author: WILLIAMS, J.

text:
    CAROLINE J. PEPER, Appellant, v. ST. LOUIS UNION TRUST COMPANY, Trustee Under Will of ADOLPHUS S. PEPER; MADELINE PEPER et al.; and MERCANTILE TRUST COMPANY and NICHOLAS M. BELL, Trustees Under Will of MARGARET P. BELL.
    In Banc,
    March 15, 1920.
    1. LIMITATIONS: Cotenants: Notice of Adverse Claim. The institution of suit against the other descendants of an intestate decedent, by' one of his children, in possession, to quiet title in her, is notice to them that an adverse possession is intended to be asserted against them.
    2. --: Arresting Running of Statute: No Action by Defendants Within Ten Years After Suit Brought. Decedent had built a house and placed his daughter, the plaintiff, in possession, and she alleges it was a gift to her. He died intestate in 1903, and on January 27, 1904, she, . being in possession, instituted suit against his. other 'heirs, to have the title determined under the statute (Sec. 650, R. S. 1899); and on February 25, 1916, she filed her fourth amended petition, in which she averred that the property was given to her by her father, and that prior to his death she occupied the same and has since held the sole and exclusive possession thereof, “claiming the same as the owner and adverse to all persons whomsoever.” To this petition defendants filed their answer in which they each claim an interest in the property adverse to the claim of plaintiff, ask the court to determine the title, charge plaintiff with rents and decree partition; and their first answer, filed June 5, 1907, was to the same effect. Held, that, under Section 1879, Revised Statutes 1909, which provides that “no action for the recovery of lands or of the possession thereof shall be commenced or maintained, unless it appear that the plaintiff or other person under whom plaintiff claims was seized or possessed within ten years before the- commencement of said action,” defendants are barred and plaintiff has title by limitations, unless, within ten years after plaintiff entered into possession, defendants arrested the running of the statute by the filing of their answers, for plaintiff’s first petition, in which she asserted sole ownership, imparted notice to them, as cotenants with her, that she claimed adversely to them; and all of defendants’ answers or cross-bills being statutory actions to determine title, for rent and for partition, none of them had for their object the recovery of the premises, and none of them operated to arrest the running of the statute, and therefore plaintiff has the title, by limitations. (Goode, Graves and Woodson, JJ., dissenting.)
    3. --; -; By Demand for Rents. A, demand for rents set up in the answer to plaintiff’s petition to determine title and asserting adverse possession, does not state an action for the recovery of the premises.
    4, _; -; -: By Action to Quiet Title. That portion of an answer or cross-bill which asks that the court ascertain and determine the title under the statute cannot be considered an action to recover land, such as is contemplated by Section 1879, Revised Statutes 1909, which says that no action to recover land or the possession thereof shall be commenced or maintained, unless it appear that plaintiff or other person undei whom he claims was seized or possessed within ten years. The ten-year Statute of Limitations has no application to the bringing of a mere statutory action to determine title.

      5- -: -: —■-: By Demand for Partition. A suit in partition is not an action for the recovery of land, under the ten-year Statute of Limitations (Sec. 1879, R. S. 1909); and a count praying for a decree of partition, in a cross-bill in a suit to determine title, which in no wise asserts a possessory right of the defendants, cannot be considered an action tb recover the land or its possession.
    6. -: -: —■-: By Count in Ejectment. By a separate count in ejectment in their answer or cross-bill to plaintiff’s pe-' tition to determine title, or by any other sufficient allegations of facts for affirmative relief, in which they plead ouster, assert their right to possession and pray that they be .restored to. possession, made within ten years, defendants can arrest the running of the ten-year Statute of Limitations (Sec. 1879, R. S. 1909): but if no such possessory right is asserted in the answer or cross-bill, and it contains no denial of plaintiff’s allegation,, in her amended petition, of adverse' and sole possession and claim of ownership for ten years, including the years which have expired since her suit was instituted, and the facts establish such possession in her, the running of the statute against defendants is not arrested.
    7. -: Adverse Possession: Creates Title. Adverse possession, accompanied by the well-known prerequisites, for the statutory period, not only bars any action for recovery, but operates.to vest the full legal title in the possessor.
    8. -: .-: Consistent With Action to Determine Title. An action to determine title is not only not inconsistent with, but is entirely consistent with, plaintiff's adverse possession.
    Appeal from St. Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge.
    Reversed‘and remanded (with directions).

      Jones, Hooker, Sullivan é Angert for appellant; James G. Jones, Jr., of counsel.
    (1) Tlie contract between the plaintiff and ber father for the conveyance of this property to her was supported by an adequate consideration. Rumhold.v. Parr, 51 Mo. 598 ; Grupton v. Grupton, 47 Mo. 37; Halsa v. Halsa, 8 Mo. 303; Sutton v. Hayden, 62 Mo-. 101; Underwood Typewriter Co. v. Century Realty Co., 220 Mo. 530 ; Williams v. Jensen, 75 Mo. 685; Brannock v. Ma-goon, 141 Mo. App. 320; Welch v. Whelpy, 62 Mich. 15; Lamb v. Henman, 46 Mich. 112; Soper v. Calloway, 129 Iowa, 145, 105 N. W. 399; Brown v. Sutton, 129 H. S. 238. The contract relied upon has been executed and the insufficiency or inadequacy of'the consideration is no defense to a right or interest claimed under an executed contract. Sooey v. Winter, 188 Mb. App. 156; Harrison v. Town, 17 Mo. 243; In re Lamb, 117 N. W. (Iowa) 1118; Oregon Ry. v. Forrest, 28 N. E. (N. Y.) 137; Thomas v. South Haven Ry., 138 Mich. 50; Matt v. Johnson, 55 So. (Ala.) 528; Campbell v. McLaughlin, 205 S. - W. 22. (2) Possession of property taken under a verbal contract takes said contract without the operation of the Statute of Frauds. Dickerson v. Chrisman, 28 Mo. 134; Ross v. Alyea, 197 S. W. 268; White v. Ingram, 110 Mo. 474; Brown v. Sutton, 129 U. S. .238; Neale v. Neale, 9 Wall. 1; Mlarphet v. Jones, 1 Swanst. 172; Clerk v. Wright, 1 Atk. 12; Pain v. Coombs, 1 De C. & J. 34; Wilson v. West Hanpool Ry. Co., 2 De C. & S. 475; Yugley v. Vugley, L. R. 4 Ch. Div. 73, affirmed L. R. 5 Ch. Div. 890; Blockney v. Ferguson, 8 Ark. 272; Arnold v. Stephenson, 79 Ind. 126; Fellon v. Smith, 84 Ind. 485; Robinson v. Throckill, 110 Ind. 117; Edwards v. Fry, 9 Kan. 417; Creen v. Richards, 23 N. J. Eq. 32; Coggswell, etc. Co. v. Coggswell, 40 Atl. 213; Calauchini v. Brausleiter, 84 Cal. 249; Eaton v. 'Whitaker, 18 Conn. 222, 44 Am. Dec. 586; Cooney v. Timmons, 16 S. C. 378; Browne on Statute of Frauds (5 Ed.), secs. 467, 487. (3) Continuous and adverse possession for a . period of over ten years of the property in suit vested in plaintiff the legal title thereto in fee simple. Eckey v. Inge, 87 Mb. 495.; Merchants’ Bank v. Evans, 51 Mo. 347; Kirten v. Bull, 168 Mo. 633; Ridgeway v. Holliday, 59 Mo. 453; Sconnell v. American Soda Fountain Co., 161 Mo. 606.

      Leahy & Saunders for respondents.
    (1) There is no evidence under the issues presented by the pleadings to support a decree in favor of plaintiff. Plaintiff’s attitude under her amended petition is that of a purchaser for value, and a decree in her favor upon the theory of a gift would necessarily have been outside of the issues.of the case and consequently void. Christian v. Ins. Co., 143 Mo. 461; McNair v. Biddle, 8 Mo. 257; 3 Ency. PL & P'r. 357; Story’s Eq. PL sec. 257; Flewellen v. Crane, '5-8 Ala. 627; Marsh v. Mitchell, 26 N. \T. Eq. 497. (2) The Statute of Frauds (R. S. 1909','sec. 2781) provides that ail estates in lands made or created by parol, and not put in writing’ and signed by the parties ' so making or creating the same, shall have the force and effect of leases or estates at will only, and shall not, either in law or in equity, be deemed or taken to- have any other or greater force. Delventhal v. Jones, 53 Mo. 460. Notwithstanding the letter of the statute, courts .of equity will still enforce a parol gift or sale of real estate, where it appears that a refusal to do so would, by reason of the acts of the donee or vendee, as the case mav be, upon the faith of such gift or sale, operate as a fraud upon such party (Rosenwald v. Middlebrook, 188 Mo. 581. (3) The great weight of authorities, however, is to the effect that delivery of possession alone is not sufficient, but that the donee must further show that, acting upon the faith of the gift, he has in some way changed his position to a substantial detriment so that a refusal to consummate the gift would be a pecuniary loss to him and an act of inn'ustice. Beach on Contracts, sec. 701: Pomerov on Contract (Spec. Perf), sees. 130-1; Brown on Stat. Frauds, secs. 467, 491a: ^Thornton on Gifts, spcs. 371-2, 378'-9i; "Wlaterman on Spec. Perf. sec. 271; 20 Cvc. 1200; 14 Am. & Eng. Ency. Law, 1041; Caldwell v. Williams, 1 Bailey’s Equity (S. C.) 175; Logue v. Langan, 81 C. C. A. 271; Allison v. Burns, 107 Pa. St. 50; Seavey v. Brake, 62 N. IL 395; Wiley v. Charlton, 43 Neb. 840; Neale v. Neale, 9 Wal. 1; Bevington v. Bevington, 110 N. W. (Ia.) 840; Harrison v. Harrison, 36 W. Ya. 556; Beall v. Clark, 71 Ga. 818. If tbe improvements are slight or trivial, not equal to the rental value, of the property, no equity is raised in favor of donee. Thornton on Gifts, secs. 378-9; Wackv. Sarber, 2 Whar. (Pa.) 387; Hutchinson v. Chandler1,! 10'4 S. W. 434; Thompson v. Ray, 92 Ga. 285; Price v. Lloyd, 86 Pac. 767; Cook v. .Erwin, 133 S. W. 897; Sitton v. Shipp, 65' Mo. 297; Brownlee v. Fenwick, 103 Mo. 420, 428; Goodman v. Cowley, 161 Mo. 657, 663 ; iGoodin v. Goodin, 172 Mo. 48; Forester v. Sullivan, 231 Mo. 373; Elzman v. Elzman, 253 Mo. 175-; Rodgers v. Wolff, 104 Mo. 91; Emmel v. Hayes, 102 Mo. 194; Hubbard v. Hubbard, 140 Mo. 303; Manning v. Berry, 142 Iowa, 47. (4) Plaintiff has not acquired the legal title in fee simple to the property by adverse possession. This action was instituted January 27, 1904. and on June 5-, 1907, an answer and cross bill was filed on behalf of all defendants, which an swer and cross-bill is similar in its nature to the various answers and cross-bills in the present case. That the Statute of Limitations must be affirmatively pleaded is elementary. Rozier v. Griffith, 31 Mo. 171; Real Est. Sav. Inst. v. Colonius, 63 Mo. 290; Woodsworth v. Tanner, 94 Mb. 124; Paris v. Haly, 61 Mo. 453; Holloway v. Holloway, 97< Mo. 628; James v. Gropp, 157 Mo. 420; Barnard v. Keithley, 230 Mo. 223:. In all these cases, the ■ principle upon which the court acts is that, when a court of chancery has jurisdiction of the subject-matter and of the parties, it will, in order to prevent multiplicity of suits and circuity of action, administer Lull and complete relief in the premises. Snyder v. Am, 187 Mo. 165. The prayer for partition in the cross-bills certainly challenged the adverse claims of plaintiff and, in effect, asserted that the defendants and plaintiff owned the property in question as cotenants-, which necessarily negatived the idea that plaintiff was the sole owner of the property. Was not this sufficient to stop the running of the statute ? Furthermore, as a practical question, we should like to inquire what the defendants ought to have done in this case to stop the running of the statute? They could not ingraft- upon the. partition statute any'peculiar form of action, or change its provisions. Should they have filed a suit for ejectment in order to protect their interests? If so, how could the suit have been maintained when it was admitted that plaintiff was a cotenant and entitled to a share of the property? Should she have been enjoined from prosecuting this suit? Should the court have been asked in the cross-bill to place the defendants bodily in possession of the home and permit them to share it with plaintiff? 2 Wood (4 Ed.), p. 1196, sec. 253a (I); 25¡ Cyc. 1278, par. H; Norton v. Reed, 253 Mo. 236; Estes v. Nell, 140' Mo. 650-; Snell v. Harrison, 131 Mo. 500.
   WILLIAMS, J.

This is a suit to determine the title to a parcel of ground with a dwelling house situated thereon known as No. 4448 Washington Boulevard, St. Louis, Missouri. The suit was commenced in the Circuit Court of the City of St. Louis, on January 27, 1904. This is a second appeal in this case. The first appeal was reported in 241 Mo. 261, but none of the points involved in the present appeal were involved in the first appeal. On February 25, 1916, plaintiff filed her fourth amended, petition herein upon which the case was tried below. The petition in substance alleges:

First. That she is the owner in equity of the land described in petition; that one Christian Peper in b^lifetime had the legal title-to said premises, subject to plaintiff’s eouitable right to set up in the petition; that he died on the-day of September, 1903, leaving as his children and sole heirs at the law this plaintiff, and Adolphus S. Peper, Charles G-. Peper, Margaret P. Bell and Frederick C. Peper; that he left a will and testament which were duly probated;, that the will contained no specific devise of the property now in controversy, but named the above children and Christian Cornelius, otherwise known as Christian Peper, Jr., as residuary devisees and legatees under his will, and that they thereupon succeeded to the legal title to said premises, subject to plaintiff’s equitable claim. That Frederick C. Peper and Christian Peper, Jr., afterwards conveyed their right, title and interest in and to said property to the plaintiff. The answer further alleges the death of some of the children since this suit was instituted and sets forth the names of their respective heirs etc. (all of whom were made defendants herein).

Second. That prior to October, 1898, said Christian Peper promised to buy for plaintiff a lot of ground and to build a residence thereupon and to convey the same to this plaintiff. The petition then alleges the following:

“Plaintiff states that when the said Christian Peper promised, as aforesaid, to purchase for this plaintiff a lot in the City of St. Louis and to build a residence thereon and give said property to1 the plaintiff, he stated to the plaintiff that if she would select and assist in the selection of a lot in the City of St. Louis for that purpose and would supervise and assist in the supervision of plans and specifications for a dwelling house to be erected thereon, and superintend and assist in the superintendence of the erection of such a dwelling house thereon, and with her family move into said house, when erected, he, the said Christian Peper, would purchase said lot so selected and cause to be erected thereon a house suitable for the plaintiff and her family, and convey the same to the plaintiff, and the plaintiff avers that she agreed to select and assist in the selection of such a lot in the City^ of St. Louis, supervise and assist in the supervision of the plans and specifications for a dwelling house thereon, superintend and assist in the superintendence of the construction of such a residence, and that when the same was completed, she would move into the same with her family; and the plaintiff alleges that she accordingly selected and assisted in the selection of a suitable lot, which, when so selected by her, was purchased by the said Christian Peper, supervised and assisted in the supervision of the plans and specifications for a residence thereon; superintended and assisted in the superintendence of the construction of the house on said lot, which the said Christian Peper, caused to he erected theron, as he had agreed to do, and, upon the completion thereof, moved into the same with her family, add has ever since resided therein and has held the sole and exclusive possession) of the premises above described, claiming the same as owner and adverse to all person whatsoever (Italics ours.)

Third. That the defendants claim an interest in said premises adverse to the title of plaintiff. ,

The prayer of the petition is that the court adjudge and determine the title of the respective parties in and to said property.

The defendants filed separate answers to the above petition. All of the separate answers contained allegations in substance as follows:

Admit that Christian Peper in his lifetime held a legal title to said property; admit the death of said Peper on September 26, 1903', and the names of the respective heirs as alleged in plaintiffs petition; also admit that Christian Peper left a will which was duly probated and that persons named in plaintiff’s petition were also named as .residuary devisees and legatees under said will; also admit that they each claim an interest in the .premises adverse to the claim of the petitioner.

The answers further allege that plaintiff has occupied the premises since the death of Christian Peper as her residence and that the rental value for the same is $125 per month, and that no part of the same has been paid except the first, second and third months following the death of Christian Peper.

The answers pray .that the court ascertain, determine and adjudge the title and interest! of the respective' parties in said real estate, and ask judgment against the plaintiff for rent for use and occupation of said premises since the death of said Christian Peper.

Others of the defendants in their separate answers allege that if there was such an agreement as is pleaded by plaintiff in her petition the same was not in writing and therefore void under the Statute of Frauds, and some of the separate answers by way of cross-bill ask to have the property partitioned, alleging the interest of the different parties therein as originally arising under the will of Christian Peper, and allege that] the property could not be divided in kind and ask that the same be sold and the proceeds thereof distributed according to the respective interests.

By way of reply the plaintiff alleged that in October, 1900, she entered into the actual possession of the premises described in the petition, and has since that time remained in the sole, exclusive, adverse, open and notorious possession of said premises, claiming title thereto in fee; and that by reason thereof the rights of defendants in said premises are barred by the Statute of Limitations.

The evidence upon the part of plaintiff was substantially as follows:

Christian P. Bushman, son of plaintiff, testified as follows:

“My grandfather [Christian Peper] told mother [plaintiff herein] if she would pick out a lot in a location she would live and be satisfied in he would by it and build a house for her and give it to her. . . . Grandfather told mother she would have to get the plans and all. . . . She said she would. ’ ’

This witness further testified that his mother spent considerable time in looking for a lot, finally selected the one in question, and that Christian Peper purchased the same, paying $8250, and took the deed in his own name. The deed was dated September 29, 1898'. That his grandfather then told an architect he was going to build a house for his daughter and that the architect should consult her about the plans; that his mother made suggestions to the architect as to the plans for the house; that the house cost about thirty-five thousand dollars; that his mother moved into the house in October, 1900, and has had possession of the property ever since.

It further appears from the evidence that during the times above mentioned plaintiff and her husband were not living together and afterwards in 1902 were divorced.

This witness testified that his grandfather told him that he had offered the deed for the property to the plaintiff, but that she would not take it because she was afraid her husband would come back and insist on living with her.

Upon the cross-examination this witness admitted that while this suit was pending he had written a letter to one of the defendants asking for a loan of five hundred dollars in which he said, referring to this suit: “So sena me that check or I will not know anything. ’ ’

Estelle Peper Bushman, daughter of the plaintiff, testified that her mother had occupied the house since October, 1900. This witness further testified as follows:

“He [Christian Peper] told her [plaintiff] if she would select a lot he would put up a house for her and give it to her, and he told her if she. wanted to he would buy a house instead of building one; if she found the house already built he would buy that for her.” That her mother looked several- times for a lot and finally selected the one in question, because it was located at a place which would make it convenient for her grandfather to come there every day for lunch. That her grandfather told plaintiff that he would send an architect out and she could direct him as to the plans; that the plaintiff watched the daily construction of the house, suggesting changes to be made therein; that her grandfather was in the habit of taking lunch with plaintiff and remaining until about two p. m., and later when he became less active in business would sometimes remain until five p. m.; that-a short time after the house'was completed her grandfather was visiting the family and plaintiff made some complaint about the house having too many windows, and that her grandfather said plaintiff could sell the house and do whatever she wanted to with the proceeds.

Clarence Peper, another son of plaintiff, testified as follows:

“Miy grandfather said: ‘Carrie [plaintiff], you ought to take that deed,’ [they were discussing the deed to the house]. My mother said there was no rush about it and mentioned something about a divorce.”

The testimony of several witnesses upon a former trial was read in evidence. That of a Mrs. Doll, a neighborhood friend of the family, to the effect that Christian P'eper told her that he thought he would make an end to his daughter moving around, so he bought this lot and built the house and told the daughter that he would build it for her and make her a present of it and that he gave it to the plaintiff because she had nobody “to do for her. ’ ’

James P. Ballard, who lives adjoining this property, testified that Mr. Peper told him that he built the house and had given it to his daughter (the plaintiff), and that he had also offered to build a house for his other daughter, Mrs. Bell, but that she did not like the location.

Adrain Bassett, the man who did the plumbing work on the house, testified that Christian Peper told him that he wanted a good job, that he was building the house for his daughter and intended to give it to her.

Henry S. Benecké, the man who did the carpenter work on the house, testified that Christian Peper told him he was building the house for the plaintiff. This witness saw the plaintiff at the house several times while it was being constructed and consulted with her about some changes.

William W. Portman, a real estate dealer, testified that Christian Peper told him that he was building this house for plaintiff and referred to it as ‘ ‘ Carrie’s House. ’ ’

Harry S. Clymer, chief draughtsman for the architect who planned the house, testified that Christian Peper told him that the house was intended for the-plaintiff and that he also intended to build one for Mrs. Bell.

Mrs. Klippel, a friend of the family, testified that Christian Peper told her that he was going to complete the house of ‘ ‘ Carrie ’ ’ and then he was going to look for a lot’ for his other daughter, Mrs. Bell.

Mrs. Chivington, a seamstress, testified she had done sewing for both Mr. Christian Peper’s'daughters and knew him during the last- ten years of his life and was often at his home and at the home of plaintiff. That she heard Mr. Peper say on one occasion: “Now, Carrie, there is the plan of your new house.” She on another occasion heard Mr. Peper say he was building a house for “Carrie,” because she had trouble with her husband, and that she heard him ask the plaintiff to go with him to get the deed to the house, but that plaintiff refused, because she had not yet gotten her divorce. During Mr. Peper’s last illness he stated to the witness“Wasn’t it too bad that Carrie did not go with me that day to- get the deed?” and further said: “Never mind, just as soon as I am well I will give her the deed, and then there can be no dispute as to the ownership of that house.” Mr. Peper died within two weeks after making this statement.

Dayton M. Numbers, an acquaintance of Christian Peper, testified that Mr. Peper said that he was going to build this house for plaintiff and give it to her, so that she could have a home of her own, and that after the house was built Christian P'eper said: “Carrie’s house is finished. You can get a good look at it.” And that he further said that he intended to take lunch with “Carrie” and that the house was “as convenient for her as for me: so both of us are satisfied.”

Jacob Weisling testified that while he was giving Christian Peper a massage treatment during the time the house was being built he was' told by Mr. Peper that he was building the house for his daughter “Carrie,”' “because she was taking care of him.”

Mrs. Carrie Miller Peper (sister-in-law of plaintiff), widow of Charles C. Peper, deceased, testified that.Christian Peper was rather feeble physically during the last year of Ms life; that in 1903 while she was at Christian Peper’s home she was telling him about making some purchase down town and at that time Mr. Peper said: ‘ ‘ That reminds me; I must have the deed drawn and give it to Carrie for the house.” This witness, as the sole devisee under the will of Chas. Gr. Peper, deceased (one of the residuary devisees in the will of Christian Peper), conveyed all her right, title and interest in this property to plaintiff.

Deeds from Fred C. Peper and Cornelius C. Peper and wife conveying to plaintiff all their interest in this property were also introduced.

Plaintiff’s daughter was recalled and testified that her grandfather during his lifetime supported her mother and that after his death her mother had paid the taxes on the property and had refused to pay rent on the property. She further said that none of the other children denied that the house belonged to her mother except Mr. and Mrs. Bell, and that they did not deny it until after her grandfather’s death.

Upon the part of the defendants the evidence was substantially as follows: ...

Nicholas M.. Bell testified that in 1889 he married Maggie Peper, the daughter of Christian Peper, and afterwards (with the exception of the first nine months) lived at the Peper home until Mr. Peper died; that one day at the Peper home the plaintiff and witness’s wiff asked, him to talk to Mr. Peper about making plaintiff a deed to the property now in controversy. The witness went to see Mr. Peper in that regard.

At another time at the Peper home one of Peper’s sons asked the father it he was going to deed this property to the plaintiff and Mr. Peper said that he was not, but that it was his house, and that the house “had cost more money than he had expected — they had taken a'1 vantage of him in his affliction and had spent more money there than they had a right to spend.” At another time this witness heard his wife say, “Papa, ain’t you going to give Carrie that house on Washington Avenue?” Mr. Peper replied: “No, that is my house. They have taken advantage of me in my illness and expended more money than they had a right to do.”

This witness testified that the Pepers estate was worth about four million dollars, and that Mr. Peper was feeble physically during the last year of his life; that at the time of the trial the plaintiff was the only surviving child of Captain Peper.

Defendants also offered evidence tending to show that Fred C. Peper, after the death of Christian Peper, paid $120 per month rent on this place from August. 1903', to April, 1904 This witness testified that the rental value of said premises during the first five years of plaintiff’s occupancy was $1500 to $1800'a year; during the next five vears it was $1500 per year, and $1200’ per year during the remainder of the time.

In rebuttal plaintiff offered evidence tending to show that Fred Peper had paid the rent for a few months after his father’s death to keen peace in the family, and that Mr. and M!rs. Bell were the only ones who wanted rent The plaintiff objected to her brother paying the rent, stating that she thought it might hurt her case, and he did not pay further rent.

Dayton M. Numbers, testifying in rebuttal, said that he had a conversation with Christian Peper a few months before his death, and that Mr. Peper said that he was ready to give “Carrie” a deed for the property, hut that Nick (meaning Mr. Bell) advised him not to do so while the divorce was pendina; and that Mr. Peper said he was going to “let it lay until that got through.” This witness first said this was two or three months before Pep-er ’s death, but upon cross-examination he said it was during the time the divorce suit was pending.

The parties stipulated that plaintiff, during her oc.cupancy of the premises in controversy, had expended as payment for taxes and repairs the sum of $4051.72.

The court rendered judgment, dismissing plaintiff’s bill, and ordered the land to be partitioned; ordered the same sold and that the proceeds be divided according to the respective interests of the parties.. The court also entered judgment against plaintiff for that portion of the rent which would fall to the interest represented by defendants. Plaintiff duly appealed.

I. The appellant contends that the court erred in refusing to hold that plaintiff was the sole owner of the land in controversy. In support of this contention it is insisted in substance that plaintiff’s source of title is two-fold, viz.:

I. That by reason of the full performance by appellant of the alleged contract between herself and lier father she became vested with the equitable title to said land.

21. That by reason of being in the adverse possession of said property for more than ten years she is now the legal owner of said property.

If appellant’s claim of title under either of the above theories is sound the judgment below was erroneous.

We will first discuss the claim to title based upon the theory of ten years of adverse possession.

II. That appellant has been in the actual, open, hostile, exclusive, adverse and continuous possession of said real estate claiming to own the same since, at least, from the date of the original institution of this suit, to-wit, from January 27, 1904, until January 29, 1917, the date of the trial below, is we think conclusively established by the record.

If the defendants had any. doubt as to the nature of appellant’s possession prior thereto, all doubt must have been dispelled when on January 27, 1904, appellant, then in possession, instituted this suit to determine the title under the provisions of Section 650, Revised Statutes 1899, and asserted her claim to the entire title.

Even if defendants’ theory be correct that the appellant and defendants then owned the land as tenants in common, such conduct upon the part of appellant then in actual possession amounted to an ouster of the other cotenants and was certainly sufficient to impart notice to them that an adverse possession' was intended to be asserted against them. [Seibert v. Hope, 221 Mo. 630, l. c. 635; Misenheimer v. Amos, 221 Mo. 362, l. c. 371.]

If then nothing transpired to arrest the running of the ten-year Statute of Limitations her legal title by adverse possession ripened long prior to February 25, 1916, the date of the filing of the fourth amended petition herein (being the petition upon which the trial was had).

Did anything transpire to arrest the running of the ten-year Statute of Limitations °!j This is the rather difficult question now for determination.

Said Statute (Sec. 1879’, R. S. 1909) provides as follows :

“No action for the recovery of any lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person . . . unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action. ’ ’

It becomes at once apparent that if defendants or those under whom they claim have arrested the operation of said statute in the instant case it must have been accomplished by the bringing of some action within the ten-year period therein specified to recover said land or the possession thereof.

It was of course not necessary that defendant should have instituted a separate and independent suit to recover said land or the possession thereof, but any proper plea to that effect in the answer by way of cross-bill would have been sufficient. ,

Defendants contend that tile allegations of the joint answer filed in this case on June 5, 1907, was sufficient to arrest the running of the above statute. Said answer (caption and signature omitted) was as follows:

“Now come defendants in the above entitled cause by leave of court, and for answer to the amended petition herein, admit that defendants Charles Gr. Peper and Adolphus S. Peper are sons of Christian Peper, deceased; that defendant, Margaret P. Bell, is the daughter of said Christian. Peper, deceased; that defendant, Nicholas M. Bell, is her husband; that defendant, Caroline M. Peper, is the wife of defendant Charles Gr. Peper; that defendants Adolphus S. Peper, Charles Gf. Peper and Margaret P. Bell claim an interest in the real estate described in plaintiff’s amended petition, as devisees under the will of said Christian Peper, deceased; that defendant, Caroline M. Peper claims an interest therein as the wife of defendant Charles G. Peper; that defendant Nicholas M. Bell claims an interest therein as husband of Margaret P. Bell; that one Frederick C. Peper is a son of said Christian Peper, deceased, and a beneficiary under his will; that one Christian Cornelius, otherwise known as Christian Peper, Jr., is a beneficiary under the will of said Christian Peper, deceased; that Caroline B. Peper is the wife of said Christian Cornelius, otherwise known as Christian Peper, Jr.; that said Frederick C. Peper, Christian Cornelius, otherwise known as Christian Peper, Jr., and Caroline B. Peper, his wife, claim no interest or estate in said property, and defendants deny each and every other allegation in said amended petition contained.

“Further answering, defendants say that if it he true (which defendants deny)- that said Christian Peper, deceased, during his lifetime, made the promise and agreement with plaintiff concerning said real estate as set forth in'plaintiff’s amended petition, such promises and agreement were not in writing and therefore are within the Statue of Frauds and consequently void.

“Further answering, and by way of cross-bill, defendants state that the aforesaid Christian Peper, who died September 26, 1903, was the owner at the time of his death of the real estate described in plaintiff’s amended petition, consisting of a house and lot, of the value of about thirty-five thousand dollars, located on Washing ton Avenue in the City of St. Louis, and known as 4448 , that upon the death of said Christian Peper he left a will which was duly admitted to probate in the P'robate Court of the City of St. Louis, whereby he devised five-sixtieths of all his real estate, including said parcel of ground described in plaintiff’s amended petition, to one Christian Cornelius, otherwise known as Christian Peper, Jr., and eleven-sixtieths of all his real estate, including said parcel of ground described in plaintiff’s amended petition, to each one of his children, to-wit, Adolphus S. Peper, Charles U. Peper, Margaret P. Bell, defendants herein, and Frederick C. Peper; that ever since the death of said Christian Peper, to-wit, September 26, 1903, plaintiff has occupied the premises in question as her residence, and that the rental value of the same is one hundred and twenty-five dollars per month, and that no part of the same has been paid except for the first, second and third months following the death of said Christian P'eper; that shortly after the death of said Christian Peper, said Frederick C. Peper and Christian Cornelius, otherwise known as Christian P'eper, Jr., together with his wife, for a valuable consideration, conveyed to plaintiff all their right, title and interest in and to said parcel of ground described in plaintiff’s amended petition; that by virtue of said conveyances, plaintiff, in addition to the interest devised to her under her father’s will, became and is the owner of an undivided twenty-seven sixtieths of said parcel of ground described in her amended petition, and defendants Adolphus S. Peper, Charles U. P'eper and Margaret P. Bell are each owners of an undivided-eleven-sixtieths of said parcel of ground, defendant Nicholas M. Bell having a light of curtesy in his wife’s share therein, and defendant Caroline M. Peper haying a dower interest in her husband’s share therein.

“Said defendants therefore ask this court to ascertain and determine the estate, title and interest of said parties respectively in said real estate, and to,define and adjudge the title, estate and interest of the parties severally in and to said real property as above set forth.

‘ ‘ Said defendants further ask that this court, having declared and adjudged that plaintiff and defendants Adolphus S. Peper, Charles G-. Peper and Margaret P. Bell are tenants in common of said real estate, and declared the interest of the parties accordingly, will order and decree a partition thereof. Defendants state that owing to the character of the property, and the number of owners, a partition in kind is impracticable, • and they therefore ask that this court will order a sale of the property at public vendue for cash in accordance with the statute in such cases made and provided, and that the proceeds of such sale be divided between plaintiff and said defendants according to their respective interests, after the taking from'plaintiff’s share such sum as the court may ascertain to be due from her by way of rent for the use and occupation of said premises; and for such other relief as may be just and proper, defendants will ever pray. ’ ’

It is somewhat difficult to designate the above cross-bill by any name. It appears that a statutory action to determine title, an action for rent, and an action for partition are all joined in one count of the cross-bill. But however that may be, can any portion of said cross-bill be said to state a cause of action which has for its object the recovery of the land here in suit, or the possession of the same?

That portion which seeks a recovery of rent certainly does not state such an action. Neither can that portion of the cross-bill which amounts to nothing more than a statutory action at law to determine title under Section 2535, Revised Statutes 1909, be considered an action to recover land as contemplated in said Section 1879, supra.

In fact it has been recently held by both divisions of this court that the ten-year Statute of Limitations (Sec. 1879, supra) has no application to bringing of a mere statutory action to determine title. [Armor v. Frey, 253 Mo. 447, l. c 474, et seq.; Powell v. Powell, 267 Mo. 117, l. c. 129.]

The remaining portion of the cross-bill pleads an action in partition, but the cross-bill in nowise seeks to assert any possessory right of the defendants to said land. It has been held that a suit in partition is not an action for the recovery of lands under Section 1879, supra.- [Real Estate Co. v. Lindell, 133 Mo. 386, l. c. 399.]

Whether or not, where partition is asked in a suit in equity, the party so asking, being out of possession, may by proper plea for affirmative relief assert his possessory rights and ask that the court award a writ of possession /in connection with the equitable partition, and whether such a plea if made in time would stop- the running of the statute, we need not here determine, for the simple reason that no such attempt was made by defendants in the present action.

Had defendants by separate count in ejectment, or by otherwise sufficient allegation of facts in the answer for affirmative relief, pleaded the ouster, - asserted their rights to possession of their respective interest in said land and prayed that they be restored to said possession, we would not hesitate to say that such a pleading, made within the ten-year period, would have arrested the running of the statute. But no such right was asserted or asked for in the pleadings filed.

Under such conditions we are unable to discover any reason for holding that the operation of the Statute of Limitations was in any manner stayed by the pending litig’ation. Appellant’s action to determine title was not only not inconsistent with, but was entirely consistent with, her adverse possession.

We have been somewhat slow and reluctant in arriving at the result above announced, but, the situation carefully and thoroughly considered, we are unable to justify any other conclusion.

It is well settled that adverse possession, accompanied by the well known prerequisites, for the statutory period, not only bars any action for the recovery of the land, but also operates to vest the full legal title in the possessor. [Merchants’ Bank v. Evans, 51 Mo. 335, l. c. 347; Allen v. Mansfield, 108 Mo. 343, l. c. 348; Kirton v. Bull, 168 Mo. 622, l. c. 633; Adams v. Gossom, 228 Mo. 566, l. c. 578.]

In the case of Scannell v. American Soda Fountain Co., 161 Mo. 606, l. c. 618, Vallliant, J., speaking- for the court said: “ A title acquired by adverse possession under our statute is in every respect as good for purposes of attack or defense, as a title by deeds running back to the Government” (Citing many cases).

It therefore follows that appellant, by reason of her adverse possession for ten years or more before the filing of the fourth amended petition, became vested with the legal fee-simple title to said land, and the trial court erred in not so holding. ■

Since the ruling on the above point determines the case, it becomes unnecessary to determine what title or . interest appellant may have acquired by reason of performance on her part of the alleged contract.

The judgment is reversed and the cause remanded with directions to the said circuit court to- enter judgment dismissing- defendants’ separate cross-bill and decreeing the fee-simple title of said premises to be in the appellant and that she recover costs of suit against the defendants.

Williamson, Blair and Walker, JJ., concur; Goode, Graves and Woodson, JJ., dissent.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. WALKER D. HINES v. JOHN W. CALHOUN, Judge of Circuit Court.
    In Banc,
    March 15, 1920.
    1. JURISDICTION: Venue: Railroad. A railroad company, whose line of road runs into only one county of the State and has an office or agent in no other, can be sued only in such county.
    2. -: -: Director G-eneral of Railroads: Agent. The usual and customary business of a railroad company consists in the receipt of freight and passengers at various points on its line, the transportation of them thereon, their delivery at other points thereon, the issuance of hills of lading, the sale of tickets, and the keeping of hooks and accounts of the company relating to such transactions; and the Director-General of Railroads, appointed under an act of Congress directing the President to take Charge of, operate and control all railroads, is not such an agent in a county in which the railroad company which has caused plaintiff’s injury has no place of business and into which its line of road does not run, and the circuit court of such county has no jurisdiction over the person of the Director General, although he is found in the county and summons is served upon him therein. Whether or not the action for damages be grounded on the Employers’ Liability Act, his duties and liabilities are just as broad territorially as were those of the railroad company before he took charge of its properties. If the railroad company could not have been sued in a county prior to that time, he cannot be.
    3. -: --; ’-: General Orders 18-A and 18-B. . General Orders 18-A and 18-B' of the Director-General of Railroads, providing that suits against carriers while under Federal control must be brought, in the county or district where plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose, cannot be construed to oust a state court of jurisdiction of the subject-matter of an action over which the laws of the State give it jurisdiction; but if the railroad company, whose lines are being operated by the Director-General, has a line of road in a certain county in this State, he can be sued in such county, provided he can be found there, though the service of summons would have to be made under Section 1751, and not under Section 1754, Revised Statutes 1909.
    . Prohibition.

    Preliminary writ made permanent.

      James F. Green and H. II. Larimore for relator.
    The suit of Joseph SharamitarO' v. Union Pacific Railroad Company-et al., No. 20072, pending in the circuit court of the city of St. Louis, is an attempt to subject Walker D. Hines to the jurisdiction of the said court, in violation of the plain provisions of the statutes of Missouri relating to the venue of suits against corporations, because of which said circuit court was possessed of no jurisdiction over the person of the Director General of Railroads. Sec. 1754, R. S. 1909; Sec. 10, chap. 25, TJ. S. Statutes at Large, Yol. 40, p. 452; Rutherford v. U, P. Railroad Co., 254 Fed. 880; Friesen v. Ry. Co., 254' F'ed. 875; State ex rel. v. Jones, 270 Mo. 280.

      H. G. Whitehill for respondent; A.. L. Levi of counsel.
    (1) In filing suit in the circuit court of the city of St. Louis, the plaintiff was entitled to obtain service upon the relator, if he could be “found” within said jurisdiction, as provided by the statutory law of Missouri, as he was made a party defendant in a representative capacity.. Secs. 1734, 1751, 1760, R. S. 1909', as amended by Laws 1915, p. 225. (2) Actions accruing in a foreign state or under the Federal Employers’ Liability Act may be brought in any of the courts of this State by the persons entitled to the proceeds thereof. See. 1736, R. S. 1909; Lee v. Railroad, 195 Mo. 400; Jones v. Railroad, 178 Mo. 525; Newlin v. Railroad, 222 Mo. 375;' Act of Congress, April 22, 1908, U. S. Comp. Stat. 1916, see. 8657; Second Employers’ Liability Cases, 223 U. S. 1; 14th Amendment, U. S. Const, sec. 1. (3) Service .of process was had upon relator in strict accordance with the provisions of the statutes governing the same, as relator is neither a corporation nor a joint stock company. Sec. 1760', R. S. 1909, as amended by Laws 1915, p. 225; State ex rel. v. Sale, 232 Mo. 173. (4) If relator had any objection to the circuit court’s judisdiction over the subject of the action, or the person of the defendant, it was his duty to raise same by demurrer or by a plea. Sec. 1800, R. S. 1909; State ex rel. v. Grimm, 239 Mo. 135; Newcomb v. Railroad, 1.82 Mo. 707; Glendale Lbr. Co. v. Barker Lbr. Co., 152 Mo. App. 386; Hanson v. Neal, 215 Mo. 256; Johnson v. Hetrick, 152 Mo. App. 235; Hendricks v. Calloway, 211 Mo.- 536. (5)| By filing the motion to dismiss and to quash the summons, and introducing as a part of said motion matters dehors the record, i. e., the petition and the return, which would require evidence, amounts to a. waiver of the right to have the return quashed and the suit dismissed, no matter how the summons was served, and constitutes an entry of appearance to the action. State ex rel. v. Sale, 232 Mb. 176; State ex rel. v. Grimm, 23.9 Mo. 135; Thomasson v. Insurance Co., 217 Mo. 495; Meyer v. Insurance Co., 184 Mo. 481; Barrow SS. Co', v. Kane, 170 U. S. 100; Mahr v. U. P. Ry. Co., 140 Fed. 921. (G) The Director General of Railroads is a carrier under the Act of Congress, March 21, 1918, and may be sued in the several states according to thé laws thereof. Sec. 10, chap. 25, U. S. Stat. at Large, VoL 40, p. 452; Rutherford v. U. P. Railroad, 254 Fed. 880. (7) The General Orders of relator as Director General of Railroads are not effective to limit the venue of actions to a certain county or district, or to affect the jurisdiction of state courts or the laws thereof regarding institution of suits or services of process therein. Friesen v. Railroad, 254 Fed. 875; Moore v. Railroad, 174 N. Y. S. 601; El Paso R. Co. v. Lovick, 210 S. W. 283; Jensen v. Lehigh Valley Railroad, 255 F'ed. 795; Commercial Club v. Railroad, 171 N. W. 312; Matter of N. Y. Cent. Railroad, 174 N. Y. Supp. 682; Muir v. Railroad, 247 Fed. 896; Lava,lie v. Railroad, 172 N. W. 918; Gowan v. McAdoo, 173 N. W. 440 ; McGregor v. Great Nor. Ry. Co., 172 N. W. 841; Vaughn v. State, 81 So. 417; Matter of Morris Ave. Bridge, 174 N. Y. Supp. 682; Dahn v. McAdoo, 256 Fed. 549; Johnson v. McAdoo, 257 Fed. 757; U. S. Railroad Admn. v. Burch, 254 Fed. 140:
   WOODSON, J.

The suit out of which this proceeding grew, was instituted in the Circuit Court of the City of St. Louis of Joseph Sharamitaro, administrator of the estate of Leo Sharamitaro, deceased, to recover* damages caused by the alleged negligence of the Union Pacific Railroad Company, a corporation, for injuries received bj^ the deceased, which resulted in his death. A summons was issued out of the’clerk’s office of the Circuit Court of the City of St. Louis, and directed to the sheriff of Jackson County, Missouri, for service. Serv~ ice was duly liad upon the agent of the defendant’s company, in said county, that being the only county in the State into which the defendant’s road ran or in which it did business. A return of the petition and service of the summons was made by said sheriff of the Circuit Court of the City of St. Louis. Upon the motion of the railroad company, said service was quashed. After the quashing of said return, the plaintiff filed an amended petition in the same court, making 'Walker D. Hines, Director General of Railroads, a party defendant, and on or about May 19, 1919, a summons was issued for said Walker D. Hines, directed to the sheriff of the City of St. Louis for service, and in pursuance thereto the said sheriff on said day made the following return upon the summons:

“Executed this writ in the City of St. Louis, Missouri, this 19th day of M:ay, 19191, by delivering a copy of the writ and petition as furnished by the clerk to Walker D. Hines, Director General of the Railroads, defendant herein.”

Thereupon the defendant, Hines, filed the following motion in the cause:

“Your relator further avers that thereafter, on the 2nd day of June, 1919, defendant Walker D. Hines, Director General of Railroads, appearing for- that purpose only, filed a motion to quash such service and dismiss said cause on the ground that said court by such .pretended service acquired no jurisdiction of the subject of the action, nor of the defendant Walker D. Hines, Direct,or General of Railroads, and on June 25th thereafter such special motion of defendant Hines to quash such return of service and dismiss said cause was by the Circuit .Court of the City of St. Louis, over the objections and exceptions of said defendant Hines, overruled.

“Your relator also avers that by the terms and provisions of Section 1751, Revised Statutes 1909, suits against railroad corporations can only be brought and maintained in counties through which the railroad being operated by such railroad company runs, or in comities where such railroad company shall have or ■usually keep an office or agent for the transaction of its usual and customary business; that, as above set out, neither the Union Pacific Railroad Company nor Walker D. Hines, Director General of Railroads operating the Union Pacific Railroad, at any time kept within the limits of the City of St. Louis, an office or agent for the transaction of their usual and customary business, and also, as above stated, the Union Pacific Railroad Company at no time operated a railroad running into or through said City of St. Louis or St. Louis County, Missouri.

“Because of all of which your relator says that the sáid Circuit Court of said City of St. Louis, by the pretended service above set out and the return of the sheriff thereon, acquired no jurisdiction of the subject of the action, nor1 of the person of-Walker D. Hines, Director General of Railroads, in charge of and operating the Union Pacific Railroad, and, having quashed the pretended service had upon the Union P'acifie Railroad Company, said court was also without jurisdiction to make said Walker D. Hines, Director General of Railroads, a party defendant to the action, or cause any summons to he issued for such Director General to the sheriff of the City of St. Louis, Missouri, or otherwise.

“Relator has attached hereto the petition in said case No. 20072, wherein the Director General of Railroads was made a party defendant; a copy of the summons issued thereon to the sheriff of the City of St. Louis, directing him to summon the-said Walker D. Hines, Director General of Railroads; the return of the sheriff thereon; the special motion of said defendant Walker D. Hines, Director General of Railroads, to quash such pretended service; and the order of court overruling such motion; all certified to by the clerk of the Circuit Court of the City of St. Louis, Missouri, and made a part of this application.

“Finally, your relator avers that the respondent herein, Judge of said Circuit Court of the City of St. Louis, is about to proceed in said cause No. 20072 against the said Walker D. Hines, Director General of Railroads, a defendant therein, and to exercise jurisdiction in said cause against said defendant; that your petitioner is without adequate remedy in the premises to prevent the exercise of such jurisdiction by respondent other than by prohibition to be issued by this Honorable Court.

"Wherefore, your petitioner, the State of Missouri at the relation of Walker D. Hines, Director General of Railroads in charge of and operating the Union Pacific Railroad, prays that this Honorable Court will issue against respondent, John W. Calhoun, Judge of the Circuit Court of the City of St. Louis, Missouri,, its writ of prohibition,, restraining and preventing him. from hearing or- taking further cognizance or action in said cause of Joseph Sharamitaro, Administrator, v.. Union Pacific Railroad Company et al.-, No. 20072, in so far as the said Walker D. Hines, Director General of Railroads, is concerned, and that said respondent, pending the final hearing: of this cause, be prohibited and restrained from taking any cognizance or action in said suit pending before him against the said Director General of Railroads, and that, upon final hearing, said prohibition against respondent be made absolute. ’ ’

After consideration, this court on tli.fi 13th day of October, Í919, issued its preliminary rule against the respondent, which was in conventional form. Thereupon the respondent Calhoun made the following return:

"Comes now the Honorable .John; W. Calhoun, respondent herein, and for answer and return to the petition and application for writ, in prohibition heretofore issued:

"First. Admits that he is one of the duly elected, qualified and acting judges of the Circuit Court of the City of St. Louis, Missouri, comprising the Eighth Judicial District of said State, and as. such is the presiding judge in Division -No. 1 of said circuit court, known as the Assignment Division thereof. That the suit mentioned in .the application for this ¡writ xas duly filed in the office of the clerk of said court and is now pending before your respondent as judge of said Division No. 1, thereof. That it will be the duty o'f respondent to hear and determine the pleadings in respect of said suit during the time of his presiding over said division, to-wit, from October 1,1919, to January 1,1920.

“Second, Respondent further states that the said suit of Sharamitaro, Administrator, v. Union Pacific Railroad and Walker D. Hines, Director General of Railroads, was at the time of its filing immediately transferred to Division No. 1 known as the Assignment Division of the Circuit Court of the City of St. Louis, Missouri. That thereafter while said cause was so pending in said division as aforesaid, the Honorable Charles B. Davis, one of the duly elected, qualified and acting judges of the Circuit Court of the City of St. Louis, Missouri, comprising the Eighth Judicial.District, was regularly' assigned to preside over said assignment division of said court, and during his tenure therein there was filed in said cause a certain motion of said Director General of Railroads, Walker D1. Hines, to dismiss said cause and to quash the sheriff’s return thereon, which is in words and figures as follows” (which was in conventional form, but not mentioned here): “That thereafter the Respondent, Hines, filed the following motion to dismiss:

“ ‘Now comes Walker D. Llines, Director General of Railroads, for the purpose of this motion only and for no other purpose, and moves to quash the summons issued herein for the reason that, upon the face of the record, this court lias no jurisdiction to issue any summons for this, defendant, Walker D. Hines, or for the" Union Pacific Railroad Company;' that no service has been had upon any agent of the Union Pacific Railroad Company in the City of St. Louis, or within the jurisdiction of this court, and that the action is instituted in this jurisdiction in violation of General Order Nio. 50 and General Order No. 50-A issued by said Director General of Railroads, copies of which orders are hereto attached and made a part of this motion.

“ ‘Wherefore, defendant asks that; the summons be quashed and that the cause shall be dismissed, for which he will every pray. ’

“That, thereafter, on June 25, 1919, said motion coming on for hearing was, by the court, through the said Honorable Charles B. Davis, presiding 'therein, overruled, so that at this time1, the said defendant, Walker D. Hines, as Director General of Railroads, is required, under the statute, either to answer, demur or otherwise plead to the petition upon which this cause is founded, and which is now pending as aforesaid.

“Third. Respondent further states that this is a cause of action based upon an Act.of Congress of April 22, 1908, known as the Federal Employers’ Liability Act, and is for damages for an alleged wrongful and negligent injury of plaintiff’s intestate, which resulted in his death in the State of Wyoming while an employee of the said defendant, Union Pacific Railroad, which was then and there being. operated by the defendant, Walker D. Hines, Director General of Railroads, and in said suit it is alleged that both said employer and employee were at the time engaged in interstate commerce within the meaning of said Act of Congress.

“Fourth. For further answer, respondent states that, under and by the terms and provisions of said Act of Congress mentioned as aforesaid, the term ‘Common Carrier’ as used in said act shall include a receiver or receivers, or other persons or corporations charged with the duty of the management and operation of the business of a common carrier, and that the said Walker D. Hines is and was. at all the times mentioned in said cause the duly acting Director General of Railroads, and, as such, in charge, of the operation, control and management of said Union Pacific Railroads, and that,- as such Director General of Railroads, the'said Walker D. Hines is and was at all" times herein mentioned amenable to said Act of Congress and the provi> sions thereof.

‘’‘Fifth. For further ¡answer, respondent states that, under the Act, of Congress, approved March 21, 1919, entitled, ‘An Act to provide for the operation of transportation systems while under Federal control,’ it is expressly provided thait ‘carriers, while under Federal control, shall he .subject to all. laws and liabilities as common carriers, whether arising under State or Federal laws, or at common law’ and that, by virtue of such authority, the Director General of Railroads under sail General Orders No. 18-B and 18-A, has provided as follows, to-wit:

‘It is, therefore, ordered that all suits against carriers, while under Federal control, must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose.’

“That it appears from the face of the petition filed in said cause of Sharamitaro, Administrator, v. Union Pacific Railroads, that the plaintiff therein was appointed by the Probate Court of the City of St. Louis, Missouri, the duly acting administrator, and was at the time of said suit in charge and control of said estate as said administrator, and at the time of his said appointment and the institution of this said suit is and was in the City of St. Louis, Missouri.

“Sixth. Further answering, respondent stated that, under General Orders No. 50 and 50-A of the Director General of Railroads, it was provided, in part, as follows, to-wit:

“ ‘That actions at law, claim for death or injury to a person arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit or proceeding but for Federal control might have been brought against the carrier company, shall be brought against the Director General of Railroads, and not otherwise. That the pleadings in all such actions at law or proceedings now pending against any carrier company for a cause of action arising since December '31, 1917, based upon a cause of action arising from or out of the operation of any railroad' 'or other carrier, may, on application, be amended by substituting tbe Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom.’

“That' said plaintiff administrator in said suit has amended his said cause of action by substituting and adding thereto the said Wjalker D. Hines, Director General of Railroads, as party defendant, upon which amendment summons was duly issued by the clerk of the said court and service made, as will appear from the face of said return, which is set forth in the application for this writ.

“Seventh. Respondent further states that by the provision of Section 1751, Revised Statutes 1909, which were in force at the time said action was commenced and.which in part provide that suit may be brought by summons in the county within which the plaintiff resides and the defendant may be found in that it conclusively appears by the return of the sheriff that said Walker D. Hines, Director General of Railroads, defendant in said action, was personally served within the jurisdiction of the court wherein the - plaintiff resided at the time said action was commenced.

“Eighth. Respondent further states that after the filing of said petition in said cause as aforesaid, and the personal service upon the defendant, Walker D. Hines, Director General of Railroads, in charge of the operation, management and control of said Union Pacific Railroad, a party defendant, submitted to the court a pleading in the nature of a motion to dismiss said cause of action and to quash the return of the sheriff made thereon, in which motion said defendant alleged that the court had no jurisdiction over the subject-matter of the cause and no jurisdiction to issue any sum-mos for said defendant, Walker D. Hines, in his representative capacity or f oí said Union Pacific Railroad, and that said action so instituted in the jurisdiction of said court was in direct violation of General Orders No. 50 and 50-A, above referred to, issued by said Director General of Railroads, copies of which orders were attached to said motion and made a part thereof. That by said action, that is, the filing of said motion to dismiss said cause of action and to quash the return of the sheriff thereon and by reference to matters which, dehors the record, constitute a general entry of appearance by said Director General of Railroads as aforesaid, to the jurisdiction of said court and has been held by this Honorable Court on numerous occasions.

“Ninth. Further ánswering, respondent denies that said action so pending in said circuit court is governed by the provisions of Section 1754, Revised Statutes 1909, entitled ‘Suits Against Corporations — Where Commenced,’ for the reason that said suit by reason of the substitution and amendment whereby said Director General of Railroads is made a party defendant and as such in charge of the operation, management and control of the Union Pacific Railroad, is not a suit against a corporation, but is a proceeding commenced under Section 8663 of the United State Compiled Statutes, Annotated 1916, against a receiver or receivers or other persons charged with the duty of the management and operation of the business of 'a common carrier. That said Director General of Railroads under the acts of Congress and the proclamation of the President of the United States is a receiver or other person in a representative capacity charged with the duty of the management and operation of the business of a common carrier and is therefore subject to personal service as by the statutes of Missouri in such cases made and provided.

“Tenth. Further answering, respondent states that the said Director General of Railroads has attempted by said General Orders 50 and 50-A, heretofore issued, and above referred to, to state when and how and upon whom process of a state court may be served in actions wherein said Director General of Railroads is a party defendant; that said orders of said Director General of Railroads in so far as they attempt to designate a different manner of service of process than is set out in the statutes of the State of Missouri, are void and of no effect, as they attempt to set aside and nullify the expressed statutory law of the State of Missouri regarding the venue of actions and the service of process therein and amounts to a denial of due process of law as guaranteed by both the Federal and State Constitutions. That, said orders of said Director General of Railroads in so far as they attempt to provide for service of process as above set forth, amount to legislative enactment by said Director General of Railroads regarding the vesnue and jurisdiction of state courts and are therefore void and of no effect.

“Wherefore, having fully answered herein, respondent prays that the temporary order of prohibition be dissolved; that the Circuit Court of the City of St. Louis, Missouri, and the said John W. Calhoun, presiding judge of Division No. 1 thereof, be ordered to further proceed with the cause of action herein prohibited, and that this ■ respondent be discharged hence with his costs. ’ ’

Relator thereupon filed its motion for judgment on the pleadings and upon the record as thus made the case is pending for decision.

As we view the record the only proposition presented for our determination is the proper construction of Section 1754, Revised Statutes 1909. It reads as follows:

“Suits against corporations shall be commenced either in the county where the cause of action accrued, or *n case corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this State, then in either of such counties, or in any ■county where such corporation shall have or usually keep an office or agent for the transaction of their usual and customary business.’'’

It is conceded by the pleadings that the Union Pacific Railroad Company has no line of road running into or through the city of St. Louis, or into any other county of the State, except the County of Jackson, and that it has no office or agent in the city of St. Louis for the transaction of its “usual and customary business,” unless the Director General of Railroads' may be considered such an agent. Clearly he is not such an agent, for he has no office where 'the usual and customary business of the company is transacted in the City of St. Louis, nor does he transact any of such business for the company in said city.

The usual and< customary business of a railroad .company consists in the receipt of freight and passengers, at various points on its road and to transport and deliver them at other points thereon, and to issue bills of lading, the sale of tickets, and keeping the books and accounts of the company relating to such business transactions. There is nothing in this statute lending color to the contention that the Director General has anything in the world to do with such business. It is done by various local agents and employees, wherever that road transacts such business.

The Director General is performing an extraordinary business, that of managing and controlling the operation of all the railroads in the United States, the Union Pacific included. Should it be conceded that the amendment of the petition making the Director General was the same as the institution of a. new suit against him, yet that fact alone would not authorize the service of summons on him, in the City of St. Louis, under said Section 1754, for the obvious reason that the Act of Congress of April 22, 1908, known as the “Employers’ Liability Act,” provides that the term “common carrier,” as used in said act} should include a receiver or receivers, or other persons or corporations charged with the -duty of the manage-, ment and operation of the business of a “common carrier.” If we take the language of the act literally, and according to its clear meaning, and concede that the Director General became; by the amendment of the petition, substituted for, and in lieu of the Union Pacific-Railroad Company, yet it cannot be logically contended from that fact that he could be sued when the company could not be sued, prior to the date when the road passed into the hands of the Director General. It must be admitted that prior to the date when the defendant company passed into the hands of the Director General, it could not have been sued in this case in the City of St. Louis, and there is no language in said Section 1754, nor in said Act of Congress, extending to the plaintiff the right to institute this suit in a county where,he had no such right prior to the time - the Director General took charge of the road. His duties and liabilities áre just as broad territorially and otherwise, as the road itself was, prior to that date.

This view of the case reduces the other questions presented by counsel to academic propositions, and we will not pass on them until we reach them, in a proper case.

The orders made by the Director General, heretofore referred to, cannot be so construed as to oust any court of this State of the jurisdiction of the subject-matter of any action over which the laws thereof give it jurisdiction, and should this suit have been. brought in the Circuit. Court of Jackson County, then service could have been had upon the person of the Director General, could he have been found there. This service, however, would have been under Section 1751, Revised Statutes 1909, not under Section 1754. But in my opinion, the orders referred, to are enabling* orders and not disabling in character; that is, they were designed to give the courts jurisdiction over the person of the Director General, by proper service, in those courts where they have jurisdiction of the subject-matter of the suit, but where the laws make no provision for the service of summons on the person of the Director General, • for instance. In my opinion this suit under' the orders mentioned might have been brought in Kansas City, or in proper court in the State of Wyoming, and service had upon the Director General anywhere he might be found in the United States, otherwise the orders are wholly impotent and meaningless; but as this suit was not brought in Jackson County where the defendant transacted its ordinary business, the preliminary writ heretofore issued is made permanent.

All concur.


author: WALKER, C. J.

text:
    THE STATE ex rel. B. F. BUSH, Receiver of ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, v. JOHN T. STURGIS et al., Judges of Springfield Court of Appeals.
    Division Two,
    March 26, 1920.
    1. CONFLICT IN DECISIONS: Certiorari: Extent of Review. The Supreme Court, on certiorari, based on an allegation that the decision of the Court of Appeals contravenes certain decisions of the Supreme Court, is limited in its review to the opinion of the Court of Appeals. If it does not disclose a conflict with the former rulings of the Supreme Court, the power of superintendence is at an end.
    2. -- — : Variance Between Theory of Trial and On Appeal. A variance between the theory upon which the case was tried and the theory upon which the judgment was affirmed in the Court of Appeals, to be available in quashing its decision, must be of such a character as to constitute an essential factor in determining defendant’s liability. The difference in the two theories must involve a matter essential to the rendition of the judgment affirmed.
    3. -: -: Immaterial Variance. The petition alleged that defendant’s negligence consisted in its failure “to give the statutory signal, by bell or whistle, as the train approached and passed over the public crossing.” The answer charged that “deceased went upon the railrpad track in front of a running train, heedlessly and without looking or listening.” The reply was that “the night was very dark, the engine without a headlight and pushing a car in front, and no signal whatever was given.” The petition charged and the jury found that deceased reached the crossing by traveling a public highway. The Court of Appeals held that “if defendant’s liability is to rest on the finding that the deceased approached the crossing along the public road” the verdict cannot stand, but also held that plaintiff’s right to- recover was not dependent on the manner in which he approached the crossing, but that the cause of his death was the manner in which the train' approached the crossing, it being its duty, since he was actually on the public crossing when struck, to give him some effective warning,.and its failure to do so was negligence. Held, that the variance was immaterial, and the decision ©f the Court of Appeals is not in conflict with previous decisions of. the Supreme Court,

      4. -'-: -: Trespasser. The rule that crossing signals are for the benefit of travelers on public highways and not for trespassers has no application where deceased was not a trespasser, but actually on the public street at the time the train struck him.
    5. -: -: Ruling on Former Appeal: Law of Case. That a ruling on a former appeal may become the law of the case on a second appeal is applicable only when such prior ruling is determinative of some issue in the case.
    6. -: -: -: — : -: New Evidence. If on a new trial after a verdict is reversed, material evidence on the question decided is produced, the ruling on the first appeal does not become the law of the case.
    7. -: Recovery on Reply. Decisions of the Supreme Court to the effect that plaintiff must recover, if at all, on a cause of action stated in the petition, and not on one stated in the reply, have no application to a decision of the Court of Appeals which rules, and properly Under the facts, that plaintiff’s right to recover was limited to the cause of action stated in the petition.

      Certiorari.

    Writ quashed.

      J. F. Green and Barbour & McDavid for relator.
    (1) In disposing of the case on appeal, the respondents have done so on a theory not presented below and thus have affirmed the cause on issues never presented to the trial court or jury by pleadings or instructions. In so doing respondents have failed to follow the rule announced on that subject in the latest controlling decisions of the Supreme Court in Brunswick v. Standard Accident Ins. Co., 213 S. W. 46; Degonia v. Railroad, 224 Mo. 588; Chinn v. Naylor, 182 Mo. 595; Desohener v. Railroad, 200 Mo. 332; Mirrielees v. Ry. Co., 163 Mo. 486; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 369; Henry County v. Citizens Bank, 208 Mo. 2:26’. (2) A reading of respondents’ opinion discloses that the case was affirmed on issues and matters contained only in the replication and not in the petition, In so- doing respondents have failed to follow a long line of decisions of the Supreme Court wherein it has been held that a plaintiff must recover, if at all, on the matters alleged in the petition, and may not eke out¡ such petition by matters brought into- the case by reply. Mathieson v. Railroad, 219 Mo. 522. .(3) Crossing signals are for the benefit only of travelers on the public highway, and not for trespassers, and trespassers may not expect or depend upon signals and they may not expect or depend upon headlights. It has been so ruled in the following cases: Degonia v. Railroad, 224 Mo. 592; Burger v. Ry. Co., 112 Mo. 246; F'rye v. Ry. Co., 200 Mo. 407; Bell v. Railroad, 72 Mo. 58; Miaxey v. Ry. Co., 113 Mo. 11; Gurley v. Ry. Co., 104 Mo. 223; Evans v. Ry. Co., 62 Mo. 57; Ayers v. Railroad, 190 Mo. 287; Milliken v. Commission Co., 202 Mo. 654; Moss v. Fitch, 212 Mb. 502; Hill v. Mining Co., 119' Mu. 30. (4) The l§,w as settled by the Supreme Court is that where a case has been tried and appealed the opinion rendered by the appellate court on such an appeal becomes the law of that case for any subsequent trial and is binding on the trial court, the parties in interest, and on the appellate court on any subsequent appeal. May v. Ciawford, Í50 Mo. '524; Benton v. St. Louis, 248 Mo. 102; Gracey v. St. Louis, 221 Mo. 5; Armor v. Frey, 253 Mo- 465; Bridge Co. v. Stone, 194 Mo. 184. Seei opinion on previous appeal of this case of the Springfield Court of Appeals, 198 Mo. App-. 615.

      Collins, Holloday & Stough, Geo. W. Tho^rnberry and Hamlin & Hamlin for respondents.
    (1) A judgment clearly for the right, party under the facts and the law applicable thereto whether declared to the jury or not declared to the jury should not be disturbed for the very good reason that by such judgment the real aim of the law is accomplished. Facts do not give way to theory nor are shadows or technicalities the real trunk of the law. And in a case of this sort a pertinent inquiry always is, has the object of the law been accomplished? Boyes’ Admr. v. Smiths’ Admr., 16 Mo. 322. (2:) In a proceeding of this nature the Supreme Court wholly ascertains the facts in a case from the written opinion of the judges of the Court of Appeals. State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19; State ex rel. Commonwealth Trust Co. v. Reynolds, 213 S. W. 804. (3) It cannot be said by relator that the plaintiff pursued one theory in the trial court and then changed her theory in the Court of' Appeals. • (4) The Court of Appeals having adjudged and determined from the whole record before it upon what real or actual theory this case was tried, suppose it erred in its judgment, this court cannot quash its record. State ex rel. Brown v. Broaddus, 216 Mo. 336.
   WALKER, C. J.

Certiorari to the Springfield Court of Appeals to review the record of that court in the case of Susie E. Kerr against Bush, Receiver of the St. Louis, Iron Mountain & Southern Railway Company for damages for the killing of her husband through the negligence of that company. Upon a trial before a jury a verdict was rendered in her favor in the sum of $3500. From this finding an appeal was perfected to the Springfield Court of Appeals, which affirmed the judgment of the trial court (215 S. W. 393). We are asked to quash the record of the Court of Appeals on the ground that its ruling contravenes certain decisions of this court.

I. The limit of our review is the opinion of the Court of Appeals. If it does not disclose a conflict” with' the former rulings of this court then our power of superintendence is at an end. [State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19, 165 S. W. 729; State ex rel. Dunham v. Ellison, 213 S. W. (Mo.) 459; State ex rel. Com. Tr. Co. v. Reynolds, 213 S. W. (Mo.) 804].

II,, The first contention as to a contrariety of opinion is that the Court of Appeals disposed of the case TP011 a <Rffere:il'k theory from that upon which it was tried below. As to the theory at the trial, the opinion states that “the negligence, alleged in the petition, is the failure of the defendant to give the statutory signal by hell or whistle on the train in question approaching and passing over the public crossing. The petition alleges and the jury found that the deceased reached this crossing by traveling the public highway. In plaintiff’s reply primarily to meet the defense of contributory negligence in that the deceased wént on the railroad track in front of the moving train heedlessly and without looking or listening, it is alleged'‘that the night was very dark, the engine without a headlight and pushing a car in front and that no signal whatever was given for this crossing.’ ”

The court, after reviewing the testimony at length, states “that there is neither any presumption nor any evidence on which to base a finding that the deceased approached the crossing where he was killed along the dirt road and not along the railroad.” Following this conclusion the court adds “that if defendant’s liability is to rest on the finding’ that the deceased approached the crossing along the public road, then to sustain such verdict would be violative of the rule that where the injury may with equal or greater probability have resulted from a different cause for which the defendant is not liable, then the verdict cannot stand; for it devolves on the plaintiff to prove with reasonable certainty that the cause for which the defendant is liable produced the result and this cannot be left to conjecture” (citing cases).

It is evident, therefore, that the specific nature of relator’s contention as to a variance between the theory of the trial court and the Court of Appeals consists in their respective findings as to the manner in which - the deceased approached the crossing. This difference to avail the defendant must he of. such a nature as to constitute an essential factor in determining defendant’s liability. A mere difference in findings not so determinative will not authorize a ruling adverse to the judgment. This in no wise militates against the well established rule that if an injury may have resulted from one of two causes for* one of which and not the other the defendant is liable, the plaintiff must show' with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture the defendant is not liable.

To this effect and no further is our ruling in Degonia v. Railroad, 224 Mo. 588, in which we held that although there was a good case on the facts it was not submitted upon a proper theory of the law and hence the judgment could not be sustained.

In Henry County v. Citizens Bank, 208 Mo. 225, we held that a suit could not be brought upon one cause of action and a recovery had upon another; and that a case could not be tried upon one theory and a recovery had upon another on appeal.

In Deschner v. Railroad, 200 Mo. 332, we held that where a case was tried and instructions on both sides proceeded on the theory that it was the motorman’s duty to see and warn the injured party, the case will be reviewed upon that theory in the appellate court.

In McGrath v. St. Louis Tr. Co., 197 Mo. 105, specific acts of negligence having been pleaded, a recovery if had at all must be upon the acts as pleaded.

In Chinn v. Naylor, 182 Mo. 594, where the case was tried below upon the theory that the land in controversy was an accretion to the shore land of plaintiff, the latter would not be heard upon appeal upon a different theory.

In Meyer Bros. Drug Co. v. Bybee, 179 Mo. 369, we held that litigants will not be permitted to contest a proceeding upon one theory} and on appeal shift, their position by demanding* formal proof of facts practically admitted in the court below.

In Mirrielees v. Railroad, 163 Mo. 486, where both parties tried the case upon, the theory that the defendant was bound to exercise ordinary care to prevent injury to a trespasser after it knew of his peril, we are relieved upon a review of the case here from considering whether a carrier’s liability is limited to willful or wanton injuries or extends to injuries caused by want 'of ordinary care.

' From these cases, relied upon by relator, and many . others which might be cited to the same effect, it appears that the difference in theory between the trial of a case • and its review and disposition upon appeal must, to authorize the invoking of the rule, involve a matter essential to the rendition of the judgment. The correctness of this conclusion is rendered more apparent when we consider the province of an appellate court, which is that of review. Such review is for the purpose of ascertaining if the real matters in issue were tried without error. Other than this the court has no concern because the trial court’s ruling, upon an immaterial matter is not error (Lesser Cot. Co. v. Railroad, 114 Fed. 133, 52 C. C. A. 95; Drew v. School Twp., 146 Iowa, 721); further than this the appellate court, having no original jurisdiction, cannot on appeal consider a matter not submitted below (Woods v. Bryan, 41 S. C. 74, 44 Am. St. 688). An illuminating dissenting opinion of Wheeler, J., in Coles v. Kelsey, 2 Tex. 541, 47 Am. D. 661, is apposite in this connection. It is to this effect: “If an objection not raised in the court below could be considered in. the appellate court there would be no assurance there would ever be an end to the litigation; for should the judgment be reversed on such ground and the cause be again brought before the appellate court some new objection not before taken would require the judgment to be reversed and the cause remanded and the same process might be continued indefinitely.’'’ [See also 3 C. J. p. 691, sec. 580 and notes, and 4 C. J. p. 661, sec. 2556 and notes.]

It remains to be determined, therefore, whether the diverse findings of the trial court and the Court of Appeals in regard to the manner in which the deceased approached the crossing is of such a nature as to bring the case within the rule of a difference in theory between the trial and the appellate-court. The Court of Appeals-holds that if defendant’s liability is to rest upon the finding of the trial court in this regard the verdict cannot stand. Considered alone this is an unqualified holding of non-liability under the facts stated. But construed with reference to the nature of the facts found and in connection with the court’s subsequent language and its disposition of the case upon issues essential to a recovery it cannot be held to be a determinative ruling upon a matter at issue.

While it is true,- as stated by the Court of Appeals, that “it devolves upon a plaintiff' to prove with reasonable certainty that the cause for which a defendant is liable produced the result,” the manner of the approach of the deceased to- the crossing had no relation to or connection with the cause which resulted in his death. This cause was the manner in which the defendant’s train approached the crossing. The duty of the defendant was to give some effective warning to free itself from a charge of negligence, taking into consideration the physical location, at the time, of the deceased and his status towards the defendant due to said location. Tbe evidence discloses that he was on the public crossing when struck by defendant’s train. Thus located, he was not a trespasser, and this is true so far as concerns the liability of the defendant, regardless of the manner in which the deceased approached the crossing; this conclusion accords with reason and is in harmony with our ruling in the recent case of Torrance v. Pryor, 210 S. W. 430, which was followed by the Court of Appeals. Graves, J., speaking for the court in that case, said in effect that “whilst in a public highway one cannot be a trespasser. An intention to shortly leave the highway (along the railroad) would not change a person’s right to be in the street, nor make her a trespasser upon the railroad property in the street.”

This case fixes the status of the person injured as a non-trespasser and as a consequence defines the conditions of defendant’s liability. In so holding, the immateriality of the fact as to the manner in which the injured party reached the highway is clearly indicated. Being immaterial, it is not an issue. Not being an issue it cannot be held to constitute a theory upon which the case was tried and hence the relator’s contention must be overruled.

III. Ncf discussion is required to demonstrate the inapplicability, under the facts in this case, of the rule, sought to, be invoked by relator, that crossing signals are ^or ^ie ^ene^ °f travelers on the public highway and not for trespassers. We have shown that the deceased was not a trespasser and hence not subject to the rule. The numerous cases cited, therefore, in support of this rule, with the correctness of which under a proper state of facts we have no controversy, are not in contravention of the ruling of the Court of Appeals in this case and their citation is futile to affect its judgment.

IV. On a former appeal of this case (198 Mo. App. l. c. 615) the Court of Appeals held that if the deceased came upon the crossing by walking along the railroad track instead of the public road he was not entitled to recover on the negligence alleged that his . , , . ° . approach was by such public road. In the present opinion the court held that although the deceased did approach the crossing by walking along the railroad track the defendant was nevertheless liable. This, relator contends, is error under the rule that the former opinion, absent any new evidence, became the law upon a subsequent appeal. This rule becomes apposite only when the ruling in the former opinion is determinative of some issue in the case. Wle have shown that the finding as to the manner of the approach of the deceased to the crossing was not to he so classified. Decisive of nothing, it could not, therefore, then or thereafter1, become the law, of the case. This conclusion aside, however, there is in this case an equally potent reason why the rule cannot under its express limitations, be made applicable. The facts as to the manner in which the deceased approached the crossing are not the same in the instant as in the former case. Note the language pertinent hereto of the Court of Appeals in its opinion here under review (215 S. W. l. c. 395): “On this point the evidence is not the same as at the previous trial. On the other appeal we said, and such was then the evidence, that no one saw the deceased after he left the town of Galena going eastward toward his home, and no one testified as to whether, on leaving the town and crossing James River on the bridge, he chose to follow the public road or to follow a much-used path onto and along the railroad track to the fatal crossing. Considering the muddy condition of the dirt road and the dangers of going along the railroad, one could 'guess’ at which he did. But on this trial the defendant produced two witnesses . . . who each testified that they saw the deceased going toward his home along the railroad track on the evening he was killed. Neither had testified at the other trial, and each said he had not told any one of seeing the deceased going- along.the track till just before this trial. . . . According to the positive evidence of these two witnesses, the deceased went onto the railroad after crossing the bridge just east of Galena and walked along said track toward his home.”

This excerpt is sufficient to show that in this regard there was a material difference in the testimony at the two trials. Under such circumstances the doctrine as to the binding force of a former ruling cannot be effectively invoked. A review of the cases on this subject is conjfikmatory of this conclusion. [State v. Powell, 266 Mo. 106; Armor v. Frey, 253 Mo. 465; Curtis v. Sexton, 252 Mo. 248; Benton v. St. Louis, 248 Mo. 102; Gracey v. St. Louis, 221 Mo. 5; Bridge Co. v. Stone, 194 Mo. 184; May v. Crawford, 150 Mo. 524; Keeton v. National Union, 182 S. W. 798.]

Y. Relator further contends that the opinion affirms the judgment of the trial court upon issues and matters contained only in the reply and hot in the petition, in contravention of the rule that a plaintiff must recover if at all on the matters alleged in the petian¿ not eke out the' latter by matters brought into the case by the reply. This contention, inadvertently of course, does not correctly state the Court of Appeals’ findings. After stating the substance of the pleadings, which we have set out in haec verba in Paragraph II of this opinion, the court indicates the manner in which it construed the reply in so far as the latter affected the disposition of the case, in that its effect and purpose was “primarily to meet the defense of contributory negligence set up in the defendant’s answer.” This was in harmony with the theory upon which the case was tried in which the instructions limited the plaintiff’s right of recovery to the grounds of negligence stated in the petition. The language of the opinion being; that:

“On an examination of the entire record, we find that the case was actually tried and determined on this theory. The real issue presented and tried was whether any signals were given or any effective warning sound made by this train in approaching and passing' this crossing and whether any conspicuous light was being displayed, the dark and stormy condition being practically conceded. The evidence is such that the jury must have found either that the full statutory signals were given by this train or that no warning signals whatever were given; that either the headlight was burning as usual or that no light was displayed. No middle ground was presented. Under the evidence and instructions, the jury could have acquitted the deceased of contributory negligence only by finding that this train approached this- crossing and struct deceased thereon without any sufficient warning by sound or whistle to apprise him in the exercise of due care of its approach.

“Such, also, are the issues presented by the pleadings taken as a whole, for, while the petition counts on the failure to give the statutory signals, the reply is :

‘ ‘ ‘ The plaintiff for her reply denies that her husband could have seen or heard the train prior to going upon the track, because the night was very dark and the engine drawing said train was running without a light upon the front end and that a car was attached to the front end of said engine and was being pushed in front of said engine; that no signal whatever was given; no light upon said engine; therefore, owing to the conditions aforesaid, her husband had no warning of the approach of said train.’

“The defendant was therefore fully informed of the exact facts which plaintiff intended to prove and which plaintiff’s evidence as believed by the jury did prove. It is also true that, while plaintiff’s instructions predicate liability on failure to give the arbitrary statutory signals by bell or whistle on approaching this crossing, yet to so find under' the evidence necessarily was to find that no signals or warning whatever were given; and by defendant’s instruction on contributory negligence the finding must have been for defendant if -the deceased could by using due care in looking and listening have discovered the coming train in time to have avoided being struck by it. ’ ’

That the reply, therefore, either at the trial or upon appeal, had or wals, attempted to be given any other office than to inform the defendant of the facts which plaintiff intended to prove in rebuttal of the plea of contributory negligence, is not apparent from the record.

The plaintiff’s right of recovery having; been limited to the cause of action stated in her petition and the triers of the facts having, under proper instructions, so found, there is no- substantial merit in this contention. As 'a consequence the following cases: Mathieson v. Railroad, 219 Mo. 552; Milliken v. Com. Co., 202 Mo. 654; Moss v. Fitch, 212 Mo. 503, and cases reviewed therein; Hill v. Rich Hill Coal Co., 119 Mo. 9, and Rhodes v. Land & Lumber Co., 105 Mo. App. 279, which announce the doctrine, well established in this jurisdiction, that a plaintiff must recover, if at all, upon the cause of action stated in the petition and not upon one stated in the reply, are inapplicable.

Finding no contravention in the opinion of the Court of Appeals with the last previous rulings of this court, there exists no ground for our interference with the judgment and our writ is therefore quashed-

All concur.