*1 1923. Shaffer v. Rock answering descrip- general
persons a named, gift to them as a class.” In a said tion, is Section bequest “But under a to a it is said: class, volume, by subject or diminution reason to increase of future persons entire estate in such deaths, births vests only at the date of distribution.” as fall within class it volume, 237 of said is said-: “Since a And speaks the date of the testator’s the mem- death, will from a there is 'devise must of a where class, class, bers prima-facie, the death of the tes- be determined ’’ tator. when the devise to the class the time case, In this when distribution was to made, took effect, Consequently, death. of the testator’s the date point, ruling lower without error. court rehearing therefore, overruled. is, motion for By SHAFFER, and Curator Her Guardian GWENDEN SHAFFER, Friend, CHICAGO, Next JULIA COM- & RAILWAY ROCK ISLAND PACIFIC QUINCY & BURLINGTON CHICAGO, PANY, TORPEY, and THOMAS COMPANY RAILROAD Appellants. August 15, One,
Division Crossing Contributory: Railroad With- Automobile 1. NEG-LIGrENCE: Warning. Halting: Speed fail Train: No To out Excessive crossing going is not railroad halt an automobile before - contributory negligence. A railroad cross- conclusive evidence of (cid:127) small, open of a ing the movement been in a town left had automobile, shortly very freight passing before on a track entered, crossing, slowly unacquainted by persons with driven running through track, upen tram main struck and was hour; passing fifty speed miles an track at a on the main eight feet main track and than the was ten inches lower track very long freight it, one and train was a four from and inches: impossible the automobile and other cars made its caboose SUPREME COURT OF Railway Co. seventy- up travelers tci see main further track than feet; passenger rung, five and the bell train was not nor sounded, warning approach given. Held, whistle nor other of its *2 properly jury question that the court of submitted to the contributory negligence. Misjoinder Injury 2. --: of Causes of Action: to Self and Death may petition of A "Parents. of minor child count her one sue statutory penalty killing father, negligent for the for the of her statutory penalty negligent killing in another for the for of injuries damages personal her in another to for for motherland herself, by negligent where -all are a caused collision of rapidly-moving passenger train with the automobile in which the riding, by three were and recover the same verdict on all three representative counts. She does not sue such case in her or fiduciary capacity, right, in her and own there is no mis- joinder of causes of action. The three causes of action arose out subject of “the same transaction connected with the ac- same of tion,” (Sec. 1221, 1919) they and under the statute R. S. could all petition. be united the same ' 3. Arising -: -: Different. Actions from One Tort. Three rights action, arising different of out same tort or trans- plaintiff, may action in favor of the be one united in different petition. in one counts 4. charg- -: -: Waiver. filed Defendants their demurrers ing improperly that sevteral causes of action were united in the petition, misjoinder parties defendant; and that there was a having overruled, they answer; afterwards, these been filed their beginning plaintiff’s testimony, before the filed motion compel plaintiff elect, being to to and these overruled the case Held., objection went trial. that there was a waiver of the misjoinder misjoinder parties. of causes and of Penalty: Equal 5. -: Section 4217: Constitutional: Protection: Corporations. ruling Discrimination Between The uniform that 4217, the amount recoverable under Section Revised Statutes public carrier, negligent killing person, from a for the of a is penalty, Amendment, does not violate Fourteenth nor does deny equal protection by guaranteed said statute of the laws amendment, by penalty imposing only public said such car- causing by ordinary riers neg- and their servants death act of ligence, failing impose corporations and other in- similarly guilty delinquency. dividuals situated and of a like Payable 6. -:--: --: to School Fund. Section 1919, fixing penalty against public Revised Statutes a a 1923. Shaffer v. Rock Island negligent killing person, providing carrier for the of a may penalty by said be civil action the widow recovered in a person, or children of violative of Ar- such declaring) pro- ticle XI of the net Constitution “the clear penalties belong ceeds of . forfeitures . . shall sacredly preserved securely invested in the several counties public county provision fund.” school That constitutional penalties accruing public, penalties refers to not to re- private- by persons use, coverable own and Section their solely rights. private 4217 is leveled a violation of at Pleading. Against' Recovery -: Both: Lessor Lessee: companies, Where and the the lessor two the lessee other one recovery railroad, joined (cid:127)the in an action for the are as defendants imposed negligent killing penalty the statute for the injury injuries person, charged of a which it lessee, petition operated by negligently inflicted setting asking judgr constituting the facts lease and forth* against companies ment the lessor com- both is sufficient to'hold *3 specific prayer upon liability, separate pany statutory its without a judgment against specification for lessor and without the judgment (Sec. grounds upon is asked. The statute which the 1919) says as it “the same if R. S. the-lessoir is liable that (Sec. 1160, itself,” operated R. and another statute the road seeking 1919) says plaintiff, satisfaction for in one S. that the defendants, tort, join and lessee as. the one can both the lessor imputable negligence the the the to lessor. and hence lessee Penalty Liability Under Section 4217: -: -: of Lessor
8. 1919) provides (Sec. 9880, Compensation. R. and S. The statute owning company remain liable for all railroad "shall the justments claims, demands, acts, debts, and liabilities lessor) (the operated the road . as if lessee . . same “may in and for . . . sue and be sued cases itself” and road,” manner, operating causes, own and in as if same like together 4217 be construed and must that statute s,o subject, construed and when so the same far dealAvith compensatory for dam- liable does make lessor Section 9880 liability for the ages only, civil and embraces includes neg- accruing imposed by penalty for under Section 4217 ligent of the lessee. acts Tibbels, Appeal Court.—Hon. A. M. Circuit from Clinton Judge.
Affirmed.
480 SUPREME COURT OF Staffer v. Rock
John n E. Dolman appellants. refusing jury
(1) The court erred to instruct the upon the first and second for the find defendants plaintiff’s petition, for reason under counts of undisputed plaintiff’s intestates drove evidence speed crossing at a of ten or fifteen miles rate of speed slackening when of their car, hour without ’ plain view when the automobile defendants was in thirty crossing. point from at least feet reached failing In or listen approaching^ look thus having crossing such their automobile under without readily speed that it could have run at such control and appearance danger, plain stopped first been negligence guilty a matter tiff’s intestates were 1018; 237 Bland, Plines v. W. ex rel. S. law. State Ry., v. 111. 671; 241 W. Evans Cent. Railroad, Freie v. S. Hayden Kelsay 372; 129'Mo. 399; Railroad, 233 v. S. W. 233 Railroad, 124 Alexander v. 566; Mo. v. Railroad, Rys.; Spanhurst 397; 238 S. W. 44; S. v. United W. Railway, Grocery 514; 238 W. Gersman Co. v. S. Neosho- Railway, Railway, Hall W. 167; S. S. "W. England Ry. Co., 619; 204Mo. 176; Railroad, Stotler v. Rys. App. Dey Co., United 32; 180 S. W. jury refusing (2) to instruct erred in The court her the second count of under the defendants find for plaintiff’s Paul petition, intestates, reason Yountsey George Shaffer, Shaffer Goldie engaged mutual enter a common and his wife, *4 taking camping-out pleasure, prise business and trip Un occurred. time accident at the to Colorado responsi existed mutual there of facts der this state Ry. Colony bility. 193 Mass. Co., Street v. Shultz Old (N. Mo. S.) Moon Transit 237 597; Co., v. 8 A. L. R. 309, 74; Koplitz Minn. 58 L. R. A. 373, 86 Paul, St. 435; v. Ry. v. Ry., Co. Omaha 379; Minn. Paul 96 Teal v. St. Ry. 818; 627; 213 Co., v. S. W. Tannehill Neb. 48 Talbot, Knightstown Musgrove, v. 121; Ind. Brommer 116 v. L, S.) (N. A.) 29 R. A.' (C. Ry. 581, C. Pa. 179 Fed. Co., (cid:127) 1923. 481
Shaffer v.
Rock
Co.
Ry.
(C. A.)
223
924,
U.
244
628;
S.
Co.,
Fed.
C.
Hall
riding
104.
wife
When husband and
in a vehicle driven
this,
engaged
joint enterprise
(in
husband were
in a
fishing trip)
negligence
ease a
charge
either
is
Ry.
able to the other. Del. &Hudson
269
Borden,
Fed.
(G. A.)
Reading Ry.
881;
0.
&
Phila.
v. LeBarr, 265 Fed.
(C. A.)
Ry.
(C.
129;
C.
A.)
Davis v.
Fed.
Co.,
19;
159
0.
y.
Ry.,
Supp.
Noakes v. N. Y. Cent.
106 N. Y.
522; Read
Ry.,
N.
Supp.
(3)
Y. Cent.
N. Y.
.The court
overruling
erred in
defendants’ demurrer and motion to
elect
which cause of action
in the
stated
first, sec
petition
ond and
proceed
counts
her
third
.of
she would
to
damages
injuries
trial. Plaintiff seeks
recover
to
for
person
to her
petition,
under the third
her
count of
may
under the third
mf causes
class
of action which
be
petition
united
the same
under
R.
1221,
Section
S 1919,
petition
and in
same
seeks
recover
ain representa
capacity
penalty
tive
for a
under the first and second
petition,
imposed by operation
counts of her
which is
under
law,
may
the seventh class of causes of
action,
petition.
in the same
united
causes
ac
belonging
tion thus united not
same
class,
error
overrule defendants’ demurrer and motion to
Hodgson
elect. Sec.
R. S.
1221,
1919;
Grain
Davis
Hickey,
438;
S. W.
Co. v.
Lamb,
Southworth
Taylor,
242;
Tran
670;
Scott v.
Jordan v.
(4)
refusing
sit Co.,
482 COURT OP: SUPREME Railway
Shaffer v. Rook Island
Co.
Legislature
tion that the
for
intended that
the entire
provided by feiture
statute as amended is
en
to be
punishment,
in all cases
forced
the amount
or
thereof
limited
controlled
the rules
law
govern
damages.”
compensatory
the assessment of
public
Legislature
In other
car
words,
has selected
object
punishment
and their servants as
riers
an
ordinary
negligence,
death caused
act of
when
corporations
similarly
other classes of
individuals
guilty
pun
delinquency
of a like
situated
are not
Ry.
T. &
95;
ished.
F.
Co. v.
174
A.,
Matthews,
S.
U. S.
Ry.
Connolly
C.
Co.
Gulf &
v.
165
159';
S.
U. S.
v.
Ellis,
S,
Pipe
Ry.
184
T.
v.
Line,
540;
Union
U.
F.
Co.
& S.
A.
Vosburg,
Connolly,
238
56;
U. S.
Barbier v.
U. S. 27;
113
Armstrongs,
United States v.
265 Fed.
v.
691; Hines
Clarendon Levee
264
Dist.,
127;
Fed.
United States v.
Yount,
861;
267 Fed.
VanDeman & Lewis
East,
Co. v.
law. *6 prescribed by nary Eldridge mode law. v. Trezevant, 160: Hagar 469; U. v. Reclamation S. Ill H. Dist., 701; 8. (6) v. 230 Ochoa S.'139. Hernandez,. H. The court refusing in jury erred to instruct to find de overruling fendant and in erréd defendants’ motion in judgpaent, arrest of for the reason that Section 4217, Revised 1919, Statutes as construed this in court controlling last decision is in conflict with 8 provides Article XI of the State Constitution, which proceeds penalties that “the clear of all and forfeitures belong securely . . . shall to and invested sacredly preserved county in the several counties as public Ry. school fund.” State v. 253 Mo. Co., 657; 254 Skinner v. Railroad, 492; Clifford, Mo. State 124 v. 498; rel. Warner, 658; Mo. State v. 197 Mo. ex ex State v. reh 89 Railroad, 570.
L: Gillihan, R. Platt B. II. Musser, IMbbell George respondent. H. Hubbell
(1)
appellants
negligent.
The deceased
were
persons
ordinary
were in the exercise
The sole
care.
injury
negligence
cause of the deaths
was the
appellants.
241;
Beckham v.
279
Hines
Fed.
v.
Hines,
Payne,
Begart
645;
784;
271 Fed.
Fed.
Hoover,
v.
274
Payne
Haubert,
66
646;
White,
v.
277 Fed.
McGhee v.
Flannelly
502;
Fed.
&
56 L.
Co.,
v. Delaware Hudson
1221;
Ed.
Baltimore & Railroad
v.
40 L.
Griffith,
O.
Co.
277;
Ed.
Powers,
Richmond & Danville
Co. v.
Railroad
Imp.
403;
L.
v.
37
Ed.
24
Ed.
642; Cont.
Co.
L.
Stead,
S;
Ry.
Cunningham,
Dte
Co.
431;
v.
v.
168 W.
Grafton
N,.
McNary,
354
lano,
17
10091;
W.
Railroad Co. v.
L.
(N. S.)
killing,
R. A.
226. At the time of the
the witness
'Claude
saw the
Holland
Ford
he could
automobile,
persons
riding
not see the
who were
Ford automo
persons
bile.
no
And
one else saw the
the Ford auto
killing.
posture
mobile at the
In
time of the
this
presumes
persons
affairs, the law
that the deceased
OF;
484
COURT
SUPREME
Co.
reasonable and
care.
ordinary
the exercise of
Riska
189;
v.
180 Mo.
C. v.
33
R. A.
Railroad,
Reed,
(N.
O.
L.
.1115;
v.
174-S. W. 1029.
S.)
Hovey
Sanders,
(2)
three causes of action are
properly.united
petition.
1221;
R.
Phoenix Ins. Co.
72 N.
1919,
McEvony,
S.
sec.
v.
52
566;
Neb.
Am.
957,
Mayberry
Eng.
W.
10
&
Ry.
R,
Ann.
L.
108$;
Cas.
A.
(N. S.) 675; G. J.
Coy
Kansas
72 Miss.
City Ry.
Spencer,
491;
Railroad,
412;
186 Mo.
Binicker
83 Mo.
App.
v. Ry. Co.,
660;
258; Birmingham
Bank v.
Savings
Tracey,
Pr.
Ry.
40; Ency.
Co. v.
109' Am. St.
PI. and
Lintner,
111.
&
Coles v.
Mobile
180;
Cent.,
Ky. 686;
Ohio
115 Tenn.
Matthews,
Besides, appellants
waived
questions
going
over
pleading
answering
*7
Transit
561;
to trial.
202 Mo.
Hof v.
Railroad,
White v.
Ry. Ry. Mo. Humes Mo. Pac. 82 434; Co., 71 v. Co., Mo. Burling (5) liable, tbe Rock Island is tbe Since negligence Rock Island. Mark ton is liable ey 199 Mo. Railroad, Mo. Dean v. 363; 185 Railroad, 256 Mo. 9879; sec. Brown v. Railroad, R. 390; 1919, S. McCoy Rys. 158; 203 Mo. 532; Co., Moorshead v. United App. Ry. Ry. Mo. 27 452; Co., Brown v. v. App. Jersey Co., 25 L. Railroad Thomas West 400; App. Schwyart Mo. Barrett, S'.'71; 101 U. 950, Ed. Mo. Island, 184; 332, 227 U. S. Whiteaker Block Dearing, rel. v. 427; ex 60 L. Ed. 239 U. S. State 438, 360, R. sec. 1160. S. 37; plaintiff years is an infant five C.—The LINDSAY, ag*e. her Goldie mother, Her Paul father, Shaffer, in- and the herself were Shaffer, killed, jured, day August, au- on the when Ford 10th riding at was struck tomobile which Turney, crossing the town Clinton Fifth Street operated by County, by passenger owned Chicago, Rock & Pacific Com- defendant pany, running from defendant tracks leased. *8 The, Company. Quincy Chicago, Burlington Railroad & in the afternoon. at two o’clock collision occurred about brought Circuit of Davies the Court The suit was County, (cid:127) County. plain-^ The and transferred Clinton upon count of the first a for $10,000 tiff had verdict petition, a like verdict father; her for the death of her upon mother; her count the death the second for injuries upon count, the third $2,000 a verdict Judgment person. was en- plaintiff to her sustained companies, accordingly, against the both and' tered 48G SUPREME COURT MISSOURI, OF
Shaffer v. Rook Island against Torpey, the defendant Thomas was the who' engineer of train which the struck For automobile. brevity companies respectively the two will be referred Company, Burlington as the Rock Island and the Com- pany. petition long,
Plaintiff’s is but are three counts allegations negli- charges alike their of facts and gence concurrently severally or committed the de- They only particulars appro- fendants. differ in the priate capacity in which in each of sued respective the by of the counts. issues Several tendered pleadings eliminated submission of jury. physical the case to An sur- outline roundings given preliminary and circumstances is to a brought upon appeal. statement of the issues here Turney incorporated is an town of about hundred two inhabitants. Fifth Street is near the limits, southern sixty and extends east and It is west, and is feet wide. highway. a much-traveled strikes the tracks It main-line Burlington Company, of the on oc- collision point curred, at a about four feet hundred east of Sher- running’ man Street, which a street north and south. Between Sherman Street the main-line there track is an ascent feet nine There of thirteen inches. crossing. were three at tracks main-line track passing two tracks to the are east, and west parallel the main At with track. the time the automo- upon freight crossing bile was driven there Burlington Company standing train the west track-upon passing crossing. of the the north side car-lengths north caboose of this train was two or three freight crossing. the middle track there On Company. This latter train Rock Island crossing, had little before had while stood open leaving crossing been so northward, moved short collision was a at the time of the the caboose crossing. struck The train which distance north of the automobile, moving on the southward east *9 APBIL TEEM, Railway Shaffer v. Rock Island Co. stop
main-line not track. It was a fast did train, which Tnrney. running this at On occasion it and was late, ' speed fifty at a of miles an hour. Plaintiff’s about party father in the automo- owned automobile. The plaintiff bile mother, consisted of and her father and George Yountsey of the and and Mr. and a wife, his soil boy occupied Yountseys, of seven. The two men boy front seat, with the between and two wo- them, occupied They men and the rear seat. lived trip County making a time Daviess and at the were They unacquainted the automobile. Colorado.in crossing. this with evidence does -show driving time one of the automobile at the men south Sherman was struck. The driven on automobile along proceeding turned at Fifth Street, Street, east and crossing passing tracks, Fifth the two and was Street, passenger east on the struck south-bound or as to the movements main-line track. Further details partic- a more trains, of the automobile and of. the and surroundings, crossing description ular of the and necessary considering first the issues bewill assignments error. and second of petition the two relation between forth the set operation property ownership and
companies, and Company, Burlington Turney by at lines (cid:127) com the two between a lease contract existence of panies operated Company whereby also the Bock Island Kansas between Cameron its trains over said tracks the town City, ordinance of Missouri. It set out an engines Turney running cars, and regulating at prevention accidents prescribing rules-for de pleaded both crossings, thereof a violation by both com companies, alleged failure fendant grass side the west panies weeds to cut the approaching persons right way whereby the view partially It obscured. crossing from the wTest the cross near physical at conditions described freight ing, position trains the two and the ¡SUPREME COURT MISSOURI, OF *10 respective companies passing on the north the tracks of crossing, obscuring as the of view the main from track persons approaching alleged the west, from that the freight upon passing two the trains tracks were await coming ing passen'ger upon the of the train the main contemplated track; that the action was that train the Company of the Rock Island the middle track passenger move sho'uld northward soon -as the train yards. respec Turney alleged the entered It that the freight knowing tive two conductors of the this, trains, permitted their to obstruct the the trains from view crossing coming passenger of the and that both train, companies place negligently and said conductors failed to any flagman person crossing or at the to warn travelers approach passenger of the of train, and other contem plated two train movements. The conductors of said freight trains were made co-defendants. Further ma allegations passenger being were that the terial dangerous speed, at run an excessive and rate of that ring there either to failure sound whistle to upon approaching crossing. the bell the Fifth-Street alleged negligence These of last-mentioned acts were coupled charges joint with of the and concurrent acts of negligence heretofore install indicated, is, failure to that signal crossing an provided by electric bell or at the grass failure t'o ordinance, cut weeds and north crossing, permitting freight west of the the'two trains passing crossing, stand tracks close freight the movement of train of the Rock Island Company point crossing, from a over the northward, leav ing crossing open, of and failure the defendants and freight give any the conductors of trains to warn approach ing; passenger train. Burlington Company
Demurrers were filed freight its of co-defendant, the conductor train, grounds legal capacity that had not improperly to sue; that of action several causes misjoinder parties united; there was of defend- petition ant; and that the state sufficient failed facts Vol.
to constitute a cause action. These of were overruled. Company The answer defendant Rock Island and its employees plea contributory neg- co-defendant awas ligence part plaintiff’s on the father and fol- mother, lowed an averment Revised Stat- applicable utes 1919, as to the first and second counts petition, permitting recovery penalty, of a the Fourteenth contravenes Amendment- to 'Con- deprives stitution of the in that it defend- United States process property ants their due law, without conflict averment said section with Section 8 of Article XI Missouri in that Constitution of *11 permits recovery penalty by of a an individual. Burlington Company There a and like answer was employee, with the averment co-defendant further misjoinder parties and defendant, that there parties. proper they necessary were neither nor general Each answer denial. contained Burlington Company defendant and its co-de- employee fendant to out of each filed a motion strike petition concerning allegations the ordi- count of Turney, an failure install nance of the town' to vegetation, grass electric the failure to cut the and bell, passenger approaching to and the failure warn of relating move- to the other matters train, and certain freight over- were ment trains. These motions eliminated'upon the sub- were these matters ruled, jury, dis- the case was mission of the cause to and Bur- conductor Deardorff, missed as defendant freight lington conduc- Guile, as to defendant train, and freight also There were train. tor of the Rock Island upon plaintiff require which of to elect motions to go were overruled. trial, three counts would she requiring elec- motions the evidence the close of At tion peremptory in- again and refused, asked were and all three counts.' as to were and refused structions asked jury gave which told The court an instruction liable Island was. that if the defendant Rock found responsible father, her for the death of COURT OF SUPREME ' Railway Co. injuries plain- personal for mother, her
and of Company, Burlington defendant then the herself, tiff responsible equally company, liable and lessor Company. Rock Island with defendant, given each the three An instruction was <- plaintiff. authorizing Therein verdict counts, negligence upon which a verdict set forth the acts of operating manner founded authorized, Torpey engine defendant the locomotive Company. employee The in- the Rock as the typical covering others, count, the first struction reía-, reciting preliminary conditions and after tiqn Torpey, of defendant continues:. jury from the evidence if the further
“And, believe negligently running oper- then and there that he was engine ating and train at an unreason- locomotive said speed, negligent under all rate of able, excessive and in evidence; mentioned of the facts and circumstances jury all the facts further that under if the believe and, ordinary reasonable evidence, and circumstances along driving safety persons Fifth Street care crossing, there then and Fifth railroad over Street required loco- steam said that the locomotive whistle engine be- reasonable be sounded at intervals motive Fifth mentioned evidence Street tween the elevator crossing; jury from further believe if the railroad *12 and, Torpey, and then Thomas defendant, the evidence that any- negligently whistle to said steam there sound failed Fifth rail- said said elevator and Street where between jury crossing; believe from if the further and, road engine not locomotive bell on evidence that the said ring rung, elevator said said and to between or caused crossing; defendant, that the and, railroad Fifth Street negligently to Torpey, failed there then and Thomas .points; anywhere rung said to between bell be cause said jiiry the evidence that believe from further if the and, op- being engine was so .run said locmotive while engine automobile said struck locomotive erated, said thereby, and- Shaffer, Paul struck said Paul Railway jury Shaffer killed; if the further and, believe from running engine the evidence that the of said and train negligent speed, at an unreasonable, excessive and of rate sounding ring- without the locomotive whistle and without ing (if they operated) the bell thereof were so run and approximate was a cause the death of Paul direct jury ; Shaffer if the further and, believe from the evi- contributory guilty dence that Paul Shaffer negligence, directly contributing as herein to defined, produce plaintiff said death, collision then, jury entitled to recover, and the must be verdict against plaintiff, in favor of the the defendants, Chicago, Torpey, Thomas Company, Rock & Pacific Burlington Chicago, Quincy & Railroad ’’ Company. Company The defendant Rock Island and Thomas assign per Torpey give first error their as the refusal emptory instruction to the first second counts, as plaintiff’s the reason that the un intestates under were, disputed negligence guilty contributory evidence, plaintiff’s a matter of intestates law, and, second, joint engaged enterprise pleas in a of business and imputed negligence ure and the will the driver joint enterprise. assign They other members of the overruling joint error the motion their demurrer and for1 elect, of ac several distinct causes re.ason plaintiff’s improperly petition, tion were united aiid assign per further as error the refusal of their offered emptory overruling instruction and the motion of their for the reason that arrest, Revised Stat which utes under recovered, conflict with the Fourteenth Amendment to the Constitution States, the United and also is conflict with Section 8 of Article XI of the Constitution of of Mis the State just souri. The defendants mentioned have withdrawn assignment originally their of error made for refusal give their instruction numbered 2, sought jury to have the instructed that if defendant *13 SUPREME COURT OP Railway Co.
Staffer v. Rock Torpey engine eighty the his Thomas “sounded whistle of question rang upon crossing' the hell from the rods approaching’ crossing’ engine while said then the his plaintiff They cannot recover.” also have withdrawn assignment instructing the that error was committed in jury ring to- as the the whistle the failure sound authorizing in the the set forth instructions as bell quotation recovery, and heretofore shown the from plaintiff’s covering the first count. The de instruction Burlington assignment Company, adopting the fendant, assigned as has error of error also co-defendants, of its give separate peremptory instructions of failure petition, upon giving of the fered each count of the plaintiff’s to, 1 above instruction numbered referred jury that if the defendant Rock Island which told the Company responsible the then liable and responsible. Burlington Company'was equally liable and plaintiff’s father and mother contention that negligence contributory guilty a. matter were as Many requires the law examination of evidence. wit- put many' photographs nesses were heard, and showing surroundings the circum- as the evidence controversy attending the fatal but the collision, stances upon confined the trial, as to both here and the facts, chiefly subjects at which to three distances —the freight trains north of the two stood cabooses crossing, particularly Rock Island train the whistle of of times track, middle number engine passenger whether was sounded degree, speed rung, in a lesser and, bell was approached crossing. detailed it A as automobile testimony these mat- statement the review length. weight of the evi- be of an undue ters-would Burlington the caboose dence tends to show that north short distance stood train on west track crossing. distance estimated the of seventy-five Witnesses car-lengths, or at two or three two or, feet, long rail-lengths. track train. The It was main track middle stood lower than *14 Railway Shaffer Co. v. Rock Island The track. middle track was ten inches than the lower the west a a half lower main and track foot and track, main track. than the freight very long Rock Island train was a train,
The longer Burlington than the and on track about train, a eight Burlington higher inches, than that which the train This Rock train had stood. Island come long at track a time not had before, the middle crossing. Fifth There tes- a the Street was time blocked timony three cars stood south that as it then two or was, crossing. pulled it north the Later, the was center stopped. open crossing, again This was the so as to immediately came the automobile done almost before There up, not fixed. interval of time is the exact car-lengths, testimony pulled six north five or that stopped point or two at where caboose was and was car-lengths crossing. north of three passenger Torpey, engineer of defendant Rock end of the of the train, testified caboose car-lengths or three north of Island train two was by position crossing, be- the reason Burlington higher he ing’ than track train, on a engine by, and train latter as his went did not see the people in the not have seen the he that he could testified crossing, up up “got he to the until close automobile car-lengths three four two, or caboose, the end of crossing.” auto- not in fact see the he did And engine. There his it was struck mobile at before testimony position Rock was less position or distance was train than there urge that the Rock Island Burlington Defendants train. about caboose was and its north, further much train was crossing at the time feet north four hundred o£ special attention and direct struck, was automobile depot Tur- testimony at the who of witness the ney depot nine about of the collision. time at the being crossing. witness, This north of feet hundred had depot collision becoming aware at the crossing, down ran south Street the Fifth at occurred SUPREME COURT OF MISSOURI, he tracks. As did so, the Rock Island moving point northward. On that he testified: yon
“Q1. met And caboose Rock Island? A. I did. way depot half
“Q. And between the Fifth way Street? think A. I would about half —somewhere along there. way moving
“Q. And that caboose at Moving way that time? A. east, north, which ever want to call it. would call it Some some east, ’’ north. *15 testimony support This does not the contention here po- telling made The defendants. witness was of the moving sition of a train after the automobile struck, was position not and of the of that train it the stood at time the automobile struck. was
The three tracks were of width, standard four feet space eight and The the inches. between west track eight and the was middle track feet and four inches, space there the was the middle between track same e,ast the the track; or main-line so that distance from rail west of the west track to east rail of the main testimony thirty-one approximately track feet. The was conclusively passenger that the shows which struck speed. running high the automobile was at a rate of The forty-five lowest estimate was miles hour, highest fifty-five running speed miles. That it was at a fifty approximately questioned. miles an cannot be hour engineer impact'of When heard the automobile applied he off steam and the brakes and the train shut beyond crossing be- ran one-half of mile almost stop. fore came to a The automobile was found about from where struck. one hundred feet it was testimony some conflict therein There much was ringing concerning sounding of whistle and crossing passenger There is no the bell of the train. depot, nine between Fifth hundred feet Street depot, north of Fifth North of the and distant Street. Shaffer Rock crossing, eighty stands from the rods, feet, or
about 1320 quoted. above in the instruction mentioned elevator from Fifth 1900 feet about' and distant this, North crossing, northern near the Center Street Street, is was The whistle the station of the town. limits point probably north mile at a one-half sounded plaintiff’s crossingj. |testimony of Street Center1 not was to the effect that witnesses was whistle reaching again and that Fifth Street, before sounded rung - the bell not at all. was Torpey to' that, testified in addition
Defendant' sounding two he station, the whistle for the also sounded crossings, long short for each of the and two blasts three Street; inBut Second Street and Fifth Street, Center particular plaintiff’s he contradicted this was by defendant’s witnesses, witnesses and defendant’s hearing witnesses who testified as to other than j indefinite number whistle for station were as to place. testimony any that the There is no witness from any depot. was sounded at time whistle south many Inquiry ringing of the bell ,as made testimony plaintiff’s witnesses. from witnesses many rung’1, that the bell of defendant’s including employees some. of the witnesses, *16 hear the bell. mentioned, testified that did not trains weight upon point The of the evidence this in favor was plaintiff. necessary
It is to consider next the movements surroundings in the the con and under automobile ‘ (through It business ditions outlined. was driven Turney, lying section of west of the and north crossing. stopped Fifth one Street It was there while put of the two men water in Its the radiator. ccmrse from that time observed was Negligence^ standing witness a store who was in front of about one thousand feet distant on from the a direct line, crossing'. only Fifth Street He was the who saw witness go upon it crossing. He knew Rock Island passenger train was. fewa minutes overdue antici ' SUPREME COURT OF
Shaffer Rock Island moving pated danger. on The automobile southward on and went Sherman Street crossed Fifth Street stopped returned then feet, about one hundred proceeded thence without Fifth turned east Street, up stopping grade along Fifth to and Street, testimony crossing. and another The witness, this way up part it who saw it Fifth Street, ordinary speed. moving at or rate moderate- crossing go upon The saw testified: witness who speed? going “Q. And it was at about rate what running along, judge, A. at a moderate Well, I would just anyone up speed, rate of a cross- like would drive ing, up way. a slant that you give
“Q. Could some an hour idea miles driving up it was A. there? I but it wasn’t Oh, could, running just running up way.” It fast. testimony
The other of this and of two witness, passed other witnesses who saw automobile as it toward Fifth .Street, towas the effect that it was not running probably but fast, at of ten miles excess quoted ah testimony The above the most hoiur. defi- given speed up nite that can be as. to its as it moved single eye-witness Fifth Street. The above referred going testified that the did not “halt”' automobile before crossing. crossing not in the center of Fifth Street, is south of the approaching so center, that the traveler from driving upon crossing, before west, must bear toward the southeast. The railroad tracks at point run from northwestward, southeastward to the angle and the api crossing the north side of the proaching the tracks from the west, on the north left side of degrees. is' driver, one of seventy about testimony roadway point fifty shows that the at feet west of crossing is three lower feet than the main track. When the front of the automobile -reached west, west rail twenty-six track it was feet nine inches from the west rail of the main track. Numerous *17 . Railway Co. Island
Shaffer Rock standing' person far made to ascertain how tests were points crossing- track varying see the main conld at on the standing varying at to when the cars were north, crossing. of the north distances the middle track Company engineer testified The civil Rock track, on the middle .with caboose obstruction that, crossing, standing seventy-two aat feet north of the point he could feet track, west-of the fifteen main-line up feet nine see one hundred north main-line track standing position, the same inches, and seven point one with the caboose or at a hundred obstruction crossing, eight up the see north feet north of the he could sixty-two twenty main-line track one hundred feet. At ninety- feet west the rail of the main fine he could see seventy-two placed six at feet with obstruction crossing1, forty main feet from the and at feet from the eighty-two other line he could see feet. also made He track with the obstruction middle observations on the eight at a distance hundred feet north of one points crossing varying from main at from the distances eight from line track. obstruction at feet thus, With the ninety-one the main-line see track he could three hundred thirty- point at ten-foot he feet, could see two hundred at he made and feet, testified observations four north distances, other obstruction farther and with crossing. testimony the con The direct was that crossing required dition of the was such as automobiles slowly bumps, be driven' over it to avoid since driving higher preceding east track was than each one. In the thus outlined the automobile was situation crossing very driven little which a time before open by had been left the movement Rock Island freight according train, and evidence substantial being rung, no bell was nor whistle sounded within eighty according testimony rods, and, to much not other whistling; point at the wise than for the station much beyond the northern limits if train, the town. The running forty-five speed at a miles hour
300 Mo—32 *18 SUPREME COURT OF Railway Co. sixty-six
moving at the rate of feet a if run second and fifty ning moving at an hour miles toward the cross was seventy-three ing at rate of feet second. persons in the automobile were residents of another county acquainted crossing. and not with the eye-witness only adults are dead and was too away any far to malee observation of their demeanor. deepest impression people His that in the automo bile not see nor did hear the train which from his he, position away one feet to knew northwest, thousand rushing along freight behind the two toward trains crossing. by In the the view of the circumstances shown
evidence this it case cannot be held the occu pants neg guilty, contributory of the automobile were ligence as a matter of law. The court submitted the issue contributory negligence'by proper instruction, there was abundant evidence to sustain the verdict. The court in this case excluded from consideration the Turney limiting ordinance of the speed town of right trains to fifteen miles an hour. The of the de operating through fendants the train to run the town stopping right is not in issue, without nor the run to at a speed exceeding fifteen miles an hour. The issue is adapted to the care exercised as to the circumstances, rights persons using public view highways, persons. correlative care to exercised such The automobile going upon did not “halt” before crossing, but. this not is conclusive evidence contribu tory negligence. Chicago
In Monroe v. & Alton Railroad, l. c. 490, this court s,aid: “In this State it is the rule it duty is the of one about to cross a railroad track to look stop listen,” and sometimes to in order better yet always see and hear, it bim incumbent stop purpose; to given for that whether he should do so in .a depends case on the it circumstances, if jury jhdge doubtful the are to of it.” In this jury case it say was. for the whether the operating defendants running the train were at n
Shaffer v. Rock doing speed, dangerous and were rate excessive approach, warning giving timely of its so without in the were in the automobile persons if so, whether attempting pass ordinary over care exercise jury thQ crossing evidence the Under did. finding occupants of the automobile
warranted open, crossing reasonably presume safely could warning or bell was sounded to whistle that no advise danger, of the obstruction and that them of reason *19 speed great theirs after effort of tr,ain, of no sight If avail them. came within to save the train could position in a the automobile at dis the driver from his from the main-line track had seen tance- fifteen feet of very of nine feet at the distance one hundred train at a beyond appeared ca it from Rock instant crossing, seventy-five standing north boose feet of space feet had a of about twelve he would have time of one and one-half seconds which interval of operate automobile so as avoid a collision, eight if the was one feet north of hundred obstruction appeared, crossing and he saw the train the instant beyond sixty-two away an ob feet from one hundred eight one have struction hundred feet -he would distant, space in distance and about two above, bad the same col of time in one-fourth seconds which avoid assignment against lision. must ruled This of error be [Kennayde appellant. 45 Co., v. Pacific Railroad v. Mo. 255 Tabor v. Railroad 46 Mo. ; Co., 353; Baker 147 140 McDaniel 239 W. Railroad, ; Hines, v. S. Moberly App.
471; 518; v. Railroad Beckham v. Begert 279 Hines 645; Fed. v. 271 Fed. Hines, 241; Hoover, Payne Payne, 274 277 784; Fed. v. Haubert, Flannelly 646; Fed. 225 U. Railroad, 601; Railroad S. Griffith, 603; S. Cleveland Railroad U. Co. dis Crawford, 631.] St. Ohio What has been said poses assignment applicable of of also the second error petition to the second count of the founded plaintiff’s death of the mother. SUPREME COURT OE MISSOURI, assignment con
The next of error considered to be misjoinder of sists there of canses claim urged “plaintiff action. It is dam to recover seeks ages injuries person'under to her third count petition, her under the third of causes of action class may petition under
which be in the same united and in the Revised Statutes of caused petition representa same to recover in seeks penalty capacity for a tive under 'the first- and second petition, imposed by operation of her which is counts the seventh law, under class causes action, may petition,” causes in the united same that the petition belonging thus action united in the error to' class, it was overrule defendant’s demurrer and motion to elect. plaintiff’s "petition
That the third count of within the definition contained in the third class mentioned may Section 1221 not be clear But, doubted. it is petition the first and second counts do not fall respect within the seventh class. The class seventh plaintiff person of a rep- refers to a who sues “some fiduciary capacity.” resentative or But, representative here does not sue in these two counts in a *20 fiduciary capacity or might an administrator sue —as- the death of his intestate, under Section 4217. plaintiff right, directly.
The sues in her own She beneficiary is the immediate under The Section 4217. “representative capacity” term is a well-understood only applies party acting term, a to be- in party half of some or person- estate, and not for himself ally. [Van Brunt Harrigan, & Davis v. Co. 65 N. W. (S. D.) plaintiff represents 421, 422.] here no one suing penalties. herself for the Sieotion 1221 closes, enumerating after provision seven classes, with that the cause of permitted action which it is unite belong “must all to one of these classes and must affect ’ parties all the to-the action:’ The first and second counts plaintiff’s
founded the death of father and her respectively, manifestly, mother, fall into one and 501 TEEM, APEIL
Staffer v. Rock count action in the third The cause of stated same class. em- transaction. The first-class' out same arises per- of action several causes braces cases wherein pnited transaction to be arise out of the “same mitted subject of action.” connected with the same transactions produced alleged negligence of the defendants plaintiff of each sues, the results on account which upon a Each is tort of the several counts. founded produced each which three results, several right plaintiff And these of action. several results has given may This must be effect is to be be united. if so “The word ‘transac- rised in the statute. to the words pro- 4154, tion’ as in Eevised Laws 1905, used uniting arising viding out for the of action causes something more than transaction, embraces same any or af- It occurrences contractual relations. includes party right to which vests fairs the result of in-the the occurrences maintain an whether action, [Mayberry Northern v. a tort or otherwise.” nature are Ey. and to the same effect Minn. Co., 79, Pacific 100 Scarborough Kan. 18 Smith, v. the definitions 271; Sterling 1. c. 151 -Wis. Co., E. C. 406; Schenck v. Lamming G-alusha, v. 564; Moffet, Wis. McArthur Eudolph (Ala.) 839.] Holmes, 135 Y. So. 239; N. over demurrer the defendants’ Besides, after before Afterward, their filed answers. ruled testimony, they motions plaintiff’s beginning filed over which were elect, aiWaiverer- action trial. went to Such the case ruled, a waiver of generally constitutes held has been mis objection or of of action misjoinder of causes Mo. parties. Co., Railroad joinder [White Wolz In 465.] 539; v. Transit Hof had demurred defendants 67, Venard, 253 failing an had therein grounds others, those appellants de page 84: “When *21 It said at was swered. on their stand grounds refused and those on murred taking facts, pleaded over, demurrer, ipsue effectually.” grounds waived those SUPREME COURT OF assignment The next error to be noticed that- by Section 4217, Revised Statutes 1919, as construed this City, court in Clay County Grier Kansas & St. Ry. Joseph Co., 286 Mo. is in 523, conflict Four with the teenth Amendment to the Constitution United upon ground States. in This, that the Grier Case “strictly statute construed as and primarily penal,” that the there forfeiture statute?*101181 provided punish is to be enforced as ‘‘ and thereof ment, by the amount not limited or controlled govern rules com law assessment of pensatory damages.” thereby Legis It is said public lature has . “selected carriers and their servants objects punishment ordinary for death caused negligence, corporations act other when classes and similarly guilty delin individuals of like situated quency punished.” are not upon placed
The construction the statute in the present Grier Case does not The issue. statute new penal had theretofore been -construed as in character. years prior fifty provision As it stood for 1905, negligent party parties or “shall forfeit pay every person passenger dying or so the sum pro of five thousand dollars.” statute with this vision was held constitutional Carroll v. Mo. Pac. Ry. given 239, Mo. reasons therein Co., Ry. authority of Humes Pac. v. Mo. Co., 221, Meyers Barnett Railroad, 68 Mo. Union questions Trust wherein like issue. The h,ad decision in Case re Humes then cently Supreme been affirmed Court of United Ry. [Mo. Pac. States. Co. Humes, 115 U. 512.] S. penal. By under statute consideration then provided negli the Amendment of 1905 it was that the gent party, parties, pen pay forfeit “shall or alty, every person passengers dying,' so sum exceeding of not less than two dollars thousand jury.” In ten thousand dollars the discretion *22 503 1923. Railway Rock Island Shaffer v. penalty” it that “as
the Case held the words a was Grier penal nothing the character statute. It the added c. “The that 286 Mo. l. 539: addition was said in case, repetition meaning- conveyed in the the words but a repetition very pay,’ that it is ‘forfeit and and the fact a incorporated unnecessary) (presumably in the and was part a of the amend the first time as statute with and controversy plain beyond lawmakers that the ment makes recovery continue intended that entire should respect penalty in the that it had theretofore a same Ry. Young In 227 it was held 307, been.” Mo. Co., always penal; question in had been that the statute penalty” a had added noth addition of words “as the ing penal meaning- it that as a statute effect; its and provision permitting and constitutional; penalty jury between a minimum and to fix Federal Consti not. violative of the maximum limit tution. Young no consideration
There
in the
Case
penal
being
than
in character.
this
as
otherwise
statute
holding
in its
that this statute
in that case
decision
penalty
aspect
penal
in the
of assessment of
mode
violative,
been
Constitution,
the Federal
has
was not
holding
by
suggesting or
followed
this
Decisions
court.
compensatory,
part
in
that this statute is
remedial
Boyd
Murphy
Railroad,
Railroad,
56,
in
Young-
holding
way
in
in no
affect
54,Mo.
susfaining
early
holdings in
cited,
cases
Case,
in
constitutionality
and of like statutes
of this statute
recognized
holding-
penal
so
character.
In
their
penal
primarily
in that
statute,
this statute is
respect
Constitution.
the Federal
not violative of
appears
fully
in the second
in the decision
this more
And
decision
hearing-
Boyd
and the
"The made claim oral its brief argument that Section Revised '5425, Statutes opinion, this construed court contravenes the Fourteenth Amendment of the United States Constitu- deprives appellant equal protection tion said deprives process it of due laws within law fully meaning of said amendment, was considered *23 the court and denied.” Supreme
The Case was to Grier taken Court upon the United States writ of error. oral Since the argument by per- at bar of the case there have been filed, copies mission, of the of the in abstract that record filed Supreme in ease Court United States and respective motion to and dismiss briefs of the tending grounds other counsel, and documents to show the disposed that which case was there of. It is appellant contention of for counsel in this case that the disposed Grier Case was the motion to dismiss question presented by no because Federal opinion record, and without consideration of the of this quoted; respondent court above while counsel for here contend that the decision of this court was affirmed, ques- and that the affirmance took into consideration the opinion. tions mentioned in said A discussion of de- opposing long tails of these contentions would be opinion not seem does warranted here. The Per Curiam Supreme of this court was before the Court of the United and we States, should it was assume considered. The memorandum decision of this' court the Grier Sup. Rep. expressed Case, Ct. as follows: "Judgment affirmed with costs.” This will be construed an affirmance of the decision and as tak- court, this ing opinion. into consideration said Per The Curiam constitutionality present of Section 4217 in its form, construed the Grier cited, Case and other cases regarded must be as settled.
It is next insisted Section 4217,Revised Statutes 1919, as construed the Grier is in conflict Case, with 1923; Oo. Section 8 of Article of the State Constitution, provides proceeds pen- that “the clear of all n belong ai1^ . . . forfeitures &^613 shaR PayaWe^o securely Fund, sacredly pre to invested and school county pub
served several counties as a lic school fund.”
In Barnett v. Atlantic & Pac. Railroad double-damage which was a under the suit for act through live stock killed failure to maintain fences as required by provision it was law, held allowing damages statute double to be recovered penal provision a only statute! The was sustained as, penal. provision giving it was The
because
penalty
injured party
being
as not
sustained
provision
in conflict with the constitutional
above men
provision
tioned.
constitutional
refer
was held to
‘‘
penalties
public,
accruing
penalties
persons
private
recovered
their own
use.”
prescribed
penalty
distinction
between
violation
private, right
person injured,
recovered
*24
penalty prescribed
punishment
public
for
and a
as
wrong
recognized
recognized. The
distinction was
Spealman
82
Pac.
221;
Mo.
Railroad,
Humes
Ry.
Ry.
I. M. &
Co.,
434;
Louis,
71 Mo.
State
St.
S.
many
and in
other cases where the
sum
penalty.
subject
re
sued for was a
The whole
The
ex rel.
Counsel insist for defendant recovery company against that there under can be no petition. plaintiff urged did not seek It is that the Burlington leasing Company as the to hold Liability of charges company, upon negligence com of but Lessor. severally, concurrently with mitted instruction defendants. court numbered other liability Burling place did any negligence Company that com act ton liability company pany, con lessor made as the its Company finding tingent the Rock Island assigned giving instruction was liable. The this petition pleadings. being The’ as not within the error, corporate com stating two' character after panies, Turney by ownership the tracks at descriptive Burlington appropriate Company and other continues: matters, been, there has
“At all times herein mentioned trackage right between de- now a lease and contract, is, Chicago, Com- & Pacific Rock Island fendant Burlington Quincy pany Chicago, Rail- & and defendant Company, provisions contract, of which under the road right trackage has first named defendant lease and said operates operated trains, and now runs run defendant tracks of the over said cars locomotives Company Chicago, Burlington Quincy from & Railroad City, Mis- to Harlem and Kansas Missouri, Cameron, souri. corpo- both said
“At herein mentioned all times op- operated, and now run ran and rate defendants engines tracks over said erate their and cars trains, Burlington Quincy Chicago, Com- & Railroad defendant *25 Turney, County, pany through the of Clinton town Missouri.” Articles in evidence and
The lease was introduced In of- in the record. 5 and are forth 1, 2, 6 thereof set 507 fering plaintiff specifically the entire lease the directed attention to the articles mentioned. Article 1 contains grant Burlington the of the rise of its tracks the Com pany Company. to the Rock Island other articles chiefly set out in the abstract deal with definitions co-employees or were were not to be who deemed of companies. urged plaintiff the It two was seek against ing Burlington Company to recover the the ground negligence only, negligence of or its em ployees joint employees who were companies; two plaintiff Burlington did not seek to hold statutory Company upon liability as the' lessor com pany, prayer petition and that the not did ask Company Burlington be held lessor. liable as the petition points These are not well taken. The in each .judgment against the several counts for asked de necessarily related each all fendants. This liability grounds defendants It stated. against necessary specifically judgment ask specify Burlington Company, prayer nor in the ground judgment grounds was asked. pleaded petition sufficiently and it ad lease, showing in evidence the relation the two mitted between n liability companies Burlington as a Com basis of Company, pany negligence of the Rock provisions 9879', under Revised Statutes of Section operated That “the as if it the road itself.” 1919, same court, many times, before section has been this proper provisions as a been sustained of them its have [Fleming power police State. exercise Railroad, 256 180; v. Mo. Brown Mo. 263 Railroads, Markey 386; Railroad, Railroad, Dean v. Mo. 522; Revised Under Section Statutes 348.] Mo. seeking join one could satisfaction single Dear [State in a suit. ex rel. v. the defendants ing, l. c. Railroad, 244 Mo. l. c. 252 Mo. 37; Whiteaker Rys. 158; l. c. 450; Moorshead v. United App. Sckwyhart S. 227 U. Barrett, l. c. 344, 184.] *26 SUPREME COURT OF
Lunsford v. Davis. Burlington Company Counsel' for the insist penal since Section construed to be a statute company the Grier other Case, cases, cannot' urged be held liable. It is that Section Revised makes 1919, Statutes a^cornpens^ion. company-liable owning only compen pro satory damages, punishment. not for Section owning company vides that the “shall remain liable for judgments and liabilities acts, debts, claims, demands, (the lessor) op . of the lessee . . the same it as if part erated the or such thereof itself.” road, And owning company “may section the be same sue and in all cases for the in like causes, sued 'same .and operating if manner, as own road.” Sections'4217 together, and 9880 are to be construed far so subject. with same So construed cannot be deal provisions of held that the 9880 do not include liability penalty accruing civil under Section 4217, grounded upon negligencd, recoverable in a civil action. foregoing judgment
For the reasons should affirmed. It is Small, so ordered.. C'./concurs. opinion foregoing
PER CURIAM:—The Lindsay, adopted hereby opinion court. All C., except sitting. judges Graves, concur, J., Appellants, al., NORA L. LUNSFORD et S. WIL Appellants. LIAM H. et al., DAVIS September One, Division 1923. Expressed DEED OF TRUST: Foreclosure: Conditions Not Note. may A deed of trust contain a condition for tbe foreclosure before maturity secures, may pro- of the note which it and it contain may independent which a forfeiture be declared visions
the terms of note.