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of the property in controversy, because he claimed it was not his property. This was known to the sheriff, who also knew if the property was not levied upon the day the levy was made it would be sold and disposed of by plaintiff, who claimed it was his property. The levy was not void.

The verdict found "the ownership and right of possession" of fifteen cows, one bull, one boar, one sow, seventeen shoats, six horses, and three colts were in defendant. The judgment was that the defendant "have and retain the property replevied" by virtue of the writ of replevin, and it is claimed the verdict and judgment are erroneous and require a reversal. The finding of the

Replevin-finding for defendant-place of property.

verdict that the ownership of the property described therein was in the defendant was wrong and should be treated as surplusage. All defendant claimed was the right to the possession of the property by virtue of the levy of the execution upon it as the property of the judgment debtor. There is a stipulation between the parties in the record which, from its language, could only have been made after the verdict was returned. The stipulation recites the parties had agreed that the title to the property described in the replevin writ, except "that portion thereof which is included and recited in the verdict this day signed and returned by the jury in this suit," is in the plaintiff, and that no ver

dict of the jury or judgment of the court shall be necessary to vest title to such property in the plaintiff, and it was also agreed that there should be no action on the sheriff's bond on account of the title to said property being in the plaintiff, and it was fur ther stipulated that the sole controversy was as to the right of possession of the live stock; that the right of possession of the other property taken in the replevin writ had been agreed to by the Appeal-decree parties and was no finding title in longer involved in stipulationthe controversy. In curing error. view of this agreement of the parties we cannot see how plaintiff can be prejudiced by the error in the verdict and judgment.

replevin

-making wit

discretion.

On the trial plaintiff testified as a witness in his own behalf. During his cross-examination the defendant was permitted by the court to make plaintiff his witness and examine him as ness one's such. This ruling ownof the court is complained of as reversible error. It was a matter resting in the sound discretion of the court. Wheeler & W. Mfg. Co. v. Barrett, 172 Ill. 610, 50 N. E. 325; First Nat. Bank v. Lake Erie & W. R. Co. 174 Ill. 36, 50 N. E. 1023. There was no abuse of discretion in the ruling of the court.

The judgment of the Appellate Court is affirmed.

Petition for rehearing denied, June 5, 1919.

ANNOTATION.

Applicability of Bulk Sales Law to sales by farmer.

There is a diversity of conclusion among the few cases which have passed upon the question under consideration, but this, of course, is due largely to the varying terminology used in the different statutes under construction.

In the reported case (WESKALNIES v. HESTERMAN, ante, 128) it was expressly held that sales in bulk of live

stock, machinery, etc., used on farms, are within the Illinois Bulk Sales Law of 1913, which, by express provision, applied to "any sale of goods in bulk." This conclusion, it will be noted, was influenced largely by the fact that an earlier Illinois statute, which was limited to the sale of stocks of merchandise in bulk, had been held unconstitutional (see Charles J. Off & Co. v.

Morehead (1908) 235 Ill. 40, 20 L.R.A. (N.S.) 167, 126 Am. St. Rep. 184, 85 N. E. 264, 14 Ann. Cas. 434, as set out infra) as class legislation, on the ground that it did not include farmers and others not engaged in the regular sale of merchandise, the court saying that the history of the legislation and the language of the act showed a clear intention to include sales in bulk by farmers, other than in the regular and ordinary course of business.

And in Larson v. Judd (1916) 200 Ill. App. 420, it was held that a sale in bulk by a dairyman, of the cattle, horses, tools, etc., used by him in his business, was within the Illinois Bulk Sales Act of 1913, since they were "goods and chattels used in connection with his business of selling merchandise, commodities, or other wares (milk)." But, as stated in the reported case (WESKALNIES V. HESTERMAN), and as noted supra, the Illinois Act of 1905 (Laws 1905, p. 284), which regulated merely the sale of stocks of "goods, wares, and merchandise" in bulk, was said, by way of illustration in Charles J. Off & Co. v. Morehead (Ill.) supra, to have no application to a sale by a farmer of all his live stock, farm implements, crops, growing or grown, and household goods, but to relate only to stocks of merchandise. Other classes of business not covered

by the statute were also enumerated, and the act, because of the fact that it applied only to stocks of merchandise, and excluded the other enumerated classes of business, such as farmers, etc., was held to be special class legislation, and, therefore, unconstitutional. In the latter connection, and although not within the scope of the present annotation, it is worthy of note that the statutes of several of the states have been upheld as against the contention that they constituted special class legislation. For instance, in Spurr v. Travis (1906) 145 Mich. 721, 116 Am. St. Rep. 330, 108 N. W. 1090, 9 Ann. Cas. 250, in sustaining the constitutionality of the Michigan Sales in Bulk Act of 1903, as against the contention that it was class legislation because it did not include "farmers, manufacturers, etc.," it was assumed by the court that the act did not include "farmers," etc., but applied only to merchants. And see Wilson v. Edwards (1907) 32 Pa. Super. Ct. 295, wherein the Pennsylvania Bulk Sales Act of 1905 was held constitutional as against the objection that it was arbitrary class legislation, although it was confined to sales of stocks of merchandise in bulk, and did not apply to other classes such as G. J. C. farmers, etc.

FRANKLIN COUNTY, Respt.,

V.

MISSOURI PACIFIC RAILWAY COMPANY, Appt.
Missouri Supreme Court (Division No. 1)—March 28, 1919.

(Mo., 210 S. W. 874.)

Damages — extending highway across railroad track — alarm bell. 1. The damages to be allowed a railway company for the extension of a highway across its tracks at grade do not include the expense of installing and maintaining an alarm bell, necessary to warn travelers of trains approaching the crossing.

[See note on this question beginning on page 137.]

[blocks in formation]

condemned is entitled to receive compensation for all damages that may be anticipated and ascertained.

[See 10 R. C. L. 148, 149.]

APPEAL by defendant from a judgment of the Circuit Court for Franklin County (Breuer, J.) awarding defendant less than claimed by it in a suit to condemn a right of way for a public road over its right of way. Affirmed.

Statement by Woodson, J.:

The plaintiff instituted this suit in the county court of Franklin county against the defendant, for the purpose of condemning a right of way and opening a public road over the right of way of the defendant company. The county court awarded the defendant $100 damages, and in due time the defendant appealed the cause to the circuit court, where the trial resulted in a judgment for the defendant for the sum of $57.82, and the defendant appealed the cause to the St. Louis court of appeals, which, upon motion, transferred the cause to this court (Mo. App. -, 183 S. W. 1099), because Franklin county was a party to the suit, and because the title to real estate was involved.

The cause is submitted to this court upon the following agreed statement of facts, in lieu of the bill of exceptions:

It is hereby stipulated between attorneys for appellant and respondent that the following is a correct statement of facts

and

synopsis of the evidence in this case, and may be considered by the appellate court in lieu of the bill of exceptions.

This was an appeal from the county court of Franklin county, Missouri, in a condemnation proceeding instituted by the county, whereby a public road was opened across the Missouri Pacific right of way near Little Berger creek bridge in Franklin county. Appellant was allowed $100 damages. It claimed more, and the appeal to the circuit court was from an order of the county court assessing said damages. The sufficiency of the proceedings in the county court was not questioned.

Appellant constructed the crossing and likewise erected a crossing bell.

At the trial of this case in the circuit court the damages claimed

by appellant were: (1) For the amount expended in constructing the crossing proper, which, by stipulation, was fixed at $57.82. (2) The amount expended in constructing the crossing bell, which, by stipulation, was fixed at $240.20. (3) For such amount as appellant would in the future be required to expend in maintaining the crossing proper. (4) And for such amount as appellant would in the future be required. to expend in maintaining the crossing bell.

Appellant made no claim for damages on account of the land taken and covered by said public road.

The county court did not order the construction of the crossing bell, and denied any liability for the expense thereof. It likewise denied liability for future expenditures necessary for maintaining the crossing and crossing bell.

The board of railroad and warehouse commissioners did not order an electric bell to be installed, but appellant placed it there of its own volition and on its own motion.

These were the issues presented in this case.

The evidence tended to show that there had previously been a public road under the Missouri Pacific track near the location of the present crossing. A bridge was recently built by the county over Little Berger creek, and to facilitate the approach to this bridge the county surveyor recommended a change in the location of the public road, with the result that the crossing in question was opened across appellant's right of way.

The crossing in question is a grade crossing, and is at a point where the railroad track is curved, and where the bluffs on one side of the track to a certain extent obstruct the view. Appellant introduced evidence tending to show that this was a dangerous crossing, and that the construction of an alarm

(Mo., 210 S. W. 874.)

bell was a reasonably necessary precaution. Respondent introduced evidence to the contrary.

Expert testimony as to the probable cost of maintaining the crossing and crossing bell was likewise introduced.

The law in this case is the only point at issue, and is fully covered by the instructions. If the appellate court holds that any or all of appellant's refused instructions correctly state the law which they purport to cover, then this case should be remanded. If appellant's instructions were, as a matter of law, properly refused, notwithstanding the facts, then this case should be affirmed.

The court, sitting as a jury, found appellant entitled to damages for the construction of the crossing (excluding alarm bell) and assessed its damages at the sum of $57.82.

All objections to any and all irregularities of the record in the county court and the record on which this appeal rests are hereby waived, and it is agreed that the only issue before this court relates to the instructions hereinafter set forth.

[Signatures omitted.]

The following instructions requested by plaintiff were refused by the court, to which action of the court exceptions were duly served:

(A) The court assesses defendant's damages for the construction of the crossing and crossing bell mentioned in the evidence at $298.02, and the court shall allow defendant such additional damages as it may believe from the evidence will compensate defendant for its future expenditures in keeping said crossing and crossing bell in repair.

(B) The court declares the law that the court sitting as a jury shall assess defendant's damages as follows:

First. Such amount as defendant has expended in constructing the crossing in question, which the court declares is admitted by the parties to be the sum of $57.82.

Second. Such amount, if any, as the court sitting as a jury may believe defendant entitled to, under the other instructions herein, for expenditure by it in the construction of the crossing bell in question.

Third. Such amount as the court, sitting as a jury, may believe from the evidence defendant will be required to expend in maintaining and repairing the crossing in question aside from the alarm bell.

Fourth. Such amount as the court may believe from the evidence defendant will be required to expend in maintaining and repairing the alarm bell in question provided the court, sitting as a jury, shall find defendant entitled to damages on account of the construction of said alarm bell.

(C) The damages, if any, due the defendant for future expenditures in maintaining and repairing the crossing and crossing bell, or either, shall be ascertained as follows, to wit:

(1) Determine such amount as the court sitting as a jury may believe from the evidence defendant will be required to expend per annum in maintaining and repairing same; (2) divide this amount by 6; and (3) multiply the result by 100.

(D) If the court believes from the evidence that the crossing in question is dangerous to the traveling public, due to the topographical surroundings, and that the installation of the alarm bell in question is not an unreasonable precaution upon the part of the railroad company, then the court sitting as a jury shall allow said company as an item of damages herein such amount as it shall have expended for the installation of said alarm bell, which is the sum of $240.20.

(E) The court sitting as a jury shall assess as an item of defendant's damages such amount, if any, as the court may believe from the evidence will be required to expend for future maintenance of and repairs to the crossing (excluding the

electric signal bell) mentioned in evidence.

The following instructions were given by the court at the instance of plaintiff, to which action of the court the defendant duly excepted:

(1) The court declares the law to be that the defendant is not entitled to any damages in this case on account of putting in an electric crossing bell, nor for the expense of maintaining said bell.

(2) The court declares the law to be that if he, sitting as a jury, find from the evidence that said electric bell is merely a precaution exercised by the railway company to lessen the liability for accident, and that said bell was not required by the county, court, or the railroad and

warehouse commissioners of Missouri, then said railway company cannot recover for erecting or maintaining said bell.

Mr. C. D. Corum for appellant.

Mr. Jesse M. Owen for respondent. Woodson, J., delivered the opinion of the court:

I. The instructions given, and refused in this case present but a single legal proposition for determination, and that is: Is the county liable to the railroad company for the expense of installing and maintaining an electric alarm bell, which it is contended is reasonably a neces

Damagesextending high

road trackalarm bell.

way across rail- sary precaution for the safety of the traveling public in railroad upon said

crossing the public road.

Generally speaking, the rule of law in this state is unlike what it is in many of the other states in the Union, in that a railroad company over whose right of way a public

-eminent domain-measure of damages.

road has been condemned is entitled to receive compensation for all damages that may be reasonably anticipated and ascertained. Kansas City v. Kansas City Belt R. Co. 102 Mo. 633, loc. cit. 641, 10 L.R.A. 851, 14 S. W. 808; Kansas City, Suburban Belt R. Co. v.

Kansas City, St. L. & C. R. Co. 118 Mo. 599, loc. cit. 621, 24 S. W. 478; St. Louis & S. F. R. Co. v. Gordon, 157 Mo. 71, loc. cit. 79, 57 S. W. 742; Grand Ave. R. Co. v. People's R. Co. 132 Mo. 34, loc. cit. 45, 33 S. W. 472.

But the cases throughout the country draw a distinction between the class of damages mentioned in the cases just cited, which consist of compensation for the land taken, the cost of constructing the crossings, gates, cattle guards, fencing, etc., and those to be incurred on account of company being compelled to obey the police regulations of the state and the municipal corporations thereof.

We have been cited to no case holding that the county is liable for the expense of installing and maintaining the electric bell and cost of maintaining it, but there are numerous cases holding to the contrary. Kansas City Suburban Belt R. Co. v. Kansas City, St. L. & C. R. Co. 118 Mo. loc. cit. 622, 24 S. W. 478; Plymouth v. Pere Marquette R. Co. 139 Mich. 347, loc. cit. 349, 102 N. W. 947; Peoria & P. U. R. Co. v. Peoria & F. R. Co. 105 Ill. 110; Chicago & A. R. Co. v. Joliet, L. & A. R. Co. 105 Ill. 388, 44 Am. Rep. 799; Massachusetts C. R. Co. v. Boston, C. & F. R. Co. 121 Mass. 124; Lake Shore & M. S. R. Co. v. Cincinnati, S. & C. R. Co. 30 Ohio St. 604, and cases cited; Boston & A. R. Co. v. Cambridge, 159 Mass. 283, 34 N. E. 382.

The true rule, as announced by all the authorities, is correctly stated by Mills, in his excellent work on Eminent Domain, in § 44a, p. 140, 2d ed., in this language: "

The railroad corporation, across whose road another railroad or a highway is laid out, has the like right as all individuals or bodies corporate, owning lands or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures on the land, or changes in its surface, absolutely required

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