author: GRAVES, P. J.

text:
    DRAINAGE DISTRICT NUMBER ONE OF BATES COUNTY, Appellant, v. BATES COUNTY.
    Division One,
    December 1, 1916.
    1. DRAINAGE DISTRICT: Assessment Against County: Lien on Public Roads. Whether or not an assessment against the county for benefits to the public roads resulting from the organization of a drainage district and the reclamation of lands therein can be made a Hen on such roads, is not for adjudication when the petition seeks only a general judgment against the county and does not ask for a Hen or the enforcement of a lien.
    2. -: Benefit to PubHc Roads: General Judgment Against County. The Legislature has power to authorize a drainage district to assess benefits against the county for improvements to public roads arising out of the construction of drains and levees, and to recover a general judgment against the county for the amount of such assessment, to be paid out of the county’s general revenue.
    3. -: -: -: Statutory Right. Assessments of benefits for a public improvement and the methods for their enforcement are purely creatures of statutes, and unless the statutes give to the municipality a right to a general judgment as a means of enforcing their payment it does not exist.
    4. -:-: Statutes Give Right to General Judgment: Any Adequate Remedy. Sections 5589, 5591 and 5599, when read in connection with the rule that where a statute creates a right, but is silent as to the remedy, the party entitled to the right may resort to any common law action that will afford him appropriate and adequate redress, give to a drainage district the right to a general judgment against the county to recover the amount of benefits assessed against the county for improvement to the public roads resulting from the construction of ditches, drains and levees. Section 5589 says that “all lands benefited by public ditch, drain, water course or levee shall be assessed,” and section 5599 provides a lien against the lands for the enforcement of the assessment against lands. Section 5591 says that when any ditch or levee benefits a public road “the viewers shall apportion to the county” its proportion of the cost of the improvement, but does not give a lien on the public road, but does authorize a suit for its collection; and while section 5599 constitutes all assessments “against all parcels of land and all public roads” a lien, it does not create the obligation, but simply provides a remedy, and that part of it which seems to make assessments against the county a Hen on public roads must be considered an inadvertence, because no provision is made for an assessment against the public road and no right against the road is created by any statute. But as the statute requires the benefit to public roads to be apportioned and charged to the county, if it fails to provide an adequate remedy for the right created the drainage district may invoke any appropriate remedy to enforce the right, and the usual and proper remedy is by a general judgment against the county.
    5. -: -: Enforcement of Benefits to Public Roads by Lien. The statute (Sec. 5599, R. S. 1909) does not undertake to make the benefits apportioned to the county for improvement to public roads resulting from the construction of drains and levees a lien on the roads. It really provides no remedy for the right created by section 5591.
    6. -: -: Suit: Limitations. The statute (Sec. 5599, R. S. 1909) by saying that a suit for unpaid benefits due a drainage district shall be brought within six months after the tax becomes delinquent, did not mean to bar a suit begun later than six months. The suit is not barred by limitations, as to any installment, if brought within five years after such installment became delinquent.
    Appeal from Bates Circuit Court. — lion. Charles A. Calvird, Judge.
    Reversed and remanded.

      Thos. J. Smith and W. T. Rutherford' for appellant.
    (1) The petition is sufficient. State ex rel. v. Blair, 245 Mo. 686; State ex rel. v. Wilson, 216 Mo. 2-86; State ex rel. v. Angert, 127 Mo. 458. (2) An assessment may be lawfully made against' a county on account of benefits accruing to the roads in the district. Laws 1905, p. 180; Sec. 5591, R. S. 1909; Wilkins v. Hillman, 1915 H. L, R. A. (Okla.) 254. (3) The taxes, or installments thereof, sued for in .this case, were not barred by the Statute of Limitations. R. S. 1909, sec. 1889; R. S. 1909, see. 11504; Turner v. Burns, 42 Mo. App. 94; Moberly ex rel. v. Hassett, 127 Mo. App. 11; State ex rel. v. Wilson, 216 Mo. 215; State ex rel. v. Wilson, 216 Mo. 303. The method of collecting delinquent taxes under the general revenue laws of the State, as set forth in article 8, chap. 117, R. S. 1909, for the year 1909, from sections 11482 to 11499, inclusive, was adopted and incorporated in article 4 of chapter 41, Revised Statutes of 1909, the article under which Drainage District No. 1 was organized and must apply in this proceeding. R. S. 1909, sec. 5600; State ex rel. v. Wilson, 216 Mo. 215; 2 Lewis’s Sutherland’s Stat. Const., sec. 405, p. 787, and note 27. The general Statute of Limitations must prevail unless superseded by some particular act sought to be invoked, and which takes the case out of the general statute, and then such statute so sought to be invoked will be strictly construed. Pleadwell v. Class Co., 151 Mo. App. 62; State ex rel. v. Musick, 145 Mo. App. 33. The collector is merely a trustee for the drainage district, and is not the real party in interest. State ex rel. v. Dumphey, 216 Mo. 293. The use of the words “the collector shall bring suit for all delinquent assessments thereof and interest thereon within six months after the assessment or installment thereof becomes delinquent,” in Sec. 5599, R. S. 1909, merely prescribes the official duty of the collector, and does not limit the time in which the action may be brought. The power to sue in six months is conferred. State ex rel. v. Wilson, 216 Mo. 215; R. S. 1909, sec. 5599; State ex rel. Black v. Taylor, 208 Mo. 452; R. S. 1909, sec. 11491; Words & Phrases Judicially Defined, p. 6468; Chickamanning Township v. Carpenter, 106 U. S. 663; State ex rel. v. Ringo, 42 Mo. App. 115. If to construe the word ‘ ‘ shall ’ ’ as mandatory is to work hardship or irreparable mischief, then it should be construed as being directory only. Words & Phrases Judicially Defined, p. 6468; City Sewage Utilization Co. v. Davis, 8 Phila. 625, 627; State ex rel. v. Taylor 208 Mo. 442; Holmes v. Royal Loan Assn., 128 Mo. App. 329.

      Dewitt C. Chastain for respondent.
    (1) The statute does not provide for a general judgment against the county but fixes a specific manner in which to enforce assessments under this act. Secs. 5591, 5599, 5600, R. S. 1909. (2) The public roads are not subject to sale under execution. State ex rel. v. Tiedeman, 69 Mo. 306; Clinton v. Henry County, 115 Mo. 557; Meriweather v. Garrett, 102 U. S. 472; 17 Cyc. 978. These authorities clearly demonstrate that property held in a governmental capacity, such as public roads, cannot be sold as it would be against the public policy; and that being true, the plaintiff is not entitled to a judgment in enforcing the tax bill, set out in its petition. (3) The Legislature having provided a means of enforcing this assessment, the remedy provided is exclusive. Carondalet v. Picot, 3 Mo. 125; State ex rel. v. Snyder, 139 Mo. 549; Phelps v. Brumback, 107 Mo. App. 25; State ex rel. v. Trust Co., 209 Mo.. 493; Clinton v. Henry County, 115 Mo. 557; Chandler v. Railroad, 251 Mo. 600; Stanton v. Thompson, 234 Mo. 11; State ex rel. v. Goodnow, 80 Mo. 271; Board of Comrs. v. Furnay, 99 N. W. (Neb.) 271; United States v. Jourden, 193 Fed. 988; City v. Madison County, 52 So. (Ala.) 326; Board of Freeholders v. Township, 54 Atl. (N. J.) 458. The respondents position is that a new right being created by this statute and the statute having expressly provided the manner for the collection of this tax that that method is exclusive. Sec. 5599, R. S. 1909. If it be contended that the remedy for the collection of this tax is inadequate, still the intention of the Legislature being clear to create no other liability, the court cannot construe the statute against the plain terms thereof, nor judicially legislate a remedy not provided or intended by the Legislature. City v. "Whipple, 71 Mo. 522; Cooley on Taxation, 198; Grimes v. Reynolds, 184 Mo. 688; State ex rel. v. Wilder, 206 Mo. 549; Nauman v. Drainage District, 113 Mo. App. 575. These taxing laws are to be strictly construed. Sutherland on Statutory Construction, sec. 362; State ex rel. v. St. Louis County, 13 Mo. App. 53, 84 Mo. 234; State ex rel. v". Macon County, 56 Mo. 126; State ex rel. v. Railroad, 87 Mo. 236; Noll v. Morgan, 82 Mo. App. 112. If the remedy is inadequate appeal should be to the Legislature, since this court has no authority to create a further remedy. Faribault v. Misener, 20 Minn. 396; McLean County v. Bank, 81 Ky. 254; Baldwin v. Hewett, 11 S. W. (Ky.) 803. (4) The liability, here created, is not a debt, upon which an ordinary action will lie. City v. Picot, 38 Mo. 130; City v. Brown, 98 Mo. App. 108; State ex rel. v. Snyder, 139 Mo. 553; Lane County v. Oregon, 74 U. S. 101; 37 Cyc. 1240. (5) A part, at least, of these taxes are barred by limitation. Section 5599 provides that the taxes shall become delinquent, if not paid on or before December 31 of each year and provides that the collector shall bring suit within six months after an assessment becomes delinquent. This suit was brought September 1,1914; so that in any event the taxes for 1908 are barred and if the provision requiring the bringing of the suit within six months is to be followed, then all of the taxes are barred.
   GRAVES, P. J.

In the brief here the plaintiff (appellant) very fairly outlines the case, thus:

“This is a suit by Drainage District No. 1 of Bates County against said county to recover certain installments of benefits assessed against said county for benefits accruing to the public roads of the county within the district.
“The district was organized under what is commonly known as the ‘ County Court Law, ’ now article 4, chapter 41, Revised Statutes 1909, and amendments thereto. The proceedings were had in the county court of said county and the order of incorporation was - made on February 7, 1906. Viewers and an engineer were duly appointed to determine the character and location of the improvements necessary to reclaim the lands in said district and assess the benefits that would thereby accrue to the lands and public roads therein and report thereon to the county court. A report was duly made by the viewers and engineer and afterwards confirmed by the county court, whereby benefits accruing to the county were assessed in the sum of $8993 to pay for executing the plan of reclamation.
“Bonds were issued in the sum of $540,000 to pay the expenses of making the necessary improvements.
“The assessments against the lands in the district and Bates County were by order of the court made payable in fifteen annual installments bearing interest at the rate of six per cent per annum.
“Afterwards said district was re-organized under what is commonly known as the circuit court law, section 52, Laws 1913, page 263. These installments of benefits if not paid on or before the last day of December of each year become delinquent and draw one per cent interest monthly.
“Bates County has refused to pay the assessments for the years 1908 to 1913, both inclusive.
“To appellant’s petition respondent filed a general demurrer which the court sustained. Appellant refused to plead further and its petition was ordered dismissed and appellant appealed. ’’

It should be added, in order that things be made plain, the petition seeks to recover a general judgment against the county, and does not seek to enforce a lien against the public roads involved. The prayer of the petition, which is as comprehensive as the petition, reads:

“WHEREFORE, The premises considered, the plaintiff prays judgment against the defendant, Bates County, for the aggregate amount of said assessments, with interest thereon from the respective dates when they became due and payable at the rate of one per cent per month, and for plaintiff’s costs in this behalf expended.”

We make this clear, because it simplifies issues, and eliminates a disputed question in this court. [Construction Co. v. Railroad, 240 Mo. 650, l. c. 656.] Points raised will be noted in the opinion.

I. It is said in defendant’s brief that “the public roads are not subject to sale under execution,” and for that reason the plaintiff is not entitled to a judgment enforcing the tax bill pleaded in the petition. This ques-ff°n’ if if were in the case, would be an interesting one, because this court, when the question was last before us, was much divided. [Construction Co. v. Railroad, 240 Mo. 650, 656.] Personally I adhere to the views expressed in the dissent in that case. That dissent is opposed to the views expressed in Construction Co. v. Wabash Railroad Co., 206 Mo. l. c. 188, cited by appellant.

In other words, I am of the view that public policy precludes a judgment to enforce a lien against a segment of a public highway or a railroad. But that question is not really in this case. The petition in this case does not seek such a judgment but on the contrary seeks a general judgment against the county. Plaintiff does not ask for a lien or the enforcement of a lien. Under the instant petition the only question is whether or not the plaintiff is entitled to a general judgment against the county for these assessments made for conceived benefits to the public roads of the county.

II. Nor need we stop to debate the question as to whether or not the Legislature may authorize the collection of these special assessments by a general judgment payable out of the general revenue of the county. Such assessments are not taxes in the general acceptation of that term, nor in the legal acceptation of that term. They are in fact and in law assessments made for benefits received by the property by reason of a public improvement. Much public property is exempted from ordinary taxes, but this does not argue much here. In our judgment the Legislature could say that public property may be benefited by public improvements, and could further say that for such benefits an assessment should be made, and the municipality be made to respond by a general judgment to be paid out of funds in the general treasury. Black, P. J., in City of Clinton ex rel. v. Henry County, 115 Mo. l. c. 570, so concedes. In that case, he, after reviewing our case law, and after holding that special assessments, under our law, can only be collected by enforcing the lien against the property, adds:

“ According to these adjudications, proceedings to enforce special tax bills are in the nature of proceedings in rem, and compulsory payment of the judgment can only be by a sale of the assessed property. As public property like that here in question cannot be sold on general or special execution, and as the Legislature has provided no other remedy than that of enforcement of the lien, it is quite evident that the statute in question does not apply to or include property owned by a county and used for governmental purposes.
“It is true the cases last cited were all suits against private property owners; and as it is within the power of the Legislature to malte property devoted to public uses liable for local assessments, and as it is contrary to public policy to permit public property to be sold, we may and do concede that the Legislature can provide for the payment of local assessments against public property out of the general treasury.”

That case was a carefully considered one, and whilst the suit, unlike the one at bar, did not seek a general judgment, yet the language used states the good sense of the thing and in our judgment is the law.

The only and vital question in the case at bar is whether or not the Legislature as to these assessments against a county has provided a right and a remedy in favor of the drainage district, which will authorize a general judgment, against the county, and one enforceable by general execution or other legal means, excluding, of course, the enforcement of a lien against the public roads. Of that question next.

III. A further proposition urged is not troublesome. In appellant’s brief, it is said:

“Whenever the statute or organic law creates a right, but is silent as to the remedy, the party entitled to the right may resort to any common law action which will afford him adequate and appropriate means of address.”

The foregoing is the generally accepted doctrine. The question in this case is, what right has been created by the Legislature. Assessments of benefits and their methods of enforcement are purely creatures of statutes. So whilst cases from other gtates may enlighten us as to the construction to be given to our own statutes, when such cases have arisen under similar statutes, yet primarily we must seek the right for a general judgment for such assessment from the terms of our own'statutes. If these give no such right, then we cannot read it into them. If the Legislature has failed to give the right, we cannot give it, for our duties are judicial, and not legislative. We are again driven to the question, what right has the Legislature given these drainage districts to collect special assessments hy a general judgment?

IV. Upon the question of the statutory right counsel for appellant cite us to section 5591, Revised Statutes 1909, which reads:

“When any ditch established under the provisions of this article drains, either in whole or in part, or benefits any public or corporate road or railroad, v^-e'w'ers shall apportion to the county, if a county or state or free turnpike road, or •£ a corporation road or railroad, to the company owning, operating or controlling the same, the same proportion of the cost of location and construction of the improvements in proportion to the benefits received as to private individuals.’ ’

On the other hand counsel for respondent cite us to section 5599, Revised Statutes 1909, the applicable portion of which reads:

“The assessment as made by the viewers and confirmed by the court, against all lots and parcels of land and all public or corporate roads and railroads benefited by the ditch . . . shall from the date of such confirmation of the report of the engineer and viewers, until paid, constitute a lien, . . . and shall be collected in the same manner as state, county and school taxes upon real estate are collected, and when collected the tax shall be by the collector paid over to the county treasurer monthly. The said tax shall become delinquent if not paid on or before the thirty-first day of December of each year and when so delinquent, shall bear interest at the rate of one per cent per month until paid and the collector shall bring suit for all delinquent assessments or installments thereof and interest thereon within six months after an assessment or installment thereof becomes delinquent.’’

We will for the purpose of discussion add to the foregoing the applicable portion of section 5589, Revised Statutes 1909, which reads:

“All lands benefited by public ditcb, drain, water course or levee, shall he assessed, in proportion to tbe benefits for the construction thereof, whether the improvement passes through said land or not, and the viewers, in estimating the benefits to land not traversed by such ditch, shall not consider what benefits will be received after some other ditch or ditches shall be constructed, but only the benefits that will be received by the construction of the public ditch, as it affords an outlet for the drainage of such land.”

The italics in all the foregoing are ours.

Going to section 5591, supra, it must be noted that the benefits, so far as a public road is concerned, are not assessed against the public road, but are to be apportioned to the county. Going back to section 5589, supra, as to the lands benefited, the benefits are to be assessed against the lands, for the statutes say that “all lands benefited . . . shall be assessed,” etc. In this there is a clear distinction between lands benefited and public roads benefited. In the one instance the obligation is placed upon the lands by an assessment against the lands and not apportioned to the owner of the lands. In the case of a public road the obligation ’is not assessed against the public road, but such obligation is, by law apportioned to the county. In the one instance the right to be enforced is against the land and not the owner, whilst in the other the right to be enforced is against the county and not the public road. Thus far the legislative intent would appear to be plain. And we will add that it remains plain, except in so far as it may be muddied by the expressions in section 5599, supra.

But we are inclined to the view that even this section 5599 does not muddy the waters. This section does not create the obligation, bpt it provides a means for the enforcement of the obligation. In other words it creates no right but simply provides a remedy. As to lands it properly creates an enf orceable lien, because the benefits have been assessed against the lands, and not apportioned to the owners. The real obligations are created by sections 5591 and 5589, supra, in he one against the county and in the other against the land.

It is true that this statute as to the remedy covers public roads as well as lands, but that does not change the fact that it is a statute' dealing purely with remedies and not rights. In other words, it does not create any obligations, but simply gives a means of enforcing the rights theretofore created. And it should be here added that the right or obligations theretofore created are rights in favor of the drainage district, and as to lands, rights against the lands and not the owners of the lands, but as to public roads there is no right in the drainage district against the public road, for the statute apportions the benefits to public roads to the county, and does not assess the public road at all. The right created in favor of the drainage district, so far as public roads are concerned, is one against the county, and not against the public-roads. This we have held the Legislature might do. [City of Clinton ex rel. v. Henry County, supra.]

Now whilst section 5599, supra, in providing a means to enforce the right of a drainage district against lands, also mentions public roads, such mention is evidently one of inadvertence, because no right as against the public road is created by any statute, but the only right is the one created against the county. As suggested in a previous portion of this opinion, the writer is of opinion that public policy would condemn a statute that authorized the establishment of a lien upon a public road for any purpose. But we need not pass upon that matter, because the right given to the drainage district is an obligation against the county, and not an assessment or obligation against the public road, as such. There could be no lien established against the public road, because the statute does not authorize the assessment to be against the public road. In this the two sections (Secs. 5589 and 5591) which create the rights are totally different. The first section, supra (5589), directs the assessment to be made against the lands for the benefits accruing to the lands, while the second section, supra (5591), directs that the benefits found as to public roads be apportioned to the county. In the one the right and proceeding is purely in rem, whilst in the other it is not. Without an assessment against the public road no lien could or should be established. If therefore the Legislature has failed to provide an adequate remedy for the right created, as we think is true, the drainage district may invoke any proper remedy to enforce its right. The general rule is truly stated in 1 Cyc. 706 thus:

“Where a new right or duty is created by statute, but no remedy is pointed out, the principle of the law that there can be no wrong without a remedy has application, and one entitled to the benefit of the statutory provisions may resort to any existing remedy that will afford him adequate and proper redress.”

This rule is so universally announced that citation of authority is not required. In the case at bar the statute (Sec. 5591) authorizes the benefits accruing to public roads to be charged to the county. There is no adequate remedy provided, and the usual remedy would be an action, as here, against the county. The statute does not authorize the benefits to be charged against the public road, but on the contrary to the county. The Legislature in providing the remedy as to lands evidently overlooked this fact, and inadvertently included public roads, but this inadvertence does not establish an adequate remedy, nor does it destroy the right created by section 5591.

As stated before we must be guided by our own statutes, and under them we conclude that there is a liability against the county in favor of the drainage district for benefits found so far as public roads are concerned, and further that this action is properly brought for a general judgment against the county.

V. Going a step further it should be said that there is no real foundation for saying that the Legislature undertook to provide that benea public road should be enforced by a lien as the payment of taxes are enforced. In that somewhat loosely drawn section (5599) we find this language:

“The assessment as made by the viewers and confirmed by .the court, against all lots and parcels of land, and all public or corporate roads and railroads, benefited by the ditch or other improvement, and interest on the amount of all such assessments, at a rate, not exceeding six per cent per annum, to be fixed by the county court at the time of its confirmation of the report of the engineer and viewers, or within three months thereafter, together with all costs-of collecting delinquent assessments or any installments thereof, including a reasonable attorney’s fee, to be fixed by the court and taxed as costs in the action brought to enforce a delinquent assessment or installment thereof, shall from the date of such confirmation of the report of the engineer and viewers, until paid, constitute a lien, to which only the lien of the State for state, county, school and road taxes shall be paramount, upon all of the lands assessed, and shall be collected, in the same manner as state, county and school taxes upon real estate are collected.’’

The italics are ours.

It is evident the word “assessment” in the first line of this statute is used in a very broad sense, but when the law-makers got down to the real creation of a lien and a means of enforcing it they made it a lien “upon all the lands assessed” and did not undertake to make the benefits apportioned to the county for public roads a lien at all.

It might be further suggested that the same reasoning would likewise exclude the idea that any remedy was intended by this section as to the collection of the benefits apportioned to the county for public roads. The only lien created therein is as against the “lands assessed” and the following section 5600, tells just how the liens created by section 5599 shall be enforced. Reading the two together, as we must, we fail to find that there is in section 5599 a remedy provided for the enforcement of the right created by section 5591, supra.

YI. Nor should the demurrer have been sustained because the assessments sued for were barred by the Statute of Limitations. The general rule in this State is that the statute does not begin to run until the JIT tt* j_t n t ^ tax has become delinquent under the law. [State ex rel. v. Wilson, 216 Mo. 291.] These assessments apportioned to Bates County would become delinquent on December 31st, each year. The statute reads:

“The said tax shall become delinquent if not paid on or before the thirty-first day of December of each year, and when so delinquent shall hear interest at the rate of one per cent per month until paid, and the collector shall bring suit for all delinquent assessments or installments thereof, and interest thereon, within sis months after an assessment or intallment thereof becomes delinquent.”

It is urg’ed.because this portion-of section 5599, above quoted, says the collector shall bring suit within six months, that therefore the action is barred after that time. The words should not be so construed. The statute does not say the action shall be barred. Had the law-makers intended so harsh a thing, they would have been more pointed in their language. It is evident that there was no intent to bar the action at the end of six months. It is more in the way of a direction to the collector, than it is a statute of limitation. With this point out of the way, we have not considered whether or not one or more installments may not he barred, because the demurrer is general and goes to the whole petition, and as to most of the items there is no bar, under our five-year Statute of Limitations. It is suggested that a least one item is barred, and if that is so, and the matter is properly raised, it can he eliminated on the trial. The judgment nisi is reversed and the cause remanded.

Blair, J., concurs; Bond,J., concurs in result; Wood-son, J., not sitting.- '


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    AMELIA HEBENHEIMER v. CITY OF ST. LOUIS, Appellant.
    Division One,
    December 1, 1916.
    1. FALSE TESTIMONY: Matter for Trial Jury and Court. Whether or not a witness testified falsely concerning a material issue is a matter for the determination of the trial jury and the trial court, and if they decline to discover perjury in his testimony the appellate court will not. Especially should such he the ruling where the motion for a new trial contains no complaint that he had testified falsely, the witness had at prior trials given substantially the same testimony, and there was nothing inherently improbable in it, although if true it would tend to shield a brother-in-law who is not made a party, and the notice he swears he gave was given to an officer who died prior to the first trial.
    2. TESTIMONY UNWORTHY OF BELIEF: Numerously Contradicted. The fact that many persons, without injury, passed over the coal hole in the sidewalk into which plaintiff fell, and that several of them testified positively that the cover was not defective, will not authorize the appellate court to say that the positive testimony of plaintiff and her witnesses that the cover was defective and too small was unworthy of belief. But the contradictory testimony simply made an issue of fact for solution by the jury.
    3. NEGLIGENCE: Coal Hole in Sidewalk: Structural Defect. The cover of a coal hole in a sidewalk, made to fit, not into an iron collar, but to rest upon a stone shoulder, which cannot be fastened from within and which tips when trodden upon, is such a structural defect as a city would not allow if it used reasonable diligence.
    4. -:-: Notice in Case of Structural Defect. If the defective cover of a coal hole in the sidewalk is a structural one, the city is charged with notice of the defect from the beginning.
    5. -: -: Actual Notice. Evidence that notice was given to a police officer while he was on duty on a beat which embraced the sidewalk in which there was a defective coal-hole cover, and evidence that police officers on duty on the beat examined the cover and testified that it was secure, is evidence of actual notice —the jury being free to reject the officers’ testimony that the cover was secure, and to find that when they made the examination they found the defective condition which plaintiff’s witnesses described.
    6. -: -: Contributory Negligence. The duty of a city is to use ordinary care, keep its sidewalks in a reasonably safe condition for travel, in all circumstances; and the duty of a pedestrian is to exercise ordinary care for her safety. But a pedestrian is not bound to look for hidden dangers; all that is required of her is that she walk with her eyes open, observing her general course and in the usual manner. And where there is evidence that while using such care she fell through a coal-hole in a sidewalk and was injured, the question of her contributory negligence is one for the jury to decide.
    7. -:-: Instruction; Reasonably Safe. An instruction which requires the jury to find that the sidewalk, at the time plaintiff ' stepped on the cover to a coal hole therein and fell through, was in “an unsafe, insecure and dangerous condition” is equivalent to a requirement that they find it was not reasonably safe.
    8. -: -: Similar Phraseology in Defendant’s. Defendant cannot complain of the phraseology of plaintiff’s instruction if instructions asked by him and pressed on the attention of the jury con- ■ tained the same phraseology.
    9. -: Measure of Damages: Married Woman: Diminishing Ability to Work. An instruction, on the measure of damages by a married woman whose ordinary vocation is that of a housewife, who sues for personal injuries, which includes as one of the elements of damage “the diminishing ability of plaintiff to work and labor,” is not erroneous.
    10. -: Defective Cover to Coal Hole: Evidence of Prior Slipping and Tilting. In a suit by a pedestrian to recover damages for personal injuries received when she fell through a coal hole in a sidewalk, alleged to be due to a defective cover, it is not error to admit evidence tending to prove that the coal-hole cover, prior to her injury, frequently had been observed to slip and tilt when passers-hy stepped upon it, no evidence that others had been injured thereby being admitted. Such evidence is competent to show the existence of a dangerous condition. [Following Charlton v. Railroad, 200 Mo. 1. c. 442, and overruling Goble v. Kansas City, 148 Mo. 470.]
    11. -: -: Evidence of Other Coal Holes. Where .no showing is made that the witness knew the condition of other coal holes in the city generally, and no showing is made of what the witness would have testified had he been permitted to ■ answer, the complaint that the trial court erred in excluding answers to questions propounded, on cross-examination, as to whether the coal hole which injured plaintiff was similar to coal holes generally in the city sidewalks, is not for adjudication.
    12. -: -: Ordinance Requiring Officers to Report Defects. It is not error, in a suit by a pedestrian for injuries due to a defect in a sidewalk, to admit in evidence the ordinances of the city defining the duties of police officers with respect to reporting defects in streets. Besides, the city cures the error, if there is any, by making independent oral proof of the duty of police officers to report defective sidewalks; and proving tire practice under the ordinance for the purpose of showing no defect was reported.
    13. -: Excessive Damages: $8388. The injury occurred ten year's prior to the trial; immediately • following the accident she was confined to her bed seven months, and many times since has been in like helpless condition for days; at the time of the injury she was thirty-five years old, strong and active and in good health; since she has almost constantly suffered great pain; cannot sit down or lie down for over an hour at a time, and does not.sleep well; her spinal cord was injured, so that her lower limbs are partially paralysed, and she cannot walk without crutches and not well with them; an operation could not be performed except at the risk of her life, and then without any certainty of benefit if she survived. Held, that a verdict for $8388 is not excessive.
    Appeal from St. Louis City Circuit Court.— lion. George E. Shields, Judge.
    Arriemed.

      Charles E. Danes, Truman P. Young and Everett Paul Griffin for appellant.
    (1) Where a fraud or deceit has been practiced by one party on the other, or the court is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters, and that the party has a just cause of action or of defense, it shall, on motion of the proper party, grant a new trial. R. S. 1909, sec. 2022; Standard Co. v. White Co., 122 Mo. 258; Lovell v. Davis, 52 Mo. App. 342; Hurley v. Connally, 186 Mo. 225; Parker v. Britton, 133 Mo. App.'270; Ridge v. Johnson, 129 Mo. App. 541. (2) When the testimony given by the plaintiff is unbelievable, the court may sweep said testimony aside. Fagg v. Railroad, 185 Mo. App. 79; Stotler v. Railroad, 204 Mo. 619; Walker v. Railroad, 193 Mo. 453; Huggart v. Railroad, 134 Mo. 673. (3) The construction and maintenance of a coal hole with the cover thereon is a perfectly lawful and proper use to be made of the public sidewalks. Carvin v. St. Louis, 151 Mo. 334; 28 Cyc. 1382 (c). (4) The tenant was liable for negligence in the maintenance of the coal-hole cover in question, if the evidence of the plaintiff is true. Kilrov v. Wackman, 242 Mo. 74; 4 Dillon, Mun. Corps. (5 Ed.), sec. 1725. (5) The city is not liable for a defective condition in a sidewalk of which it did not have actual knowledge, or which had not existed for such a length of time that the city, by the use of ordinary care and diligence, would have discovered same in time to have repaired the defect and rendered it safe prior to the date of the accident. Carvin v. St.' Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Reedy v. Brewing Assn, 161 Mo. 523; Kaiser v. St. Louis, 185 Mo. 366 ; Ryan v. Kansas City, 232 Mo. 471. (6) There was no evidence that the city ever had actual notice, nor is there any evidence of constructive. notice. (7) Notice to a police officer is not notice to the city, unless he was the officer walking the beat of the premises in which the alleged defective place existed. Carrington v. St. Louis, 89 Mo. 208; Willis v. St. Joseph, 184 Mo. App. 428 ; 6 McQuillin on Mun. Corps., sec.. 2810. (8) If there was any defect in the condition of the coal hole in question in this case, it was a latent defect and the city is not liable. Baustian v. Young, 152 Mo. 317; Carvin v. St. Louis, 151 Mo. 334; Franke v. St. Louis, 110 Mo. 516; Buckley v. Kansas City, 156 Mo. 16. (9) In this case the court should not have permitted plaintiff’s case to go to the jury because plaintiff was guilty of contributory negligence, as there was nothing to obstruct her view; it was high noon — broad daylight — and she did not look to see where she was going, when looking would have prevented the accident, if the coal hole cover was not in place. Ryan v. Kansas City, 232 Mo. 471; Wheat v. St. Louis, 179 Mo. 572; Coffey v. Carthage, 186 Mo. 573. (10) Evidence of other accidents from the same cause is not admissible in a suit against the city for damages on account of an alleged defect in a sidewalk. Goble v. Kansas City, 148 Mo. 475; King v. St. Louis, 250 Mo. 501; Smart v. Kansas City, 91 Mo. App. 504. (11) Instruction number one, the main instruction, is erroneous, in that it required a higher degree of care on the part of the city than the law requires. Horan v. Independence, 176 S. W. 1061; Ryan v. Kansas City, 232 Mo. 471; Barnes v. St. Joseph, 151 Mo. App. 528; St. Louis v. Kansas City, 110 Mo. App. 653. (12) Instruction number 19 is clearly erroneous as it permitted the plaintiff to recover for “the diminished ability of plaintiff to work or labor. ’ ’ This is an element of damage which her husband was entitled to recover for, as the evidence showed that at the time of the injury to her, her duties were purely of a household character. The inability of plaintiff to perform her household duties in the future was a loss to him and not to her. Wallis v. Westport, 82 Mo. App. 523.

      H. A. Loevy for respondent.
    (1) This point, that Kuehn committed perjury in testifying that he told Officer Regan about the dangerous cover and that therefore the verdict should be vacated, cannot be considered, (a) Because it is not made in the motion for new trial, (b) Such a point is addressed peculiarly to the discretion of the trial judge who saw and heard the accused witness testify. (2) If landlord leases with dangerous coal hole in sidewalk and tenant permits it to remain, both landlord and city are liable. Marion v. Kansas City, 74 Mo. App. 138; Fehlhauer v. St. Louis, 178 Mo. 647-8. All three are liable for a nuisance irrespective of negligence. Memphis v. Miller, 78 Mo. App. 67. Landlord is liable with city, not because he is the owner, but for his negligent omission to perform duty imposed by law (citing Benjamin, 133 Mo. Mo. 274, coalhole case). Perrigo v. St. Louis, 185 Mo. 274; Mancuso v. K. C., 74 Mo. App. 138; Reeds v. St. Louis, 161 Mo. 533-4. City cannot shift liability to either landlord or tenant. Benton v. City, 217 Mo. 709. City is liable even if ignorant of defect. Shippey v. Kansas City, 254 Mo. 21. The city should not allow such a loose cover to be in the sidewalk at all. Campbell v. Ckillicothe, 239 Mo. 461.
   BLAIR, J.

Respondent fell into a coal hole in a sidewalk in St. Louis, and this appeal is from a judgment for $8388. she recovered against the city for damages. for injuries she suffered.

There was evidence tending to show that while respondent was walking in front of 1006 Olive street, one of the principal streets of the city of St. Louis, she stepped upon the cover of a coal hole; that the cover tilted and she fell into the opening, sustaining serious injuries ; that the sidewalk was granitoid except a block of stone about three and one-half feet square, through which the coal hole had been cut; that the cover of the coal hole was a round iron plate; that an opening in the stone was cut down about the thickness of this plate and then a “shoulder” of stone was left upon which it was intended this plate should rest; that the diameter of the plate was about an inch less than the diameter of the opening in the stone above the shoulder upon which the plate or cover rested, and thát the shoulder, itself was about an inch across; that- for several years before respondent was injured, and as far back as respondent’s witnesses had observed the place, the coal-hole cover had been seen to slip and tilt and slide out of place when stepped upon; that there was a hole in the center of the plate and an iron pin therein, but there was no fastening or appliance designed to hold the plate or cover in place; that one police officer on the beat had been notified directly of the condition of the coal hole; that other officers on the beat had examined the coal hole a number of timos; some of these, testifying for appellant, said they examined the coal hole but found it secure. There was also evidence that the pin through the center of the cover whs placed therein for the purpose of holding the cover in place by means of a wooden bar through which the $in was designed to run and which was held against the /lower side of the stone by a nut upon the lower end of the pin. There was evidence pro and con upon the question whether any such bar had been in use during several years prior to the time respondent was injured. Numerous errors are assigned.

I. It is urged the record indicates Kuehn testified falsely concerning the notice he said he gave Officer Reagan of the defective condition of the coal-hole cover, and then it is insisted this should work a reversal the judgment and a remandment of the cause. The motion for new trial makes no complaint of this sort. Kuehn was testifying some ten years after the injury to respondent occurred and previously had given substantially the same testimony several times. There was ample opportunity to investigate the truth of his story. There was nothing inherently improbable in it. The fact that the officer he claimed to have notified died prior to the first trial and the fact that Kuehn*s brother, tenant of the'property, was not joined as a defendant, do not necessarily render Kuehn’s testimony untrue. His credibility was for the jury and the trial court, and doubtless the argument now made to us was pressed upon their attention with a view to destroying the weight of his testimony before the jury. This was its proper function. With the witness before them neither trial judge nor jury seem .to have detected perjury.

II. It is insisted the testimony of plaintiff and her witnesses is unworthy of belief and that the judgment should be reversed for this reason. In support of this contention the case of Fagg v. Railroad, 185 Mo. App. l. c. 84, 85, is cited. This was a case in which the court applied the rule\ that one who is injured on a railroad crossing 'and testifies he kept a lookout for approaching trains wdll be held guilty of contributory negligence, despite his testimony, when the situation was such that he must ha\ie seen the train which injured him if he looked at al|That rule is not applicable here. The fact that manj\ persons passed over the coal hole without injury and that'. several testified positively the cover was not defective ' and the testimony of plaintiff and her witnesses as to the defective condition thereof simply made a question of fact for solution by the jury.

III. Another contention is that the defect was a latent one and that the city had no actual notice and that the exercise of ordinary care would not have brought it notice thereof. The cases cited in support of ^his Position have previously been dealt with in circumstances very like those confronting us on this record. [Drake v. Kansas City, 190 Mo. l. c. 379 et seq.] The defects complained of in this case are sufficiently like those in the Drake case to make the rule there applied applicable here. So far as notice is concerned, the defect being a structural one, the city is charged with notice from the beginning. [Drake v. Kansas City, supra, l. c. 384.] Further, had it been necessary, there is evidence of both actual and constructive notice. So far as concerns the evidence tending to show that a method of fastening the coal-hole coyer was provided, that is disposed of by the principle announced by the Supreme Judicial Court of Massachusetts in dealing with a case in which the testimony showed a fastening had been provided like that appellant contends was in use in this case. That court in Keating v. Boston, 206 Mass. l. c. 330, 331, said:

“If it were impossible to construct a coal-hole cover which would not tip up when stepped upon unless fastened from within, a different question would be presented from that which we have to pass upon. But it is a matter of common knowledge that coal-hole covers set in iron collars, although unfastened, remain firm and in place when trodden upon. Sewer covers and the covers of other manholes leading to conduits under public streets cannot be fastened from within and for that reason are always — or at least almost always — -set in an iron collar, and when so set do not tip up when trodden upon.
“The city had notice that the coal hole was in the sidewalk. That made it its duty to use due diligence to protect the traveling public from that hole, and the question is whether it has used due diligence, if the only protection against the hole is a cover which will tip up if stepped upon unless fastened; or, to state it in another way, the question is whether in the exercise of due diligence the city can allow such a coyer to remain, relying on the occupant of the abutting house to fasten it. We can have no doubt that in case of the covers of manholes in the street which cannot be fastened from within a finding would be warranted that a cover which tipped up when trodden upon was a danger which a city would not allow if it used reasonable diligence. The question is not what view we take upon the question which arose in the case, but what view a jury could take upon it. We are of opinion that a jury is warranted in finding that a coal-hole cover which when trodden upon will tip up unless fastened is so likely to be unfastened that a city which used reasonable diligence after it had or in the exercise of proper care might have had notice of this condition would not allow it to be there at all.”

This case was cited with approval in Campbell v. Chillicothe, 239 Mo. l. c. 461.

It is said notice to police officers was not notice to the city under the rule in Carrington v. St. Louis, 89 Mo. 208; Willis v. St. Joseph, 184 Mo. App. 428, and Haxton v. Kansas City, 190 Mo. l. c. 67, because it was not shown such officers were the officers on duty on their beats at the time. In the first place, the contention is disposed of by the fact that the defect was of structural character, and, therefore, the city is held to have had notice from the beginning, as already pointed out. Again, there was evidence tending to show notice was given Eeagan while he was assigned to this beat and while he was in uniform, and there is evidence he wore his uniform only when on duty. Further, there was evidence police officers on duty on the beat examined this coal hole. They testified it was secure. The jury were free to reject this part of their testimony and find that when they made the examination they found the condition respondent’s witnesses described. There was ample evidence of actual notice, aside from that implied from the character of the defect respondent contends caused her injury.

IV. It is contended respondent was, as a matter of law, guilty of contributory negligence. Tbe city’s duty was to use ordinary care to keep the sidewalk in a reasonably safe condition for travel, in all the circumstances. Eespondent’s duty was to exercise ordinary care for her own safety. She was not, however, “bound to look for hidden dangers.” All that was required of her was that she walk with her eyes open, observing her “general course and in the usual manner.” [Earl v. Dlask, 126 Iowa, l. c. 365.] The question whether respondent exercised proper care was for the jury.

V. An instruction for plaintiff told the jury, in sub-. stance, that if they found Olive Street to be a public street, improved as already described, and found the sidewalk contained a coal hole, constructand covered as above substantially set forth in the statement, and that it had been in place several years, and that respondent, in the use of ordinary care for her own safety, was walking along the sidewalk and stepped on the coal-hole cover and it slipped or tilted, and that thereby she was caused to fall and was injured and that “the cover or lid of said coal hole was at that time in an unsafe, insecure and dangerous condition;” and that the city knew or by the exercise of ordinary care would have known of the existence of said loose, unsafe, dangerous and insecure cover in time, by the exercise of ordinary diligence, to have made it safe and secure before plaintiff was injured, then the jury should find against the city.

It is urged the instruction required the city to make the sidewalk absolutely safe and secure, and fails to set out “correctly the duty of the city as to its sidewalks, namely, to keep them in a reasonably safe condition for travel in the ordinary modes by persons exercising ordinary care.” Such is counsel’s position.

If the jury found the coal hole and, therefore, the sidewalk to be in “an unsafe, insecure and dangerous” condition, this was equivalent to a finding that it was not reasonably safe. [Squiers v. Kansas City, 100 Mo. App. l. c. 631.] Other cases in the briefs support this view and show that this court has frequently assumed it to be correct. Another consideration is that appellant asked and secured instructions containing the same phraseology; and, further, other instructions pressed upon the attention of the jury the rule upon which appellant relies. The objection made is not tenable. The authorities cited by respondent fully support this conclusion.

VI. In the instruction on the measure of damages, given on its own motion, the trial court included as one of the elements of damage “the diminished ability of plaintiff to work and labor.” It is contended this is not an element for which a marrie¿ woman can recover. The cases cited hold (1) that recovery for loss of earnings cannot be permitted in the absence of evidence tending to show that such a loss resulted from the injury (Davidson v. Transit Co., 211 Mo. l. c. 346) and (2) impairment of ability to attend to the duties of her ordinary vocation (that of housewife) cannot be made the basis of recovery by a married woman. [Wallis v. Westport, 82 Mo. App. l. c. 527, 528.] The question was not involved in the Davidson case and is settled against appellant in Perrigo v. St. Louis, 185 Mo. l. c. 288 et seq., in which the Wallis case is discussed.

VII. Appellant contends it was error to admit evidence tending to prove the coal-hole cover, pripr to the time of respondent’s injury, frequently had been observed to slip and tilt when passers-by stepped upon it. No eyidence any other person had been injured thereby was admitted. Appellant relies upon Goble v. Kansas City, 148 Mo. 470. The holding in that case is directly contrary to what was subsequently said in Charlton v. Railway, 200 Mo. l. c. 442, is opposed to the rule adhered to by the Supreme Court of the United States (District of Columbia v. Armes, 107 U. S. 519) and to that previously announced by the Kansas City Court of Appeals (Golden v. City of Clinton, 54 Mo. App. 100) and to the great weight of authority elsewhere. Besides, the evidence admitted in this case disclosed no previous injuries to anyone, but did tend to show that the effect of stepping upon the coal-hole cover was to cause it to slip and tilt, and, consequently, to show the existence of a dangerous condition. Globe v. Kansas City, 148 Mo. 470, in so far as it conflicts with this view, is overruled.

YTIt. Appellant complains that the court excluded answers to questions propounded to Mr. and Mrs. Kuehn, on cross-examination, as to whether the coal hole which injured plaintiff was similar to coal holes generally in place in the city sidewalks. No showing was made that the Kuehns knew the condition of other coal holes in the city generally, nor do counsel assert that the record shows what the witnesses would have said had they been permitted to answer. In such circumstances it is not necessary to discuss the question whether evidence as to other coal holes was admissible.

IX. There was no error in admitting the ordinances of the city defining the duties of police officers with respect to reporting defects in streets. The objection made to this that the city is not liable for damages for the violation of its ordinances seems to arise out of a misconception of the purpose for which the ordinances were offered. In addition, appellant made independent oral proof by its witnesses of the duty of officers to report defective sidewalks, proving the practice under the ordinance and proving it for the purpose of showing no report was made, relying upon the absence of a report as evidence tending to show there was no defect in the coal hole. The point is ruled against appellant.

X. Finally, it is insisted the damages are excessive. This case was tried several times. The trial resulting in the judgment from which this appeal was taken occurred about ten years after respondent was injured. Immediately following her fall, she was confined to her bed for seven months or more. Many times thereafter she was in a like helpless condition for days. When injured she ivas thirty-five years old and a strong, active woman in good health. Thereafter she suffered great pain almost constantly and was unable to remain in any one position for any considerable time. She could not sit or lie down over an hour at a time. She did not sleep well. Her spinal cord was injured so that her lower limbs were partially paralyzed and she could not walk without crutches and not well with them. Needles stuck into her limbs caused her no pain. There was evidence tending to show that an operation could not be performed except at the risk of her life and then without any certainty of benefit to her in case she survived; that her injuries were permanent and that she had grown worse, as time went on, instead of better. Her back pained her almost constantly and quite severely. As to her injury and its effect upon her, respondent is corroborated by numerous witnesses, professional and lay. The great weight of the evidence supports her claim that she has suffered a very serious injury which has crippled her for life and continues to cause her continuous suffering without much hope of its alleviation in the future. In these circumstances, the judgment cannot be said to be excessive. It is affirmed.

All concur.