text:
    HOUGHTON et al. v. FRANCES PIERCE et al., Appellants.
    Division Two,
    May 14, 1907.
    1. EJECTMENT: Suit Against Landlord Alone. Even though the plaintiffs in ejectment are shown to be the owners in equity of the land, they cannct recover possession if the suit is brought against the landlord alone and the evidence shows that a tenant who was not joined as a defendant was in possession at the time the suit was brought.
    2. -: Possession by Trustee: Adverse to Beneficiary: Limitation. Where a trustee, to whom has been conveyed land for the sole use and benefit of another, enters into possession without other titie than that conferred by the trust deed, the presumption is that he took possession as trustee by virtue of the deed, and not adversely to the beneficiary. Thereafter his possession could become adverse to the beneficiary, or after her death to her heirs, only by some unequivocal act or acts brought home to her knowledge, or after, her death to their knowledge, showing that he claimed the title in opposition to her or their title, .or such an occupancy or user so open, notorious, and inconsistent with their rights that the law will authorize from such acts the presumption of such knowledge by them.
    3. -: -: By Trustee’s Wife Under Deed of Trust: Mortgagee in Possession. The owner of the land in 1865 conveyed it in trust for the sole use of the owner’s Wife, and the trustee at once entered into possession. The trust deed was made subject to a prior deed of trust to secure a note for $300, which was assigned by the payees by indorsement in blank, and this note was in possession of defendant, the trustee’s wife, but the evidence does not show how or when she came into possession of it. The beneficiary of the trust deed died in 1872, and the trustee in 1899, and the trustee’s wife claims title as assignee of the note and by adverse possession, but there is no evidence that she claimed possession adversely to her husband. Held, first, that possession by her cannot be considered adverse to her husband or to the beneficiary, without the most unequivocal assertion of claim of a separate estate hostile to both and brought home to their knowledge; second, as her husband, the trustee, took possession under the trust deed, the presumption is that her acts in receipting for the rents and paying the taxes were dene in subordination to his legal title and right of possession, at least up to the time of his death in 1899; and,
      third, assuming (what is not shown) that the trustee’s wife took the note indorsed in blank in good faith, for value, before maturity and without notice, and that the indorsement was proved, the presumption is that the rents which the trustee permitted her to receive were so received and applied by her ■ to pay off the note, it being the duty of the trustee to protect the beneficiary’s estate and pay off the prior lien out of the rents and profits.
    Appeal from St. Louis County Circuit Court. — Ho». John W. McElhinney, Judge.
    Affirmed.

      Harry H. Haeussler for appellants.
    (1) The court erred in declaring the law to he that “before the mere production of a note will make primafacie proof of ownership, the indorsements of the payees must be shown by evidence.” Keim v. Yette, 167 Mo. 399; Ashbrook v. Letcher, 41 Mo. App. 371; Johnson v. McMurry, 72 Mo. 282; Reinhard v. Dorsey Coal Co., 25 Mo. 353. (2) The court erred in finding the fact and declaring the law to be “Mrs'. Pierce’s possession was her husband’s possession. He was entitled to possession of her property during coverture.” Hart v. Leete, 104 Mo. 329; Clark v. Clark, 86 Mo. 122; De-Hatre v. DeHatre, 50 Mo. App. 1.

      D. G. Taylor for respondents.
    (1) The Statute of Limitations did not run against plaintiffs. Rodney v. McLaughlin, 97 Mo. 431; 1 Am. and Eng. Ency. Law, 241, 250, 264. (2) Defendants, by their answer, threw the case on the equity side of the court. Laws 1897, p. 74; Meyers v. Schuchmann, 182 Mo. 159. (3) There is no sufficient evidence that Frances Pierce is the owner, for a valuable consideration, of the note and deed of trust under which she now pretends to claim as a “mortgagee in possession,” and before she would be entitled to claim as such, she must prove that she is the owner of the note secured by the deed of trust, that it was endorsed to her. Bank v. Donnell, 35 Mo. 373; Bank v. Pennington, 42 Mo. App. 355; Hugumin Co. v. Hinds, 97 Mo. App. 352; Dunlap v. Kelley, 105 Mo. App. 4.
   GANTT, J.

In September, 1903, the plaintiffs brought their action in ejectment in the circuit court of St. Louis county, for a tract of land situated in said county, described as a tract of land containing twenty and ten one-hundredths acres, in U. S. Survey No. 3116, township 44 north, range 5 east, it being lot No. 32 of a subdivision of said survey, made April 30, 1845, a plat of which subdivision is of record in Plat Book No. 1, vol. 2, page 61, in the office of the recorder of deeds for the city of St. Louis, Missouri. Ouster was laid as on the — day of--, 1898. Judgment was prayed for possession of said premises, with damages to the amount of five hundred dollars, and twenty-five dollars for the monthly rents and profits.

The answer of the defendants, Lucy, Cora and Della Pierce and Frances and Allen Pomroy, was a general denial. The answer of Frances Pierce was first a general denial and secondly a plea of the ten-year Statute of Limitations, and then by way of further defense, she pleaded that she was the owner of the said real estate, and that the plaintiffs have now come and by their petition claim some title or estate in said real estate as above described, and she prayed the court to ascertain, determine and adjudge her title and interest in and to said real estate, and that her title be quieted.

For reply the plaintiffs deny all the new matter therein pleaded.

The cause was tried to the court without a jury.

On the part of the plaintiffs, the 'evidence was as follows: First, it was admitted that the eommon source of title is a deed from Felix G. Dunnavant and wife to Levi W. C'lme, dated July 26,1864, and recorded in book 310, page 272, of the recorder of deeds of the city of St. Louis, and it is further admitted that a John Pierce was the husband of Fanny Pierce, and that he died January 21, 1899. Plaintiff then introduced and read in evidence a certified copy of a deed from Levi W. Cline to John Pierce, trustee for Jane Elizabeth Cline, dated the 23rd day of December, 1865, recorded in book 310, page 274, of the recorder’s office of the city of St. Louis, conveying the following described property situate in Carondelet township, St. Louis county, to-wit: Lot number thirty-two of the subdivision of United States survey No. 3116, on the Meramec river near the Fenton bridge, beginning at a point the common corner of lots 17,18,19 and 20, thence south 28 degrees east with line between lot 17 and 20, fifteen and eight one-hundredths chains to corner of lots 16, 17, 20 and 21; thence south 52 degrees west with north line of lots 20, 29 and 32 forty and thirty-four one-hundredths chains to Meramec river; thence up said river to southwest corner fractional lot 30; thence north 52 degrees east twenty-one and ninety-seven one-hundredths chains to the beginning. Containing twenty acres and ten one-hundredths more or less. And a certain lot of personal property consisting of horses, cows, hogs, chickens and household and kitchen furniture on the said premises. “The above-described real estate is hereby conveyed subject to a deed of trust of even date herewith given by said first party to Youllaire and Jordan to secure the payment of a note therein described. To have and to hold the same with all the rights, immunities, privileges and appurtenances thereunto belonging unto the said party of the second part and his heirs and assigns' forever. This deed is made to said second party in trust for the sole use and benefit of said Jane Elizabeth Cline, wife of said first'party, to be by her held, used and enjoyed together with the rents and profits thereof separate and apart from her husband with full power to sell and convey the same or in anywise dispose of the same as she shall request and direct in writing.”

William Houghton, one of the plaintiffs, testified that he was forty-six years old, and was the son of Jane E. Cline, who had married Levi W. Cline after the death of his (Houghton’s) father; that he never had seen Cline and knew nothing of his death; that later his mother married one James Abner in Edwardsville, Illinois, and by this Abner had two children, Jennie, who died when nine months old, and Sallie, about whom he testified as follows: Q. What became of Sallie? A. Henry Sutter took her to raise and moved to Mt. Pleasant, Texas, and I lost track of her. Q. That is Sallie Abner? A. Yes, sir. Q. What is her name now ? A. Sallie Reese. Q. When did you last see her? A. In 1897, nine years ago, and I saw her last month again on the 30th of -October, she was here in .Clayton then, she and her husband. Q. You recognized her when you "saw her? A. Yes, sir. Q. You recognized her and knew her to be a child of your mother? A. Yes, sir, she has her resemblance. My mother died in ¿872 in Edwardsville, Illinois, she was a half sister of Mrs. Fanny Pierce, whose husband was John Pierce, the same man to whom this property was transferred in trust for my mother. John Pierce took possession of the said property belonging to- my mother. I did not know of any writing in regard to it. I did not return to the place here until in June, during all of which time I lived in Illinois, and had not seen my sister Sallie' since she left Edwardsville when a little child, until she came to Clayton. At the time John Pierce took possession he was in the fire department in St. Louis, and lived on Barrett street. He was not a farmer.

On cross-examination he stated that John Pierce took possession of the land after we left in 1866, when plaintiff was nine years old. We left the place and went to Venice, Illinois, mother and I, and lived there all the time until mother died in Edwardsville. Mother married Abner while I was working for Mr. Mackey, and she sent my step-father to get me. I was living with her when the step-children were born, and when the one died. I do not know how the property was transferred to Pierce, nor how he took possession. Do not think that he went to live on the place. Since we moved from the land I did not go to see it or make any inquiries about it until this year. I visited the Pierces once and was ordered away and never visited them again. He stated that the first time he had seen the property since was in June of the year of the trial. Asked what induced him to come back, he answered, “I went to see — they always claimed that I owed $600. They never would give*me possession until I raised it, and I couldn’t do that and I came out here to see if there was anything coming to me, if not, I was satisfied.” Fanny Pierce told him that he owed them $600 when he was a boy fifteen years old; that was when he went to see them and she told him not to darken her door any more. He saw Mr. Pierce, but the latter never talked to him on the subject. John Pierce took possession of what we left, the land and the personal property. He came out there and took the stock, I saw him riding the horses in; one of the'horses belonged to plaintiff’s mother.

William Stafford testified that he had lived in the county except for an interval of two years, since 1865. He knew Levi W. and Jane Elizabeth Cline, who lived on the land in dispute. He knew John Pierce who was a brother-in-law of Jane Cline and had seen him on the place. He saw the plaintiff several times and recognized him as the boy who claimed to be the son of Mrs. Cline. He further testified, he knew old man Cline, because about 1864, witness prosecuted him for horse stealing, and lie was convicted and sent to the penitentiary; after this in 1865, witness went west and lost track -of the Clines; they were gone when he got back two years later. He had promised to look np this property for plaintiff Houghton, and he promised to pay him something. Witness went security for costs for him in this case. Witness did not know Sallie Reese, nor anything about the transfer from Cline to Pierce. There had been several tenants on the property. Witness’s brother-in-law rented it at the.time witness came back from the west. Witness’s mother died in the house on the place. The property was always spoken of to me as ‘ ‘ The old Cline place. ’ ’ Houghton, the plaintiff, had told witness six or eight years ago, that he thought he had rights there, but the Pierces said they would deliver the property to him if he would pay them six hundred dollars, or seven hundred dollars, and that was the reason he supposed that the Pierces had possession of the property. The marriage license issued to James D. Reese and Sallie Abner, dated the 12th of November, 1891, was offered in evidence.

Edward Weidlich and Julius Weidlich testified that their father rented the land for sixteen years, and after him Julius Weidlich rented it. They paid the rent to Mrs. Pierce, Mr. Pierce himself never saying anything about it. Sometimes the receipts for the rent were signed by the daughters of Mrs. Pierce. For the past six years the land had been rented to one Longhibler. It was worth about fifty dollars per year rent. The receipts for rent were offered in evidence; one reads as follows:

“Received, St. Louis, January 8, ’81, from Edward Weidlich twenty-five dollars on account of rent for Elizabeth Cline’s place in St. Louis county. John Pierce, By William Downing, Agent.”

Another receipt reads: sum of twenty-five dollars, the same being- the rent for farm known as the Jane Elizabeth Cline place, beginning March 1, and ending September 1, ’82. Mrs. John B. Pierce.”

The other receipts are practically in the same form and included the time until March, 1886. This was substantially the evidence for the plaintiffs.

Defendant then introduced and read in evidence a deed of trust executed by Levi W. Cline and Jane Elizabeth Cline to Leicester Babcock as trustee, for Seymour Youllaire and Lewis S. Jordan, dated and acknowledged December 23,1865', and recorded December 23,1865, in the recorder’s office of St. Louis county in book 310, page 273, conveying the property in dispute in trust for the following purposes: “ Whereas, Levi W. Cline is justly indebted unto said parties in the third part in the sum of three hundred dollars, and to secure the payment of said sum, has this day executed his negotiable promissory note for said sum of three hundred dollars bearing even date with this deed and payable three months after date thereof to the order of said parties of the third part, at the Bank of the State of Missouri, and bearing interest at the rate of ten per cent per annum from maturity. ’ ’ Defendant also introduced in evidence a note with indorsements in words and figures as follows:

“$300.00.
St. Louis, December 23, 1865.
This note secured by deed of trust.
Three months after date, I promise to pay to the order of Seymour Youllaire and Lewis S. Jordan three hundred dollars, for value received, negotiable and payable without defalcation or discount, with interest at the rate, of ten per cent per annum from maturity, at the Bank of the' State of Missouri.
“Levi W. Cline.”

Endorsements: “Without recourse on me in any event. Seymour Youllaire” and: “Without recourse on me in any event. Lewis S. Jordan.”

To the introduction of this deed of trust and note, the plaintiffs objected on the ground that it was incompetent and irrelevant to show title in Mrs. Pierce. It does not appear that the deed of trust has ever been foreclosed. She may be the legal holder of that note for value, but that would not give her any title or even color of title. Which objection was overruled and exception saved.

Henry Longhibler, witness for defendant, testified that he and his wife had gone to town and rented the place in the name of Mrs. Longhibler; that they dealt entirely with Mrs. Fanny Pierce, that he never saw John Pierce. My wife always went into town after that to pay the rent. I still rent the place and pay fifty dollars per year for it. There is no building on the land, and Mrs. Pierce never lived on it.

Mrs. Longhibler testified that all the transactions were had with Mrs. Pierce and they never spoke to Mr. Pierce. She had lived in that section all her life and never saw John Pierce on the place or near there. I remember Mrs. Cline very well, the last time I saw her was in the sixties. Mrs. Pierce leased the land to us for five years with the privilege to buy.

Peter Weber, who resided near the land for twenty-three years, testified that he was at one time road overseer for the district, and went to see Mrs. Pierce on account of the road about eleven years ago, under the instructions of the court to see the owners of the land. He spoke to Mrs. Pierce who said she would be satisfied if she got the value of the land.

Lucy Pierce testified she was a daughter of Fannie and John Pierce. Her father died January 21, 1899, for many years she had charge of the land for her mother. Her father was never present when the rent was paid. The tenants did not pay their rent. Mr. Stafford’s relatives rented and left without paying. In 1880, the Weidlichs took possession and paid their rent when they could pay, part in fruit and vegetables. In 1898, the Longhiblers took possession and are the present tenants. The receipts produced were written or signed by her sister or herself, only one being signed by William Downing, who acted as agent to compel the first tenants to pay their rent. William Houghton, the plaintiff, came to see us in 1871, when he told us his mother was dead. My mother sheltered him and gave him clothes, and he took me to a circus. I have not seen him since until this spring, when he told me my father said he could have the land by paying three hundred dollars that my mother had advanced to him. My mother has been in very poor health for four or five years. We paid the taxes on the property by sending the money by mail to the collector and received the receipts. Did not know there was such a person as Sallie Reese until this spring, when Will Houghton told me he had a half sister, but did not know her name*. I do not remember having ever seen Mrs. Cline. I never heard my father say he was trustee of the property, but he always said the money belonged to mother. Mrs. Cline was mother’s half sister.

At the close of the evidence the court gave the following declarations of law:

“The court instructs the jury that if they believe from the evidence that the defendant was in the actual, open, notorious and continued adverse possession of the land in controversy for at least ten years before the institution of this suit, claiming to be the owner thereof, then they will find their-verdict for the defendant.
“ The court instructs the jury that the possession of a tenant is not such a possession of the landlord as will enable a plaintiff in ejectment to recover against stick landlord as a sole defendant,-and if the court finds from the evidence in this case that at the time of the institution of this suit, defendant had a tenant in actual possession of the premises and that he, the defendant, was not in the actual possession of the premises, the judgment should be for the defendant. ” ■

The court then refused the following declarations of law requested by the defendant:

‘ ‘ The court instructs the jury that a beneficiary in a deed of trust in possession, who for the period of limitation refuses to recognize the existence of the deed of trust or any claim of the maker thereof, may stand upon such adverse claim and invoke the Statute of Limitations against the maker of said deed or any person claiming under him, and, if they believe from the evidence that the defendant, Fannie Pierce, .was in possession, as beneficiary in the deed of' trust made and executed by Levi W. Cline and Jane E. Cline, his wife, for a period of more than ten years, refusing to recognize the existence of such deed of trust, or any claim of the makers thereof, or any person claiming under them, then they will find their verdict for defendant Fannie Pierce.
“The court instructs the jury that a beneficiary in a deed of trust or his assignee in possession of land under the deed of trust, which has become forfeited by the default of the debtor and maker of the deed, may protect his possession by virtue of his title under the deed of trust, and if the jury believe from the evidence that the defendant herein, Fannie Pierce, the assignee of the beneficiary in the deed of trust given by Levi W. Cline and his wife, Jane Elizabeth Cline, is in possession of the land under said deed of trust which has become forfeited by default of the'debtor, then they will find for the defendant, Fannie Pierce.”

To the refusal of the court to give these declarations of law, the defendant duly excepted at the time.

The court found from the evidence that Longhibler was at the commencement of the suit, and still is, in possession- of the land sued for as tenant of Mrs. Frances Pierce, and hence plaintiffs cannot recover possession, and the judgment must be for the -defendant on the cause of action in ejectment with costs upon that cause of action. On the counter-claim for a decree for title in favor of Mrs. Pierce, the court found for the plaintiff and held that Mrs. Frances Pierce had no title to the property and that plaintiffs have the title- to said land as against the defendant Frances Pierce, and awarded costs to the plaintiffs on that branch of the case. From this judgment and decree vesting title in the plaintiffs, the defendant Fanny Pierce appealed to this court.

I. At the threshold of the discussion of the respective propositions advanced by counsel, it may as well be stated that we shall proceed on the basis that the testimony abundantly establishes that the John Pierce mentioned in the oral evidence is the same John Pierce to whom Levi W. Cline and Jane Elizabeth Cline conveyed the land in controversy on December 23,1865, and that Mrs. Fannie Pierce is one and the same with the Mrs. Frances Pierce mentioned in the evidence. In so doing we are are not called upon to rely merely upon the presumption of identity of person from the identity of name. The facts disclosed that the John Pierce to whom the lands were conveyed in trust was the brother-in-law of Mrs. Jane Elizabeth Cline, and that he took possession of the trust estate under the deed, and this same John Pierce was the husband of Mrs. Frances Pierce or Fannie Pierce as she is known throughout the testimony. The attempted distinction between John Pierce, the grantee and trustee in the deed, and John Pierce, the husband of Mrs. Fannie Pierce and father of the other defendant, is a mere play upon words. The identity of John Pierce, trustee in the deed, and John Pierce, the husband of Fannie Pierce-, was too conclusively established to admit of a doubt, and the circuit court was right in basing his judgment upon that assumption. Starting then with the common source of title, to-wit, Felix G. Dunnavant, it is admitted that Dunnavant and wife by warranty deed conveyed the land in dispute to Levi W. Cline, July 26,1864, and that Levi W. Cline conveyed the said land to John Pierce on the 23rd of December, 1865, in trust for the sole- and separate use and benefit of Jane Elizabeth Cline, with power in said trustee to sell and convey the same or in anywise dispose of the same as said Jane E. Cline should request and direct in writing, which deed was duly recorded in the office of the recorder of deeds of St. Louis, on the same day. Under this deed John Pierce took possession of the land in controversy, and as late as January 8th, 1881, gave a receipt for the rent thereof in the following form:

“Received, St. Louis, January 8, ’81, from Edward Weidlieh twenty-five dollars on account of rent for Elizabeth Cline’s place in St. Louis county.
“John Pierce,
by William Downing, Agent.”

The parol evidence tended to show that Levi Cline was convicted and sentenced to the penitentiary. Whether said Cline died, or Mrs. Cline was divorced from him, does not appear from the testimony save by inference from the fact that she afterwards married James Abner and of this last marriage one of the plaintiffs, Sallie Reese, was born. Mrs. Cline died in Edwardsville, Illinois, in 1872, leaving the two plaintiffs, William Houghton and Sallie Reese, her only heirs at law. The record is silent as to whether Abner died or is still living. There was also testimony that the plaintiff Honghton visited John Pierce in his lifetime in St. Lonis, and was told by Mrs. Pierce that he owed them $601), and possession would not be given him until he paid that amount, and that plaintiff, Houghton, at that time was about fifteen years of age and was not able to pay $600. There is no evidence in the case that John Pierce ever made any claim of title to the land in suit adverse to the plaintiffs or their mother up to the time of his death in 1899, bnt the land was rented to various tenants and receipts given for the same in his name and in that of his wife, Mrs. Fannie Pierce. Prior to the execution of the deed conveying the land in trust to John Pierce, and on the same day a deed of trust was executed by Levi W. Cline to Seymour Voullaire and Lewis Jordan for $300. This deed of trust does not appear to have ever been foreclosed, but the note was introduced in evidence with two endorsements thereon by Voullaire and Jordan without recourse on them. How this note came into the possession of Mrs. Pierce or' whether she purchased the same from Voullaire and Jordan or received the same from her husband, John Pierce, does not appear. John Pierce never made any conveyance of the land in his lifetime, nor does it appear that Mrs. Cline or Mrs. Abner ever attempted to convey the same or requested John Pierce to do so in writing. So far then as the legal title appears from this record it was in John Pierce at the time of his death in 1899, in trust for Mrs. Jane Elizabeth Cline, and at the death of said John Pierce, the legal title thereto descended to his children and heirs at law, Lucy, Cora and Della Pierce and Frances and Allen Pomróy, and they disclaim any title whatever in the premises. The evidence further tended to prove that the property has at all times been assessed in the name of Jane Elizabeth Cline, and the taxes have been paid by Mrs. Pierce.

The defendant Mrs. Fannie Pierce asserts title to the land in dispute by virtue of adverse possession.

As the evidence in the case showed that one Longhibler was in the possession of the land at the time of the commencement of the suit, the circuit court very properly adjudged that plaintiffs could not recover possession in ejectment as Longhibler was not made a party to the action, even though they were shown to be the owners thereof in equity.

The controlling question presented on this appeal is, whether Mrs. Fanny Pierce was entitled to a judgment decreeing the title to her under her cross-bill asserting title thereof by virtue of her adverse possession. Inasmuch as John Pierce entered into possession of the property in 1865, without other title than that conferred upon him by the deed conveying the same to him in trust for Mrs. Cline, the presumption is that he took .possession thereof as trustee by virtue of said deed and not adversely to Mrs. Cline. Under such circumstances his possession could not become adverse to Mrs. Cline and her heirs without some unequivocal act or acts brought home to the knowledge of Mrs. Cline in her lifetime or her heirs after her death, showing that he claimed title thereto in opposition to her or their title, or such an occupancy and user so open and notorious and inconsistent with their rights that the law will authorize from such facts the presumption of such knowledge by them. [Hunnewell v. Burchett, 152 Mo. l. c. 614.]

A careful scrutiny of the testimony in this case does not show that John Pierce’s possession was ever changed to an adverse holding in repudiation of Mrs. Cline’s right. Nor does the defendant, Mrs. Fanny Pierce, apparently make any such claim, but her insistence is, as evidenced by the declarations of law which she requested the court to give, and by the argument of her counsel in this court, that she took possession of said land in satisfaction of the note and deed of trust given by Levi W. Cline and wife to Voullaire and Jordan to secure the note of Cline to them, of which said note she claims, or rather her counsel does, to be the assignee or indorsee. But Mrs. Pierce did not testify in this cause, and there is no evidence save possession that she is the owner for value of the Voullaire note and deed of trust, nor when, nor how, she came into possession thereof, nor is there any evidence tending to show that she claimed possession of the property adversely to her husband, John Pierce; on the contrary, as the possession was in him, every presumption must be that her acts in receipting for the rents and paying the taxes were done in subordination to his legal title and right of possession, at least up to the time of his death in 1899, and subsequent adverse possession by her would not confer title by the Statute of Limitations. Whatever possession she had prior to his death prima-faeie would be her husband’s possession, as he was entitled to the possession of her property during coverture; as said by the circuit court, “Possession by the wife of a trustee could not be considered adverse to her husband, or to his cestui que trust, without the most unequivocal assertion of claim of a separate estate, hostile to both and brought home to their knowledge.” But Mrs. Pierce invokes the rule that the holder of a negotiable note indorsed in blank by the payee is prima-facie the owner of it, and is presumed to have taken it in good faith for value before maturity and without notice, as has been held by this court in Fitzgerald v. Barker, 85 Mo. 13; Mayes v. Robinson, 93 Mo. l. c. 122; Horton v. Bayne, 52 Mo. 531; Keim v. Vette, 167 Mo. l. c. 399. A reference to all of those cases will show that the indorsements in each were either admitted or proven. In this ease, there was no evidence whatever as to the genuineness of the indorsements of Voullaire and Jordan, the payees of the note, but without resting our opinion-on the necessity of the proof of the indorsements, we do not think the facts of this case raise a presumption that Mrs. Pierce acquired this note and deed of trust in the due course of business before maturity; on the contrary, we think a much stronger presumption arises that as John Pierce was the trustee of Mrs. Cline, and as such was in possession of her separate real estate, it was his duty to protect her said estate and pay off the prior lien of Voullaire and Jordan out of the rents and profits derived from said estate, and when this note and deed of trust were offered in evidence by his widow the natural and reasonable presumption is that John Pierce, out of the rents which it was shown went to him and his family from the land in suit, had applied them to the satisfaction of this prior note and deed of trust. This presumption accords with his duty as trustee, and also with the legal presumption that whatever possession his wife had of the note and deed of trust was in law his possession, and that she held the same in subordination to his right of possession. We have already adverted to the fact that Mrs. Pierce did not testify in this case, and there is absolutely no evidence as to when she acquired possession of the note, or how she acquired it or out of what funds she paid for it, if she in fact did buy it, and there is an utter absence of any evidence showing or tending to show that she had any estate out of which she could have raised the money to purchase said note. There is nothing but the naked unexplained possession of the note and deed of trust by her years after the death of her husband, who was the trustee of her sister, to build up a presumption of an adverse holding against the heirs of her sister, the cestui que trust of her husband. The burden was upon her to establish an adverse, open,'notorious possession in order to defeat the title of the plaintiffs, and we are of the opinion that the circuit court correctly held and 'found that she did not sustain the burden, which was assumed by her claim of title by adverse possession, and accordingly the judgment of the circuit court decreeing the title in the plaintiffs is affirmed. •

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    FANNIE E. ELIOT v. KANSAS CITY, FT. SCOTT & MEMPHIS RAILROAD COMPANY, Appellant.
    Division Two,
    May 14, 1907.
    1. ABSTRACT: Waiver of Objections Not Mentioned. The filing of an additional abstract to supply matters omitted from appellant’s abstract is to be considered as a waiver by respondent of any objection to appellant’s abstract that is not indicated in the additional abstract; and if- appellant’s abstract shows a bill of exceptions was duly filed and states what the record shows, that abstract is conclusive in the absence of a counter abstract. So that, where appellant filed a motion to strike out and a motion to make more definite, which motions were overruled, but no bill of exceptions was filed at that term, and the case was tried at a subsequent term and a bill of exceptions was duly filed, and appellant’s abstract omits those motions, and respondent files an additional abstract setting forth only those motions, and makes no other objection to appellant’s abstract, those motions will not be considered, nor was it necessary for appellant to embrace them in its abstract, but appellant’s abstract as presented will be held to include the record.
    2. NEGLIGENCE: Master and Servant: Presumptions of Care and Knowledge. Where the relation of master and servant exists, and the servant is injured while in the service of the master, and charges his injury to the master’s negligence,in. furnishing him with defective and improperly constructed appliances, the 'presumption is that the master discharged his duty toward the servant by providing .him with suitable instrumentalities with which to work, and if it be shown that they were defective then there is a further presumption that the servant had no notice or knowledge of that fact, and was not negligently ignoránt.
    3. -: -: Overcoming Presumption. It devolves upon the plaintiff to show by a preponderance of the evidence that the master failed to perform his duty to provide him suitable instrumentalities to work with, and that in consequence of such failure the servant was injured. The fact that the switchman’s’ hand, while he was in the act of throwing the switch, was struck by the passing engine, does not of itself overcome the presumption that the defendant railroad company had discharged its duty towards him with reference both to the switch-lever and the engine, nor amount to a proof of failure of the defendant to perform its duty. It devolves upon plaintiff, in order to entitle her to recover for the death of her husband, the switchman, not only to overcome by testimony the presumption that defendant did not fail to perform its .duty towards him, but that defendant was negligent as charged in the petition, that such negligence was the proximate cause of the in« jury, and that the injury caused his death.
    4. -: -: Unusual Construction. The blow-off pipe on the engine, which struck the switchman’s hand as he was in the act of throwing the switch, was located in an unusual place, béing about two inches back of the pilot beam and extending down about five inches below the end of the beam, while the usual place for its location is either immediately before or behind the drive wheel. But as that unusual construction was not shown by the evidence to be either improper or defective, or the cause of the injury, it was not negligent.
    5. -: -: -: Switchman: Contributory. Where the switchman was in full charge and control of the switch, and had authority to control the engine’s movement by signaf and could have had it stopped by a movement of his hand, and the switch-lever, when used as it wias intended to be used, and’ as he had a few minutes previously used it, was entirely safe and suitable, and was in no sense dangerous when the throwing of the switch was complete, and became dangerous only when pointed horizontally towards the engine, and then only because when in that position the lever-handle came within five inches of the pilot beam and within one inch of the blow-off pipe that pointed down over the pilot beam, and he undertook to throw the switch when the engine, moving somewhat rapidly, was only six feet away, without signalling it to stop, and when the switch-lever pointed horizontally toward the engine his hand thereon was struck by the blow-off pipe, the fact that he did not have time to completely throw the switch, does not make the company liable for his injury, even though it was usual for the blow-off pipe to be constructed immediately before or behind the drive wheel. There is nothing in these facts which constitutes negligence on the part of the company, but even if there were, the accident was due to his mistake of judgment and voluntary act in attempting to throw the switch when there was not sufficient time in which to complete it, thereby making an improper use of the switch-lever and by placing his hand over the end of the lever when there was no necessity for that, and hence he was guilty of contributory negligence barring recovery.
    Appeal from Jackson Circuit Court. — Now. W. B. Teasdale, Judge.
    Reversed.

      L. F. Parker and I. P. Dana for appellant.
    The court should have directed a verdict for defendant for each of the following reasons: (a) There was no proof that the death of plaintiff’s husband was caused as charged in the petition, or by negligence of defendant in any respect, (b) The testimony showed that his injuries were due to his own carelessness, or at best resulted from his voluntarily taking unnecessary chances in doing his work, (c) His injuries and death were in law accidental. Plaintiff failed to overcome the presumption existing in favor of defendant that it had discharged its full duty to her husband. Wood’s Master & Servant, sec. 382; Covey v. Railroad, 86 Mo. 635; 0 ’Malley v. Railroad, 113 Mo. 319; Murray v. Railroad, 101 Mo. .236; 2 Thompson on Negligence, p. 1053, sec. 48; Gurley v. Railroad, 104 Mo. 223; Hudson v. Railroad, 101 Mo. 13; Webb’s Pollock on Torts, 545. The mere fact of an injury did not overcome this presumption. Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. 115. There is no evidence of anything unusual, unsafe or out of the ordinary course with reference to any of defendant’s appliances, beyond the mere fact that plaintiff’s husband’s hand was injured. Defendant was not bound to furnish any particular kind of appliances. Grattis v. Railroad, 153 Mo. 404; Cothom v. Packing Co., 98 Mo. App. 343; Friel v. Railroad, 115' Mo. 503; Lane v. Railroad, 64 Kan. 755; Webb’s Pollock on Torts, p. 11. Deceased was free .to do the work in his own way, and it was his duty to choose the safest way. Defendant no more assumed the risk of his chousing a dangerous way to work with appliances which could be used safely than he assumed the risk of defendant’s furnishing him with unsafe appliances. Kelley v. Lawrence, 195 Mo. 87; Bailey on Master & Servant, sec. 1123 ; Hurst v. Railroad, 163 Mo. 309; Hulett v. Railroad, 67 Mo. 239; Sparks v. Railroad, 31 Mo. App. Ill; Railroad v. Arnold, 114 Ala. 183; Quironer v. Railroad, 111 G-a. 315; Pennsylvania Oo. v. O’Shaughenessy, 122 Ind. 588; Ferguson v. Railroad, 100 Iowa 733. The injuries to deceased’s hand were so unlikely to occur, so unusual and exceptional, so improbable of happening, that even if defendant was in any way negligent with regard to the arrangement of the appliances of the switch stand and the engine in that a man might be hurt under the circumstances attending the injuries to Mr. Eliot’s hand, such lack of care was not, within the meaning of the law, the proximate cause of the injury. Or, to put it differently, it was not in a legal sense negligence not to take precautionary measures to prevent such an unlikely injury. Graney v. Railroad, 157 Mo. 683; Brewing Association v. Talbot, 141 Mo. 683; Hysell v. Swift, 78 Mo. Ápp. 47; Mfg. Co. v. McCormick, 118 Pa. St. 519; Bowen v. Railroad, 95 Mo. 268; Fuchs v. St. Louis, 167 Mo. 620. Another way of expressing the same idea and principle is that under all the testimony in this case, the injuries to plaintiff’s husband’s hand and his death, when the testimony is most favorably regarded for plaintiff, were accidental. Rogers v. Printing Co., 103 Mo. App. 683; Henry v. Railroad, 76 Mo. 288; Haley v. Railroad, 179 Mo. 35.

      Wm. T. Jamison and Walsh '& Morrison for respondent.
    (1) The motion to make petition more definite and certain and to strike out a portion thereof are not properly in the record. Nickerson v. Peery, 163 Mo. 77; Newton v. Newton, 162 Mo. 173; Bank v. Finks, 40 Mo. App. 367; Ober v. Railroad, 13 Mo. App. 81; Nichols v. Stevens, 123 Mo. 119; Paving Co. v. Ullman, 137 Mo. 564. (2) Nothing is presented by appellant’s abstract for the consideration of this court except the record proper. Gramp v. Dunnivant, 23 Mo. 254; Lawson v. Mills, 150 Mo. 428; Walser v. Wear, 128 Mo. 653; Clay v. Union W. P. Co., 98 S. W. 577; Reno v. Fitz Jarrell, 163 Mo. 411. (3) The death of Mr. Eliot was caused by the negligence of defendant as charged in the petition. Dean v. Railroad, 97 S. W. 918; Boyce v. Railroad, 96 S. W. 672; Harrison v. Elec. Lt. Co., 195 Mo. 606; Hoepper v. Hotel Co., 142 Mo. 388; Flanders v. Railroad, 51 Minn. 193; Murphy v. Railroad, 115 Mo. Ill; Curtis v. McNair, 173 Mo. 283; Bradley v. Railroad, 138 Mo. 302; Doyle v. Trust Co. 140 Mo. 1; Halliburton v. Railroad, 58 Mo. App. 33; Settle v. Railroad, 127 Mo. 341. (4) Deceased was not guilty of contributory negligence. Browning v. Railroad, 94 S. W. 315; Murphy v. Railroad, supra; Piette v. Brewing Co., 91 Mich. 610; Brinkmeier v. Railroad, 69 Kan. 738. (5) There was no variance or failure of proof. R. S. 1899, sec. 798; Gannon v. Gas Co., 145 Mo. 511; Morrow v. Surber, 97 Mo. 155; Palmer v. Tel. Co., 91 Mo. App. 115; Anderson v. Railroad, 161 Mo. 432. And the cause of death sufficiently appears. Walsh v. Railroad, 102 Mo. 582; .Lovrain v. Railroad, 57 N. Y. Super. Ct. 165; Wood v. Railroad, 181 Mo. 433. (6) The evidence shows that the injury to deceased was caused by the dangerous proximity of the blow-pipe and switch lever. Hallweg v. Telephone Co., 195 Mo. 149; Soeder' v. Railroad, 100 Mo. 673; Buesching v. St. Louis Gas Lt. Co., 73 Mo. 219; Schultz v. Moon, 33 Mo. App. 329; Shore v. Bridge Co., Ill Mo. App. 278; Leeright v. Ahrens, 60 Mo. App. 118.
   BURGESS, J.

Plaintiff, the widow of B. F. Eliot, sues for five thousand dollars damages for the death of her husband, who, on the 27th day of May, 1901, while in the employ of and acting as switchman for defendant, and in the performance of his duties as such, in the yards of defendant" in. Kansas City, was struck and injured on the back of his hand by one of defendant’s engines, from the results of which injury and other “matters and things’’ set forth in the petition, the said B. F. Eliot, on the 17th day of July, 1901, died. The trial resulted in a verdict and judgment for five thousand dollars in favor of the plaintiff. In due time defendant filed motions for a new trial and in arrest, which were overruled, and defendant appealed.

The suit was originally instituted against.the Kansas City, Ft. Scott and Memphis Railroad Company, appellant herein, and the St. Louis and San Francisco Railroad Company* but was subsequently dismissed as to the latter.

The petition alleges the incorporation of the defendant and that on May 27, 1901, Benjamin F. Eliot, the husband of plaintiff, was in the employ of the defendant, and in such employ was acting as a switch-man at a point on the tracks of the defendant near Twenty-fifth street and State Line in Kansas City, Missouri; that while in the discharge of his duties as such switchman upon said day, plaintiff’s husband, while adjusting and operating a switch at said Twenty-fifth street and State Line, and while pushing or turning over the lever to operate said switch, which was necessary to enable an approaching engine belonging to the defendant to switch upon and run over and upon the proper track, and while said engine was being run, operated and controlled by the engineer thereof, who was an employee of defendant, his hand while still grasping said switch lever was struck by said engine, and thereby severely wounded, lacerated, torn and bruised at and about a point on the back thereof, immediately above the joint where the index finger is joined to the hand, and thereby the. said index finger was almost severed from the said hand.

“Plaintiff further states that the said injury to the hand of the said Eliot was caused as aforesaid by the carelessness and negligence of the defendant, the Kansas City, Port Scott & Memphis Railroad Company, in so constructing and arranging the said switch lever and the said engine and its attachments that when operated as aforesaid, they came so close together as to cause the injury as above stated.

“Plaintiff states that the said Benjamin P. Eliot had a long and continuous illness caused from the aforesaid injury, extending from the time of the said accident until on or about the 17th day of July, A. D. 1901, from which injury and illness, his life was in imminent peril and danger, and as a result of such injury it became necessary to perform a surgical operation upon the said hand in an effort to heal and cure the said injury, and in order to sa\e his life, and as a necessary incident to the performing of the said operation, the physicians and surgeons in attendance upon him, administered to him an' anaesthetic, and while under the influence of said anaesthetic, administered for the purpose aforesaid, and before the said operation could be completed the said Eliot died, his death being caused on account of the matters and things hereinbefore set forth.”

It was further alleged that the St. Louis & San Francisco Railroad Company was liable for the debts of the Kansas City, Fort Scott & Memphis Railroad Company and judgment was prayed against both defendants in the sum of five thousand dollars.

The last-named defendant demurred on the ground " that it was not a necessary party to the suit, and that the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court and the defendant saved an exception to the ruling.

The answer of defendant consisted of, first, a general denial; second, a general plea of contributory negligence; third, a general plea of assumption of risk.

Plaintiff’s reply was a general denial of the allegations of the answer.

The only testimony in the case was that introduced by plaintiff, the defendant not offering any, and the only witness who was present at the time and place of the accident was H. P. Wells, foreman on the switch engine which, it is alleged, struck and injured Eliot. Wells testified by deposition, which was read on behalf of plaintiff at the trial.

The deceased was an experienced switchman, for-' ty-five years of age, and when hurt he was attempting to “throw a switch” in front of an engine which was switching ears, and while so doing his hand in some way was caught between some part of the engine and the switch lever and thereby lacerated and injured.

According to Wells’s testimony he was sitting on the left-hand side of the cab of the engine, going north, at the time Eliot was hurt. The switch stand was on the west side of the tracks. South of the switch there was only one track, but north thereof there were two tracks, with either of which the south track could be connected by properly moving the switch lever, the movement being called “throwing the switch.” The westerly track led'to the main line, while the easterly track was called the Milwaukee connection. The switch engine had been employed in the yards and in the vicinity of the said switch, with the same crew, all the forenoon. Immediately before the accident the engine had gone over this switch upon the Milwaukee connection and coupled up to some cars standing thereon, and then backed over the same switch until the engine and cars were south thereof. The engine then started rapidly north, and when it was close to the switch the cars • were uncoupled and they proceeded with the impetus given them over the switch and to the west track. It would appear that when the cars, which were moving rapidly, were ahead of the engine about half a car length, about eighteen feet, and before the engine had yet reached the switch, Eliot attempted to throw the switch between the engine and said cars, the object, being to let the engine in on the Milwaukee connection without stopping. At the time he attempted to- do this the engine was about six feet south of him, and still moving rapidly. Before the operation of moving the switch handle or lever was completed, and while said lever was pointing in a horizontal direction towards the track, the engine passed and some, projecting attachment on the engine struck the hand of Eliot which had hold of the end of the lever. Eliot held up his bleeding hand, and at a signal from Fireman Wells the engine was stopped. The hand was injured on the * back, the tendons of the index finger above the knuckle being torn apart. There was a blow-off pipe on the engine just behind the pilot beam and in a position somewhat lower than the beam. Witness Wells measured the space between the blow-off pipe and the switch lever, when each was opposite the other, and found the space was about an inch, which he said was not sufficient for a man’s hand. He was asked if the way Eliot threw the switch was not the usual and ordinary way under such circumstances, and he stated that he had seen it done before, and whenever there was an occasion of that kind. Witness John W. O’Neil, an experienced switchman, testified that the operation of switching cars from one track to another and “throwing the switch” was about the same in all yards. He said that he knew the switch stand in question, having worked in defendant’s yards prior to May 27, 1901. On cross-examination he stated there would be room enough to throw the switch although the engine was only six feet away from the switch stand at the time, as it took but a second to do so; that the switch is not completed until the lever is dorm, but that an engine can go over the switch before it is quite down.

After the accident Eliot was taken home in an ambulance, and the same afternoon he returned to the railroad yards to get some things which he had left there. He stayed at home some ten days, and then went to the hospital, where he remained about, four weeks, coming home occasionally. At the end of that period he went home, and remained there until the morning of July 17. The evening before, his family physician, Dr. Van Eman, was at his house examining his hand, and next morning Eliot went to the hospital to meet him and other physicians who were to hold a consultation there. No witness saw Eliot alive after he left home that morning; nor did the plaintiff ever see him again, even after he was dead, her testimony in that regard being “it was just best that I should not see him.”

Dr. Moses T. Runnels testified that he made a superficial examination of the body of Eliot on the afternoon of July 18,1901, in the presence of Dr. Van Eman, and a doctor from the Ft. Scott & Memphis Hospital, and some friends of the deceased. The purpose of the physicians and surgeons was to make a post-mortem examination, hut the body was in such a state of decomposition at the time that it was thought inadvisable to enter into it. He stated that it was very evident that there had been-a decomposition or state of gangrene in the body before, the man died, caused hy blood poisoning. The right .hand and arm indicated that they were in a state of decomposition before he died, the hand being black, and the arm, extending clear to the shoulder, being black and very much swollen. Over the metacarpal bone of the index' finger, about an inch above the knuckle, there was a cut or open place in the hand, from which both ends of the severed tendon protruded. The glands under the arm were very large, showing that there had been infection and blood poison; that the condition was in itself a sufficient cause of death; Dr. Runnels stated that where a man was affected with blood poisoning to the extent that Eliot apparently was, the only thing to do would be to operate upon him, and that such operation would necessitate the use of chloroform or ether.

The testimony further showed that Dr. Yan Eman was an eminent physician and that he died before the trial of this case. There was no testimony as to where deceased was between the morning of July 17 and the' afternoon of July 18, 1901, what he did or what was done to him, nor was there any testimony offered as to where or when or under what circumstances he died.

Not being satisfied with appellant’s abstract, plaintiff filed an additional abstract which has reference solely to the motions filed by defendant to strike out, and to make more definite and. certain her petition, which motions were overruled by the court, but no bill of exceptions was filed during the term at which these rulings were made, and no point is made by defendant upon the action of the court in overruling said motions for that reason; besides, they were expressly abandoned by the appellant on this appeal. They are, therefore, not before us for consideration, and it was wholly unnecessary for defendant to mention them in its abstract. As was said in Lumber Company v. Knights of Pythias, 157 Mo. l. c. 379, “The statute of this State, section 2253, Revised Statutes 1889, requires appellant to file a certified copy of the judgment and the order granting the appeal, and then devolves upon him the duty to make an abstract of the record and deliver a copy to the opposite party, in the time required by the rules of the court. The abstract, we have consistently ruled, does not require the certificate of the clerk nor the various matters of record in full. [Ricketts v. Hart, 150 Mo. 64; McDonald & Co. v. Hoover, 142 Mo. 484.] The purpose of the statute was to avoid unnecessary cost, and to encourage concise statements of the record. Moreover, if provided within itself a method to prevent imposition on this court by requiring respondent, if dissatisfied, to file an additional abstract within a certain time, and if the parties could not concur as tó the record, the clerk should certify to this court so much of the record as is in dispute. When a bill of exceptions is signed and filed, the matter therein becomes matter of record. When, therefore, as in this case, the abstract shows the bill was duly filed, and then proceeds to state what the record shows, it is conclusive, unless the respondent files a counter abstract as required by our rules. No such thing has been done in this case. The abstract is unusually full and complete, and is not open to the attack made upon it for the first time in the brief. ’ ’

Plaintiff, in filing an additional abstract to supply matters omitted in defendant’s abstract, must be considered as having waived any other objection to it than as indicated in the additional abstract; and as the abstract shows that the bill of exceptions was duly filed and also states what the record shows, it is conclusive, in the absence of a counter abstract showing to the contrary. [Lumber Company v. Knights of Pythias, supra; Martin v. Castle, 182 Mo. 216.]

In Flannery v. Railroad, 97 Mo. 192, it is held that, when a respondent or defendant in error does not file an additional abstract, the appellate court will accept that of appellant or plaintiff in error as containing a correct statement of the record, and will not go behind the abstract.

In McDonald & Co. v. Hoover, 142 Mo. 484, it is held that an abstract like the one in question is conclusively presumed to be true unless challenged by a counter abstract, as provided by section 813, Revised-Statutes 1889, and “that nothing more is required in an abstract than a recital of the substance of the various entries. In this case appellants’ abstract recites the leave to file and the several extensions, and the time of granting each, and the length of time and the filing thereof. This is all that the statute requires.”

The same rule is announced in Ricketts v. Hart, 150 Mo. 64. So in the case at bar; appellant’s abstract recites the leave to file and the several extensions, and the time of granting each, as well as the length of time and the filing thereof. This is all that the statute requires.

Defendant introduced no testimony, but at the close of all the' evidence introduced by plaintiff, defendant demurred thereto for the reason, as stated, that plaintiff had not shown facts sufficient to constitute a cause of action against the defendant. The demurrer was overruled, and the defendant excepted.

- In cases of this character the presumption is that the master has discharged his duty towards his employee or servant by providing him with suitable instrumentalities with which to work, and if it be shown that they were defective, then there is a further presumption that the employee had no notice or knowledge of this fact, and was not negligently ignorant of it. [4 Thompson’s Commentaries on the Law of Negligence (2 Ed.), sec. 3864.]

The master is entitled to the benefit of the presumption that he has performed his duty, until the contrary appears (Boyd v. Blumenthal & Co., 3 Penn. (Delaware) 564, and it devolved upon the plaintiff in this case to show by the preponderance of the evidence that defendant had failed to perform its duty in this respect, in consequence of which her husband sustained injuries from which he died. [Pennsylvania Company v. Whitcomb, 111 Ind. 212; Pellerin v. International Paper Co., 96 Me. 388; Cahill v. Hilton, 106 N. Y. 512; 4 Thomp. Com. Law of Negligence (2 Ed.), sec. 3866.] In Cahill v. Hilton, supra, it is said: “A master’s liability to his servant for injuries received in the course of his employment is based upon the personal negligence of his employer; and the evidence must establish personal fault on his part, or what is equivalent thereto, to justify a verdict, and he is entitled to the benefit of the presumption that he has performed his duty until the contrary appears. [Wood on Master and Servant, secs. 345, 346.]” Moreover, in order to entitle plaintiff to recover, it devolved upon her to not only overcome by testimony the presumption to be indulged in favor of defendant that it performed its duty towards plaintiff’s husband, but that defendant was negligent as charged in the petition, that such negligence was the proximate cause of the injury, and that said injury caused the death of her husband as alleged. And the fact that the hand of plaintiff’s husband was hurt while in the act of throwing the switch lever as the engine was passing upon the track (even if it was struck by the engine, as charged in the petition), did not of itself overcome the presumption that defendant had discharged its duty towards him with reference both to the switch lever and engine, nor amount to proof of a failure by defendant to perform its duty. In Jones v. Railroad, 178 Mo. l. c. 543, Judge Valliant, speaking for the court, said: “Proof, therefore, of the mere fact that the servant was injured in the master’s service is not sufficient to make out a prima-facie case for the plaintiff,” citing Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. 111. See also, Hornstein v. Railroad, 195 Mo. 440.

While in this case the blow-pipe on the engine, which the evidence tends to show contributed to the injury, was located in an unusual place, being about two inches back of the pilot beam and extending down about five inches below the end of the beam, while the customary and usual place for the location of such pipe is either immediately before or behind the drive wheel, there was no evidence tending to show that it was of improper or defective construction, or that it was the direct cause of the injury. ■ Deceased had not completed the movement of throwing the switch at the time of the accident. In order to throw the switch back from the westerly track and connect with the other track, or Milwaukee connection, it was necessary for the switch-man to raise the switch lever from a vertical position to a horizontal position, turn it in a horizontal plane from the south to the east side of the stand, and then push the handle or lever down to a vertical position and into a notch on the east side; but at the time the front part of the engine crossed the switch, the switch lever was pointing horizontally toward the engine instead of being pushed down to a vertical position, as it would have been if the movement of throwing the switch had been completed. The space between the extreme end of the switch lever and the blow-pipe of the engine was about an inch in this case, but had the movement of throwing the switch been completed and the lever in its proper position, the space between the lever and the blow-pipe would have been about fifteen inches, or the length of the said lever. While there was no evidence that it was absolutely necessary to have the lever down in the notch before the engine could go over the switch in safety, that was the safest and best way in order to allow the engine to pass. ^ There was nothing to show that the blow-pipe on the engine was located in an unusual place or projected further than it should. It is obvious that the height above the level of a rail of the projecting end of a switch lever would vary with the location of the switch stand and the grade of the ground, so that while the blow-pipé on an engine might' come opposite the end of one switch lever, as it pointed toward the track, it might never come opposite another. They have no conneetion with each other in any case, for when the lever was where it should be as an engine passed it was in a vertical position and hung close to the switch stand.

The testimony showed that the deceased was in full charge and control of the switch at the time of the accident, and that he had authority to control the engine’s movements by signal at any time, so that he could, by a motion of his hand, have had it stopped or slowed down. He had thrown the switch and turned the lever a few minutes before when the engine and cars moved south, and had thrown the lever down into the notch on the side of the stand, as was necessary before the act was completed and before it was naturally safe for the engine or cars to pass over. When he attempted to throw the switch this time the engine, moving somewhat rapidly, was only six feet away. The fireman testified that he thought they were not going to make the switch, and he gave the engineer a signal to stop. The engineer then stopped the engine, but not until a portion of it had passed the switch’.

It is clearly shown by the evidence that Eliot’s-hand was injured because he had not completed the throwing of the switch, which was necessary for his safety and that of the engine and men on it, before the engine reached the connection of the tracks, and that the switch lever, when in proper position, cleared all parts of moving cars and engines by a safe margin. If it had not there would have been a good claim of negligence against defendant. With the lever extended, which was an improper position in which to hold it, and one for which it was never intended at the time the engine and ears were passing, the lever handle came close to the whole engine, the evidence showing that in this position it was about five inches from the pilot beam, and about an inch from the blow-pipe; it might have been equally near other parts of the engine. It was obvious that the switch lever, when so extended towards the track, came so near an engine or cars moving past as to plainly warn a man not to get any part of his body between them. It was a clear day, about noon, and the entire situation was plainly visible. Eliot had thrown the switch at least once just before this occurrence; he had an appliance which when - used as it was intended to be used, and as he had used it before, was perfectly safe and suitable; he was master of the situation, and could use it that way if he chose. So much is indisputable. True, Eliot’s hand was hurt, and apparently by coming in contact with some part of the engine; but the cause of the injury was his voluntary attempt to do something which there was not sufficient time for him to complete, thereby making an improper use of the lever. Is it just that the employer should bear the result of his act, which would appear to have been a mistake of judgment on his part?

The grounds of negligence alleged in the petition are the carelessness and negligence of the defendant, the Kansas City, Ft. Scott & Memphis' Railroad Company, in so constructing and arranging the said switch lever and the said engine and its attachments, that when operated as aforesaid, they came so close together as to cause the injury. There was no evidence tending to show that the switch lever was not of proper . construction, but there was evidence tending to show that the blow-off pipe on the engine was not in the usual place of such pipes, and that it extended down too low, in consequence of which and the failure of deceased to throw the switch before the engine reached it, the blow-off pipe came in contact with his hand at the end of the lever, causing the injury to deceased. Eliot, however, was free to act as he chose. By a motion of his hand he could have had the engine slowed up or stopped, and thus have avoided the injury; but of his own volition he undertook to lift the lever and swing it around towards the track, when the engine was too close for him to complete or effect his object. Had he taken more time, as he might have done, and signaled the engine to stop or slow up, or had he not extended his hand beyond the end of the switch lever, he would not have been hurt.

It is obvious, from the facts, that the injury to the hand of deceased was not the result of any negligence on the part of the defendant, but of his own carelessness in attempting to throw the switch under the circumstances, and in placing his hand over the end of the lever when there was no necessity therefor.

Plaintiff cites and relies upon a number of decisions of this and other courts, among which may be cited Flanders v. Railroad, 51 Minn. 193; Murphy v. Railroad, 115 Mo. 111; Charlton v. Railroad, 200 Mo. 413, and kindred cases, which hold that when obstacles are placed, or permitted to remain, so near a railroad track that servants of the road while in the discharge of their duties come in contact with them and are in-j tired, the railroad company will be liable therefor. But the case at bar is not of that character. In none of those cases, had -the injured servant control of the movement of the engine or cars, or of the thing which caused the injury, while in this case the servant .had such control, and especially of the switch lever. It is not alleged that the switch stand was so near the tract as to render it dangerous to employees, but the gravamen of the complaint is defendant’s negligence in so constructing and arranging the said, switch lever and the engine and its attachments, that when operated they came so close together as to cause the injury.

But even if defendant was guilty of negligence in constructing and arranging said switch lever, engine and attachments, which we by no means concede, the deceased was unquestionably guilty of carelessness and negligence in manipulating the lever under the circumstances. We find that the negligence, of deceased contributed directly to his injury, which precludes recovery by plaintiff in this action. The judgment is therefore reversed.

All concur.


author: GANTT, J.

text:
    MATTIE A. McMUNNIGAL v. J. W. AYLOR et al., Appellants.
    Division Two,
    May 14, 1907.
    1. CONVEYANCE TO WIFE: Fraudulent: Her Money. Money given by a father to his married daughter in 1878 was her own property; and if it was invested in a house and lot on which they lived that became a homestead; and if they afterwards sold it, and he took the money and put it in a bank, and then with that money bought some lots in his own name, it was competent for him five years later, after a house was erected thereon, in recognition of his obligation to her, to convey the lots to her,- and. he violated no principle of good morals or equity in so doing.

      2. -: -: Solvency. A deed by a husband to his wife, at a time when he was solvent, in recognition of the fact that her money appropriated by him had been used in purchasing a lot and erecting a house thereon, is valid, and even though at that time he owed a debt, which afterwards ripened into a judgment. He had a right to make a reasonable provision for his wife and family.
    Appeal from Jasper Circuit Court. — Row. Hugh Dabbs, Judge.
    Affirmed.

      Frank L. Forloia for appellants.
    (1) The contracting of the debt, the after-acquiring of property and the fraudulent conveyance of the property, the debt having been contracted prior to the • acquiring of the lots in controversy, and being the very means used in the purchase afterwards, made McMunnigal’s property subject to the execution of defendant Aylor. Bartels v. Kinninger, 144 Mo. 370. (2) The conveyance made by McMunnigal to his wife was without consideration, and was void as to this debt due Aylor, he being a creditor prior to that time, without regard to the purpose or intént with which it was made. Boatman’s Savings Bank v. Overall, 16 Mo. App. 10; Oberneir v. Treseler, 19 Mo. App. 519 ; Loehr v. Murphy, 45 Mo. App. 519; Snyder v. Free, 114 Mo. 360. It was shown that it was the husband’s property, bought with his means, acquired by him, by not paying Ellis the purchase price of the property traded for the-property in controversy; the transaction was fraudulent as to existing creditors, of which defendant Aylor was one. Lander v. Ziehr, 150 Mo. 403. (3) Plaintiff claimed in the petition filed that she had- paid the five hundred dollars for the purchase price of the lots in controversy, out of her own means. But the undisputed evidence in the case shows that the lots were paid for by her husband by getting Ellis to accept an order for that amount, and deeding to him other property, which he traded for the property in controversy, receiving in addition thereto $300 in cash.

      Thomas & Hackney for respondent.
    (1) The undisputed evidence shows that at the . time of making the deed to plaintiff for the property in controversy, the husband of the plaintiff was solvent and after making this deed had ample property to pay his debts over and above his exemptions; and in such condition he had the. right to make provision for his wife, and the provision being a reasonable one, the conveyance could not be set aside at the instance of an existing creditor, even though the husband subsequently became insolvent. Lang & Son v. Williams, ' 166 Mo. 1; Johnson v. Murphy, 180 Mo. 597; Bank v. Simpson, 152 Mo. 638; Pehlig v. Bush, 165 Mo. 144; sec. 4340, R. S. 1899: (2) . She having furnished the purchase money to buy this lot, and to improve it, she was the equitable owner of the lot. R. S. 1899, sec. 4340; Clowser v. Noland, 133 Mo. 221; Scrutchfield v. Sauter, 119 Mo. 615; Bartlett v. TJmfred, 94 Mo. 533; Pitts v. Sheriff, 108 Mo. 110.- (3) The answer of de- . fendant Aylor denied the execution of the deed by defendant McMunnigal to his wife, the plaintiff. No fraud in the execution of this deed was charged in the answer. The defendant is in no position to assail this conveyance as being fraudulent.
   GANTT, J.

This was a suit in the circuit court of Jasper county to obtain a perpetual injunction against J. W. Aylor, the plaintiff in the judgment and the sheriff in an execution under said judgment, from selling two certain lots in Webb City, on the ground that such sale would cast a cloud upon the title of the plaintiff in and to said lots and hinder and prevent her from selling and disposing of the same, and against P. H. McMunnigal, the husband of the plaintiff, to have the legal title in and to said lots divested out of said husband and vested in the plaintiff and to adjudge and decree that he had no.interest in said premises subject to levy and sale under said execution. '

In substance the petition states that on the 6th day of -November, 1889, the plaintiff and P. H. McMunnigal were husband and wife and that plaintiff purchased with her separate money and means for the sum of five hundred dollars lots 73 and 74 in Byers & Ball’s addition to Webb City; that the defendant P. H. Mc-Munnigal transacted the business for the plaintiff in the purchase of said property, and without the knowledge and consent of plaintiff took the deeds to said lots in his own name, and that afterwards on the 9th of November, 1894, the defendant P. H. McMunnigal received a large amount of money, the separate property. of plaintiff, to-wit, fifteen hundred dollars; that after the purchasing of said lots on November 6, 1889, there was erected thereon a dwelling house with the money and means of this plaintiff, and she and her husband took possession thereof and occupied the same as their homestead; that the deed to the real estate in the name of the defendant P. H. McMunnigal was- recorded in tbe recorder’s office in Jasper county, in 1889. Plaintiff states that on the 9th of November, 1894, her husband was wholly solvent /md owned and held a large amount of property and ready money and was not indebted to any person excepting this plaintiff, and that the money and property owned by said P. H. McMunnigal over and above the amount he owed plaintiff, and his exemptions, amounted to the sum of —- thousands of dollars; that on the 9th of November, 1894, and while plaintiff and defendant were occupying the said real estate, the said P. H. McMunnigal in payment of the moneys which plaintiff had furnished to purchase said lots, and the moneys which he owed plaintiff, and further as a provision for the future support and maintenance of the plaintiff as his wife, had executed and delivered to this plaintiff a warranty deed, duly executed and acknowledged, by which he conveyed said lots directly to plaintiff without the interposition of the third party, and that since said date her husband has never had any beneficiary or equitable interest in said real estate, but the same, was and ever since has been and now is the separate property of plaintiff. Plaintiff further states that in the year 1895, the defendant Aylor recovered in the circuit court of Jasper county, at Joplin, a judgment for six hundred and some dollars against defendant P. H. McMunnigal, which, as far as plaintiff is informed and believes, remains in full force and effect, and plaintiff avers that the cause of action upon which said judgment was obtained did not accrue until long after the execution and delivery to plaintiff by the said P. H. McMunnigal and the recording of the aforesaid deed. Plaintiff states that afterwards to-wit, in 19 — , the defendant Aylor, caused an execution to be issued on the said judgment against P. H. McMunnigal and caused the same to be levied on the said lots 73 and 74 in Webb City as the property of the defendant, P. H. McMunnigal, and was at the institution of this suit, and still is, insisting, urging and requiring the sheriff of Jasper county to sell the same as the property of the said defendant P. H. McMunnigal, and unless he is restrained therefrom by this court said levy and sale which may be made thereunder will cast a cloud upon the title of plaintiff and will hinder and prevent tier from selling and disposing of the same, wherefore she prays the court to adjudge and determine that plaintiff is the equitable owner in fee simple of the said real, estate and that her said husband has no right, title or interest . in said premises subject to sale or execution, and that the court divest the legal title out of the said P. H. McMunnigal and vest the same in plaintiff and adjudge and decree that her said husband has no interest in said premises subject to levy and sale under execution issued on said judgment in favor of said defendant J. W. Aylor, and that said defendant Aylor be perpetually enjoined and restrained from levying upon and selling said premises or causing the same to be done under said execution, or under any execution hereafter to be issued on said judgment, and for all proper relief.

The defendant for answer denied each and every allegation in the petition except as herein afterwards specifically admitted. Defendant admitted that on the 6th of November, 1889, plaintiff and defendant P. H. McMunnigal were husband and wife, and the lots 73 and 74 in Byers & Ball’s addition to Webb City were purchased by P. H. McMunnigal and the deeds taken in his name and that on the 25th day of June, 1895, defendant obtained a judgment against the defendant P. H. McMunnigal in the circuit court of Jasper county for the sum of $697, which with interest and costs remains unreversed and in full force and effect. Admits that he caused an execution to be issued on said judgment and directed and caused a levy to be made upon the lots described in the petition and requested the sheriff to sell said premises as the property of defendant P. H. McMunnigal. Further answering defendant states that said lots were purchased with the money and means of the defendant McMunnigal, and that the debt for which the judgment was entered in favor of defendant Aylor was due from the said defendant P. II. Mc-Munnigal as a part of the purchase price of lot 13 in Webb’s First Addition to Webb City, which said property was traded in part for lots 73 and 74 in Byers & Ball’s addition; that the plaintiff and P. H. MeMunnigal lived upon lot 13 in Webb’s Addition.

T'o this answer plaintiff filed a reply denying each and every allegation, and prayed judgment as in her petition.

Upon a trial in the circuit court, the court rendered judgment for the plaintiff as prayed in her petition, and after unsuccessful motions for a new trial and in arrest of judgment, the defendants appealed to this court.

On the part of the defendant Aylor the contention is that the evidence shows that the debt which was due him and upon which he obtained the judgment under which the execution was levied upon the lots in controversy, had been contracted by the defendant P. H. McMunnigal, the husband of plaintiff, in November, 1888, and that P. H. McMunnigal did not acquire the property in controversy until November, 1889, a year after the debt was contracted, and that the deed made by said P. H. Mc-Munnigal on the. 9th of November, 1894, to his wife to this property, was made out at a time when the defendant Aylor was trying to collect his debt, and was an effort to place the said property beyond the reach of his creditors and was fraudulent and void. And. that the conveyance by P. H. McMunnigal to his wife was without consideration. On the other hand, the evidence on behalf of the plaintiff tended to prove that in the year 1878 plaintiff received four hundred dollars in money from her father, and this money was used in purchasing lot 85 in Cas sil’s Addition to Carthage, and in building a house and making other improvements thereon, and that this lot was sold to Thomas A. Payne on June 9, 1890, for nine hundred dollars, the proceeds of said sale being delivered to the plaintiff as her property; that after the sale to Payne this money was kept by the plaintiff in her possession for a considerable time and was afterwards delivered by her to her husband to be deposited in the bank at Webb City, and the money was placed by him in said bank, but in his own name; that this money was afterwards cheeked out by him in payment for materials and labor in building a seven-room, two-story house on the lots in controversy, which were taken in the name of the defendant P. H. McMunnigal. Matters stood in this shape until November 9th, 1894, when the husband made a deed to the plaintiff conveying these lots to her in consideration of the moneys turned over by her to him, and used as • aforesaid for the purpose of providing her with a home. And that at the time of making this conveyance the only debt owed by the husband consisted of the debt to the defendant Aylor, amounting then to less than seven hundred dollars, and about ten dollars of small outstanding bills, and the debt due to the plaintiff; that said P. H. McMunnigal at that time owned another lot in Webb City on Pennsylvania avenue, for which he had been offered and had refused nine hundred dollars, and that he had over three thousand dollars in money in Webb’s bank in Webb City, and had bought the Webb City Iron Works and afterwards took J. C. Stewart in • as a partner and after operating the same for a number of years, he had just sold his interest in the Iron Works to Mr. Stewart, and had put this money in the bank. The testimony tends, to show that Webb’s bank was still doing business in Webb City and J.' C. Stewart was living in said city and the testimony of the defendant P. H. McMunnigal that he had the said sums of money deposited in said banks at that time, was not controverted by any evidence or. the part of the defendant Aylor on the trial, and none of the officers of Webb’s bank were called to disprove the testimony of the defendant P. H. McMunnigal, and neither was the said J. C. Stewart called as a witness to disprove the testimony in regard to the moneys alleged to have been received by him about that time.

The debt upon which defendant Aylor’s judgment was obtained originated in an order given by P. H. McMunnigal to James R. Ellis on J. C. Stewart for five hundred dollars in payment for lot 13, in "Webb’s First Addition to Webb City in October, 1888. This order was assigned by Ellis to the defendant J. W. Aylor, in part payment for some property Ellis had purchased from him. This order was lost in some way. After-wards at the June term, 1895, the defendant Aylor •brought suit on said lost order, in which he alleged that in November, 1888, he presented said order to said Joseph 0. Stewart and demanded payment thereof, and that the said Stewart promised and agreed to pay defendant Aylor said five hundred dollars and take up said order as soon as the said P. H. McMunnigal secured said Stewart for the amount thereof, and that said P. H. McMunnigal neglected and refused to arrange with said Stewart for the payment of the same and that on divers times and occasions the said Aylor had demanded of the said P. H. McMunnigal payment of the said order and the said McMunnigal had neglected' and refused to pay the same. Judgment was obtained by the defendant Aylor in the circuit court for $697, and an appeal was taken to the Kansas City Court of Appeals and the judgment of the circuit court was affirmed. The evidence tended to show that notwithstanding this order was given by defendant P. H. McMunnigal, in 1888, no suit was brought thereon until 1895, and that the instrument was lost at that time. P. H. McMunnigal testified that at the time he made the deed to the property in suit, he thought that this matter had been settled or paid by Stewart in the settlement in the matters between him and Stewart, and that he had no idea that the said debt was still outstanding. And the testimony on the part of the plaintiff was that she was entirely ignorant of the existence of said claim.

Defendant Aylor insists that the testimony of the plaintiff and McMunnigal as to the way in which the plaintiff acquired the means with which the lot in Carthage was purchased and as to- her disposition of the proceeds of that lot when it was sold, is entitled to little consideration by this court, but it must be borne in mind that these witnesses were- before the circuit court, and lived in the same vicinity in which the judge of that court resided, and that there was no attempt made to disprove her testimony as to the gift of the original four hundred dollars, which was applied to the acquisition of the lot in Carthage. That lot was acquired as a homestead long prior to the accruing of the debt on which the judgment of the defendant Aylor was obtained. And whether we view it as the property of the plaintiff or that of her husband, it appears that the proceeds of that lot went into the lot and the buildings thereon, which defendant Aylor seeks to subject to his judgment and execution. Defendant Aylor insists that the deed from P. H. McMunnigal to the plaintiff in this case was fraudulent as against his judgment and execution, on the ground that it was purely voluntary and as against his prior -debt was void. The four hundred dollars given to the plaintiff by her father in 1878 was her own property, and it was-perfectly competent for her and her husband to treat it as such, and if he invested the same in the lots in suit and afterwards conveyed the same to his wife in recognition of his obligation to her, he was violating no principle of good morals or equity in so doing, as has often been decided by this court even when the law would have vested the personal property of the wife in the husband. [McCoy v. Hyatt, 80 Mo. 130; Clark v. Clark, 86 Mo. 114; Botts v. Gooch, 97 Mo. 88.]

But conceding that the testimony shows that P. H. McMunnigal did invest the plaintiff’s money in the lot in Carthage, -and took the deed thereto in his own name, and afterwards took the deeds to the lots in controversy in his own name and did not keep his wife’s money separate from his own, still, we think the decree of the circuit court should not he reversed because the testi-. mony shows that at the time he made the conveyance of these lots, to-wit, in 1894, to his wife, he was solvent and had-ample property to pay his debts over and above his exemptions, and owed no debt of any consequence except the order which he had given to Ellis, which at that time was lost, and he supposed had been settled. Under these circumstances, he had the right to- make a reasonable provision for his wife by conveying to her the-lots in suit for a home in recognition of the fact that her money had largely contributed to the purchase price thereof, and of his debt to his family. While this court will always scrutinize transactions between husband and wife when they come into conflict with the claims of creditors, it has uniformly refused to set aside a conveyance from husband to wife as fraudulent when the evidence disclosed that the husband was solvent at the time, and the provision made for his wife was reasonable even to existing creditors. In this case, the indebtedness of P. H. McMunnigal amounted to seven hundred dollars only over and above what he owed his wife, and at that time testimony tended to show that he had at least three thousand dollars on deposit in Webb’s bank in Webb City. No effort was made by the defendant Aylor to show that the indebtedness of the husband was other than he had testified to and nothing would have been easier than to have proven by the officers and the hooks of the Webb bank, which was located for all practical purposes in the same city in which the court was held, that the defendant P. H. McMunnigal did not have said money to his credit in said bank. Under such circumstances, as was said in Lang & Son v. Williams, 166 Mo. l. c. 6,.“he could afford to be generous to his wife without being unjust to the creditors. ’ ’ And we may add in this case, it was -his duty to be just to his wife whose means had assisted him in acquiring the homestead. [Bank v. Simpson, 152 Mo. 638.] In Johnson v. Murphy, 180 Mo. l. c. 614, this court approved the rule laid down in 14 Am. and Eng. Ency. Law (2 Ed.), 301, as follows: “The validity of voluntary conveyances as regards existing creditors is to be determined, therefore, by the answer to the inquiry: Is the donation such as a prudent man, perfectly acquainted with his financial condition, actuated by an honest purpose, and having due regard to the rights of his creditors, would have made under the circumstances?. If at the time of the voluntary conveyance the donor is insolvent, the deed is fraudulent, and evidence that no fraud was intended cannot change its character. So, if the execution of a voluntary conveyance, however meritorious in itself, leaves the donor with insufficient property to meet existing liabilities, it is fraudulent and void. Or, if the donor at the time of the execution of a voluntary conveyance, though, not actually insolvent, is in embarrassed circumstances which eventually end in insolvency, the conveyance is void. If, on the other hand, the donor was at the time of the voluntary conveyance perfectly solvent and retained sufficient means to pay his debts, ought the conclusion of a fraudulent purpose to be drawn from the mere fact of their existence at the time and the donor’s subsequent inability to discharge them?” After giving the arguments pro and con.on the proposition, winds up by saying, “It is held in a majority of the jurisdictions that if the donor at the time of the gift was in prosperous circumstances and possessed ample mean's to pay his debts, and the gift was a reasonable one according to the purpose for which it was made, it is valid and will not be vitiated by the subsequent insolvency of the donor not produced by causes existing at the time of the conveyance.” The decisions of .this court fully sustain the conclusion reached by the author of the article in the encyclopedia, above quoted and are collected by Judge Brace in Johnson v. Murphy, supra, at page 615.

Applying this doctrine to the facts in this record, we think that the circuit court was amply justified in refusing to hold the deed from her husband to- the plaintiff to the lots in controversy was fraudulent, and in decreeing title to- her as against her husband and the defendant Aylor, and in perpetually enjoining the sale thereof for the debts of her husband, and the decree is accordingly affirmed.

Fox, P. J., and Burgess, J., concur.