [City of St. Louis v. Koch, 169 Mo. l. c. 591; St. Louis v. Brinckwirth, 204 Mo. l. c. 304.]

IV. Further it is contended that the damages allowed are wholly inadequate. There were, as above stated, two sets of exceptions filed to the commissioners’ report in this case. These defendants excepted, as also did certain parties against whom benefits were assessed. Defendants urged in their exceptions the gross inadequacy of the damages allowed. The other exceptors urged that such damages were excessive. Evidence was heard which was conflicting. Among the witnesses were the three commissioners. Under such circumstances we do not feel that the damages allowed were so grossly inadequate as to authorize a disturbance of this judgment upon the-report of the commissioners. We have as a rule declined to interfere where the evidence is conflicting. [City of St. Louis v. Lanigan, 97 Mo. l. c. 178; City of St. Louis v. Brown, 155 Mo. l. c. 567; City of St. Louis v. Abeln, 170 Mo. l. c. 324.]

In the later case, supra, we quoted with approval the following language from Cape Girardeau v. Dennis, 67 Mo. 438: “This court, however, will not ordinarily review the action of the circuit court in such cases ’when the testimony is conflicting. It is only when the damages are flagrantly excessive or inadequate that we will interefere. ”

In the Lanigan case, supra, it is said: “Besides, in cases of the sort now under consideration, it is to be observed that the judgment of the commissioners is not formed exclusively upon evidence submitted to them; they are required to review the premises, and they have the advantage of an. actual personal inspection; and they are to be guided to some extent by that. Selected because of their capacity and fitness for the position they are called upon to fill; required to be disinterested; sworn to a faithful discharge of .the duties imposed upon them, their report should not be set aside but upon satisfactory grounds; the testimony of witnesses as to value, whether heard before the commissioners, or subsequently by the court, on exceptions filed, though entitled to due consideration, is not controlling; and ‘unless the court is clearly satisfied that they have erred in the principles upon which they have made their appraisal, there is nothing for review and their report should not be disturbed.’ [Railroad v. Richardson, 45 Mo. 466; Railroad v. Campbell, 62 Mo. 585.] ”

We should not disturb' the judgment for the reason as thus urged by defendants. An examination of the testimony does not show such a state of facts as to authorize our interference under the rules expressed by our former cases.

Y. Lastly it is contended that there should have been no assessment of benefits. It must be remembered that the plaintiff owned four lots, two fronting north and two fronting south, and this alley was run between the two sets of lots.

The charter provision as to assessments of damages and benefits is found in section 5 of article 6, which section reads: “It shall be the duty of the commissioners to ascertain the actual value of the land and premises proposed to be taken, without reference to the projected improvement and actual damages done to the property thereby, and for the payment of such values and damages to assess against the city the amount of benefit to the public generally, and the balance against the owner or owners of all property which shall be especially benefited by the proposed improvement in the opinion of the commissioners, to the amount that each lot of said owner shall be benefited by the improvement. The sums to be paid by the owners of property especially benefited by the improvement, as ascertained by the commissioners, shall be a lien on the property so charged, and shall be collected as provided by ordinance, and when collected shall be paid into the city treasury as a separate fund to be used exclusively for the payment of the damages awarded. Provided, however, that in the opening of an alley the benefits shall be paid by the owners of property in said block abutting on the proposed alley.”

It will be noticed that the charter itself fixes the benefit district in cases of alleys, and that benefit district includes all property abutting on such alley. There are no persons except those whose property may be taken coming within the benefit district. In this particular case there being an established alley for a portion of the distance through the block, some persons were interested in this proceeding who did not have property appropriated. But this provision applies to ail cases. Each lot must be considered separately. This was done in this case. There was evidence tending to support the commissioners’ report.

This is not the first appearance of this question in this court. In City of St. Louis v. Wetzel, 110 Mo. l. c. 263, Judge Barclay, said: “An alley had previously been opened from Miller street, part way through that block; and the taking of the strip of land mentioned would prolong the original alley as a passage way through the entire block from Miller to Barry street. The strip was alleged to belong to Mr. Thomas. The commissioners valued it at $820, and. assessed ‘benefits’ partly against his adjoining property, and partly against the property of the appealing defendants, which abutted on that portion of the alley previously opened ‘in said block.’ Judge Valliant, who tried the present case, held that mode of assessing ‘benefits’ correct. We entirely coincide in Ms judgment on that subject for the reason given in City of St. Louis v. Lane, ante, p. 254.”

It will be observed that in the Wetzel case the strip of ground for the alley was taken out of the property belonging to one Thomas, and benefits were assessed against his, Thomas’s, adjoining property, as in the case at bar. That mode of assessing benefits is held correct.

In fact where the benefit district is limited to the abutting property, as in case of an alley, no other mode could be adopted, and have a benefit district at all, where the alley is being put through the entire block. Under our holdings there was legal right to assess benefits, and without more than there appears in this recoikl, we should not disturb the result.

Finding no error in the record, the judgment should be and is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    JAMES DOWD v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    July 1, 1909.
    INSTRUCTION: Contributory Negligence. An instruction for the defendant street railway that does not limit the passenger’s conduct contributing to his injury to a negligent act, but tells the jury that, notwithstanding defendant’s negligence, plaintiff cannot recover “if by his own act or conduct he in any degree directly contributed to his own injury,” is error. Under it the jury could not find for plaintiff if he was injured in attempting to get off of the car, though he was in no manner negligent.
    Appeal from Jackson Circuit Court. — Hon. John G. Park, Judge.
    Affirmed.

      John H. Lucas and Ben. T. Hardin for appellant.
    (1) The court erred in setting aside the verdict and granting a.new trial in this cause, on the ground that instruction 5 was error; said instruction correctly-declared the law. Boyd v. Railroad, 10'5 Mo. 371; Bartley v. Railroad, 148 Mo. 124; Holwerson v. Railroad, 157 Mo. 216; Moore v. Railroad, 176 Mo. 528; Hesselbach v. St. Louis, 179 Mo. 505; Felleny v. Railroad, 106 Mo. App. 154; Ross v. Railroad, 113 Mo. App. 600; Wallack v. Railroad, 123 Mo. App. 160; Green v. Railroad, 211 Mo. 18. (2) There is no allegation that there was any extraordinary or unusual movement of the car; and the testimony of plaintiff himself, and also that of his witnesses, 'shows that the movements of the car were just the usual and ordinary movements. The case should not have been submitted to the jury; and upon the pleadings and the evidence, the verdict of the jury was for the right party, and, therefore, it was error for the court to set the verdict aside, no difference if the instruction was erroneous. Sullivan v. Railroad, 133 Mo. 1; Bartley v. Railroad, 148 Mo. 124; Holwerson v. Railroad, 157 Mo. 216; Moore v. Railroad, 176 Mo. 129; Wagner v. Edison Co., 177 Mo. 60; Hesselbach v. St. Louis, 179 Mo. 505; Quinn v. Railroad, 218 Mo. 545.

      Boyle, Guthrie, Howell & Smith for respondent.
    The court granted a new trial because of instruction numbered 5, given at the instance of defendant, because the court had therein instructed the jury in the last sentence of such instruction that plaintiff could not recover “if he by his own act or conduct in any degree directly contributed to his own injury.” This instruction did not limit the act of plaintiff contributing to the injury to a negligent act, but absolved defendant if any act of plaintiff, negligent or otherwise, directly contributed to the injury. Of course, the acts of plaintiff directly contributed to the injury. Under this instruction, there was but one possible verdict, a verdict for defendant.
   WOODSON, J.

This suit was brought by plaintiff in the circuit court of .Jackson county, for the purpose of recovering $5,000 damages for personal injuries sustained by him in consequence of the alleged negligence of defendant in suddenly starting its car forward while he was in the act of alighting therefrom, and thereby throwing him with great force and violence to the ground and inflicting the injuries complained of.

The trial resulted in a verdict and judgment for defendant, and the motion for a new trial was sustained by the court for the reason assigned — that it erred in giving for defendant instruction numbered five. Prom the order of the court granting the new trial, the defendant properly appealed.

The evidence for plaintiff tended to show that he was a passenger upon the car in question; that when it neared his destination he signaled the conductor of his intention to alight, and walked to the steps of the car, holding to the railing; and that while in the act of alighting the car suddenly, without warning, made a quick forward movement and a lurch to the side, thereby throwing him to the ground and injuring him.

The evidence for defendant contradicted that of plaintiff, and tended to show contributory negligence on the part of plaintiff.

The issues were submitted to the jury under the instructions of the court, none of which are complained of excepting said instruction numbered 5, which reads as follows:

“5. You are further instructed that in this case, the mere fact, if true, that plaintiff was injured by falling from a car of defendant, gives bim no right to sue defendant and recover damages. Before, under any circumstances, plaintiff is entitled to a verdict, you must believe and find from tbe greater weight of all the credible evidence in the case that his injury was actually caused by the negligence of the defendant’s servants as he has specified in his petition and in the manner submitted to your consideration. If his injuries were not actually caused by such specified negligence, then he has no case and cannot recover, even if he did fall while getting off of the car and was injured thereby. But even if you should find that he was injured by such negligence, still the plaintiff cannot recover if he by his own act or conduct in any degree directly contributed tó his own injury.”

I. There is but a single question presented by this record, and it challenges the correctness of instruction numbered five given for the appellant. Counsel for respondent contends that said instruction did not properly declare the law applicable to the facts of the case, and for that reason it should not have been given, and consequently, the court properly granted a new trial because of its error in giving it. Upon the other hand, counsel for appellant insist that said instruction properly stated the law to the jury, and that there was no error in giving it, consequently the court erred in granting a new trial for the reason assigned..

Clearly, that instruction did not correctly declare the law. The last clause thereof told the jury that plaintiff could not “recover if he by his own act or conduct in any degree directly contributed to his own injury. ’ ’

It will be observed by reading the instruction that it did not limit the act or conduct of respondent contributing to his injury to a negligent act, but absolved appellant from all liability if any act of respondent, whether negligent or otherwise, directly contributed to his injury.

Under this instruction the jury could very properly have found for the defendant, simply because he walked to the steps of the car while it was in motion, and that, too, without first finding that his conduct in that regard was negligence on his part. The last clause of this instruction differentiates it from all of those given in the cases cited by counsel for appellant and relied upon as sustaining their contention in this case.

We are, therefore, of the opinion that the court did not err in granting a new trial.

The judgment is affirmed.

All concur, except Valliant, J., absent.


author: LAMM, P. J.

text:
    MICHAEL OHLMANN, Appellant, v. CLARKSON SAW MILL COMPANY et al.
    Division One,
    July 1, 1909.
    1. ORDER OF PUBLICATION: Abbreviated Christian Name: Mike Ohiman for Michael Ohlmann. In notice by publication the defendant should be accurately designated by his true name. And where the patentee and record owner was Michael Ohlmann, and as a non-resident he was sued for back taxes as “Mike Ohiman,” and was so described in the petition, taxbill, order of publication and judgment, the court did not have jurisdiction, and the judgment and sale were void. And in this connection it is significant (1) that Ohlmann is German, and that “Mike” has scant application to Germans and scant usage among them; and (2) that there is no evidence that Michael Ohlmann was known anywhere as “Mike” Ohiman.
    2. -: -: “Mike” is not an abbreviation at all, accurately speaking. It; is a nickname, a corruption, a mere diminutive— a name given in derision or sportive familiarity.
    Appeal from Reynolds Circuit Court. — Hon. Jos. J. Williams, Judge.
    Reversed and remanded (with directions).

      B. I. January, Arthur T. Brewster and Sam. M. Bretoster for appellant.
    The court erred in admitting the sheriff’s tax deed in evidence for the following reasons: (a) Because the judgment in the tax proceeding on which it depends for its validity was not against the record owner of the land, (b) Because it purported on its face to convey the interest of “Mike Ohlman” when “Michael Ohlman” was shown by the evidence to be the record owner of the land on the date of the institution of the tax proceedings, (c) Because the petition, taxbill, order of publication and judgment in the tax proceedings on which said deed is based named the defendant therein as “Mike Ohlman” which is an insufficient petition and order of publication to give the court jurisdiction to render a judgment against, or the sheriff valid authority to sell, the land of “Michael Ohlman.” R. S. 1899, sec. 9303; Simonson v. Dolan, 114 Mo. 176; Burkham v. Manewall, 195 Mo. 500; Turner v. Gregory, 151 Mo. 100; Becker v. Ins. Co., 68 111. 412; Maynohan v. People, 3 Colo. 367; McGill v. Weil, 10 N. Y. Supp. 246.

      Binning & Binning for respondents.
    At the trial appellant relied solely upon the legal proposition that a suit for taxes brought against Mike Ohlman would give the court no jurisdiction against Michael Ohlman, nor would the court have jurisdiction to render a judgment for taxes against the land in question the title to which stood in and remained in Michael Ohlman. In this opinion and position the appellant was in error. Fenton v. Perkins, 3 Mo. 145; Weaver v. McElhenon, 13 Mo. 91; 21 Am. and Eng. Ency. Law (2. Ed.), 309; 17 lb. 897; Mosley v. Matson, 37 Ala. 216; Goodall v. Hall, 112 Ga. 436; Jones’ Estate, 27 Pa. St. 338; Rupert v. Penner, 35 Neb. 687; McGregor v. Balch, 17 Yt. 562; Sparks v. Sparks, 51 Kan. 195; People v. Ferguson, 8 Cow. (N. Y.) 106; People v. Tisdale, 1 Dougl. (Midi.) 59; Com. v. O’Baldwin, 103 Mass. 210; Walter v. State, 105 Ind. 5891; Sowl v. Sowl, 10 Pick. (Mass.) 376; Com. v. Terry, Í14 Mass. 263; Shelburn v. Rochester, 1 Pick. (Mass.) 470; People v. Armstrong, 114 Cal. 570; Ogden v. Gibbons, 5 N. J. L. 598; Trimbill v. State, 4 Blackf. (Ind.) 438; State v. Johnson, 67 N. C. 57.
   LAMM, P. J.

Suit under section 650, Revised Statutes 1899. Plaintiff, a resident of Illinois, sued the Clarkson Saw Mill Company (joining divers other parties as codefendants) in the Reynolds Circuit Court to quiet title to the south half of section 35, township 32, range 2 — the sawmill company alone making defense.

Judgment went in favor of that defendant on the southwest quarter of said section and, as to the southeast quarter, dismissing the cause. Plaintiff comes here.

The petition alleges, inter alia, that the sawmill company claims under a quitclaim deed from certain Cartys and others. The answer of that company was a general denial, barring an admission that it held an adverse claim to the southwest quarter and an allegation that it owned the southwest quarter by a fee simple title. It pleads a misjoinder of causes of action, admits the quitclaim deed by the Cartys, but denies it makes any claim to the southeast quarter under that deed.

Plaintiff introduced a patent from the United States to the south half of said section 35, of date September 1, 1859, recorded December 7, 1866. This patent runs to “Michael Ohlmann.”

Defendant, over objection and exceptions saved, introduced a tax deed from Harrison, sheriff of Reynolds county, dated May 29,1879, purporting to convey the south half of section 35 to G. J. Carty. Sundry objections were made below to this tax deed and are now pressed. But unless it is necessary to develop and determine other phases of the case, we need heed but one, viz.: that the deed does not purport to convey the title of Michael Ohlmann, patentee, but runs against the title of “Mike Ohlman.” Carty’s bid was $16 for the half section and the land was knocked down to him for that sum. Whether this sheriff’s deed was put of record does not appear.

Supplementing that deed with evidence that certain Cartys and others were the sole heirs of G. J. Carty, the sawmill company introduced a quitclaim deed of date September 5, 1903, conveying to it the title of said heirs in the locus.

Thereupon plaintiff read into the record the petition, authenticated taxbill, made a part thereof, order of publication and judgment in the tax suit — from all which it appears that the suit was instituted in 1878 in the name of the State to the use of Carter, collector of revenue in Reynolds county, against “Mike Ohlman” as owner of a certain nine hundred and sixty acres of land, including said south half, for delinquent taxes; that the back taxbill certified the owner’s name to be “Mike Ohlman;” and that the order of publication ran against “Mike Ohlman” as a non-resident. The judgment followed the petition, back taxbill and order of publication in that particular.

No possession is alleged or proved by either side.

Waiving, for the present, all other questions raised on the record (some of them of no little gravity) we confront the first, viz.: Did Michael Ohlmann’s title as patentee pass by a sheriff’s deed purporting to convey the title of “Mike Ohlman,” when the deed is based on a judgment for taxes on constructive service with no appearance by defendant — the petition, order of publication and judgment describing the owner as “Mike Ohlman¶’’

(a) The question goes to jurisdiction and due process of law. No man may judicially lose his property without his day in court. A day in court proceeds on notice. So, due process of law and jurisdiction depend on notice. By Revised Statutes, section 9303, it is ordained that tax suits shall be brought “against the.owner of the property.” By this is meant the record owner unless the fact is known, or the purchaser have notice that the record owner is not the true owner. When summons is actually served on the right individual by the wrong name, the error becomes immaterial because he has notice of the suit and may appear if he choose and plead a misnomer. But absent actual notice when the law for convenience substitutes a constructive notice, the name of the individual defendant obviously becomes one of the essentials and of the very life of the notice. “Names are like definitions in mathematics, though less exact,” says Woodward, J., in Jones’s Estate, 27 Pa. St. l. c. 338. “The use of names (he continues) is to describe the individual of whom we- speak, so as to distinguish him from all other persons.”

(b) There will be found a variety of cases decided by us giving voice to the gravity and significance of accuracy in the use of the Christian name of a defendant where his land is sought to be taken from him through jurisdiction acquired in a suit by constructive notice. Thus, the settled doctrine has come to be that the use of the initials of the Christian name is not sufficiently accurate for such purpose. [Gillingham v. Brow, 187 Mo. 181; Evarts v. Lumber and Mining Co., 193 Mo. l. c. 449 et seq.; Burkham v.Manewal, 195 Mo. l. c. 506 et seq. and cases cited.] The rule is relaxed where estoppel has play — for instance, where the record title was taken by the owner in the initials of his Christian name, and he was served by such initials. [Elting v. Gould, 96 Mo. l. c. 541.] There is a ease (Mosely v. Reily, 126 Mo. 124), seemingly Holding against the general rule, but that case itself was finally sustained only on the theory of estoppel. [Turner v. Gregory, 151 Mo. l. c. 106.] Use of initials in procuring a license to marry and in being married in accordance with the license was held to create an estoppel so that a judgment of divorce granted against defendant on publication identifying him by his initials was held valid. [McDermott v. Gray, 198 Mo. 265.]

There is a line of cases holding that the law recognizes only one Christian name and that some freedom may be taken with the initial of a middle name. [Howard v. Brown, 197 Mo. l. c. 46 et seq.; Morrison v. Turnbaugh, 192 Mo. l. c. 445 et seq.] But in the last case the true name of the defendant appeared in the petition, the affidavit for an order of publication and the order itself. The trouble arose by clerical slip in the judgment. In the Howard case, where the defendant’s name was Henry P. P. Brown and he was sued as Henry T. Brown, significance was given to the fact that his name was grouped with his mother, his sisters and his nephews, comprising the immediate Brown family to which he belonged — thus identifying him in that way. These cases in nowise militate against the rule that in notice by publication the. defendant should be accurately designated by his true name.

If the law tolerated slovenliness or pranks in this regard then slovenliness and pranks might ripen into a custom and open the door to great mischief. Constructive service at best is harsh. It is service not in substance and fact, but of a sort to which the name of service is attached from necessity. That method of service, being highly technical, must be strictly pursued. Thus it was said in the Turner case, supra, l. c. 103: “Where resort is had to this method, a substantial, even rigid, observance of tbe law is required, otherwise the judgment will he void” (citing cases). And in the Morrison case, supra, it was held that “constructive service must be viewed critically in order to prevent, so far as can be, irreparable injury.” And this rule of strictness was applied in each case directly to the use of the true name of the defendant.

The Turner case has met the approval of this court many times. It is a landmark in the law and establishes the proposition that in constructive service the real record name of the landowner, the name in which he took title (as distinguished from the colloquial name he was known by the neighborhood of the land and to which he answered among those who knew him) should be used in designating him in an order of publication in a tax suit. Turner’s record name was Singleton V. Turner. By that name he was designated in the deed by which he took title, his name appearing there no less than four times. Though grantee, he signed that deed by that name. The “V” in his name stood for Vaughn. While a resident of Missouri he lived in Holden, say, fifteen miles from the land. In Holden he was usually called “Vaughn Turner.” He went by that name in the neighborhood of the land. He was known as Vaughn from his youth up. When he went to California and took up a residence there, he continued to be called Vaughn. He was sued for taxes as “Vaughn Turner.” That name runs through the whole record — petition, order of publication, judgment and deed. In business transactions he usually signed his name “S. V. Turner.” It was held that the deed was void and that ruling and the reason underlying it apply vehemently to the case at bar.

(o) We are cited to many cases by counsel for defendant in which the right party has been sued and served with process but in which profert has been made of some document signed with, an abbreviated name or in which it has been urged there was a variance between the proof and allegation arising from misnomer, etc. But none of those cases touch the vital point of jurisdiction and due process of law. For instance :

In Fenton v. Perkins, 3 Mo. 24, a question arose whether a certain oral contract called for a note signed by John Mickle. The contention was the contract called for one signed by John McMickle. It was ruled that McMickle might be bound under a note signed as Mickle, but that defendant had no right to impose on plaintiff the risk of proving that Mickle was intended for McMickle. In discussing the case it was held that abbreviations of men’s given names are so common that, without any violation of the laws of the land, the courts may take judicial notice of them. It will be seen that the question in that ease arose on the sufficiency of the evidence to identify the subject-matter of the contract.

In Weaver v. MeElhenon, 13 Mo. 89, the suit was on a note and defendant was sued by his true Christian name, Christopher. But the note was set forth in the petition and it was signed “Christy” or “Christ” MeElhenon. The defendant demurred. It was ruled that the defect, if any, could not be reached by demurrer, but by a motion to exclude the note as evidence on account of variance. The court' also ruled that the signature to the note was a well known abbreviation of Christopher, and the logic of the ruling was simply that Christopher, if he liked, could dub himself “Christy” or “Christ” and by signing his name that way bind himself on a note when impleaded under the name of Christopher.

In Moseley’s Admr. v. Mastin, 37 Ala. 216, an abbreviation, “admr.,” was used in the complaint. Exception was taken to that and the court held “admr.” meant “administrator.”

In Goodell v. Hall, 112 Ga. l. c. 436, it was ruled that “judicial notice will he taken of the ordinary and commonly used abbreviations and equivalents of Christian names.” That language must be read with the case, viz.: Eliza M. Hall held title to certain land. She made application under the Georgia statutes to have it set apart as a homestead, signing the application “Elizabeth M. Hall.” Subsequently she mortgaged the land as Eliza M. Hall. The mortgage being foreclosed, she made claim that her homestead was not subject to mortgage. This, because' her application to have it set apart as a homestead had been sustained. In offering the application in evidence it was objected to because made by “Elizabeth M. Hall.” The court ruled that. Eliza was an abbreviation of Elizabeth and, if not so, that at least parol evidence was admissible (and was admitted) to show the identity of Elizabeth M. with Eliza M.

In the Jones’s Estate, 27 Pa. St. supra, a judgment was recovered against Abel Jones. It was entered on the lien docket against “A. Jones.” Other judgments were obtained against Jones and entered on the lien docket. The real estate of Abel Jones was sold at sheriff’s sale and, on making distribution between judgment creditors, the auditor disallowed the judgment entered on the lien docket in the name of “A. Jones.” Proof was made that Abel Jones signed his name in no other way but “A. Jones” and that there was no other Abel or A. Jones in the county. It was ruled on appeal that the object of the docket entry was to give the public notice who was bound and that the entry was sufficient.

In Rupert v. Penner, 35 Neb. 587, the proposition was announced that a deed correctly describing the grantor as Archibald T. Finn, with an acknowledgment designating the grantor as Archibald T. Finn and identifying him as known to the officer to be the person whose name is affixed to the instrument and who ex-edited the same, and which deed was signed “Arch T. Finn,” was sufficient to convey the title of Archibald T. The question arose over the admission of the deed in evidence. [See in this connection Houx v. Batteen, 68 Mo. 84.]

McGregor v. Barnabas D. Balch et al., 17 Vt. l. c. 567, was a scire facias upon a recognizance. The defendant pleaded nul tiel record. At the trial plaintiff gave in evidence a record of the recognizance in which Balch’s Christian name is set forth as “Barney D.” Objection was made to this evidence. The court ruled that there was no controversy but that “Barney” and Barnabas are used for the same name and that as defendant was known by the name of “Barney” as well as Barnabas, the objection was properly overruled.

In Sparks v. Sparks, 51 Kan. 195, a question arose on a motion to quash a deposition. The notice to take specified the place as the office of “Dan Ray.” The deposition was actually taken at the office of Daniel E. “Wray. Wray was identified in the notice as an “attorney at law of Versailles, Missouri.” There was no claim made there was any other person of that name or sounding like his in that place, or that the parties were misled. In view of that fact and of the further fact that “Dan” is an abbreviation of Daniel and that Ray and Wray are idem sonans, a motion to quash was held properly overruled.

Other cases cited are of a similar character and none go to the point of due process of law or jurisdiction, or in any wise impugn the reasoning of Turner v. Gregory.

(d) We cannot find it ever ruled by any respectable court that “Mike” is a universally known abbreviation of Michael. We are asked to take judicial cognizance that it is a universally recognized equivalent of that name. We decline to do so. It is sometimes used flippantly to designate any one, as in the eolioquialism, “Sure Mike,” or in the other, “Are you Mikeí” or, “You think you’re Mike.” But this figurative and slangy use is too broad and proves too much.

We are of the notion there is something Celtic about “Mike ” — a tang or flavor of the old sod — and that its usage among Teutons is either malapropos, mythical or scant. The name “Michael Ohlmann” is self-evidently German, and we have no call to judicially determine “Mike” as applicable to a nationality not shown to have adopted its use at the fireside as part of the mother tongue.

In this connection it is not without some appreciable weight that there is no evidence tending to show that Ohlmann was known as “Mike” where he lived in Illinois, or in Missouri where his land lay, or that he answered to that name or tolerated such easy familiarity. So far as we can see it is left to the tax officers and circuit court of Reynolds county to be the first to joke or trifle with his name — this, too, when engaged in enforcing tax laws, serving him with summons and solemnly enforcing the State’s lien and separating him from the ownership of his estate (no joking matter, withal), and when the records of Reynolds county showed his title was got and held in the name of Michael.

(e) Michael is a baptismal name sacred in meaning and hallowed by sacred legends — witness: Saint Michael, Michaelmas, or the great archangel whose prowess is vouched for in accredited annals of those dim wars seen by the mind’s eye of the blind Milton, in which the Great Enemy of Mankind, thrust forth by his sword, pitched headlong flaming, so that (as the record runs):

‘ ‘ From morn
To noon he fell, from noon to dewy eve, A summer’s day; and with the setting sun Dropp’d from the zenith, like a falling star.”

It ill becomes tbe law, moving with dignity and venerating sacredness, to deal in flippant vein with snch a name as Michael, literally in Hebrew, “Who is like Grod?”

If we were to hold that an order of publication might deal with those abbreviations in names commonly known to all men, yet “Mike” is not an abbreviation of Michael any more than of Micah, Micaiah, Micha, Miehah, Michaiah, Michal, or others mentionable. But “Mike” is not an abbreviation at all, accurately speaking. It is to all intents and purposes a mere diminutive, a nickname — a corruption. Now, nicknames are in a sense nicked names — names that are snipped, whittled off. They are names given in contempt, derision or sportive familiarity- — a familiar or opprobrious appellation. [Webster’s International Diet., tit. “Nickname.”] As such appellations they have no place in those judicial publications of notice by which courts acquire jurisdiction. Otherwise we would have Amelia Jones notified by an order of publication directed to “Sis” Jones; or William Brown under the title of “Bub” or “Bill” or “Buck” Brown; or, if the hypothesis be indulged that the master sculptor and painter were alive and so fortunate as to own real estate in Missouri, he would be brought in under the name of “Mike” Angelo; or Winfield Scott (in like hypothesis) under the name of “Fuss-and-Feathers” or “Hasty-Plate-of-Soup” Scott; or Thomas H. Benton as “Old Bullion” Benton.

But we have pursued the matter far. We think the deed was void because the Eeynolds Circuit Court never acquired jurisdiction over Michael Ohlmann. This view of the matter precludes the necessity of considering other questions made.

The judgment is reversed and the cause remanded with directions to enter a judgment in favor of plaintiff adjudging title in him to all the land in his patent.

All concur.