author: GRAVES, J.

text:
    L. H. EVERSOLE v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    April 8, 1913.
    1. INSTRUCTION: Covering Case: Imposed on Court. The act of counsel in declining to ask an instruction setting forth the facts entitling plaintiff to recover, and thus forcing the court to give one of its own motion covering plaintiff’s theory of his right to recover, is to he condemned.
    2. NEGLIGENCE: Imputed to Volunteer Rescuer. An employee of one railroad, in order to recover for personal injuries from another, received by him in voluntarily trying to stop runaway cars of the other, must show that some other person' was in actual and imminent peril and that he acted from humanity’s sake to rescue such person from the peril. Imminent peril to mere property is not sufficient; nor is the mere fact that the volunteer saw persons on and about the track ahead of the tunaway cars.
    3. -. — : -: Instruction: Not Supported by Evidence. Where plaintiff, an employee of one railroad, voluntarily attempted to stop runaway cars of another railroad and was injured by their collision with an engine, and where the court by its instruction limited his right to act at all to the imminent peril of other persons, a verdict for plaintiff cannot stand if there was no evidence that any such person was in peril, for then there was no evidence upon which to base the instruction.
    4.-:-: Demurrer. Where plaintiff’s petition clearly bases his right to recover on the fact that the lives and limbs of persons were in imminent peril from defendant’s runaway train, and that he, an employee of another railroad company, voluntarily got upon the footboard of the defendant’s engine followiiig the cars, in order to effect a coupling with the cars and to rescue such persons, a demurrer to his case should be sustained and a judgment in his favor simply reversed on appeal, if he produces no evidence that any person was in imminent peril and none showing a situation which led him to believe another was in peril.

      Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    REVERSED.

      J. L. Minnis and Sebree, Conrad & Wendorff for appellant.
    (1) The court committed error in overruling the defendant’s demurrer to the evidence, and also committed error in refusing to grant the defendant’s instruction in the nature of a demurrer to the evidence. Eckert v. Railroad, 43 N. T. 502; Donahue v. Railroad, 83 Mo. 560; Morris v. Railroad, 148 N. Y. 182; Deville v. Railroad, 50 Cal. 383; Corbin v. Philadelphia, 7 A. M. Neg. Rep. 563; McManamee v. Railroad, 135 Mo. 440. (2) The plaintiff was a volunteer and the evidence does not warrant a recovery. (3) There was no proof of negligence of the engineer. (4) There was no negligence in using the engine. (5) The plaintiff was guilty of negligence which caused his injury. (6) The court committed error in giving, upon its oivn motion, instruction numbered one.
    Guthrie, Gamble & Street for respondent.
    (1) Plaintiff. wras not a volunteer. The emergency justified the engineer in accepting his assistance as an employee pro tempore. "While assisting he was entitled to at least the protection of an employee. Railroad v. G-inley, 100 Tenn. 472; Martz v. Railroad, -77 Hun, 77; Sloan v. Railroad, 62 Iowa, 728; Pox v. Railroad, 86 Iowa, 368; Railroad v. Probst, 83 Ala. 518, 85 Ala. 203;, Go¿ v. Railroad, 28 Ill. App. 529; Railroad v. Willis, 83 Ky/57. (2) One. who negligently causes a situation of danger to human life and limb is responsible for injuries received in a justifiable attempt by a third party to avert such danger. It is for the jury to say whether the circumstances justified the attempt. Steel Co. v. Mamey, 48 Md. 482; Whitworth y. Railroad,' 112 La. 363; Gibney y. New York, 137 N. Y. 1; Railroad v. Lynch, 69 Oh. St. 123; Linnehan v. Sampson, 126 Mass. 506; Railroad v. Lan-gendorf, 48 Oh. St. 316; Railroad v. Ridley, 114 Tenn. 727 ¡"Railroad v. Crosby, 74 Ga. 738; Railroad v. Lied-erman, 187 Ill. 463; Corbin y. Philadelphia, 195 Pa. 461; Payton v. Railroad, 41 La. Ann. 861; Becker v. Railroad, 110 Ky. 474; Railroad v. Orr, 121 Ala. 489; Condiff v. Railroad, 45 Kan. 256; Walters v. Light Co., 12 Colo. App. 150; Railroad v. Kotoski, 101 Ill. App. 300; Donahoe v. Railroad, 83 Mo. 560; Koons v. Railroad, 178 Mo. 608; Clark v. Shoe Co., 16 Mo. App. 463. (3) It is immaterial whether .danger actually exists, or may he, or is, averted by others. It is sufficient if the appearances reasonably justify an apprehension of danger. Authorities under point 2; Labatt on Master & Servant, sec. 360; Railroad v. Roane, 33 Tex. Civ. App. 301; Railroad v. Lyons, 54 Neb. 633. (4) The coupler was defective. (5) The engineer negligently managed the engine.
   GRAVES, J.

Action for personal injuries. Verdict and judgment for plaintiff in the sum of $10,000, from which the defendant has appealed. P1a.iut.iff is an experienced railroad man, but was not an employee of the defendant. The negligence complained of is best stated in the following extract from the petition:

“On or about the 20th day of August, 1906, and at about the hour of 3:30 p. m., the defendant company, through a crew of engine men and switchmen, was operating a train consisting of an engine and about fifteen or twenty freight cars from the north, on to and south through, across and beyond the tracks of said Union Depot Company. The engine was on the north end of the train pushing the cars southwardly. At about the time said engine was entering upon the tracks of said Union Depot Company the speed of said engine was slackened for the purpose of slackening the speed of said train as same proceeded over said Union Depot Company’s tracks. Upon said engine being slackened, the momentum of said cars caused same to strain against the coupling device connecting said engine and the nearest of said cars thereto, and said strain caused said coupling device to part and separate, because said coupling device was at such time, and for a long time theretofore had been, through negligence of the defendant, in an unsafe, defective and improper condition, so that same was not reasonably sufficient for the purpose of holding such cars to such engine and under the control of such engine under ordinary course of switching and moving such cars by means of such engine, all of which was known to the defendant, or could have been known to tbe defendant by the exercise of ordinary care. Upon said cars being so separated from said engine, going, as the same were at such time, at great speed and momentum and on the down grade, there ceased to be any substantial means of controlling and checking the speed of such train as same should pass over and along parts of the track of said Union Depot Company where such train at such speed and with such lack of control was likely to endanger human life and limb, unless through the means adopted by the plaintiff as hereinafter stated. When said cars separated from said engine, said cars proceeded with increasing speed, and said engine with diminishing speed, so that the space between the same was widening. Said engine was provided at the front end thereof with a foot-board for the purpose of enabling switchmen to ride thereon and if necessary operate said coupling device while said engine and cars to which same was to be coupled were in motion. The plaintiff at such time was an experienced switchman in the employ of another railroad company. As said engine and cars were moving and separating as aforesaid, they were passing the plaintiff, and plaintiff observed said lack of control, and, recognizing the danger to human life and limb existing and the best available means of averting danger to human life and limb and as a most prudent and expedient thing to be done in the emergency, stepped toward said footboard on said engine and gave to said engineer a signal indicating to said engineer that the plaintiff, as a switchman, would ride upon said foot-board and that such' engineer should increase the speed of such engine so as to quickly overtake said cars, enable the plaintiff to readjust such coupling device and catch and hold said ears as quickly as possible, which signal said engineer understood and answered, rightfully accepting such tender of assistance by plaintiff, so that plaintiff stepped upon the footboard of said engine, prepared' to re-connect such coupling device as soon as said engine with increased speed should overtake said cars, and said engineer did increase such speed, but not promptly and sufficiently and with ordinary care and prudence, hut negligently and with unnecessary delay and decrease of speed, so that the said engine did not overtake said cars so as to enable plaintiff to re-connect said coupling device until about the time that said string of cars so drifting down and along said Union Depot tracks, struck and collided with another engine and train thereon, whereby said engine was brought into violent contact with the north end of said string of cars to which plaintiff was about to make such coupling, and said engine and coupling so broken, damaged and pressed together with said cars as to injure the plaintiff as hereafter stated.”

Answer was a general denial and plea of contributory negligence.

Defendant insists upon its demurrer to the testimony, and this requires a more detailed statement of the situation. On the day in question the defendant was making a transfer of a train of cars from its yards to the yards of some other company. In doing so the cars were pushed rather then pulled by the engine, although the engine was and had to he coupled to the cars. To get these cars to their destination the defendant had to push these cars over a Burlington track, and from thence over a track known as track No. 9 running through the Union Station grounds dr Union Depot yards at Kansas City. This track No. 9 is the track on the extreme south in these yards, and is usually used for the making of such freight transfers, although other tracks, 7 and 8, were sometimes so used. In passing along on the Burlington tracks this transfer train had to pass under the Fifth street bridge. The engine was on the north end of the transfer train of about fifteen cars. When the north car in the train reached the point of this bridge the' engine became detached from the train and separated therefrom by a car-length or more. The cars were moving eight to ten miles per hour, and the track slightly down-grade. Three brakemen were on the cars, and the engineer signaled them to put on brakes. As the engine reached the bridge an employee or watchman in a signal tower near the bridge, which is called in the evidence the north signal tower, gave notice to the watchman at the signal tower in front of the baggage room at the Union Depot, and this watchman, seeing a Bock Island engine and its crew standing upon track No. 9, went down out of his tower and notified the engine crew to get off their engine because the transfer train was coming down their track detached from the engine.

As stated the plaintiff was an experienced railroad man. At the time he was a watchman for the C. B. & Q. Railroad and was near this bridge when the defendant’s engine reached that point. Seeing the situation and hearing some “hollowing” near the depot, he got on the moving engine for the purpose of coupling the engine to the train of ears running in front of it. Whilst in this position the south car of the train collided with the Burlington engine on track No. 9, and the engine upon which plaintiff was riding ran into and collided with the north car of the train, in which collision the plaintiff was seriously injured. Further details will be left to the opinion. This sufficiently outlines the case.

I. The court of its own motion gave the instruction which presented the case to the jury for the plaintiff. So far as the record shows the plaintiff requested but two instructions: (1) an instruction upon the measure of damages, and (2) one defining the term “ordinary care.” The first above named the court modified and gave and the other was given without modification. The plaintiff’s theory of his case must be left in the dark, so far as instructions are concerned, because he asked none covering t¿he case. This burden for some reason seems to have been cast upon the court. If counsel purposely cast this burden upon the court, plaintiff ought to be bound by the court’s attempt to outline to the jury the theory of the case as presented by the petition. In other words, the idea possessed by some lawyers that an instruction on the measure of damages in a personal injury case is all that they should attempt to write for fear of getting error in the record is an idea which when put into practice should be promptly condemned. There should in all cases be at least one principal instruction outlining to the jury the theory under the petition upon which recovery is sought. The jury should not be left to gather the theory of recovery from the petition, aided solely by a formal instruction upon the measure of damages. Nor should counsel cast the burden upon a trial judge to draw such an instruction. The status of the record would indicate that such had been done in this case, because the record before us shows that the plaintiff only requested the two formal instructions above mentioned, thus forcing the court to write the principal instruction, or submit the case upon the petition and the two formal instructions aforesaid. If such is a fact, it is a matter to he condemned. But the record may not disclose all that occurred, and it may be that the trial judge voluntarily drew the general instruction and plaintiff’s counsel having seen it proffered none of their own. Upon the part -of the plaintiff the case was submitted to the jury by an instruction given by the court upon its own motion, in this language :

‘‘ The jury are instructed that if you find and believe from the evidence that on or about the 28th day of August, 1906, an engine of the defendant connected with a string of freight cars, with such cars in front of the engine, was approaching the Union Depot in Kansas City, Missouri, and that as such engine and cars approached said station said engine and cars became separated at the coupling between the engine and the car next thereto and that said engine and cars became uncoupled (if they did) as a direct result of such coupling device being (if it was) in an unsafe defective and improper condition, so that same was not (if it was not) reasonably safe for the purpose of holding such cars to such engine and under the control of such engine in the course of the use of the same as same was being used, and that such unsafe, defective and improper condition (if existing) could have been known to the defendant, by the exercise of ordinary care, in time to have repaired the same, by the exercise of ordinary care, prior to the time plaintiff was injured (if he was), and that the defendant negligently failed to make such coupler reasonably safe and sufficient (if it was not) for the purpose of coupling and holding cars, and if you further believe and find from the evidence that snch disconnected condition of snch cars and engine (if existing) was snch as to create a condition of imminent and immediate danger to life and limb in reference to persons who yon find were (if yon do), or might reasonably be 'expected to be, upon railroad tracks over and across, the grounds of said Union Depot where yon find (if yon do) snch disconnected cars were going or might be reasonably expected to go; and if you further believe and find from the evidence that the plaintiff saw and observed the conditions existing (if they did exist) to a sufficient extent to justify a reasonably prudent man in believing (if a reasonably prudent man would have so believed) and that plaintiff did believe that there was imminent and immediate danger to human life and limb; and if you further find and believe from the evidence that the plaintiff, for the purpose of endeavoring to prevent immediately impending injury to human life and limb, stepped upon the footboard of such engine in pursuance of an understanding (if there was any) between himself and the engineer 'in charge of such engine that such engine should be speeded up and the plaintiff re-couple such coupling device for the purpose of controlling the movement of and stopping such cars by such engine, and that the means last aforesaid was a possible, practicable and reasonably prudent method of connecting with, and controlling the movement of, such-cars; and if you further believe and find from the evidence that defendant’s engineer in charge of such engine negligently failed (if he did) to properly increase and control (if he should have increased and controlled) the speed of such engine for the purpose of coming into contact with, and coupling with, such cars before the collision (if any) and avoiding injury to plaintiff (if you find from the evidence that it would have done so); and if you further find and believe that as a direct result of all matters and things as aforesaid a collision occurred and the plaintiff was injured; and if you further find and believe from the evidence that the danger to the person acting as you find the plaintiff acted was not so great and glaring that a reasonably prudent person would have refrained from so doing under all the facts and circumstances detailed in evidence, and the plaintiff was in the exercise of such care as an ordinarily prudent man would exercise under like circumstances, then your verdict should be for the plaintiff.
“In the foregoing statement the court has recited and made reference to certain facts and conditions alleged, by plaintiff to exist. These recitations are for the sole purpose of advising you as to facts each and all of which it is necessary for you to find to exist before the plaintiff is entitled to a verdict, and you.must not assume from the form of any such statement or recitation that any fact referred to is to be taken as true until and unless you yourself find the same to be true from the evidence submitted to you.”

We set out this instruction, because we can discuss it and the objections lodged against it along with defendant’s demurrer to the evidence! Whether the instruction covers the case pleaded may become a question later. Suffice it to say now that if counsel declined to request an instruction covering their case and thus forced the court to give one of its own motion, the practice is to be condemned.

II. By its demurrer to the testimony the defendant has challenged the sufficiency of the plaintiff’s evidence to make a case for the jury. They therefore complain of the instruction given as being one not authorized by law under- the facts of the case. Counsel urges that the evidence fails to disclose that any person was in imminent peril at the time plaintiff boarded tbe moving engine, and fails to disclose that plaintiff thought that any person was in imminent peril at such time. This was a condition precedent to a recovery under the instruction. Whatever theories, other than this, may he presented by the petition and this instruction, we discuss this point first, because if this be a material element in plaintiff’s case, and if there be no evidence upon which to submit that question to the jury, then the instruction given is at least error. Whether such state of the case would demand that the demurrer to the evidence be sustained might require further developments.

It will be observed that the instruction limits the imminent danger to the imminent danger to person and does not include danger to property. This is the question upon which the jury had to pass and the query for us is, does the evidence authorize the submission of that question to the jury? Bearing upon this point the plaintiff testified in chief, thus:

“Q. As the north end of this train passed you, where was the engine with reference to the train? A. It was about a car-length from the head car.
“Q. That is, there was a car-length space between the car and the engine? A. Yes, sir.
• “Q. Which direction was the engine headed? That is, the front end of the engine? A. It was headed towards the drag.
“Q. At about what speed were they going as they passed you? A. Well, about eight or ten miles an hour.
“The Court: What do you mean — the engine, or the cars ?
“Mr. Guthrie: I asked him about the two of them — the plural.
“Q. Was there any difference between the two, at that time? A. No, sir.
“Q. How was the grade of the track there, on south from the Union Station? Is it up grade, level, or down grade? A. It is down grade — going to the south.
"Q. As the train passed by yon, and yon saw this rear brakeman, — the one nearest the engine,— was he making any effort to stop the train? A. No, sir — I didn’t see any.
"Q. To what extent, in railroad practice, are the hand brakes nsed for braking or stopping a train of that character? A. Well, years ago they were altogether nsed for stopping trains; bnt in late years they depend entirely npon the engine and air brakes to stop them.
"Q. As this space between the cars and the engine came opposite yon, was yonr attention attracted in any way down towards the Union Station — down towards the north end of the baggage room? A. Yes, sir.
"Q. How? A. I seen people running out on the depot platform, and hollowing and yelling and waving their hands.
"Q. What did yon do at this time, Mr. Ever-sole? A. I jumped up from the' footboard where I was sitting, and stepped out on the Wabash engine and gave a signal to the engineer to come ahead quick, we would catch these cars.
"Q. What did yon step on, what part of the engine? A. The footboard.
"Q. Is that provided there for switchmen to ride on? A. Yes, sir.
"Q. When yon gave this signal to. come ahead quick — did he respond in any way? A. Yes, sir.
"Q. How? A. Well, he increased his speed for a short distance and then slackened up his speed and then started up ahead again.
“Q. What happened at the time he started ahead the second time? A. Almost instantly the cars hit something at the other end.”

Upon cross-examination much of the ■ general statements above . is more fully explained. In the cross-examination he says:

“Q. Yon say yon were sitting under this Fifth street bridge at the time this Wabash train passed along? A. I wouldn’t state that we was exactly under it, hut we were very nearly under it.
Q. How much of the train had passed when your attention was called to it? A. Practically all of the train.
“Q. In fact you never paid any attention to it until you saw the engine was detached from the train? A. I didn’t pay any particular attention until that time.
‘ ‘ Q. How many tracks run along there under that Fifth street bridge, where that engine was standing —where you were? A. I think there was four, at that time.
“Q. And how many tracks weré you at the time from the Wabash transfer? A. We were directly on the next track.
“Q. Directly east of that? A. Yes, sir.
“Q. Were you on the outside east track, or on one of the middle tracks? A. I was on the one next the middle tracks.'
“Q. It was on the track west of the one you were on? A. No, the Wabash was on the fartherest track west.
"Q. And you were on the second track from the west? A. Yes, sir.
“Q. Then, there were two tracks running along there that were east of you? A. Yes, sir.
“Q. This train came along there, and you got on the footboard of the engine? A. Yes, sir.
“Q. Had the engine passed yon with reference to this Fifth street bridge, when yon stepped on that footboard? A. Ve were almost directly nnder it.
“Q. The north or the sonth end of it? A. To* wards the sonth end.
“Q. What did yon notice, the first thing, before yon stepped on? A. Why, I noticed the engine being separated from the cars; and the hollowing and shonting, and people running out on the depot platform.
“Q. Yon heard the hollowing and shonting down there, did yon? A. Yes, sir.
“Q. How many people did yon hear shouting? A. I couldn’t say. Sometimes one man can make as much noise as fifteen if he has got the right kind of a voice on him.
“Q. Was there more, than one man shonting? A. I couldn’t say. There was more than that running out that way.
“Q. Where? A. Towards the Wabash train.
“Q. Where were they, that yon saw running? A. It seems like they were running from the baggage room, at the east end of the depot.
“Q. That is — the north end of the depot is where the baggage room is? A. Yes, sir.
“Q. That was four or five hundred feet from where yon were, wasn’t it? A. Kind of on an angle, yes, sir. '
“Q. Where yon saw those people running, was four or five hundred feet from where yon were, wasn’t it? A. Yes, sir.
“Q. And they seemed to be running out of the baggage room towards this Wabash train? A. Yes, sir.
“Q. How many did yon see running? A. There were several. I didn’t have time to count them. I thought there were a dozen.
“Q. Yon thought there were a dozen people running out? A. Yes, sir.
“Q. Who were they, baggagemen? A. I couldn’t say.
“Q. Yon saw all that before the train reached yon? A. Yes, sir.
“Q. Had the train reached them, before yon saw them running ont? A. I couldn’t say.
“Q. How many cars were on this train?. A. I should judge fifteen or eighteen?
“Q. How long is a car, Mr. Eversole? A. They average thirty-four to thirty-six feet long.
“Q. So that a train of cars consisting of fifteen cars, would cover over five hundred feet, wouldn’t it? A. Well, about that, I should judge.
“Q. You smo these people running out from the baggage room towards the train? A. Yes, sir.
“Q. Had the end of the train passed them when you saw them? A. I couldn’t say as to that, because I was on the east side of the train, and there was a curve down just a short ways from where we were —it curves around and goes down by the depot.
“Q. It goes down in front of the depot, doesn’t it? A. Yes, sir.
“Q. These tracks don’t run through the depot; but in front of it? A. Yes, sir. . . .
“Q. Were these people running, or walking, there at the depot? A. Why, some of them were running; and some of them were walking.
“Q. Where were they going? A. I couldn’t say where they were going.
“Q. You say you saw a dozen men run out there, do you? A. I said, that it seemed to me like there was a dozen men.
“Q. Towards that train? A. Yes, sir.
“Q. You couldn’t see the end of the train at the time could you? A. Not the south end of it.
“Q. You couldn’t see where it was? A. No, sir.
“Q. From where you were, under the bridge, could you see that baggage .room door? A. Well, I don’t know as I could see the baggage room door; but I could see right directly in front of the baggage room door.
“Q. Could you see out in front of that baggage room door, from under the fifth street bridge there? A. Yes, sir.
“Q. What company were you working for? A. The Burlington.
“Q. The Burlington railroad? A. Yes, sir.”

It will be noticed that this instruction submits two alleged negligent acts of the defendant (1) a defective coupler and (2) a failure of the engineer to speed up the engine so as to overtake the runaway, •cars. One is a negligent act occurring before plaintiff volunteered to get upon defendant’s engine. We use the term “volunteered” advisedly, because the evidence discloses no invitation from defendant or its agents and servants to the plaintiff to board such engine and undertake to do the work which he says he boarded the engine to do. By no sign or word was he invited to board that engine. His act of getting thereon was one of his own volition. In other words, in that act he was a “volunteer” pure and simple. ■ It is also true of this instruction that it submits to the jury the question, whether or not, at the time the plaintiff boarded this engine, there was “imminent and immediate danger in reference to persons whom you found were (if you do) or might reasonably be expected to be, upon railroad tracks over and across the grounds of said Union Depot,” etc. The instruction goes no further in predicating a reason justifying the voluntary act of the plaintiff. In other words, it limits his right to act to the imminent peril of persons, and does not extend it to imminent destruction of property. The latter is urged in the brief of respondent, bnt it is clearly not within the instruction supra. Our view of the situation is, that inasmuch as the right of the plaintiff to act at all in the premises is limited to the imminent perilous fortunes of persons, then if the evidence fails to disclose such a situation, the instruction is error, because submitting a theory not sustained by the evidence. To this end we set out at length the evidence. To our mind this evidence totally fails to disclose that any person was in imminent peril, or that the plaintiff reasonably had the right so to assume or believe. ■ The hour was three-thirty in the afternoon, when passenger trains were not arriving. The track upon which the cars were going was one not used for passenger service — so that the things present were not such as to indicate that such persons were or would be in peril. But further, one who attempts to assert the original negligence of a defendant toward one who is in peril, must show that there was some one in peril and that he acted from humanity’s sake to rescue such person from peril. It is only under such circumstances that the usual rash acts of the rescuer are excusable; and he is permitted to impute the negligence committed as against the person in peril to himself. Under the evidence in this case plaintiff saw no person in peril. The employees are required by law to look out for their own protection and the presumption is that they were doing so. The flagman did run out and warn the crew upon the train standing upon track 9 that the loose cars were coming down. Others may have joined him in giving the warning, but this fact will not reduce the case to that of a person in imminent peril, so as to permit the prior negligence of the defendant to be taken advantage- of by a mere volunteer.

The rule is well stated by Henry, J., in Donahoe v. Railroad, 83 Mo. l. c. 563, thus:

“It is to be observed that it is only when the railroad company, by its own negligence, created the danger, or through its own negligence is about to strike a person in danger, that a third person can voluntarily expose himself to peril in an effort to rescue such person and recover for an injury he may sustain in that attempt. For instance, if a man is lying on the track of a railroad intoxicated or asleep, but in such a position that he could not be seen by the men managing an approaching train and they had no warning of his situation, and another seeing his danger should go upon the track to save his life and be injured by the train, he could not recover, unless the train men were guilty of negligence, with respect to the rescuer, occurring after the beginning of his attempt. 'If the railroad company is not chargeable with negligence with respect to the person in danger, the case of the person who attempted to rescue him and was injured must be determined with reference to the negligence of the company in its conduct toward him, and his in making the attempt. In other words, the negligence of the company, as to the person in danger, is imputed to the company with respect to him who attempts the rescue, and'if not giiilty of negligence as to such person, then it ds only liable for negligence occurring with regard to the rescuer, after his efforts to rescue the person in danger commenced.”

But on the other hand we have held that the rescue of property will not authorize rash acts upon the part of a rescuer. [McManamee v. Railroad, 135 Mo. 440.] In that case the following instructions met with our approval:

“While it may have been the duty of defendant’s servant to make all reasonable efforts to stop the train and avoid the collision, yet the like duty devolved upon- the deceased, and if, after he saw the train coming, or might, by looking and listening, have seen it coming, he could have gotten out of its way, or kept out of its way, but did not, then the plaintiff cannot recover; and even should the jury believe that the deceased’s horse and ivagon was exposed to a collision with defendant’s train, this would not excuse or justify him precipitating himself in front of the train, and if you find he did so~in order to save his said horse and buggy, then your verdict must be for the defendant.”

The italics are ours. In other words we have never extended the doctrine of “imminent peril” to mere property, but have followed the law of humanity which prompts one person to save the life or limb of another.

In the Donahoe case, supra, this court cited with special approval the Eckert case in. 43 N. Y. 502. The second paragraph of the syllabus in that case reads:

“A person voluntarily placing himself, for the protection of property merely, in a position of danger, is negligent, so as to preclude his recovery from an injury so received. It is otherwise, however, when such an exposure is for the purpose of saving human life, and it is for the jury to say, in such cases, whether the conduct of the party injured is to be deemed rash and reckless.”

In the body of the opinion, page 506, it is said:

“The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence, which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent unless such as to be regarded either rash or reckless.”

This we take to be the reasonable rule. It is at least the approved doctrine of this court. So that we' can see why the trial judge in giving his instructions limited the question of imminent peril to persons rather then to property.

But in this case, under the evidence, we do not think that question should have been submitted. The plaintiff’s evidence failed to make'a case upon that point. Some one must he actually in peril before the rescuer is authorized to act. At the broadest, the situation must he such as to clearly convince the rescuer that human life or limb is in peril. The evidence in this case does not measure up to the standard. There was no such evidence as would justify the submission of that question to the jury, and in this regard the instruction given was error. Not only so but to this extent at least the defendant’s demurrer was well taken.

III. It is apparent, as in the preceding paragraph indicated, that there was no situation which would justify the action of the plaintiff upon the theory that human life or limb was in imminent peril. It requires more than mere suspicion that accident might follow to justify the invo-cation of the doctrine of “imminent peril.” For this reason we held as above indicated that the instructions given beyond the substantial evidence of the case should have never been given. But does it follow from this that the demurrer to the evidence should have been sustained? In other words, does it follow that no case was made under the proof and pleadings? If a case is submitted to a jury by instruction upon a theory not sustained by the evidence, we are required to reverse the judgment based upon the erroneous action, but it does not follow that we must say that there is no theory upon which the plaintiff might recover under his pleadings and proof. So in this case we cannot allow the present verdict to stand, because the theory predicated in the instruction is not sustained by the proof, but it does not follow that we must say that there was or was not a case, made. Whether there was or not a case made upon any theory of the petition, depends upon a consideration of this pleading, as well as the evidence introduced. As stated above there are two hinds of negii-gences charged in the petition; (1) negligence of the defendant prior to the time plaintiff boarded the engine, and (2) alleged negligence of the engineer after he boarded the engine. But whilst this is true, does not the plaintiff’s petition cluster all these things around the one central thought, i. e., that his action was prompted by his desire to rescue human life and limb,, and not otherwise. We think so. For this reason in the statement we have purposely quoted at length from the petition. It is clear that the plaintiff was never invited by defendant to board this engine. It is clear that three brakemen were on the runaway cars. Plaintiff by his petition attempts to justify his boarding the engine upon the imminent peril doctrine, and in our judgment his petition as a whole must be construed to be one invoking that doctrine. If it be so construed, and if as held in our paragraph two, the evidence fails to support such a doctrine, then there was a failure to make any case under the pleadings,, as well as under the proof. In such event the demurrer to the evidence should have been sustained, and a verdict for the defendant directed. We conclude therefore that the petition of the plaintiff is one invoking the “imminent peril” doctrine in its purity and simplicity; that under the petition so construed (as it was construed by the trial court) there was a failure of proof, and this judgment should be simply reversed.

Wooclson, P. J., concurs; Lamm, J., concurs in result; Bond, J., not having heard the oral arguments, does not sit.


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    JAMES W. GROOMS v. JOHN MORRISON, Appellant.
    Division Two,
    April 8, 1913.
    1. ESTOPPEL: Not Pleaded: Dower Assigned: Right to Homestead. Estoppel must be pleaded to be available. Whether or not a widow whose husband died in 1874 was estopped, by an ex ‘parte suit in partition in which she joined with his children and wherein the land in controversy was set off to her as her dower, to claim said land as a homestead, or whether or not her grantee is now thereby estopped, cannot be decided where the suit is in ejectment, and the petition contains no allegations except those necessary in an ordinary legal action, and the answer is a general denial and a plea of limitations; for such pleadings raise no equitable issue.
    2. -: Raised by Son of Homesteader. But a son of the homesteader, who claims an interest in the land only as an heir, and has expended no money in acquiring an interest in the property, is in no position to assert that the widow, who joined with the children, after her husband’s death in 1874, in an ex parte suit in partition and which resulted in the land being set off to her as her dower, was thereby estopped to claim she owned the land absolutely under the then statute as to homesteads, or that her grantee was in consequence estopped by that proceeding.
    3. 'CONVEYANCE: Dower or Entire Estate. Under the statute of 1865 concerning homestead, Mrs. Grooms, whose husband died in 1874, leaving six children by a former wife, was entitled to the forty acres in suit absolutely, it being a homestead and then not worth more than $1500. She joined with his children in an ex parte partition, in which this land was set off to her as her dower, a,nd other lands of deceased were set off to the children. Thereafter the residence on the land burned, and she collected the insurance, and then in 1882, for a recited consideration of $400, she conveyed it by quit-claim deed, describing it as “the southeast quarter,” etc., “it being the dower interest in the land belonging to the Grooms estate,” the habendum clause expressly stating an intention to convey all the title she possessed. Held, that the words “it being the dower interest in the land belonging to the Grooms estate” identify the land intended to be conveyed, and are not meant to designate the grantor’s interest in the land; and the deed conveyed the title absolutely, and not simply a life estate.
    4. -: Use of Word Dower to Identify Land. As the land was described by apt numbers immediately before the words “it being tbe dower interest in the land belonging to the Grooms estate,” it is more likely it was the intention of the parties by the use of those words to point out and describe the particular land intended to be conveyed than to state the nature of the title the grantor intended to pass. Such a recital as a method of further identifying the land conveyed is not unusual.
    5. -: Habendum. Where the nature of the title intended to be conveyed is, by the granting clause or the description of the property, rendered doubtful, the habendum clause of the deed may be considered in arriving at the intention of the parties. In this case the habendum clause expressly states an intention to convey all the title Mrs. Grooms possessed, and that is not without significance in understanding what she meant in the words of the description “it being the dower interest in the land belonging to the Grooms estate,” since under the statute she was the absolute owner of the land and it is unusual to convey land to be held only during the life of the grantor.
    6. -: Doubt Resolved Against Grantor. Where a doubt exists as to the estate the parties intended the deed to convey, that doubt will be resolved against the grantor and in favor of the grantee.
    7s -: Presumption: Subsequent Purchase from Heirs. Twelve years after the widow had conveyed the land by a quit-claim deed, reciting a consideration of $400, and describing it as “the southeast quarter,” etc., “it being the dower interest in the land belonging to the Grooms estate,” the grantee, for $600, obtained from five of her husband’s children a deed which conveyed an “undivided five-sixths interest” in the land. Held, that that act of the grantee did not raise a presumption that he knew when he obtained the widow’s deed that he was purchasing only her life estate, and not the absolute title which she owned. What a. man knows at a given time is no evidence of what he knew twelve years previously. Presumptions run forward, not backward.
    8. -: -: Quit-Claim Deed. A quit-claim deed does not raise a presumption that the grantor intended to convey only a part of her title, because such a deed is just- as effectual to pass the whole title as is a warranty.
    Appeal from Clinton Circuit Court. — Hon. John O. Park, Special Judge.
    REVERSED.

      E. G. Hall for appellant.
    (1) A deed will be construed to convey whatever interest or estate the grantor may nave in the land at the time of its execution, unless the deed shows the grantor’s intention was to pass a less estate or interest. Bray v. Conrad, 101 Mo. 331; 2 Devlin on Deeds. 849. A quit-claim deed simply employing the words “remise, release and forever quit-claim” contains sufficient operative words of conveyance to carry what- ■ ever interest the grantor has. Wilson v. Albert, 98 Mo. 537; Ins. Co. v. Landis, 50 Mo. App. 116. (2) The nature and quantity conveyed by the deed must be determined by the deed itself. Rutherford v. Tracy, 48 Mo. 325; Thomson v. Thomson, 115 Mo. 56; Johnson v. Johnson, 170 Mo. 34; Brown v. Gibson, 82 Mo. 329. And where the terms of the deed are doubtful the benefit of the doubt should be given to the grantee and the deed construed most strongly against the grantor. Linville v. Greer, 165 Mo. 380; Bray v. Conrad, 101 Mo. 331;-Jennings v. Brizadme, 44 Mo. 332; Cochran v. Railroad, 94 Mo. App. 469. (3) The plaintiff contends that the deed to defendant only conveys a life estate, because after the description this language appears: “It being the dower interest in the land belonging to the Grooms estate.” The word “it” evidently refers to the description for its antecedent and that sentence is only descriptive and shows that this is the same land that was set off as the dower in the Grooms estate. If taken literally, there was no land belonging to the Grooms estate and the statement would not be true. If the widow had intended to convey only the dower and reserve the homestead the conveyancer would have used apt words to indicate what was not intended to be conveyed; otherwise the deed would convey all the interest of grantor. Riñes v. Mansfield, 96 Mo. 399; Davidson v. Mansen, 146 Mo. 618; Teideman on Real Prop., sec. 844. (4) If there is any doubt as to the meaning of the deed as to the estate conveyed, the habendum may be used as an aid to deteimine the question. Linville v. Greer, 165 Mo. 380. (5) The deed from Mrs. Martin to defendant was made more than twenty years prior to grantor’s death and during all that time defendant held possession with his deed on record. No steps were ever taken by grantor to reform the deed. The circuit court held that the deed conveyed a life estate only. The evidence showed that'Mrs. Martin, the grantor, had a fee simple title by virtue of having been widow of William Grooms and having a homestead in this land which, was set off to her in the partition proceeding as dower and homestead. It is true that she had a freehold estate in the land which was comprised in her fee simple title, but she had no life estate separated from such absolute title upon which a conveyance, without restrictions, could operate to convey; consequently when she makes the deed without restrictions as. to the interest conveyed she must be held to have conveyed all the title she had in the premises described. Bray v. Conrad, 101 Mo. 337; 2 Devlin on Deeds, 849; Tygard v. Hartwell, 204 Mo. 205

      W. S. Herndon for respondent.
    (1) The deed from Mrs. Martin and husband to the appellant, and upon which he relies, only conveyed a life estate, that is, her dower interest. Bruensman v. Carroll, 52 Mo. 313. (2) The deed itself shows that the intention of the parties was only to convey a life estate. The consideration, $400, shows this. The purchase by appellant of five-sixths interest from Thomas J. Grooms and paying $600 therefor twelve years later shows that he so understood the deed. “The object of a description in a deed is to define what the parties intended, the one to convey, the other to. receive, by'such deed, and the intention of the parties is to be deduced from the instrument of conveyance, as in the case of any other contract.” Long v. Wag-goner, 47 Mo. 178 ; Bruensman v. Carroll, 52 Mo. 313; Davis v. Hess, 103 Mo. 31; Wallace v. Dumtra, 152 Mo. 489; Linville v. Greer, 162 Mo. 380. (3) Language in a deed, not technical, must be taken in its ordinary and usual sense. “It being the dower interest in the lands belonging to the Grooms estate” could only mean the life estate of Martha A. Martin. Bradbury v. Bradbury, 64 Mo. 384. (4) The construction -which the parties gave the deed at the time it was executed is binding. The appellant construed the deed and treated it as conveying only a-life estate. Wolf v. Dyer, 95.Mo. 595; Carter v. Foster, 145 Mo. 383. (5) The cardinal rule of interpretation of a deed is the true intent and purpose of the maker, as that intent: may be discerned from the instrument. itself taking it all together, considering every part of it in the light of the circumstances surrounding the- maker at the time of its execution. Aldridge v. Aldridge, 202 Mo. 572. The intention of the parties should be gathered from the words used, “It being the dower interest in the land belonging to the Grooms estate,” which, shows conclusively that only the dower interest was conveyed. Tygard v. Hartwell, 204 Mo. 200.
   BROWN, P. J.

Ejectment for forty acres of land in Clinton county. Plaintiff recovered an undivided interest in the property sued for and defendant appeals.

William Grooms is the common source of title. He died intestate in May, 1874, leaving a widow; also six children by a former marriage. Plaintiff is one of those children. At the time of his death William Grooms occupied the land as a homestead, and it is established by a preponderance of evidence that said property was not then worth more than $1500,

The widow of said William Grooms married a man named Martin, and at a date not shown by the record joined the children of her first hnsband (Grooms) in an ex parte partition snit. In that snit the land in controversy was set off to Mrs. Martin as her dower. Other lands of deceased were set off to the heirs.

The residence upon the homestead was bnrned after the partition snit, and Mrs. Martin collected the fire insurance thereon.

In 1882 defendant procured from Mrs. Martin and her hnsband a quit-claim deed for the property in dispute, which deed recites that in consideration of the sum of four hundred dollars grantors remise, release and forever quit-claim to defendant:

“The southeast quarter of the northeast quarter of section 26, in township 55, of range 33, containing forty acres, more or less, it being the dower interest in the land belonging to the Grooms estate.
“To have and to hold the same, with all rights, immunities,, privileges and appurtenances thereto belonging unto the said party of the second part, and his heirs and assigns forever, so that neither the said parties of the first part, nor their heirs, nor any person or persons for them or in their names or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they, and every of them, shall by these presents be excluded and forever barred. ’ ’

In 1894 defendant, for an expressed consideration of $600, purchased from the sister and four brothers of plaintiff what is described in the warranty deeds made by them as an undivided five-sixths interest of the land in dispute.

Martha A. Martin died in 1903.

Such other parts of the evidence and pleadings 'as are necessary to a full understanding of the case will be noted in our opinion,

OPINION.

I. Respondent contends (1) that by accepting the land when it was assigned to her as a dower in the ex parte partition suit, Mrs. Martin was estopped from asserting any other or greater title to the property, and that defendant as her grantee is likewise estopped; (2) that even if the acceptance of the property as dower was not a waiver of her right to claim the whole title to same tinder the homestead law, the quit-claim deed executed by her and her husband only conveyed her life estate, and that upon her death the plaintiff became entitled to an undivided interest therein as an heir.

The contention of plaintiff that by accepting the forty acres of land in controversy as. dower Mrs. Martin was (and defendant claiming through her is) estopped from asserting that she acquired the whole title to said property as a homestead, cannot be sustained for the reason that said estoppel is not pleaded. The petition of plaintiff contains no allegations except those necessary in an ordinary legal action of ejectment and the answer is merely a general denial and a plea of the ten-year Statute of Limitation. Consequently there are no equitable features in the ease.

A Texas judge recently announced the doctrine that the Statute of Limitation when not pleaded, like the prayer of the wicked, “availeth nothing.” The same doctrine with a few exceptions applies to estoppels in Missouri, as many decisions of this court bear witness. [Golden v. Tyer, 180 Mo. 196; Brown Const. Co. v. MacArthur Bros. Co., 236 Mo. 41, l. c. 50; Keeney v. McVoy, 206 Mo. 42, l. c. 59; Turner v. Edmonston, 210 Mo. l. c. 428.] The trial court is entitled to know what issues are involved in a case before he hears the evidence.

It seems plausible that a widow by representing that she holds only a dower in the lands of Her husband and thereby causing other parties to expend their money in buying such lands from the heirs should be estopped from afterwards asserting that she owned the fee; but it is difficult to see how plaintiff could bring himself into that class. His claim is not based upon a purchase, nor has he expended any money in acquiring his claim to the property. He asserts title only as an heir, and nothing that Mrs. Martin did has caused him to change his position to his injury.

II. The homestead law of 1865 was in force in 1874 when William Grooms died. Consequently, under the facts in this case, his widow became the owner in fee of the property in controversy. [Skouten v. Wood, 57 Mo. 380; Register v. Hensley, 70 Mo. 189, l. c. 194.]

III. The quit-claim deed from Mrs. Martin and her husband to defendant correctly describes the land in controversy and the only language it contains which casts any doubt upon the intent of the grantors to convey a fee simple title is the clause which immediately follows the description of the land, to-wit: “It being the dower interest in the land belonging to the Grooms estate.”

Respondent earnestly insists that the pronoun “it” in the above quoted clause refers to the title intended to be conveyed and not to the description of the land. He cites: Bruensmann v. Carroll, 52 Mo. 313; Long v. Wagoner, 47 Mo. 178; Davis v. Hess, 103 Mo. 31; Walton v. Drumtra, 152 Mo. 489; Linville v. Greer, 165 Mo. 380; Bradshaw v. Bradbury, 64 Mo. 334; Wolfe v. Dyer, 95 Mo. 545; Carter v. Foster, 145 Mo. 383; Aldridge v. Aldridge, 202 Mo. 565, l. c. 572; and Tygard v. Hartwell, 204 Mo. 200.

We have diligently examined all the cases cited; some of them contain language which tends to support plaintiff’s position, but none of them present a state of faets similar to those upon which we are now called upon to pass judgment. One of these cases (Linville v. Greer, 165 Mo. 380) supports the contention of defendant more strongly than the views of the plaintiff. We deem it unnecessary to burden this opinion with a recital of what those cases hold.

When this deed was executed the homestead law of 1865 had been in force seventeen years, and the opinion of this court in Skouten v. Wood, 57 Mo. 380, holding that the aforesaid homestead law vested in the widow a fee simple title, had been published about eight years; so that Mrs. Martin had a fair opportunity to understand the nature and extent of her title before making the deed.

The making of the quit-claim deed did not of itself raise a presumption that Mrs. Martin intended to convey only a part of her title, because a quit-claim deed is just as effectual to pass the whole title as a warranty deed. [Wilson v. Albert, 89 Mo. 537; Chew v. Kellar, 171 Mo. 215.]

When there is no other more certain method of arriving at the intention' of parties to an instrument, or of ascertaining the true meaning of a legislative enactment, a qualifying word or phrase used in such instrument or enactment is generally held to apply to the last antecedent.

In the deed now under consideration the words: “It being the dower interest in the land belonging to the Grooms estate” can be construed to apply either to the amount or nature of the title intended to be conveyed, or they can apply to the physical description of the land, which they follow; and as the land was described next before that clause, it is much more probable that it was the intention of the parties by the use of those words to point out and describe the particular land intended to be transferred, rather than the nature of the title which the grantor intended to pass. This doctrine finds support in Stroud’s Judicial Dictionary (2 Ed.), vol. 1, p. 52; 2 Lewis’s Sutherland’s Statutory Construction (2 Ed.), p. 811, sec. 420. This rule, like many -others, is not without its exceptions, but in its general.application it accords with the every day experience of mankind. It is true that as the grantor (Mrs. Martin) had been described in the partition suit as holding a dower, there arises a slight presump-, tion that she only intended to assert title to and sell her dower or life estate. However, this presumption in favor of plaintiff is, to a large extent, overcome by the fact that she collected all the fire insurance on the house just as though she owned the title in fee to the land where the house had stood, and by the further fact that scriveners very frequently insert in deeds a reference to some legal document, plat or decree of court containing a description of the property as a method of further identifying the land intended to be conveyed; so that the language immediately following the description in Mrs. Martin’s deed was not an unusual recital, nor does the presence of an explanatory recital in the deed at that place raise a presumption of an intent to limit the estate unless the phraseology of the explanatory recital will reasonably bear such construction.

The recited consideration of $400’ paid to Mrs. Martin for this deed does not cast any light upon the intent of the parties. There is no direct evidence tending to prove what the forty acres were worth after the dwelling house thereon was burned. It is described by the witnesses as “grazing land;” so it is quite probable that the house constituted the principal value of the forty acres, and that it was not worth more than $400 in 1882 when defendant purchased it of Mrs. Martin.

It is urged that the act of defendant in giving $800 for the deed, purporting to convey a five-sixths interest in the property from plaintiff’s sister and brothers, raises a presumption that defendant knew in the year 1882 that he was only purchasing the life estate of Mrs. Martin. That argument is entirely unsound. What a man knows or believes at a given time is no evidence of what he knew or believed twelve years before that date. Presumptions run forward, and ordinarily do not move backwards like a crawfish.

When the nature of the title intended to be conveyed is, by the granting clause or the description of the property, rendered doubtful, the habendum clause of the deed may be considered in arriving at the intent of the parties. [Rines v. Mansfield, 96 Mo. 394, l. c. 399; Linville v. Greer, 165 Mo. 380, l. c. 397; Utter v. Sidman, 170 Mo. 284, l. c. 292.] The habendum in this deed expressly states an intention to convey all the title Mrs. Martin possessed.

It is a common occurrence for parties who hold the entire title to real estate to convey a limited estate therein to terminate on the death of the grantee in the deed; but it is quite unusual to convey property to be held only during the life of the grantor. And from the standpoint of custom it is much more'likely that Mrs. Martin would sell her whole title than only a part thereof.

Viewed from every conceivable standpoint presented by the record there lingers some doubt as to the intent of the parties to the deed, but it is a well-recognized rule that when such doubt exists it shall be resolved against the grantor in the deed and in favor of the grantee. [Linville v. Greer, 165 Mo. 380.]

After full consideration-,of the deed and the circumstances preceding and following its execution we find that the clause following immediately the description of the land should be construed to read as follows: It being the same land set off as dower in the Grooms estate. Entertaining these views we will reverse the judgment and direct the trial court to enter judgment for the defendant. It is so ordered.

Walker and Faris, JJ., concur.


author: WILLIAMS, C.

text:
    CAMILLA BURROWS v. THOMAS WARD McMANUS, Appellant.
    Division Two,
    April 8, 1913.
    1. MOTION TO STRIKE OUT: Used for Demurrer. While it is the better practice to employ a motion to strike out only in those instances provided by the code, e. g., for redundancy, irrelevancy, duplicity or frivolity, yet, when such motion fills the office of a demurrer, and in effect is a demurrer, it would be to look too much to the form and too little to the substance to hold it insufficient. The trial court is therefore upheld in striking out defendant’s whole answer upon a motion which asserted that the answer did not state a cause of action.
    2. PLEADING: Answer: Petition. Held, that the answer in this partition suit does not state facts sufficient to constitute a defense or a counterclaim.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Aeetemed.

      T. J. Boive, Thomas J. Rotve, Jr., and Henry Roiue for appellant.
    Our code of civil procedure is mandatory and when the courts follow the law they adhere to the rules of pleading therein prescribed. If the ruling of the trial court in striking out the whole of defendant’s answer is correct then authority for such ruling will he found in our code. If no such authority can be found and if the ruling of the court is not bottomed on the code then unquestionably it is erroneous. To learn the law we must read the code. Section 1806 provides as follows: “Answer should contain what. The answer of defendant shall contain: . . . Second: A statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition.” Section 1809 provides

      for a reply and demurrer'to answer and that section •says: “The plaintiff may demur to one or more defenses set up in the answer, stating in his demurrer the grounds thereof.”- Section 1815 provides that irrelevant and redundant matter in a pleading may he stricken out on motion of the adverse party, and section 1816 provides that ‘ ‘ duplicity in pleading is a substantial objection and any petition or other pleading found subject to such objection shall, on motion, be stricken out.” Section 1814 provides: “A frivolous demurrer, answer or reply may be stricken out on motion of the adverse party.” Section 1800 provides: “Defendant may demur for what causes. . .' . 6th. That the petition does not state facts sufficient to constitute a cause of action.” If an answer fails to state facts sufficient to constitute a cause of action then it is demurrable and a motion to strike out the whole answer is not the proper motion.

      James P. Maginn for respondent.
    (1) The motion to strike out the counterclaim, going to the sufficiency of the entire answer to set up either a defense or a cause of action by way of counterclaim, was in the nature of a demurrer, the office of which a motion to strike out often fulfills. Shohoney v.-Railroad, 231 Mo. 131; Brewing Co. v. Ehlhardt, 139 Mo. App. 129. (2) The answer styling itself a counterclaim, does not set up any cause of action whatever against plaintiff; nor does it set up any defense whatever to plaintiff’s action for partition of the lots, secondly and thirdly described in the petition, for the reasons specifically assigned in plaintiff’s motion to strike out said answer; and w^s properly stricken out. Pearce v. Calhoun, 59 MÓ-. 271; Titterington v. Hooker, 58 Mo. 593; Scott v. Royston, 223 Mo. 586; R. S. 1909, sec. 1830.
   WILLIAMS, C.

This is a suit to make partition of three lots in the city of St. Louis, Missouri, between plaintiff and defendant. Trial was had in the circuit court of the city of St: Louis, resulting in a decree of partition of the lots as prayed in the petition. Defendant appealed to this court. Counsel who represent him on appeal did not represent him in the trial court.

The only error assigned by defendant goes to the ruling of the court sustaining plaintiff’s motion to strike out the answer.

The petition alleges that plaintiff and defendant are seized as tenants in common of three parcels of land in the city of St. Louis, which are fully described in the petition; that plaintiff is the owner of a two-thirds interest, and the defendant of a one-third interest, in the lot first described, and that plaintiff is the owner of a one-sixth, and defendant of a five-sixths interest in the other two lots described in the petition. The petition further alleges that partition in kind cannot be made without great prejudice to the owners, and prays for an order of sale and division of the proceeds thereof.

The answer, omitting formal parts, is as follows:

“For answer to the petition, 'and by way of counterclaim, this defendant says, that the plaintiff is the grandchild of Camilla S. McManus, who departed this life in the city of St. Louis on to wit, November 16, 1905; that the said Camilla S. McManus left a last will and testament by which she devised and bequeathed to the plaintiff, Camilla S. W. Burrows, an undivided one-sixth of all of her property, and that the said Camilla S. McManus further bequeathed and devised to a trustee an undivided two-sixths of her property, the usufruct of which is to be paid to the plaintiff herein during her life, and if she survives the defendant herein the fee shall pass to her, the plaintiff, discharged of the said, trust.
“Further answering, defendant says that the value of the estate so devised and bequeathed by Camilla S. McManus to the plaintiff herein was far in excess of the value of the property described in .the second and third paragraphs of the plaintiff’s petition, to-wit, lot eighteen and the west part of lot seventeen and lot nineteen of block seventeen of Stod-dard addition to the city of St. Louis, and in block No. 982 of the city of St. Louis.
“Further answering, defendant says that during the life of Camilla S. McManus, and on, to-wit, the 14th day of July, 1903, in the city of St. Louis Mo., she made, executed and delivered to Thomas Ward McManus a deed conveying all of said property described in paragraphs two and three of plaintiff’s petition to Thomas.Ward McManus, and in and by said deed, for and in consideration of the natural love and affection which she had for her said son, Thomas Ward McManus, defendant herein, the said Camilla S. McManus covenanted and agreed in said deed with her said son, to give, grant, convey and confirm unto this defendant, Thomas Ward McManus, his heirs and assigns forever, the property above referred to and particularly described in paragraphs 2 and 3 of the petition herein, and further covenanted and agreed with the said Thomas Ward McManus, for the considerations aforesaid, for herself, her heirs, executors and administrators, to warrant and defend the title to- the property thereby conveyed against the claims of every person whomsoever.
- “Further answering, defendant says that said conveyance was signed, sealed and delivered to this defendant by Camilla S. McManus, and was by this defendant- placed of record, and possession of said premises was then and there, under said deed, taken of said property described in paragraphs 2 and 3 of the plaintiff’s petition, and defendant, Thomas Ward McManus, on, to-wit, December 16, 1903, gave to the plaintiff herein notice of Ms claim of said property under said deed; that this defendant held possession of said premises until on or about, to-wit, the 16th day of November, 1905, at which time plaintiff made claim to her one-sixth interest and took possession thereof and ousted this defendant therefrom, and since that time has been in possession thereof.
“Further answering, this defendant says that if the said plaintiff will claim an undivided one-sixth interest in said property in derogation and in. violation of her sai'd ancestress’s warranty, as aforesaid, the defendant is entitled to have an equitable adjustment of said warranty against which plaintiff claims said interest satisfied out of the property held by plaintiff and defendant in common; that the value of the one-sixth interest claimed by plaintiff in said property would be the reasonable damage which this defendant would sustain in the breach of the warranty contained in said deed from said grantor, Camilla S. McManus, to this defendant.
“And having fully answered, this defendant prays that if partition of said two pieces of property described in paragraphs two and three of said petition be awarded, that his interest and right under the warranty deed of Camilla S. McManus be' adjusted as against the interest of plaintiff herein.”

Plaintiff’s motion to strike out is as follows:

“Now comes plaintiff and moves the court to strike out the whole of the defendant’s answer, heretofore filed in this cause, for the following reasons:
“First: Because said answer purports to be a counterclaim, arising out of a contract, entirely foreign to the matters involved in the .petition of plaintiff in partition, and no counterclaim of such character can properly be pleaded or set up in an action of partition.
“Second: Because said answer does not state facts sufficient to constitute a’ counterclaim against plaintiff, even if it conld properly be pleaded in this partition suit, in this:
“A. It appears from tbe allegations in said answer that if any canse of action arose on the facts thereof in favor of defendant, such canse of action wonld be against the estate of Camilla S. McManns, which it is alleged in said answer is amply sufficient to meet any damages which might accrue to defendant.
"B. It appears from the statements in said answer that, said alleged cause of action or counterclaim, if'any, should be presented against the estate of said Camilla S. McManns in the probate court of the city of St. Louis, Missouri, against her executor.
"C. It appears on the face of said answer that, even if the alleged covenant of warranty made by said Camilla S. McManus has been broken, inasmuch as no purchase money was ever paid by defendant, and under the law of this State the purchase money and interest thereon is the measure of damages for a breach of such covenant, no damages whatever could be recovered by the defendant on said covenant.
"D. It further appears from said answer that on or about November 16,1905, being the date of the death of Camilla S. McManus, defendant yielded to and acknowledged the claim made by plaintiff to her one-sixth interest in the premises in shid answer described, and has ever since been in possession thereof, with the consent and. acquiescence of said defendant.
"Wherefore, plaintiff states that said answer should be stricken out by the court, as in no manner constituting a defense to the petition of plaintiff.”

The court sustained plaintiff’s motion to strike out defendant’s answer, and defendant declined to plead further. Trial was had, and the court, after hearing the evidence offered by plaintiff, rendered judgment as above indicated.

Appellant contends that the trial court erred in sustaining respondent’s motion to strike out the answer, for the reasons, first, that a motion to strike out the entire answer is not proper unless the whole answer is either duplicitous, frivolous, irrelevant or redundant; second, that the answer stricken out alleged that the defendant was the sole and absolute owner of the fee simple title to part of the land sought to be partitioned, and therefore pleaded a proper defense to the cause of action.

While it is the better practice to employ a motion' to strike out only in those instances provided by the code, yet, when a motion to strike out fills the office of a demurrer, and in effect is a demurrer, it would be to look too much to the form and too little to the substance to hold such a pleading insufficient. In the case of Shohoney v. Railroad, 231 Mo. 131, in discussing motions of this character, Judge Lamm; states' the rule as follows:

“From the proposition that a. motion to strike out may in some instances fill the office of a demurrer the doctrine has been deduced that a motion which fills such office should be judged of by the rules pertaining to demurrers, i. e., when a motion- is to all intents and purposes a demurrer dispositive of the whole case on a matter of law, the rules relating to a demurrer may be applied to such motions.”

The motion in this case comes within the scope of the above rule, and we therefore rule adversely to appellant’s first contention.

Defendant on appeal does not even attempt to justify the answer as a proper “counterclaim” as was the contention below, but asserts that by said answer “defendant undertook to state that by reason of the warranty deed dated July 14, 1903, Camilla S. McManus conveyed to him said lots, and that by reason of said conveyance he became the sole and only owner in fee simple of said lots, and that plaintiff had no title to the same,” and that “such fact was a complete and perfect defense to plaintiff’s canse of action,” and that the court therefore erred in sustaining the motion.

It may be that the pleader did undertake to allege the facts claimed, but a careful reading of the answer clearly discloses that the undertaking was not successful. Reading the answer in the most charitable light, we are unable to find wherein it either alleges sole ownership in defendant, or denies the allegation made by plaintiff in her petition as to her interest in said real estate. The answer does not state facts sufficient for any purpose. Therefore the ruling of the trial court did not constitute reversible error.

The judgment of the circuit court is affirmed.

Boy, C., concurs.

PER CURIAM. — The above opinion by Williams, C., is adopted as the opinion of the court.

All the judges concur.