premises by the grading of North street, as all other causes or sources were unmistakably more than five years prior to the filing of suit. Defendant city requested, and the court refused, these declarations of law: "(a) The court declares the law to be that, if you find and believe from the evidence that the cause of action, if any plaintiff has, arose at the time the grade on High street was made, and if you find and believe that that is more than ten years from the time she filed this suit, then you will find the issues in favor of defendant, city of Joplin. "(b) The court declares the law to be that, if you find and believe from the evidence that the cause of action, if any plaintiff has, arose at the time the grade on High street was made, and if you find and believe that that is more than five years from the time she filed this suit, then you will find the issues in favor of defendant city of Joplin." [2] Both of these declarations ignore any damage to plaintiff except that which had its source in the grading of High street, and were properly refused. They are identical, except one is bottomed upon the ten-year statute, and the other upon the five-year statute. Defendant city of Joplin requested, and the court refused, the following declaration upon the measure of damages: "The court declares the law to be that, if you find the issues in favor of the plaintiff and against defendant city of Joplin, you will assess her damages at such sum as you will find is the difference in the reasonable market value of her property at the time she bought it and at the present time." [6, 7] Plaintiff was permitted to prove actual damages such as her estimate of what her fruit trees and vines were worth, and what it would cost to repair her house and barn, and the number of loads of dirt and rock she had put in the gulley washed through her lots in an effort to avoid further injury and preserve her property. While these items are not elements of damage under the facts here, they are nevertheless proper items for consideration in estimating the damages. Ketchum v. City of Monett, 193 Mo. App. loc. cit. 535, 181 S. W. 1064; Smith v. Kansas City, 128 Mo. 23, 30 S. W. 314. Plaintiff placed the market value of her property, absent the troubles of which she complained, at $1,500. Direct evidence of market value was meager, it is true, as plaintiff seemed to think her measure of damages was the actual damages she had sustained. The court found for plaintiff in the sum of $400; and we think this finding sufficiently supported by the evidence. Defendant makes the point that no effort was made to separate the damages caused by the waters from North Street since the grading in 1912 from damages from other sources, action for which is barred. It is true that the record shows no specific effort in this regard, yet it does appear from plaintiff's evidence that most of her trouble came after the grading of North street in 1912. In Scheurer v. Rubber Co., 227 Mo. loc. cit. 359, 126 S. W. 1041, 28 L. R. A. (N. S.) 1207, 21 Ann. Cas. 1110, the law is stated thus: [3] The measure of damages, if the source is permanent, or the injury flowing therefrom is permanent, is the difference between the market value of the property affected before the creation of the source of injury and afterwards. Hayes v. Railroad, 177 Mo. App. loc. cit. 218, 162 S. W. 266; Carson v. City of Springfield, 53 Mo. App. loc. cit. 296; Tegeler et ux. v. Kansas City et al., 95 Mo. App. 162, 68 S. W. 953; Coffman v. Rail-recovery of some damage." road, 183 Mo. App. 622, 167 S. W. 1053; Jones v. Railroad, 189 Mo. App. 6, 176 S. W. 465; Miller v. Railroad, 180 Mo. App. 501, 167 S. "The law is that in cases where a plaintiff sustains damages from separate and independent sources it is the duty of the triers of the facts, although the injuries may be concurrent in point of time, to separate, as best they can from the evidence before them, the amount of damages caused by the defendant's act or negligence; and the difficulty of determining the amount of damages caused by the defendant's negligence, or of separating it from the damage caused by the act of some other party, has never been allowed to stand in the way of a W. 469. [4, 5] When the source of the injury may be removed at any time, the measure of damages is the actual damages sustained up to the bringing of the suit. Carson v. City of Springfield, 35 Mo. App. loc. cit. 296, and cases there cited; White v. City of Spring field, 189 Mo. App. loc. cit. 234, 173 S. W. 1090; McHenry v. City of Parkersburg, 66 W. Va. 533, 66 S. E. 750, 29 L. R. A. (N. S.) 860, note. The measure of plaintiff's damage in the case at bar is the difference in the market value before and after the grading of North street in 1912, independent of any damages she may have sustained from sources other than the grading of said street in said year. Under no theory could the declaration of law requested by defendant city [8] The case at bar was tried before the court without the aid of a jury, and, according to declaration No. 1, no source of damage was considered except that flowing from the grading of North street in 1912. In the circumstances a genius could not accurately estimate the separate damage caused by the waters from North street since 1912, or just how much the grading of that street contributed to the depreciation of the market value of plaintiff's lots. The triers of the facts in such circumstances, in the language of the Supreme Court in Scheurer v. Rubber Co., supra, "separate as best they can from the evidence before them the amount of damages caused by the defendant's act or negligence." [9] Defendant city of Joplin makes the further complaint that the plaintiff sued on one cause of action and recovered on anoth does not specifically complain of the waters that were diverted upon her premises by the grading of North street in 1912; yet all evidence as to waters from North street went in without objection, and defendant requested and the court gave declaration of law No. 1, set out supra, which clearly embraces any injury resulting from the grading of North street in 1912. The case was tried by both sides without objection as though North street waters were specifically included in the waters of which plaintiff complained. STATE ex rel. POLLARD v. BRASHER, 13 INQUISITION 1. INSANE PERSONS 2. INSANE PERSONS 14 INQUISITIONS At most, proof of damage from the waters of North street was only a variance. It Although there was no recital in the judgwas the accumulated waters from North, ment that the alleged insane person was present High, and other streets mentioned that caus-effect is of equal dignity and force, particularly at the inquisition, the sheriff's return to that ed the damage; and the act of grading North where his presence is admitted, but is alleged street and the failure to make reasonable not voluntary. provision to take care of the waters flowing from North street on High can hardly be separated. Section 1846 et seq., R. S. 1909, defines the effect of a variance. Of these sections and of variance in Thornton v. Smelting Co., 178 Mo. App. loc. cit. 46, 163 S. W. 296, it is said: "A failure to observe the provisions of these sections of the statute has caused the decisions in this state to be more or less conflicting. Many seeming conflicts, however, will disappear by noting the occasion and purpose of the court in stating that plaintiff cannot allege one ground of negligence and recover on another, or like expressions. Such is error, but the error, to be available, must be taken advantage of in the manner provided by statute, i. e., by affidavit, or it is waived. The affidavit is in some respects like a motion for new trial in preserving the error. In Hensler v. Stix, 113 Mo. App. 162, 176, 88 S. W. 108, the court said: "The professional eye likes to see pleadings and proof agree exactly, and an amendment is preferable, but not imperative. To contend, as is some times done, that in no case of variance can the court instruct on the evidence, is to ignore the very words of the section of the statute last cited, which expressly authorize the court to give instructions according to the evidence unless the variance is material. What shall be deemed a material variance is prescribed in the Code. It is one which had misled the opposing party to his prejudice. R. S. 1899, § 655 (R. S. 1909, § 1846). And in the Code, too, is prescribed how it shall be made to appear a party has been misled. If the evidence does not correspond strictly to the allegations, it is the duty of the opposite party to satisfy the court by affidavit that the discrepancy is harmful to him; whereupon the court may order the pleading amended on terms. R. S. 1899, § 655. Unless, therefore, there is such a marked divergence between the negligence alleged and that proved, as to amount to a failure of proof, there is nothing in defendant's contention." We do not think that when the petition is considered in its entirety it wholly fails to include, by reasonable implication, the damages resulting from the waters from North street. 3. INSANE PERSONS 27-INQUISITION-OP- before the probate court on charge of insanity 58-REVIEW - SCOPE AND That an information in lunacy proceedings be made by one of kin to or interested in the estate of accused is not required by Rev. St. 1909, § 474, and it will be presumed that the court found informant entitled to institute the proceedings. 6. INSANE PERSONS 10-INQUISITION-INFORMATION-INFORMANT-PUBLIC OFFICER. One shown by the record to be a public administrator of the county, and by Rev. St. 1909, $ 299, also a public guardian, and by section 302 required to look after personal estates of insane persons, is qualified to be an informant in lunacy proceedings. 7. INSANE PERSONS 12-INQUISITION-IN FORMATION-VERIFICATION. While Rev. St. 1909, § 474, as amended by Laws 1917, p. 102, requires an information in lunacy to be sworn to, such was not the case previous to such amendment. 8. INSANE PERSONS 7- INQUISITION - JU The proviso added to Rev. St. 1909, § 474, by Laws 1903, p. 200, making jurisdiction of probate court in insanity proceedings depend on accused owning an estate, is not constitutional, and lack of such allegation is immaterial. Bradley, J., dissenting. Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge. Insanity proceedings against Sam Pollard upon information by the public administrator and ex officio public guardian. Upon hearing before the probate court, accused was found insane, and from a reversal of such judg Finding no error in the record, the judgment by the circuit court upon certiorari, J. ment is affirmed. STURGIS, P. J., and FARRINGTON, J., concur. M. Brasher, probate judge, appeals. Circuit court reversed. On March 6, 1917, the public administrator of Pemiscot county filed in the probate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes court an information asking that inquiry be made as to the soundness of mind and the capacity of Sam Poliard, of that county, to manage his affairs. On the same day the judge of the probate court issued an order or warrant to the sheriff directing him "to take the said Sam Pollard and him safely keep until the probate court of said county shall convene to inquire into the sanity of said Pollard." The sheriff made return on this order as follows: "Caruthersville, Mo., March 7th, 1917. "Executed by having the body of the within named Sam Pollard before J. M. Brasher, judge of the probate court of Pemiscot county, Mis souri, as directed." On March 7th a jury was summoned and a trial had, and the jury returned their ver dict: "We, the jury, find that Sam Pollard is a person of unsound mind and incapable of managing his affairs." Upon this verdict judgment was rendered as follows: "It is thereupon considered, ordered, and adjudged by the court that Sam Pollard is of unsound mind and incapable of managing his affairs; it is further ordered that Jas. J. Long, public administrator and ex officio public guardian, be, and he is hereby, appointed guardian and curator of the person and the estate of said Sam Pollard, under his official bond as public administrator." On March 22, 1917, Sam Pollard filed in the circuit court a petition praying for a writ of certiorari, with the object of having the judgment of the probate court therein quashed and set aside for the following rea sons: "(1) Because no notice was given or served upon the relator of such proceedings, and that he did not voluntarily appear to the proceedings in said court; (2) that the alleged information upon which said lunacy proceedings were based was made by one Jas. J. Long, who was not of kin or related to relator, nor was he interested in any manner in the estate, nor was said Long at said time an officer whose duty it was to file said information; (3) that the information was not sworn to; (4) that said information failed to state that the relator was possessed of an estate or property." The writ of certiorari was ordered issued, returnable on April 7th. On March 26th the judge of the probate court appeared in open court, waived issue and service of the writ of certiorari, and filed a certified copy of all papers and proceedings in the probate court relative to the proceedings in question. On April 13th the circuit court rendered judgment quashing the probate judgment and proceedings on the ground that the probate court had not acquired jurisdiction over the person of Sam Pollard. From this order and judgment quashing the probate judgment and proceedings, the judge of the probate court appealed. N. C. Hawkins and Ward & Reeves, all of Caruthersville, for appellant. J. R. Brewer. of New Madrid, and J. E. Duncan, of STURGIS, P. J. (after stating the facts as above). [1] The statute under which the probate court proceeds in adjudications of insanity expressly provides that the alleged insane person shall be notified of the proceedings unless the probate court order such person to be brought before it. Section 476, R. S. 1909. The concluding clause of that section purports to authorize the adjudication without notice to the alleged insane party or requiring his attendance, provided the court spreads on its records the reason why notice or attendance is not required. This last provision was held unconstitutional by our Supreme Court in Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206, as being violative of the constitutional provision forbidding any person being deprived of his liberty or property without due process of law, which necessarily includes notice and opportunity to be heard. As we read that decision, however, it does not hold unconstitutional the provision dispensing with notice when the court causes such party to be brought before it at the hearing. The case just cited involved a proceeding which was commenced under the statute of 1835 (Rev. St. 1835, p. 323), which provided that the court "shall cause the person alleged to be insane to be brought before such court"; but when the trial was had the statute of 1845 (Rev. St. 1845, c. 85, § 3) was in force, providing no more than that "the court may, to be of unsound mind to be brought before in its discretion, cause the person alleged the court." Nothing whatever was said in the statute about notice and none was required unless the bringing of the party before the court was itself notice or its equivalent. This continued to be the law until 1879, when the present statute was enacted. Speaking of the record by which the person was adjudged insane in the Hunt Case, under the statute of 1845, the Supreme Court said (167 Mo. loc. cit. 183, 67 S. W. 214), it "not only wholly fails to show he was notified in any way of that proceeding, and that no reason was spread on the court, but it also wholly fails to show that, record for not bringing his body before the after qualifying, the guardian did anything whatever." The court, however, there said (167 Mo. loc. cit. p. 176, 67 S. W. 212): "It must also be borne in mind that the statutes of 1835 required notice; that is, required the person to be brought into court." Likewise, in the case of Bank v. Shanklin, 174 Mo. App. 639, 161 S. W. 341, the court held an insanity adjudication void where the record of such proceeding showed that the alleged insane person was neither notified of, nor brought before the court at, such proceeding. The court in no wise holds that the bringing of such party before the court would not constitute a sufficient notice, or that the clause of the statute so providing is unconstitutional in not affording can, 195 Mo. App. 541, 193 S. W. 950, holds no more than that where the alleged insane party is not brought before the court, and the court's jurisdiction depends on the party being served with notice, then the valid service of a written notice is jurisdictional. The court in no way holds that bringing the party before the court is not itself notice. In Crow v. Meyersieck, 88 Mo. 411, the court held that the notice given was void, and in itself showed want of jurisdiction; but the court further held that a recital in the record that the alleged lunatic was present at the hearing (not merely as a witness, as in Bank v. Shanklin, supra, in a proceeding to have his restoration to sound mind declared, nor in the capacity of objecting to the jurisdiction) is sufficient notice to confer jurisdiction on the probate court and make the adjudication valid. 851, 55 L. R. A. 856, 86 Am. St. Rep. 296, while holding that a proceeding for adjudging a person insane, based on a statute without any provision for notice to the alleged insane person, is void as depriving such person of his liberty and property without due process of law, the court said: "The case before us does not involve the right of the state to provide for the summary arrest is made, and his temporary detention until the of a person against whom a charge of insanity truth of the charge can be investigated. Such arrest would itself be a notice to him of the charge, under which he would be afforded an opportunity for a hearing thereon." ** If in this case appellant had been thus 'produced in court,' it could not be said, with reason, that additional notice would have been required to give the court jurisdiction. This mode of acquiring jurisdiction over the person is fixed by the lawmaking power, and we know no reason why it is not suffthat the Legislature has no authority to precient, or upon what ground it can be claimed scribe it." This holding is followed by the same court in Martin v. Motsinger, 130 Ind. 555, 30 N. E. 523, where this is stated: The Supreme Court of Indiana in Nyce v. Hamilton, 90 Ind. 417, 418, said: written statement being filed, 'such court shall "The statute provides that, upon the proper cause such person to be produced in court, and shall cause an issue to be made by the clerk of such court, denying the facts set forth in such statement; which issue shall be tried by The holding of our courts that an adju-a jury, to be impaneled under the direction of dication of insanity, without giving the per- said court.' son notice of the proceeding so as to give him an opportunity to be heard, is void as not being due process of law, is in accordance with the current of authority on that subject, as shown in Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623, 23 L. R. A. 737, 45 Am. St. Rep. 912, and cases cited both in the opinion and in the editorial note. All the cases dwell on the necessity of notice in such proceedings, but no one would interpret such cases as meaning that such notice might not be waived, nor should they be taken as holding that notice means only a formal or even an informal writing giving the time, place, and purpose of the inquiry, served upon the person to be affected, or verbal notice of like character. In the West Virginia case, supra, the court said, in speaking of the necessity of notice in such proceedings, that "almost as well might we convict a man of crime without notice." Yet the only notice given in criminal cases is the arrest and bringing the party before the court. It is usual in criminal cases that a warrant for the arrest states the nature of the proceeding and the court taking cognizance thereof; and so did the warrant in this case recite that: "Whereas, a statement in writing has been presented to the probate court of Pemiscot county, Missouri, by Jas. J. Long, public administrator and a citizen of Pemiscot county, Missouri, stating that one Sam Pollard is insane and incapable of managing his affairs: These are therefore to command you to take the said Sam Pollard and him safely keep until the probate court shall convene and inquire into the sanity of said Sam Pollard." All the cases we have been able to find where this point is discussed hold that the compliance with a statute requiring the alleged insane party to be brought into court under court process, as a party to the proceeding, is valid and affords sufficient notice. In fact, the statutes of most of the states provide for notice by bringing the party into court. In Re Lambert, 134 Cal. 626, 66 Pac. for him. "But while this is true, and while there may be a valid inquest and judgment in such cases, without notice, when the party is present, it is otherwise when he is not present, and is not represented by some one authorized to appear * * He is entitled to his day in court. When he is actually brought in, or voluntarily appears, he has the right guarantied brought in, and the court, after an ex parte him by the Constitution. If, however, he is not hearing, and without notice to him of any character, and without his knowledge, proceeds to hear and determine the matter, it cannot be said that he has had his day in court." In Fore v. Fore, 44 Ala. 478, the court, speaking of a proceeding of lunacy under the statute of that state, states the law thus: This "In this case the requisitions imposed by the The writ of arrest of the lunatic, or the alleged state seem to have been very precisely pursued. incompetent, was duly served upon him. completed the jurisdiction of the judge of probate, and brought the defendant into court; no other notice is required by the statute. No doubt a party is entitled to notice of proceedings against him to have him declared a lunatic or a person non compos mentis. But that is not the condition of this case. party had the notice that the statute prescribes." Here the In a later case (Craft v. Simon, 118 Ala. 625, 24 South. 380), a proceeding under this same Alabama statute, providing that the judge shall "issue a writ directed to the sheriff to take the person alleged to be of unsound mind, and, if consistent with his health or safety, have him present at the * trial," was attacked because written notice was served on the party but he was not produced in court. The court held that such service of notice would dispense with producing him in court. reached the Supreme Court of the United States (Simon v. Craft, 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1165), and was affirmed, the court quoting the Alabama statutes, and citing Fore v. Fore, supra, as holding that the service of the writ was all that was required and brought the defendant into court. The court further held that, while the alleged lunatic was not arrested and not produced in court on account of his condition, it would not be inferred that he was prevented from being heard in his own defense. In an early Kentucky case (Lackey v. Lackey, 47 Ky. [8 B. Mon.] 107), where no notice was given to the alleged insane person, the court uses this language: Conway v. This case tions 476 and 1790, R. S. 1909. "Where, however, the defendant is brought into court, and the inquest held in open court, neither notice nor writ is necessary. Persons of unsound mind are under the protective care of the chancellor, whose duty it is to watch over and guard their interest scrupulously. Being in court, the presumption is this duty was discharged, and the court satisfied of the propriety of holding an inquest, without any affidavit setting forth facts to authorize the proceeding." If the statute prescribes notice to the alleged lunatic, or other party for him, and does not provide for bringing him into court, then the statute governs, and the presence of the party in court will not cure the defect. Morton v. Sims, 64 Ga. 298. And the presence in court of the insane party as dispensing with notice applies only when the party proceeded against is brought into court as a party to the proceeding in accordance with the statute, and not where he is present merely casually or for another purpose. [4-6] The above cases sufficiently answer the point that it is not shown that the person making the complaint as to Pollard's insanity is of kin or interested in his estate. As said in the last-cited case, the statute (section 474) makes no such requirement; but if a mere stranger may not institute the proceeding, but only one having interest in the estate or personal safety of the person proceeded against, we cannot conclude that the informant had no such interest. As held in such case, that is a matter for the probate court, "but that question is not here open to our inquiry." This is a certiorari proceeding, which brings up the record only of the probate court, and the circuit court could only quash the record for errors appearing on such records. The presumption of right acting must be indulged, and that includes a finding that the informant was entitled to institute the proceeding. School District v. Yates, 161 Mo. App. 107, 142 S. W. 791; State ex rel. v. Wooten, 139 Mo. App. 221, 122 S. W. 1101; Conway v. Robinson (Sup.) 178 S. W. 154. Besides, it is shown on the face of the records that the informant is the public administrator of the county, and by section 299 is also public guardian, and by section 302 he is required to look after the personal estates of insane persons. This clearly qualifies him to be an informant in this kind of a proceeding. [2, 3] That our statute governing this procedure (section 476, R. S. 1909) was fully complied with in this case I think is clear. The order of the court and writ to the sheriff are regular, and under the hand and seal of the court, reciting therein the complaint that Sam Pollard is insane and incapable of managing his affairs, and commanding the sheriff to take and keep him until the probate court shall convene to inquire into his sanity. The sheriff's return shows that he executed the writ by having the body of Sam Pollard before the judge of the probate court on March 7, 1917. On that day the inquisition was held by a jury and the adjudication was made. This shows that Sam Pollard was brought before the court on the day of the adjudication, and that is sufficient. While there is no recital in the judgment that the alleged insane person was present at the inquisition, the sheriff's re- proceeding was had. turn to that effect is of equal dignity and force. Cloud v. Inhabitants of Pierce City, 86 Mo. 357, 367. Besides, the motion to quash the proceeding is not based on the ground that he was not present, but that he was not voluntarily present. There can be no inference that he was denied the right to be heard in his own defense, no more than if he had received five days' notice under sec [7] The statute (section 474) now requires the information to be sworn to (Laws 1917, p. 102), but such was not the case when this [8] The proviso added to section 474 by Laws 1903, p. 200, making the jurisdiction of the probate court in insanity proceedings depend on the person proceeded against being the owner of an estate, has been declared unconstitutional, and the lack of such allegation is not material. Redmond v. Railroad, 225 Mo. 721, 126 S. W. 159. Finding no fatal error in the proceeding |
