author: BURGESS, J.

text:
    ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. LENORE P. PFAU, Appellant.
    Division Two,
    May 19, 1908.
    1. CONDEMNATION: Report of Commissioners as Evidence. It is error to permit to be read to tbe jury tbe award or report of tbe commissioners in a condemnation proceeding.
    2. -: Report: Exceptions: Jury Trial. Upon the filing of tbeir report by tbe commissioners, and tbe filing of exceptions thereto by the landowner, tbe landowner is entitled to a jury trial to determine tbe amount of damages, as of course, and without any order of court sustaining or overruling tbe excep- . tions, and that, too, though tbe railroad company may have paid into court for the landowner tbe amount of tbe commissioners’ award and be may have received tbe amount. [Overruling Railroad v. Roberts, 187 Mo. 309.]
    3. -: -: Instructions. Where tbe jury is called to assess tbe damages in a condemnation proceeding, tbe instructions should not tell tbe jury to consider tbe award of tbe commissioners already paid by tbe railroad company. Nor should they tell tbe jury that it devolves on tbe landowner to show that tbe award was inadequate, nor that tbe verdict should be tbe difference, if any, between tbe award of tbe commissioners and any increased damages they may believe tbe landowner has sustained. Tbe jury has nothing to do with tbe commissioners’ award. It is tbeir duty to assess tbe damages from tbe evidence, and if tbeir verdict shows damages in excess of tbe award of tbe commissioners, it is tbe duty of the railroad company, if that award has been paid and received, to call tbe court’s attention to that fact, and to have tbe judgment to be for tbe difference between tbe verdict and tbe award; or if the verdict is less than tbe award already paid and received, tbe landowner should be adjudged to refund tbe excess.
    4. -: Fire: Depreciation. Tbe instruction on tbe question of danger by fire to defendant’s buildings and a possible depreciation of tbe land by reason thereof, should not tell tbe jury that they are “not to consider such element of damages at all unless tbe buildings or other property are in proximity to tbe railroad.” Diminution in tbe value of tbe landowner’s land, including tbe buildings thereon, by reason of tbe location and construction of tbe railroad through the land and tbe consequent increased risk of fire from passing locomotives, is an element of damages.

      5. -; Removal of Buildings. The landowner is not entitled to compensation for buildings on the land condemned which the railroad company, as it had a right to do, removed at its own expense, the landowner retaining possession thereof. The measure of damages in such case is not the value of the buildings before removal, but the damage, if any, which the property sustained in being removed.
    Appeal from Lawrence Circuit Court. — Hon. F. G. Johnston, Judge.
    Reversed and remanded.

      Henry Brumback and Joe J. Manlove for appellant.
    (1) The report of the commissioners afforded no standard for measurement of damages by .the jury, but defendant is entitled to a trial de novo by a jury uninfluenced by the opinion of the commissioners. Constitution of Missouri, art. 2, sec. 21; art. 12, sec. 4; R. S. 1899, sec. 1268; Railroad v. Roberts, 187 Mo. 316; Wellington v. Railroad, 33. N. E. (Mass.-) 393; Brown v. Railroad, 71 Mass. 35. (2) The mere fact of filing written exceptions by defendant, superseded the report of the commissioners, and entitled defendant to trial de novo by jury, without any- order of court to such effect. Constitution of Missouri, art. 12, sec. 4; Railroad v. Miller, 106 Mo. 461; Railroad v. Elliott, 108 Mo. 322; Railroad v.. Bates, 109 Mo. 53; Thompson v. Railroad, 110 Mo. 160; Rothan v. Railroad, 113 Mo. 142; Railroad v. McG-rew, 113 Mo. 393; Railroad v. Story, 96 Mo. 620'. (3) It was error to refuse defendant’s instruction 5, which directs that, in estimating her damages, the jury shall pay no attention to or take into consideration in any way the award of the commissioners; and to give plaintiff’s instructions 9 and 10, to the reverse effect, that such award must be shown by defendant to be inadequate and that their verdict should be for the difference between the award and any increased damages sustained by her. Constitution of Missouri, art. 12, sec. 4; Railroad v. Donovan, 149 Mo. 104; Railroad v. Russell, 1501 Mo. 453; Railroad v. Roberts, 187 Mo. 309; Wellington v. Railroad, 33 N. E. 393, 158 Mass. 185. (4) Instruction 5, given for plaintiff, relating to depreciation of defendant’s property from liability to fires, improperly contains the qualifications: ‘ ‘ And you will not consider such element of damages at all, unless the buildings or other property are in proximity to the railroad,” under the facts in evidence. Mathews v. Railroad, 121 Mo. 338; Railroad v. Mendonsa, 91 S. W- 65. (5') Instruction 7, given for plaintiff, wrongfully casts upon defendant to establish her damages by a preponderance of evidence. Bennett v. Woody, 137 Mo. 383. (6) The verdict is not responsive to the issue, and is insufficient to support the judgment entered. The sole question at issue, and submitted, is, how much defendant is entitled to be paid, while the verdict names no sum, but is a bare “find for plaintiff. ”

      Martin L. Clardy and Edw. J. White for respondent.
    (1) The trial court must set aside the award and sustain the exceptions before there is anything for a jury to try and ‘ ‘ a new assessment by a jury can never be had, unless the court sustains the exceptions and so orders.” Railroad v. Roberts, 187 Mo. 320'; R. S. 1899, sec. 1268; State ex rel. v. Dearing, 173 Mo. 492; St. Louis v. Abelen, 170 Mo. 318; Railroad v. Richardson, 45 Mo. 466; Railroad v. Robinson, 45 Mo. 483; Railroad v. Ridge, 57 Mo. 599; Hannibal Bridge Co. v. Schaubacher, 49 Mo. 555; Miss. River Co-, v. Ring, 58 Mo-. 491; Railroad v. Alemoth, 62 Mo. 343; Cape Girardeau & 0. Co. v. Dennis, 67 Mo. 438; Railroad v. Atchison, 137 Mo. 218; In re Opening of Cromwell Avenue, 181 N. Y. 549; Railroad v. Railroad, 99 Ya. 715 ; Gage v. Judson, Ill Fed. 350; U. S. v. Freeman, 113 Fed. 350; In re Brookfield, 79 N. Y. Snpp. 1022; Railroad v. Crossman Heirs, 111 La. Ann. 611; St. Louis v. Lanigan, 97 Mo. 175; Railroad v. Randolph, 103. Mo. 451. (2) As the award of the commissioners had never been set aside by the court, it was final and binding on both parties to this controversy in the trial court, but, in any event, on the admission of the defendant that she had received the amount of the award, it was competent to introduce it in evidence, so that plaintiff could receive credit for the payment which the record showed it was entitled to, for, “where there has been paid to the landowners the amount of the commissioners’ award . . . . the judgment should not be for the entire amount of the verdict, hut for the difference between the award and the verdict.” Railroad v. Russell, 150' Mo. 453. (3) After admitting the award of the commissioners, the instructions given by the court were much more favorable than the defendant was entitled to, as they all assumed that the verdict would equal or exceed the amount of the award, and, as said by this court in Railroad v. Roberts (137 Mo. 322), “it assumes that the verdict will exceed the award of the commissioners and directs the form of the only verdict which the jury is to render, and that form does not contemplate that the verdict may be for.a lesser sum, or even the same amount as the award of the commissioners” and because this theory of the case, together with the award in evidence, practically denied the railroad company the benefit of a less verdict than the award, it was held error against the railroad company, because denying it a substantial right in the case. (4) It is proper for the court to instruct the jury that, in assessing damages, they could not allow damages because of the danger to buildings from fire, unless the evidence shows that the buildings are near enough to the track to be likely to be destroyed by tbe sparks from passing trains; otherwise damages from such a source are too speculative to be considei'ed. Tbis was what plaintiff’s instruction 5 told tbe jury. Conness v. Railroad, 193 111. 464. (5) Tbe danger from fires as an element of compensatory damages is an extremely speculative element at best, and it is held, in tbis State, to be competent only as affecting tbe market value, of tbe land, and defendant’s instructions on tbis element of damage were far more favorable to her than tbe law allowed. R. S. 1899, sec. 1111; Railroad v. Mendonsa, 193 Mo. 525; Railroad v. Donovan, 149 Mo. 93; Railroad v. North, 31 Mo. App. 345. (6) Where the defendant landowner has assumed tbe right to open and close tbe case, both in the introduction of evidence and in the argument — as tbe defendant did, in tbis case— tbis court held that it was not error for tbe court to instruct tbe jury that tbe burden was on defendant to show damages to tbe land. Railroad v. Knapp, Stout & Co., 160 Mo. 396; Douglas v. Railroad (Ind.j, 76 N. E. 892; Railroad v. North, 31 Mo. App-. 351. (7) No objections can be urged, in tbis court, because the verdict of the jury was irregular, or was not responsive to tbe issues framed, because defendant filed no motion in arrest of judgment in tbe trial court. “An imperfect verdict or finding, or a neglect to find on all tbe issues, can be taken advantage of only by motion in arrest.” Wells v. Adams, 88 Mo. App. 228; Finney v. State, 9 Mo. 636; Davidson v. Peck, 4 Mo. 445; Johnson v. Bedford, 90 Mo. App. 47; Erdbnuegger v. Meier, 14 Mo. App. 258; Warner v. Morin, 13 Mo. 455; 2 Ency. PI. & Pr., 794, 795.
   BURGESS, J.

— Tbis action was instituted by plaintiff to condemn a right of way over tbe land of defendant in Lawrence county. Tbe petition was filed December 31, 1903, against several landowners, in-eluding the defendant. It alleges, in substance, that plaintiff is a railroad corporation; that the White River Railway Company is a corporation, authorized to construct a railroad from Batesville, Arkansas, to Carthage, Missouri; that the latter company made and filed a profile map in the office of the clerk of the county court of Lawrence county, Missouri, and that, after-wards, said company transferred its franchise to plaintiff; 'that it needs for its right of way, etc., a strip of land fifty feet wide, being fifteen feet on the north side and thirty-five feet on the south side of the center line of the roadbed and track of the St. Louis, Iron Mountain and Southern Railway, said center line being described as follows, to-wit: “Beginning at a point on the west line of the north half of lot two of the southwest fractional quarter of section seven, at a point 213.1 feet south of the northeast corner, and running thence in an easterly direction a distance of 930 feet to a point 33 feet south of the line of the right of way of the St. Louis and San Francisco R. R. Company, said strip containing 1.06 acres, being in township' 26, of range 25;” that the defendant, Lenore P. Pfau, is the owner of such land and is a non-resident, and that plaintiff has been unable to agree with her as to the price of such strip. The petition asks that commissioners be appointed to assess her damages.

The commissioners were appointed, and on January 28, 1904, they filed their report, awarding $808 to the defendant. Being notified of the filing of such report, the defendant, on February 5, 1904, filed her written exceptions thereto, stating that such award of the commissioners was inadequate compensation for her property taken and damaged by plaintiff, and asking that the report and award be set aside and her just compensation for the taking and damaging of her property by the. plaintiff be ascertained by a jury.

Plaintiff filed reply to such written exceptions, “denying each and every allegation in said exceptions alleged.”

Said strip of land condemned for plaintiff’s right of way ran east and west across the north end of defendant’s fifteen-acre tract, and contained about one and six-hundredths acres. Between the right of way and the extreme north end of said tract which bordered on the roadbed of the St. Louis and San Francisco Railroad was a strip seventy feet wide at one end and seventeen feet wide at the other. The land was inside the limits of the city of Aurora, distant a few blocks from the business center, and had been mined for lead and zinc for over fifteen years. There were several shafts sunk in the land, and a large amount of valuable ore had been extracted, but there had been no mining done on the land for a year previous to the trial. These shafts all lay south of the right of way except one which had been sunk to a depth of about sixty feet in the strip condemned, but this produced little or no mineral, the formation being lime rock. None of the other mines were nearer than 150 feet to the right of way, and none of the drifts from said mines extended under any part of the strip in question. On the north part of defendant’s tract of land were eleven “ordinary, cheap, frame buildings,” three of which buildings were on the right of way, and one between the same and the St. L. & S. F. Railroad. The plaintiff removed the three cottages and placed them on another part of the tract, and partially repaired the damages done the cottages by the removal. The rental value of the eleven cottages, according to the evidence, was lessened to the extent of $27 per month by reason of the construction of plaintiff’s road so near them. As a result of mining operations of previous years there was a large pile of “waste and tailing” on the strip appropriated for the right of way, and these surface deposits had been leased to two men who used hand jigs to extract ore therefrom, and paid a royalty to the defendant of twenty per cent. The revenue derived by the.defendant from this source amounted to six hundred dollars in a period of two years. There was very little lead in these deposits, but there was considerable silicate extracted therefr.om, which sold for ten dollars a ton. One of the men who worked in this way was given $37.50 by the commissioners to remove his jig and abandon his claim to the pile of waste on the right of way. He testified that he wanted $50 for this, but rather than have a lawsuit he took the sum offered him.

Before the tract of which the strip in question formed a part was acquired by the defendant, the title was placed in her mother’s name, but the defendant’s father, Louis Pfau, looked after it for her. Mrs. Pfau sold the land to one Ed. T. Warren, a mining man of Cripple Creek, Colorado, for the consideration of “one dollar and other valuable considerations,” about the time of an attachment against the said tract, but it was denied that the property was put in his name on account of the attachment. Afterwards, the defendant, as her father testified, purchased the land from Warren by giving him therefor $35,000 of stock in a Cripple Creek mining corporation which had a total capital of $5,000,000. There was no mining done on the land since the purchase thereof by the defendant, and her only income therefrom was in the shape of rent for the little cottages and the small amount of royalty from the surface washings.

The damages to the defendant and her land were variously estimated by the witnesses, from $17,945 by Louis Pfau, to $250 or $300 by John A. Williams. One witness testified that it was questionable in his mind, considering the benefits to the land by the location of • the railroad, whether the land was damaged at all or not.

At the close of all the evidence in the case, the plaintiff offered and the court admitted in evidence the report of the commissioners, and it was admitted by counsel that defendant had received the amount of the award, eight hundred and eight dollars.

The cause being submitted to the jury, they returned the following verdict: “We, the jury, find the issues for the plaintiff.”

Thereafter, on March 15, 1905, the court entered judgment that “defendant take nothing by reason of her exceptions to the award of the commissioners,” but that plaintiff recover of her its costs, and that “plaintiff is invested with the right to hold, use and enjoy, for the uses and purposes of a right of way for the aforesaid railway, the following strip of land,” etc.

The defendant filed a motion for a new trial, which was overruled by the court, whereupon she appealed.

The first assignment of error relates to the action of the court in permitting to be read to the jury, over the objection of the defendant, the report of the commissioners awarding her $808 damages, and in connection therewith instructing the jury that the burden was upon the defendant to show by a preponderance of evidence that the award of the commissioners in the case was inadequate to compensate her for the damages from the occupation of the tract in question, and that, in making up their verdict, it should be for the difference between the award of the commissioners and any increased damages they might believe the defendant had sustained.

It is argued that section 4, article 12, of the Constitution of Missouri, guarantees to the defendant the right of trial by jury, and not a mere comparison of opinions between a previous commission and the jury.

Said section of the Constitution provides that, “The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of said right of eminent domain, any incorporated company shall he interested either for or against the exercise of said right.”

In Railroad v. McElroy, 161 Mo. 584, it is held that if there was any error in permitting the report of the commissioners to he read to the jury, it was cured by the instructions given to the jury, to the effect that they should not be influenced in any way by the damages assessed by the commissioners, and that as plaintiff had taken possession of the land and had paid into court the damages assessed, and the defendant had accepted the money, the amount of that award might become a fact that the jury should know to estimate properly the amount of verdict they should return for the defendant, and that if the jury found that the defendant had been damaged in excess of the amount assessed by the commissioners, they should deduct'the sum the defendant had received from the amount allowed by them to the-defendant, and allow the defendant interest on the excess. It was also held in that case that there was no error in permitting the report to be read to the jury, for the reason that the jury would not otherwise know that defendant had already received the amount allowed by the commissioners and would not, therefore, deduct anything from the amount of damages the jury assessed. In that case the defendant had filed exceptions to the commissioners’ report, which were sustained, and a new assessment of damages made by the jury.

In Railroad v. Roberts, 187 Mo. 309, upon which both parties rely, the case of Railroad v. McElroy, supra, is expressly overruled, the court holding that where exceptions to the report of the commissioners appointed to assess damages for land taken or damaged in a railroad condemnation proceeding are sustained, and the issues submitted.to a jury, it is error to permit the report of the commissioners to be read in evidence, whether the amount awarded by them has been paid or not. The court further said:

“The jury have no more right to know what the report of assessment of damages of the commissioners was, than any jury in any case has to know what the verdict of any previous jury was in the same case. The jury in such case has only one duty to perform, and that is to assess the damages the defendant will sustain by the appropriation of his land to public use. All other questions arising in any manner in the case are matters for the court to settle in its judgment. The rule laid down in the Clark case and reiterated here is in accord with the law in other jurisdictions. Lewis on Eminent Domain (2 Ed.), sec. 449, states the law as follows: ‘ On appeal from the commissioners and trial de novo, the report appealed from is not evidence as to the amount of damages.’ ”

In the case of Railroad v. Clark, 119 Mo. 357, referred to, it was held that when the compensation was finally determined, the court had the undoubted right to adjudge the rights of the parties under the entire proceedings; that if the landowner had been paid more than the amount of the final judgment, he could be adjudged to refund, and that if the judgment for damages exceeded the award of the commissioners, the corporation could be made to pay the excess, and its right to possession would cease until the same was paid to the landowner or into court for him.

So it was held in Wellington v. Railroad, 158 Mass. 185, that the award of commissioners was properly excluded. It seems to have been offered for the purpose only of showing their estimate of the damages, which amounted to nothing more than the opinion of the commissioners, without even affording the petitioner, in this case the defendant, an opportunity for cross-examination, of enabling the jury to weigh- the opinion in connection with their appearance while testifying.

For these intimations we think the court • committed error in permitting the report of the commissioners to he read in evidence to the jury.

Defendant insists that the mere filing of the written exceptions by her superseded the report of the commissioners, and entitled her to a trial by jury without an order setting aside the report of the commissioners.

Section 1266, Revised Statutes 1899, gives the circuit court, or the judge thereof in vacation, power to appoint commissioners to assess damages, the property-owners being first served with summons, and makes it the duty of the commissioners to review property, assess the damages, and make report thereon to the court, “and thereupon the said company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed ; and on making such payment it shall he lawful for such company to hold the interest in the property so appropriated for the uses aforesaid.”

Section 1268 provides that said report may he reviewed upon exceptions filed within ten days after the notice of the filing of the same, and then proceeds to say, “and the court shall make such order therein as right and justice may require, and may order a new appraisement, upon good cause shown. Such new appraisement shall, at the request of either party, he made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages; hut notwithstanding such exceptions, such company may proceed to ... . construct said road or railroad; and any subsequent proceedings shall only affect the amount of compensation to he allowed.”

It is clear from the statute that when the commissioners’ report is filed with the clerk, and the amount of damages assessed by the commissioners paid into court for the landowner, the railroad company may proceed with the construction of the road; hut this does not deprive the landowner of his right, under the Constitution, to have the damages assessed hy a jury, upon filing exceptions to the report and asking that this, be done, although, as in this case, the landowner may have accepted the amount of damages allowed by the commissioners find the exceptions to their report may not have been sustained or overruled. [Sec. 4, art. 12, Constitution of Missouri; Railroad v. Miller, 106 Mo. 458; Railroad v. McGrew, 113 Mo. 390; Railroad v. Story, 96 Mo. 611; Railroad v. Woodard, 193 Mo. 656.]

The cast last cited is exactly in point, in that no formal order was made setting aside the report of the commissioners, and this was assigned as error. The court said: “There is nothing in this assignment. On filing his exceptions the respondent had the constitutional right to have his damages assessed by a jury, and the court had no discretion in the matter. The calling a jury to assess his damages was such order ‘as right and justice required. ’ ’ ’

It follows from these authorities that what was said in Railroad v. Roberts, supra, that ‘ ‘ a new assessment by a jury can never be had unless the court sustains the exceptions and so orders,” is not in accord with the decisions of this court both before and since that case was decided, and should not longer be followed.

The defendant contends that the court erred in refusing instruction numbered 5 asked by defendant, which tells the jury that, in determining the damages, they should pay no attention to, or take into consideration in any way, the award of the commissioners, and in giving plaintiff’s instructions numbered 9' and 10, to the effect that it devolved upon the defendant to show that the award was inadequate, and that the verdict should be for the difference, if any, between the award of the commissioners and any increased damages the jury might believe the defendant sustained.

In Railroad v. Donovan, 149 Mo. 93, the record did not show that the defendant had in fact received the money deposited by plaintiff with the clerk in payment of the damages awarded by the commissioners. But it was expressly held that there was no error in the judgment, which was for the full amount of the verdict, without any deduction of the amount deposited. The court said: “The judgment followed the verdict, as it should have done. The deposit did not operate on the verdict, but on the judgment after it was rendered, as a payment pro tanto thereon, to be applied as such under a proper order of the court.”

In Railroad v. Russell, 150 Mo. 453, Judge Yalliant, speaking for the court, said: “It was urged in the Donovan case, and is urged with renewed force here, that the defendants were not entitled to a judgment for the full amount of the jury’s verdict, when it appeared that they had already received a large part of the amount in the form of the commissioners ’ award. The principle contended for by plaintiff’s counsel is correct, and if the facts in the case are as claimed, and if they had been brought to the attention of the trial court at the time, the judgment should have contained a recital of those facts and should have been rendered for only the difference between the award of the jury and the amount already received by the defendant.” The trouble in that case was that the attention of the court at the time of the rendition of the judgment was not called to the fact that the defendant had been awarded and had received $4,007 allowed him by the commissioners for his damages, and hence rendered judgment in defendant’s favor for the full amount of damages allowed by the jury, to-wit, the sum of $5,500, without deducting- therefrom the amount received by him, which should have been done. The court expressly said: “The matter, for the purpose of giving the plaintiff credit for any payment to which the record in the circuit court may show him entitled, is still in the hands of that court.”

Plaintiff relies upon St. Louis v. Abeln, 170 Mo. 323, as supporting its contention that a new assessment can never be had unless the court sustains the exceptions and so orders. But that case is to be differentiated from the case at bar. That was an appeal from the judgment of the trial court upon exceptions to the report of the commissioners, while in the case at bar the appeal is from the judgment of the court below upon the amount of damages awarded to the landowner, regardless of the report of the commissioners.

What was said by the court in Railroad v. Railroad, 118 Mo. l. c. 614, to' the effect that the defendants were heard on the matter both by the commissioners and by the court, upon their motion to set aside the report of the commissioners, which was subject to review and approval or to be set aside by the court as it felt authorized, was said with respect to the report of the commissioners, appointed to fix and determine the points and manner of crossing, and connections sought to be made by the petitioner with and over defendant’s tracks and right of way, to hear evidence, etc., and, like the preceding case, was not an appeal from an assessment of damages by the court and jury. State ex rel. v. Dearing, 173 Mo. 507, is of a similar character.

The rule to be deduced from these authorities is that the report of the commissioners in a condemnation proceeding by a railroad company is not admissible in evidence upon the trial of the cause before the court and jury, upon an inquiry with reference to the damages sustained by the landowner by reason of the location and opening of the road upon and through his lands; that no instructions should be predicated upon such evidence, and that the landowner, upon filing exceptions to the report of the commissioners, and so requesting, is entitled to have the damages assessed by a jury, whether the report of the commissioners be first set aside or not; and if the damages allowed the landowner by the jury be in excess of the damages allowed him by the commissioners and received by him, the court has the right to deduct the amount received by the landowner from the amount of the verdict, and render judgment in his favor for the excess.

The point is made by defendant that instruction number 5, given for plaintiff, upon the question of danger by fire to defendant’s buildings and possible depreciation of her land by reason thereof, improperly contains these qualifications: “And you will not consider such element of damages at all unless the buildings or other property are in proximity to the railroad.”

In the ease of Railroad v. Mendonsa, 193 Mo. 518, the decisions of this court upon this question were reviewed, and it was held that, “in estimating the damages to the landowner in a condemnation proceeding brought by a railroad company, the jury may .take into consideration the diminution in the value of the land not taken caused by the risk of fire from passing locomotives, but cannot take into consideration any loss or damages to the land not taken that may thereafter be done by an actual fire which destroys or injures the property, but which may never occur. And instructions in a condemnation case should differentiate between the risk of fire, and actual loss after the fire has occurred. Depreciation in the value of property caused by the risk of fire, is a proper element of damage in the condemnation case; loss or destruction by actual fire can be compensated for by a separate action after the fire has occurred.” [Following Railroad v. McGrew, 104 Mo. 282; Mathews v. Railroad, 121 Mo. 298; Railroad v. Donovan, 149 Mo. 93; Railroad v. Shoemaker, 160 Mo. 425.]

It is, therefore, manifest that the instruction complained of, in so far as it excluded from the consideration of the jury the question of diminution in the value of defendant’s land, including buildings thereon, by reason of the location and construction of the railroad through the land and consequent risk of fire from passing locomotives, is erroneous.

Defendant also complains of the action of the court in refusing the sixth instruction asked by her, to the effect that in estimating the damages, the jury should take into consideration and allow her the actual, fair market value, at the time it was taken, of the strip of land for the right of way, and of all buildings on such strip, and in giving instruction number 8, asked by plaintiff, which tells the jury that “in estimating the damages due the defendant in this case, you will not allow her the value of the buildings located upon the right of way, nor the expense of removing said buildings, as the evidence shows that defendant retains possession of said buildings and that the same were removed at the expense of plaintiff.”

According to the strict letter of the law, the instruction asked by defendant upon this feature of the case is correct, but the law should not be so enforced as to do palpable injustice to any one, when it can be avoided by tempering it with a little justice. Now, to allow the defendant compensation for buildings which plaintiff, as it had a right to do<, removed at its own expense from the right of way, the defendant retaining possession of such buildings, would be the grossest injustice to the plaintiff. The measure of damages, under the circumstances, should not be the value of the buildings before removal, but the damage the property sustained, if any, in being removed. We are constrained to hold that the court did not err in refusing defendant’s instruction nor in refusing the instruction ashed by plaintiff.

Our conclusion is that the judgment should be reversed and the cause remanded, to be tried in accordance with the views we have expressed.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    CLEMENTINE HELLMAN v. WILLIAM SOMERVILLE et al., Appellants.
    Division Two,
    May 19, 1908.
    1. STRIKING OUT CROSS-BILL: No Interest. Where defendant’s cross-bill to plaintiff’s bill in equity to cancel certain conveyances on the ground of fraud, to the end that all clouds upon plaintiff’s paper title may be removed, expressly admits that the defendants have no interest in the property, the cross-bill should' be stricken out.
    2. -: -: Counterclaim: New Matter. The statute, authorizing a counterclaim or cross-bill or any other defense the defendant may have to the cause of action alleged in the petition, does not contemplate that a defendant, upon being sued, may on the one hand disclaim any interest in the subject-matter of the suit, and on the other hand iniect into the proceedings an entirely new cause of action predicated upon a subject entirely foreign to the one upon which the plaintiff’s cause of action is based.
    3. -: -: -: In Behalf of Others. Where the defendants who file the cross-bill have no interest in the property sued for, and the other - defendants have no interest in the matters made the subject-matter of the cross-bill, the cross-bill should be stricken out.
    4. -: Different Parties. Where the cross-bill makes the acts of plaintiff’s testator and his agents the basis of the relief prayed for, even though those acts may have imposed a liability upon the testator and his estate, yet the cross-bill should be stricken out, for those acts impose no sueh burden upon plaintiff, who is simply a beneficiary under the will, and as to the transaction complained of in the cross-bill is a third and independent party, in no wise connected with the action upon which the cross-bill is predicated.

      5. DEPOSITIONS IN ANOTHER CASE: Admissions: Conspiracy to Defraud. The petition, in plaintiff’s suit to cancel certain conveyances on the ground of fraud, and as being a cloud upon the title, charged that each of the several conveyances constituted a step in a scheme and design on the part of the principal defendants to fraudulently place the property beyond the reach of their creditors, and that the other defendants had knowledge of such fraudulent purpose and knowingly participated therein. Held, that admissions made in the depositions of the principal 'defendants in another suit by another plaintiff against them were admissible, not only against the several defendants making them, but, it appearing from testimony outside of the admissions embraced in the depositions that the other defendants knowingly acted in concert with them to assist them in hindering, delaying and defrauding their creditors, they were admissible against them also.
    6. FRAUD: Cancelling Deeds: Sufficiency of Evidence. The evidence in this case is reviewed and held sufficient to sustain the decree of the trial court cancelling and setting aside several deeds as having been made by the principal defendants and by others through their procurement for the purpose of hindering, delaying and defrauding their creditors.
    Appeal from St. Louis City Circuit Court.— Hon. Jos. R. Kinealy, Judge.
    Aekirmbd.

      Benj. J. Klene for appellants.
    (1) 1. The facts disclosed by the record show such a meagre conception of equity by the plaintiff that no chancellor should seriously consider her bill. She is unwilling to do equity and hence should receive no aid in chancery. Ruppel v. Mo. Guarantee S. & B. Asso., 158 Mo. 613; Corby v. Bean, 44 Mo. 379; Kline v. Vogel, 90 Mq. 239; "Woodard v. Mastin, 106 Mo. 324. 2. It was error on the part of the trial court to refuse defendants the right to show by testimony the unwillingness of plaintiff to do equity. Steckman v. Harber, 55 Mo. App. 71; Woodard v. Mastin, 106 Mo. 324. (2) Plaintiff failed by competent and convincing proof to show a scheme to hinder and defráud plaintiff, for the following reasons: (a) Defendant, William Somerville’s testimony in this case, was given in the case of Bredell v. Somerville et al., and read here as an admission against him. It cannot, therefore, be considered against any other defendant in the case, (b) The testimony of Hattie P. Somerville read in this case as an admission against her was given by her in the case of Bredell v. Somerville et al. It cannot, therefore, be considered against any other defendant in the case, (c) The testimony of Laura P. Henderson, read in evidence in this ease as an admission against her was given by her in the case of Bredell v. Somererville et al. It cannot, therefore, be considered against any other defendant in the case, (d) The testimony of Horatio N. Henderson, read in evidence in this case as an admission against him, was given by him in the case of Bredell v. Somerville et al. It cannot, therefore, be considered against any other defendant in this case, (e) With the testimony of each of these defendants limited to an admission against their respective selves, there remains no basis for the decree of the lower court, exclusive of other considerations. (3) The court erred in sustaining the demurrer to the cross-bill of the defendant Somerville. 1. Because the demurrer was a general one alleging insufficient facts to constitute a cause of action, this ground of demurrer the court declined to pass upon, but sustained the demurrer because the cross-bill was held not germane to the original bill. 2. Because the ruling of the court in sustaining said demurrer is in direct conflict with the provisions of the Code of Civil Procedure. R. S. 1899, sec. 605; Bliss on Code Pleading (3 Ed.), secs. 126 and 374. 3. Because the action stated in the petition is one founded on contract, and the cross-hill is a statement of a cause of action arising out of the transactions set forth in the hill as the foundation of her suit. R. S. 1899, sec. 605; Bliss on Code Pleading (3 Ed.), sec. 372. 4. Because the cause of action of plaintiff arising*, as it does, out of contract, may he met by any other cause of action also arising on contract when stated in a cross-bill. R. S. 1899, sec. 605; Bliss on Code Pleading (3 Ed.), sec. 377; McElroy v. Ford, 81 Mo. App. 500. 5. Because the court, by its action in sustaining said demurrer, has denied the defendants Somerville their statutory right to set forth, by their answer, as many defenses and counterclaims as they have, whether they he such as, before the enactment of the Code of Civil Procedure, were denominated legal or equitable, or both. R. S. 1899, sec. 605; Bliss on Code Pleading ( 3 Ed.), sec. 383. 6. And besides all this, the cross-bill stated facts constituting a good cause of action entitling the defendants Somerville to redeem from the foreclosure sale of the Market street property. Frank v. Fraylor, 16 L. R. A. 115; Orriek v. Durham, 79 Mo. App. 74; Clark v. Bank, 57 Mo. App. 277; Brown v. Kirk, 20 Mo. App1. 524. (4) Hattie P. Somerville, having received no benefit by reason of her signature to the $18,500 note of her husband, was a surety from the beginning. Barrett v. Davis, 104 Mo. 549; McCuIlon v. Boughton, 132 Mo. 601; Propes v. Propes, 171 Mo. 418; Johnson v. Franklin Bank, 173 Mo. 171; White v. Smith, 174 Mo. 186; Higgins v. Harvester Co., 181 Mo. 308; Barkhoefer v. Barkhoefer, 93 Mo. App. 373; Bruege v. Bedard, 89 Mo. App. 543. (5) Blair’s assumption of the Somerville deed of trust and debt secured by it changed the relation of the Somervilles from principals to sureties, and Blair became the principal debtor. Orriek v. Durham, 79 Mo. 174; Smith v. Davis, 90 Mo. App. 530; Nelson v. Brown, 140 Mo. 580; Pratt v. Conway, 148 Mo. 291; Crone v. Stinde, 156 Mo. 262; Laumeier v. Hallock, 103 Mo. App. 116. (6) Whether the case of Mrs. Somerville alone be considered as an original surety, or whether both Mr. and Mrs. Somerville be considered as sureties under the assumption of their debt by Blair, in either case plaintiffs Somerville, one or both, are entitled to a decree declaring’ their right to redeem and be subrogated to the collaterals held by Mrs. Heilman upon payment of the debt. The right of redemption involves the right of subrogation. MacKenna v. Trust Co.?' 3 L. R. A. (N. S.) 1071; Taylor v. Tarr, 84 Mo. 420; Orrick v. Durham, 79 Mo. 174; Dwyer v. Rohan, 99 Mo. App. 133; Clark v. Bank, 57 Mo. App. 277; Bank v. Reed, 54 Mo. App. 94; Fisher v. B. & L. Assn., 59 Mo. App. 430; Ferguson v. Carson, 86 Mo. 673; Roberts v. Bartlett, 26 Mo. App. 611; Sheldon on Subrogation, sec. 24; Woodbury v. Swan, 58 N. H. 383. (7) From the time of the Blair assumption of the deed of trust it was the duty of Heilman to recognize Blair as the principal debtor, and the Somervilles as his sureties, in all their dealings in relation to the indebtedness secured by the deed of trust. He had no choice to do otherwise. In the cross-bill it is alleged he actually treated Blair as a principal. Smith v. Davis, 90 Mo. App. 539; Regan v. Williams, 88 Mo. App. 577; Pratt v. Conway, 148 Mo. 296. And it makes no difference that the purchaser assuming is not the immediate grantee of the makers of the note, but one more remote. Crone v. Stinde, 156 Mo. 262, overruling Hicks v. Hamilton, 144 Mo. 495. (8) But there is anothér principle through which we may just as certainly work out- a dominating lien or right of a higher order or priority in the defendants Somerville as compared with the rights of plaintiff. This is through the doctrine of the vendor’s lien retained by the Somervilles for unpaid purchase price. Henderson, their immediate grantee, was only a conduit of title, the beneficial interest remaining in the Somervilles. Orrick v. Durham, 79 Mo. 174; Bank v. Edwards, 84 Mo. App. 462; Phillips v. Schall, 21 Mo. App. 38. (9) In cases of sales for inadequate consideration the courts seize upon slight incidents, which, added to the inadequate price, impel them to decree a redemption from a mortgage sale, among such instances are the following: .1-Inadequate price coupled with sale in hulk. Miller v. Montgomery, 131 Mo. 595'; Kelly v. Hart, 61 Mo. 463. 2. Inadequate price and inclement weather. Bank v. Richardson, 156 Mo. 270'. 3. Inadequate price and absence of trustee from sale. Vail v. Jacobs, 62 Mo. 1.30. 4. Inadequate price and unusual hour of sale. Stoffel v. Schroeder, 62 Mo. 147 ;- Miller v. Montgomery, 131 Mb. 595. 5. Inadequate price and failure to give customary notice to debtor in addition to proper publication. Hardware Co., v. Building Co., 132 Mo. 457; Sheridan v. Nation, 159 Mo. 27. 6. Mistake or inadvertence coupled with inadequate price. Kelly v. Hurt, 61 Mo. 643; Cole County v. Madden, 91 Mo. 585; McKee v. Logan, 82 Mo. 528; Dunn v. McCoy, 1501 Mo. 566. 7. Friendly disinterestedness plausibly paraded, inadequate consideration and plaintiff’s oppressive and inequitable conduct were held grounds for setting aside a sale under a deed of trust. Swon v. Stevens, 143 Mo. 398. 8. Inadequate price, and lulling into security by promise to take no step or act without notice, which promise was disregarded, are proper grounds for setting aside a sale. Clarkson v. Creely, 35 Mo. 95, 40 Mo. 114. 9. It is proper to show promises to redeem after sale, even though made subsequent to sale. Byrne v. Carson, 70 Mo. App. 132; Parketon v. Schlueter, 145 Mo. 55. (10) Our tender to pay is good. Ailey v. Barnett, 134 Mo. 313; Kline v. Vogel, 90 Mo. 239; Asman v. Smith, 156 Mo. 286.

      E. A. <& E. E. Eaeussler and Geo. G. Eitchcock for respondent.
    (1) Prom the undisputed evidence of Mechin, Clara C. Pullis, ITattie P. Somerville and Horatio N. Henderson, plaintiff was bound to recover without the admissions of parties contained in depositions at Bredell trial. (2) If evidence in this case does not make convincing proof of a scheme in Somerville to keep possession of the Washington avenue property here in question, and thus defraud their creditors, no evidence ever did do so in any case. It is glaring. (3) As to the cross-bill, it had no relation whatever to the property in'question in this case. The Somervilles who filed same admitted that they had no interest whatever in either property sued for, or in the Market street property. They have had their day in court when sued and, moreover, have failed' to do any act entitling them to consideration. The other defendants who really are interested filed no cross-bill with their answer. They only want the conveyance to Kalb held good, subject to the deed of trust she gave.
   FOX, P. J.

— This cause is now pending in this court upon appeal from a decree and judgment of the St. Louis Circuit Court in favor of plaintiff. It is an action to cancel certain conveyances to property on Washington avenue in the city of St. Louis and to decree possession in plaintiff, and for certain ipjunctive and other relief. The cause of action is stated in one count of the petition; however, it was tried without objection on that ground.

The plaintiff was a judgment creditor of defendants William Somerville and Hattie P. Somerville. As such she had the property in dispute on Washington avenue sold under execution against the Somervilles as their property, and at such sale became the purchaser of such property for the sum of one hundred dollars. The petition charges that in October, 1896, William and ITattie P. Somerville executed their note to John A. Sickfort for $18,500, due in five years, with interest at the rate of six per cent, payable semiannually; that said note was indorsed and assigned to Louis M. Hellman that thereafter, on Noveihber 20, 19001, there was paid thereon $10,857.04; that thereafter the said Hellman instituted suit for balance due, but died during pendency of suit; that in February, 1901, said suit was revived in the name of his executor and executrix, and in May, 1901, judgment was rendered against the Somervilles for $8,637.96; that the plaintiff, the widow of Heilman, became and was the owner of said judgment; that on execution being issued on said judgment and a sale thereunder, plaintiff purchased the property in suit and received a sheriff’s deed therefor. The petition further charges that the property in dispute was acquired by William Somerville by deed from Frank H. Young and wife, January 19, 1895; that since such date the Somervilles have lived upon and had possession of the property; that on December 24, 1897, the said William Somerville conveyed said property to his wife, Hattie; that thereafter on April 16, 1901, the said Hattie, joined therein by her husband, the said William, conveyed the same to Laura P. Henderson, a sister of the said Hattie; that thereafter the said Laura, being joined therein by her husband, one Horatio N. Henderson, on or about January 1, 1901, did convey the said property to one Benigna Gr. Kalb, stenographer and wife of Frank Kalb of Columbus, Ohio; that the said Kalbs thereafter executed a deed of trust conveying said property to one Loevy, as trustee, to secure the payment of four notes, each for the sum of $2,750, and due respectively in one, two, three and four years from May 29', 1901, payable to the said Laura P. Henderson; that the said notes were assigned by the said Laura to Clara Ptillis, a sister. residing in the same house with her; that no taxes had been paid on the property for the years 1898 to 1903, inclusive. The petition then charges that all these several transfers were without consideration and were made for the purpose of covering up the property of the said Somervilles from their creditors and to hinder, delay and defraud their creditors, and that all of the parties had full knowledge of and participated in the fraud. The petition is lengthy but the foregoing is the substance thereof. The prayer of the petition is as follows:

“’Wherefore, the plaintiff prays that the defendant, Benigna Gr. Kalb, may be enjoined and restrained from further conveying said premises to any other party. That said Clara Pullis be enjoined and restrained from in any manner negotiating or transferring said notes, so secured, and from foreclosing said deed of trust.

“That a receiver be appointed to take charge of said notes and property, pay the taxes thereon, collect the rents therefrom, and that upon trial herein a decree be entered, setting aside the conveyance of said premises so made by said Hattie P. Somerville and her husband to Laura P. Henderson; the conveyance of Laura P. Henderson and her husband to Benigna Gr. Kalb and Hannibal A. Loevy, as trustee. That said notes and deeds may be canceled and' for naught held. That plaintiff recover the possession of said premises from the defendants, Hattie P. and William Somerville, free and discharged from said conveyances and deed of trust, and for such other and further relief as to the court may seem just and proper in the premises. ’ ’

The two Somervilles by answer admit the several conveyances mentioned, but deny that they or any of them were or are fraudulent and constituted a part of a scheme to hinder, delay or defraud their creditors. They also deny that they had any interest in the property at the time of' the sheriff’s sale, but aver that if they had any interest therein, the price paid by the plaintiff at such sale was so grossly inadequate as to shock the moral sense and the court should hold it invalid. The answer lastly says: “These defendants further answering said petition say that the same is wholly devoid of equity, and is predicated upon a course of action and conduct by plaintiff and her testator which has produced a state of facts and conditions oppressive to these defendants in the extreme; that plaintiff’s said petition is false in that it only relates in part to transactions to which it refers; that it recites credits on the principal note, without saying that they were based upon payment, and without showing the circumstances under which said credits were made, and why; said petition leaves many things to conjecture and inference, and was drawn in the evasive, uncandid and vermicular manner in order to obscure the inequitable and unconscionable conduct of plaintiff and her testator and to avoid disclosing the equities of these defendants. Wherefore, plaintiff being unwilling to do equity, she should take nothing by her petition.”

These defendants likewise filed a cross-bill in which they aver that Louis M. Heilman died leaving a will in which the plaintiff herein was residuary legatee. That these defendants borrowed from or through Herman A. Haeussler, the sum of $18,500, executing their joint note to John A. Sickfort, a clerk and employee of Haeussler, due in five years and secured by deed of trust on certain Market street property; that said Haeussler was the trustee in said deed of trust; that said loan was made on the basis of said property and without reference to the individual responsibility of the defendants; that the signature of Hattie P. Somerville to said note was procured surreptitiously, without consideration and after the delivery of the deed of trust; that said note is the same as the said principal note mentioned in the plaintiff’s petition; that on December 2, 1899, these defendants sold said Market street property to Horatio N. Henderson, subject to the said deed of trust for $18,500; that Henderson, on August 21, 1900, sold and deeded said property, except sixteen feet and ten inches thereof, to one Robert P. Blair, which said Blair, in the deed accepted by him, assumed and agreed to pay the said $18,500 secured as aforesaid; that said Blair took possession and collected the rents until the sale under said deed of trust. The cross-bill then alleges that after giving the said $18,500 deed of trust the said William Somerville discovered that there was an alleged previous deed of trust for $5,500, and that to secure the said Heilman from any loss therefrom, he first gave a bond, signed by himself and one Gore, and assigned a note given by one Uhlenhuth for $5,000; that these were given to indemnify the said Heilman against loss, if any, by reason of said prior deed of trust, which was then in litigation; that thereafter the said Uhlenhuth note was returned to said defendants, but in lieu thereof they turned over to said Heilman 50 shares of stock in the Missouri Glass Company, of the value of $5,000, to be held for the same purpose; that thereafter these defendants defeated said alleged deed of trust for $5,500, and without expense or loss to said Heilman; and that thereupon they were entitled to their said stock aforesaid; that the said Haeussler, trustee for Heilman, has not returned the said stock, but claims to have sold it to said Heilman; that by reason thereof there has been a conversion of said stock by said trustee, Haeussler, for the benefit of Louis M. Hellman, and to his use, and to the use of his transferee by will, the plaintiff herein; that on August 20, 1900, the said Blair, having failed to pay the said note for $18,500, the said Haeussler, trustee, at the request of Heilman, caused said Market street property to he sold and bought in for $10,000, less than one-third of its real value; that it was susceptible of division, but was sold in lump; that defendant, Hattie P. Somerville, was not aware of the sale, nor had she been notified by the trustee, as was customary; that at the time of said sale, William Somerville was absent from the city, but had left one Matthews to attend the sale and bid the amount of debt, interest and costs; that through mistake and inadvertence the said Matthews did not do so; that upon his return the said William Somerville was informed by Plaeussler, the trustee, and also attorney for Heilman, that he, Somerville, would be permitted to redeem at any time when he got ready; that said promise was later renewed by said Plaeussler, which said several promises included said stock as well as said real estate; that by reason of these facts defendants did not interpose any serious objections to the acts of Heilman and this plaintiff in relation to said property and the balance of said note; that Hellman and plaintiff collected in rents on the Market street property, after such sale, over $10',000; that not-with standing the said promises to redeem, the said Heilman with Plaeussler as his attorney brought suit upon and recovered judgment for the balance of said note in the sum of $8,637.96; that at and before the recovery of said judgment the said Haeussler promised that no execution should be issued on the said judgment; that said promises to redeem were not made in good faith, but to lull these defendants into security and to prevent them from taking steps to protect themselves; that Somerville relied upon said promises by reason of the fact that he and Haeussler were friends from boyhood. The cross-bill then avers the sale of the property for a nominal sum and the purchase thereof by the plaintiff, and adds an offer to pay whatever may be due on tbe original note of $18,500', upon an accounting being beld, which accounting should consider interest on the one side and rents and profits on tbe other, as well as tbe stock and its dividends, and further prayed tbe court that tbe said Blair be made a party and upon final bearing that they be permitted to redeem tbe Market street property; that tbe judgment be beld as paid and tbe Washington avenue property be declared to be tbe property of Benigna G. Kalb, and for all other proper orders and decrees.

Upon motion this cross-bill was stricken out and error is assigned upon tbe action of tbe court in that respect.

Tbe other defendants, except Loevy, filed a joint answer, in which they each aver tbe good faith and bona fides of tbe said several transfers of tbe Washington avenue property and asked that tbe sale and sheriff’s deed to plaintiff be set aside and for naught beld, and tbe same be canceled and tbe cloud upon tbe title occasioned thereby removed.

Defendant Loevy’s answer was practically a disclaimer of any interest in tbe controversy. Replications were filed, which were substantially general denials.

This fully indicates tbe issues presented upon tbe trial. The evidence as disclosed by tbe record is quite voluminous. We shall not undertake to give a detailed statement of tbe testimony developed at tbe trial, but will, during tbe course of tbe opinion, refer to tbe controlling facts applicable to tbe issues presented as developed upon tbe trial. At tbe close of tbe evidence tbe cause was submitted to tbe court. Its finding was in favor of tbe plaintiff and a decree and judgment was accordingly rendered as prayed for in her petition. A timely motion for new trial was filed and by tbe court taken up and overruled, and from tbe decree and judgment rendered in this cause tbe defendants in due time and proper form prosecuted their appeal to this court, and the record is now before us for review.

OPINION.

I.

The first proposition disclosed by the record with which we are confronted is upon the assignment of error predicated upon the action of the court in sustaining a demurrer interposed by the plaintiff and striking out the cross-bill filed by the defendants William and Hattie P. Somerville. In our opinion the action of the court respecting this cross-bill was manifestly proper and the correctness of its conclusion is emphasized when we come to make a careful analysis of the pleadings. Plaintiff’s petition in this proceeding is quite voluminous and improperly contains by way of recitation much of the evidence relied upon to sustain the cause of action alleged; but it is clear that in its last analysis it is simply a bill in equity to cancel certain conveyances on the ground of fraud, to the end that any and all clouds upon the paper title of the plaintiff may be removed. The petition in this cause is only applicable to the property situated on Washington avenue. The two defendants filing this cross-bill expressly admit that they have no interest in this property and even in their cross-bill they ask that the title be found to be in Benigna B. Kalb. If upon no other ground, this disclaimer of any interest in the property involved in this suit furnished to the trial court a good and sufficient reason for its action in sustaining the demurrer to the cross-bill.

The provisions of section 605, Revised Statutes 1899, which is made the basis of the right to file counterclaims and cross-bills and any other defenses the defendant may have to the cause of action alleged, whether they be denominated legal or equitable, by no means contemplates that a defendant upon being sued, may, on the one hand, disclaim any interest in the subject-matter of the suit, and on the other hand undertake to inject into the proceeding, by way of cross-bill or otherwise, an entirely new cause of action predicated upon a subject entirely foreign to the one upon which the plaintiff’s cause of action is based. This, in our opinion, is a sufficient answer to the contention of appellant upon this proposition, ard we do not deem it essential to discuss the question as to what can be properly pleaded by way of defense or counterclaim under the provisions of section 605.

There is another substantial, valid and sufficient reason fully justifying the action of the trial court in sustaining the demurrer to the cross-bill of the defendants Somervilles, that is, that the facts alleged in the cross-bill and which are made the basis for the relief sought, relate to matters arising from the acts of Heilman or his attorney or agent or his legal representative. While it may be said that the doing of these acts may have imposed a liability upon Heilman or his estate, but by no means would such burden fall upon this plaintiff who is simply a beneficiary under the will and as applicable to the transaction pleaded in the cross-bill a third and independent party in no wise connected with the transactions upon which the cross-bill is predicated. If the glass company stock was wrongfully converted by Heilman or his trustee, this plaintiff should not be held liable, but the liability was upon Heilman' or Heilman’s estate. The same may be said as to the agreements alleged to have been made by the attorneys and agents of Heilman in the suit for the balance of the $18,500 note, as well as the alleged promises to redeem. Aside from all this, the facts pleaded in the cross-bill have no relation whatever to the subject-matter involved in the case at bar. Again, it may be said that it is clearly manifest that the other defendants have no interest in the subject-matter of the cross-bill and the plaintiff in this cause is only interested as a devisee under the will of Heilman. In other words, we are confronted with a very peculiar situation as to this cross-bill. These two defendants filing the same disclaim any interest whatever in the subject-matter of this suit, yet insist that they should be heard upon a subject-matter in which neither of them has or claims any interest. It therefore logically follows that so far as these two’ defendants are concerned, they have no need for a cross-bill, because they disclaim any interest in the subject-matter of plaintiff’s suit, and the other defendants cannot avail themselves of the cross-bill because they have no interest in the subject-matter embraced in the cross-bill. The action of the court in sustaining the demurrer to the cross-bill was manifestly proper.

II.

It is next earnestly insisted that the court erred in admitting in evidence certain statements of defendants William Somerville, Hattie P. Somerville, Louisa P. Henderson and Horatio N. Henderson embraced in a deposition taken in the case of Bredell v. Somerville, et al. That case had been tried and judgment rendered. During the progress of that suit depositions were taken in which the defendants above suggested testified, and it was the statements made by such defendants in the depositions which were introduced in evidence in this cause upon the theory that they were admissions of parties to this proceeding.

The record discloses that the court limited the admissions of those declarations as being admissible simply against the respective defendants making them. In other words, that the statements by one of the defendants were not admitted as being evidence against the other defendants. We are of the opinion that the statements of the respective defendants as embraced in the depositions, particularly when the court limited such statements to the defendants making them, were clearly admissible. The petition in this case charged that each of these several conveyances constituted a step in a scheme and design on the part of the Somervilles to fraudulently place their property beyond the reach of their creditors, and that the several defendants had knowledge of such fraudulent purpose and design and knowingly participated therein. In other words, the petition in effect charged a conspiracy between these defendants to defraud creditors, and the statements introduced in evidence, as embraced in the depositions, in the nature of admissions on the part of certain defendants, tend strongly to sustain the contention of the plaintiff.

Our attention is directed by learned counsel for appellant to the case of. Wood v. Carpenter, 166 Mo. 465, as being adverse to the admission of such testimony. An examination of that case will clearly demonstrate that it has no application to the case at bar. The difference between cases where a conspiracy to hinder, delay and defraud creditors is in issue and in cases where such conspiracy is not in issue was fully recognized in that case. It was there said that there was an absolute failure of proof of any conspiracy or of any improper act or influence of one of the parties to that suit in procuring a will, and it was held that even if it was a conspiracy case, the foundation for the admission of the testimony sought to be introduced had not been laid. It was also pointed out that there was no allegation of conspiracy as to certain parties to that suit; hence it is apparent that this court in that case was not dealing with a conspiracy case.

The law applicable to the subject of conspiracy or combination to do some unlawful act may thus be briefly stated. In 16 C'yc., page 982, the rule applicable to this subject is announced in this language: “Existence of a conspiracy, combination, or common design may establish a relation of agency so as to make the statements of one party competent against the others concerned, provided such statements are made within the scope of the common enterprise.”

In Mosby v. Commission Co., 91 Mo. App. l. c. 507, Judge Smith, speaking for that court, in discussing this subject, said: “The essence of a conspiracy is a concert or combination to defraud, which resulta in damage to the party defrauded. The law treats the case among conspirators as a virtual agency of a limited nature, arising^» maleficio; and, hence, upon the charge of a combination to defraud, the declarations of each of the parties to such combination relating thereto, are evidence against the others, though made in the absence of the latter. But the party must, as a rule, first prove the fraudulent combination to deceive and defraud him. Slight evidence of collusion or concert will suffice to let in the declaration of one of the parties as evidence against all. But there must be some evidence of the combination. This may be inferred from the relation of the parties and the circumstances surrounding them. [Bigelow on Fraud, sec. 6; Moncreiff on Fraud and Misrep., 255.]”

To the same effect is State ex rel. v. Durant, 53 Mo. App. l. c. 500, where it is said: “The general rule undoubtedly is that the declarations or admissions of the vendor subsequent to the sale are not evidence against the vendee, unless made in his presence. This rule, however, ought not to prevail here, for the reason that there was independent evidence tending directly to prove a conspiracy or combination between Bush and Redmon to place the corn beyond the reach of the defendant’s execution. This, under a well-recognized exception to the rule, made the declarations of Bush in furtherance of the conspiracy or in aid of its fulfillment, competent evidence against the relator, whether he was present or not. [Wait on Fraudulent Conveyances, sec. 280; 1 Greenleaf on Evidence, sec. 111; Jones v. Simpson, 116 U. S. 609; Cuyler v. McCartney, 40 N. Y. 221; Spies v. People, 10 West. Rep. 701; Meredith v. Wilkinson, 31 Mo. App. 1; Zeliff v. Schuster, 31 Mo. App. 493.]”

We have carefully considered, in detail the disclosures of the record as to the conduct of these defendants concerning the efforts of the Somervilles to hinder and delay their creditors and it cannot be successfully denied that there are many circumstances disclosed by the record which tend to show that there was such a course of conduct between the several defendants as to clearly indicate that they were acting in concert to assist the defendants in hindering, delaying and defrauding their creditors. This being true and it appearing from testimony disclosed by the record, outside of the admissions of the parties defendants as embraced in the depositions, that they were acting in concert, the statements of the respective defendants might have been admitted even without the limitations placed upon such statements by the court as against all of the defendants.

After a careful consideration of all the testimony disclosed by the record, we have reached the conclusion that the statements made by the respective defendants embraced in' the depositions, were properly admitted in evidence, and the court had the right to consider such statements in arriving at its final conclusion in this cause.

III.

This brings us to the only remaining vital proposition involved in this proceeding, that is, whether the facts developed at the trial were sufficient to sustain the decree of the trial court wherein it was decreed that the several deeds and conveyances he. cancelled and for naught held.

In our opinion no one can, after a careful consideration of all the facts and circumstances disclosed hy the record, reach any other conclusion than the one reached hy the chancellor in the court below. It is not ■ out of place to here recite some of the controlling facts which go to emphasize the correctness of the conclusion reached by the trial court. In January, 1895, "William Somerville acquired and'held the legal title to the property in dispute. In October of the same year, 1895, he borrowed $18,500 from John A. Sickfort, for which a note was executed, bearing interest at the rate of six per cent, payable semiannually. In December, 1897, Mr. Somerville, as the testimony fully shows, was largely indebted. He then deeds the property to his wife, for the reason stated that it was bought with her-money and should have been deeded to her in the first place. It is hardly a disputed question that Somerville was insolvent as early as January, 18991. The $18,500 note signed by Hattie P. Somerville, as well as William Somerville, became due early in 1900. During the latter part of the year of 1900 suit was brought upon that note. A short time prior to the rendition of judgment upon that note, which was on May 6, 1901, Hattie P. Somerville and husband deeded the property to Laura P. Henderson, a sister of Mrs. Somerville. The only reason assigned for that transaction was that Mrs. Somerville had received from her mother more advancements than the other girls, Mrs. Henderson and Miss Pullis. This deed was executed to Mrs. Henderson to equalize them. It will be noted that the mother of Mrs. Somerville and Mrs. Henderson was still living at the time of the execution of this last deed, and it is somewhat significant that they were dealing with the subject of advancements, which are ordinarily considered after the death of a party in the settlement between the children of the testator. Doubtless the chancellor presiding in the trial of this cause at least thought that perhaps the subsisting judgment upon the $18,500 note had something to do with the transaction in the conveyance from Mrs. Somerville to her sister, Mrs. Henderson. On May 29, 1901, Laura P. Henderson and husband, Horatio N. Henderson, deeded the property to an immediate friend of Henderson for an alleged consideration of $16,000: This friend, Benigna G-. Kalb, and her husband, it is alleged, gave a deed of trust back to secure an alleged balance of $11,000, payable in four equal installments, due in one, two, three and four years. This deed of trust by Mrs. Kalb and her husband was not acknowledged until January 9, 1904, and an expert witness testifying in.this cause, upon a careful inspection and examination of the deed of trust, gave it as his opinion at the trial, which was at the December term, 1904, of the circuit court of the city of St. Louis, that said deed of trust had been written within the last year. It was also shown by the evidence that the deed to Mrs. Kalb had been written by William Somerville. In June, 1901, the Hendersons gave a note to the Fidelity & Deposit Company of Maryland for $5,412.11, due in eight months. Judgment was obtained on this note for $5,289.59', in February, 1904, and doubtless the chancellor in reaching his final conclusion in this cause thought that the pendency of that suit had at least something to do with the acknowledgment and recording of the alleged deed of trust. The record further discloses that Mr. Somerville, although present in court, did not testify. It also appears that the two Kalbs, whose title was being attacked by this proceeding, although parties to the suit and properly brought into court by service' of process, were not present at the trial and did not testify. Mr. Henderson was a witness and in testifying concerning Mrs. Kalb, the alleged owner of the property, said:

“Q. You say she’s out of town now? A. I don’t know. She was expecting to go home when I saw her last; she was getting homesick.

“Q. She is not concerned in this suit at all? A. Well, practically she is. She don’t see much chance of making the speculation I promised her.

“Q. Did you have any conversations with her in reference to this suit? A. Yes, sir.

“Q.. About what were they? A. That I was keeping the interest paid up on the notes, the time was extended so that it would make the property valuable— the security valuable, until this suit was decided. If favorable to us, we would sell and recoup Mrs. Kalb.

“Q. You would sell and recoup Mrs. Kalb? A. Yes, sir.

“Q. And how much would that be? A. The amount of her investment.

“Q. That is five thousand dollars? A. Yes, sir.

“Q. Is that right? A. Yes, sir.”

It further appears that Mrs. Kalb was in the city of St. Louis shortly before this trial, and it was certainly quite pertinent to consider the fact in this equitable proceeding that she failed to give any testimony upon the issues presented in this cause.

We shall not burden this opinion with a further recitation of the facts as developed at the trial. It is sufficient to say that there are many other circumstances disclosed by the record and when all the facts developed at the trial are fully considered it fully warranted the conclusion reached by the trial court and clearly supports the decree and judgment rendered in this cause.

Entertaining the views as herein indicated, and finding no error in tbe conclusion reached by tbe trial court, tbe decree and judgment should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    NORA BROADWATER, Appellant, v. WABASH RAILROAD COMPANY.
    Division Two,
    May 19, 1908.
    1. NEGLIGENCE: Fellow-Servants: Allegations of Petition. Plaintiff is bound by tbe allegations of bet petition, and where they bring ber case squarely witbin the provisions of tbe Fellow-Servant Act she can recover for tbe death of her husband, if at all, only on tbe theory that that act -gave her the right to recover for the death of her husband when bis death was due to the negligence of a fellow-servant.
    2. -: -: Engineer and Hostler. An engineer, who had made his run , and brought his engine into the yards and remained on it after it was detached from the train, for the purpose of putting it in order and condition, and the engine hostler who there took chargei of it for the purpose of handling it, and operating it in tbe railroad yards and whose negligence caused the engineer’s death, are fellow-servants.
    3. — -: -: Widow’s Right to Sue. Under the Fellow-Servant Act of 1897, now sections 2873, 2874, and 2875, Revised Statutes 1899, the widow cannot recover damages from a railroad company for tbe death of her husband whose death was due to tbe negligence of a fellow-servant in the employ, as was her husband, of said company.
    4. -: -: -: Stare Decisis: Powell Case. The right of a widow of a fellow-servant, whose death was caused by the negligence of another fellow-servant, to maintain an action against their common master for damages for his death, under the Fellow-Servant Act of 1897, was not adjudicated or determined or bad in judgment in Powell v. Sherwood, 162 Mo. 605, and hence the rule that a judicial construction of a statute becomes a part of it, and as to rights which thereafter accrue that construction should be adhered to for the protection of those rights, is not invoked by a citation of that case, for that rule may be invoked only as to something actually decided.

      Appeal from Randolph Circuit Court. — Now. John A. Eoclcaday, Judge.
    Affirmed.

      Willard P. Cave for appellant.
    Section 2873, Revised Statutes 1899, provides: “That every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad, by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence, contributing as a proximate cause to produce the injury.” “Shall be liable” to whom? Sections 2864 and 2865, Revised Statutes 18991, answer the question in plain and unmistakable terms. Section 2865 says: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured. ’ ’ The next section 2866, then provides by whom such damages are recoverable. If the company is liable to the employee for an injury inflicted through the negligence of a fellow-servant if he survive his injuries, and not liable for the same act if the innocent victim die, then the Damage Act does not mean what it plainly says. Such a construction would do violence to the plain, unambiguous words of the statute above quoted, and would, moreover, be a travesty upon justice. The construction of the Fellow-Servant statute insisted upon by respondent’s learned counsel is so strained and unnatural that appellant is constrained to believe that “much learing hath made them mad.”

      J. L. Minnis and Geo. Robert sor for respondent.
   GANTT, J.

— This is an action by the plaintiff as the widow of Sidney Broadwater to recover damages in the sum of five thousand dollars on account of the death of Sidney Broadwater, while in the employ of the defendant as locomotive engineer in defendant’s terminal yards in Kansas City, Missouri, on the 21st day of August, 1900.

The petition was filed on the 9th of February, 1901, in the circuit court of Randolph county, and in substance alleges that on and prior to the 21st of August, 1900, Sidney Broadwater was her lawful husband and. defendant was at said time and is now a railroad corporation duly and legally incorporated and chartered under and by virtue of the laws of this State for the business of transporting passengers and freight upon its. said railroad, and at the date last mentioned was engaged in running and operating its locomotives and cars from the city of St. Louis through the county of Randolph and into and through the county of Jackson; that on said 21st of August, 1900, and within six months before the bringing of this suit, said Sidney Broadwater was in the employment of the defendant as locomotive engineer, and on said day, by direction of defendant, ran one of defendant’s engines attached to a train of freight cars from Moberly into Kansas City, Missouri; that upon the arrival of said locomotive and train in the yards of the defendant in Kansas City, the said engine was detached from said train, and while said Sidney Broadwater, the engineer, was still upon said engine, putting the same in order and condition, said engine was carelessly and negligently started forward by one J. T. Hale, an engine hostler, then and there in the employment of the defendant and charged with the duty of handling and operating defendant’s locomotives in said railroad yards in Kansas City, Missouri, and while handling- and operating said locomotive, said Hale negligently and carelessly ran said locomotive of defendant so that it collided with the train of freight cars then and there run and operated by the Kansas City, Fort Scott and Memphis Railroad Company, in and along Santa Pe street in said city at a point where the railroad tracks of the defendant cross the tracks of said Kansas City, Fort Scott and Memphis railroad, and in said collision the said Sidney Broadwater was on said August 21, 1900, without fault on his part and while upon said locomotive and engaged in his work and in the discharge of his duties as the employee of the defendant, crushed and killed. That the death of said Sidney Broadwater was caused and occasioned by the carelessness and negligence of the flagman of the defendant at said Santa Pe street crossing, who carelessly and negligently gave a signal to the person in charge of said locomotive of the defendant to run said locomotive across said Santa Pe street and across said railroad track of the Kansas City, Fort Scott and Memphis railroad, the said flagman having at the same time signalled said Kansas City, Port Scott and Memphis railroad train to back up Santa- Pe street across the railroad tracks of defendant, thereby causing the said train to collide with the locomotive of the defendant and to turn said locomotive engine over and to kill said Sidney Broadwater; that said locomotive was so moved and operated by defendant’s servant Hale by the direction and authority of the defendant; that said collision and the death of plaintiff’s husband could have been avoided and prevented by defendant’s servant Hale, by the exercise of ordinary care and prudence in operating said locomotive; that said agent and servant of defendant could by the use of ordinary care have seen said Kansas City, Fort Scott and Memphis railroad train advancing and could have prevented said collision; that plaintiff’s husband and said engine hostler, Hale, and said flagman at said crossing at the time said Sidney Broadwater was hilled, were all engaged in the common service of the defendant and were while so engaged working together at the same time and place to a common purpose of the same grade, neither being entrusted by said defendant with any superin-i tendence or control over their fellow employees or each other. Plaintiff alleges by the death of her said husband she has suffered pecuniary loss to her damage of five thousand dollars, for which she prays judgment.

Upon a petition for a removel to the United States Circuit Court for the Northern Division of the Eastern District of Missouri, said cause was removed to said United States Court. Thereafter, on the 1st day of June, 1901, the circuit court of the United States remanded said cause to the circuit court of Randolph county.

In its amended answer, the defendant denied each and every allegation in the. petition, and also pleaded contributory negligence on the part of the plaintiff’s husband at the time and place stated in the petition, and that whatever injuries were received by her said husband were received when he was not then and there engaged in the work of operating defendant’s railroad. The answer also pleaded an assumption of the risk by the plaintiff’s husband, and that the injury received by the plaintiff’s husband was solely the result of his negligence in remaining on said engine after his run was ended and his employment terminated, all of which risk plaintiff’s husband assumed, and in then and there failing to exercise any care for his own safety. There was also a plea that the cause was improperly remanded by the circuit court of the United States in violation of section 7091 of the Statutes of the United States and of the Fourteenth Amendment of the Constitution of the United States and of section 30 of article 2 of the Constitution of Missouri. The reply denied all the new matter contained in the answer.

I. Without reproducing the substance of the testimony as to the facts attending the collision of the engine on which plaintiff’s husband was at the time of its collision with the train of the Kansas City, Fort Scott and Memphis Railroad, it is evident that the plaintiff sues as the widow of the deceased engineer Sidney Broadwater, on the ground that he was killed as the result of the negligence of a fellow-servant. The allegations of her petition bring the case squarely within the provisions of the Fellow-Servant Act of the General Assembly of the .State of Missouri of 1897. Plaintiff is bound by the allegations of her petition and if she can recover at all, it must be upon the theory that the Fellow-Servant Act of 1897, now section 2873, Revised Statutes 1899; gave her a right of action for the death of her said husband, and that Hale, the engine hostler, and her husband were fellow-servants. Moreover, if as alleged in the petition, Piale was an engine hostler charged with the duty of moving the engine and the deceased enginer was on the engine engaged at the time in inspecting the same as a part of his duty, then they were, under the decisions of this court, fellow-servants. [Higgins v. Railroad, 104 Mo. 413; Dysart v. Railroad, 145 Mo. 83; R. S. 1899, sec. 2875.] The question then arises under this alleged state of facts, did the Act of 1897, now sections 2873, 2874 and 2875, give plaintiff a cause of action for the death of her husband? It is insisted by the counsel for the plaintiff that this question is settled in favor of the plaintiff by the adjudications of this court in Powell v. Sherwood, 162 Mo. 605, and Rinard v. Railroad, 164 Mo. 270. An examination of the decision in Powell v. Sherwood, supra, will, we think, demonstrate that the right of the widow to recover damages for the death of her husband caused by the negligence of a fellow-servant under the Act of 1897, was not mooted or passed upon by this court. The questions passed upon in that case by this court were whether that act applied to a receiver of a railroad, and whether the act was constitutional, both of which questions were resolved in favor of the plaintiff, and hence in our opinion it cannot be said that the Powell case was a construction of the said statute on the point now before us for consideration. As said by this court in Railroad v. Fowler, 142 Mo. l. c. 687, 688, “We do not think the rule [to-wit, that a judicial construction of a statute becomes a part of it, and as to rights which accrue afterwards it should be adhered to for the protection of those rights] above stated in respect to the effect of the judicial construction of a statute, upon rights acquired under it, should be applied to constructions that can at most be implied from something that was actually decided. . . . ‘The maxim of stare decisis applies only to decisions on points arising and decided in causes.’ [Sutherland’s Const, of Stat., sec. 320.] ” In the Rinard case, supra, it is true this court through Judge Marshall said: “It is not material whether the deceased was a servant of the defendant, or of the construction company, or a passenger, for his widow’s right to recover is not impaired in éither case, under the laws of this State as they are now and were on December 23, 1897, when the accident occurred. [Powell v. Sherwood, 162 Mo. 605.] ” Clearly, if the deceased in that case had been a passenger or was an employee of an independent construction company and had been killed, as he was, by the negligence of the defendant’s agents and employees in the management of its trains, the widow would have had a clear right to recover damages for the death of her husband without any reference whatever to the Act of 1897. But conceding that the deceased in that ease was, as the record of. the case clearly shows that he was, an assistant roadmaster riding on one of the trains which collided by reason of the negligence of the train-dispatcher of the company, then the doctrine of fellow-servant had no application to the case, because the negligence of the train-dispatcher was the negligence of the company itself for which it was liable. [Smith v. Railroad, 92 Mo. 359; Edge v. Railroad, 206 Mo. 471.] It is clear from -the reading of the whole case that the proposition now under consideration, to-wit, whether the widow of a fellow-servant whose death was caused by the negligence of another fellow-servant could under the Act of 1897 maintain an action for damages by reason of his death, was in no manner discussed further than in the reference to the opinion in Powell v. Sherwood, 162 Mo. 605, in which we have seen no such question was decided. Accordingly, we do not think it can be said that this court, In Bane or in either division, had construed said act to give a right to the widow or other relations to sue for the death of her husband when this cause was tried and decided on the circuit. In Strottman v. Railroad, 211 Mo. 227, this question has been fully discussed and considered by the court In Banc at this term, in connection with the Act of April 13, 1905, and the conclusion reached that the Act of 1897, now sections 2873, 2874 and 2875, Revised Statutes 1899, was complete within itself and not amendatory of sections 2864, 2865 and 2866, Revised Statutes 1899, or of any other act or statute, and that the Act of 1897 only created a cause of action on the part of the servant injured and did not confer snch right npon the widow of snch servant or employee, and that the Act of 1905 was a legislative recognition that no snch right was conferred npon the widow or children or other person for the death of a fellow-servant occasioned by the negligence of a fellow-servant, and the last-mentioned act was passed to cure that omission in the statute.

As the whole question was fully discussed in the Strottman case by the court In Banc, the conclusion therein reached must be and is accepted as binding upon this division, and accordingly it must be ruled that the plaintiff has no cause of action for the damages resulting from the death of her husband caused by the alleged negligence of his fellow-servant, Hale. Having reached this conclusion, it must needs follow that it is entirely unnecessary to determine the other questions discussed in the argument and briefs of counsel on either side of the case.

The judgment of the circuit court in behalf of the defendant is affirmed.

Foes, P. J., and Burgess, J., concur.