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a remittitur of $5,000 as of the date of the 6. TAXATION ($ 489*) — ASSESSMENT - ENTRY judgment in the trial court, the judgment

OF ASSESSMENT. will be affirmed for $10,000 and interest at City of St. Louis added omitted property, the

Where the board of equalization of the 6 per cent. from the date of the judgment; fact that the record did not show the special otherwise it will be reversed and the cause class of property to which the omitted property remanded for a new trial.

was added did not invalidate the assessment.

(Ed. Note.-For other cases, see Taxation, WILLIAMS, C., concurs.

Cent. Dig. $$ 870, 871; Dec. Dig. § 489.*]

Appeal from St. Louis Circuit Court; J. PER CURIAM. The foregoing opinion of

Hugo Grimm, Judge. ROY, C., is adopted as the opinion of the

Action by the State, on the relation of Edcourt. All concur.

mond Koeln, Collector, against the Title Guaranty Trust Company. From a judg

ment for plaintiff, defendant appeals. ReSTATE ex rel. KOELN, Collector, v. TITLE versed and remanded, with directions. GUARANTY TRUST CO. - (No. 18084.)

This is a suit for personal taxes in which (Supreme Court of Missouri, Division No. 2. July 14, 1914. Rehearing Denied

judgment went for the plaintiff. July 25, 1914.)

At the assessment of June 1, 1910, the de1. TAXATION (8 47*) – DOUBLE TAXATION

fendant returned to the assessor an assessWHAT CONSTITUTES.

ment list or “tax return” showing the followWhen a taxpayer who holds the legal title

ing items: to a solvent note pledges it to secure his own debt, he cannot deduct from the amount of the Class.


Value. Total Value note his debt, and taxation upon the full

by Classes. amount is not double taxation.

Fifth. Money on hand...... $ 12,735.71

Sixth. [Ed. Note.-For other cases, see Taxation,

Money deposited in

bank or other safo Cent. Dig. $$ 104–114; Dec. Dig. § 47.*]


173,620.31 $185,356.02 2. TAXATION ($ 351*)-PROPERTY SUBJECT TO Eighth. Aggregate statement TAXATION. .

of all solvent notes Where a trust company deposited notes

secured by mortmounting to $519,000 to secure its bonds

deed of amounting to $500,000, and defendant purchased


93,597.34 the equity of the trust company, defendant can- Ninth. Aggregate statement not be taxed upon the full amount of the notes,

of all solvent but is subject to taxation only upon the equity

bonds, whether amounting to $49,000.

state, county, [Ed. Note.-For other cases, see Taxation,

town, city, townCent. Dig. 8 594; Dec. Dig. $ 351.*]

ship, incorporated 3. TAXATION (8 597*)_Tax SUITS-APPEAL

or unincorporated REVIEW.


51,100.00 144,697.34 In an action by the collector to recover

Title plant personal taxes, the Supreme Court on appeal is Tenth.

.......... 850,000.00 350,000.00 not bound by the record of the board of equalization, but must go beyond the bare record en- Subject to state, school and city tax...... $680,060.00 tries and ascertain the real proceedings had by the board; the record of the board not being made on the record of the board of equaliza

On April 1, 1911, the following entry was conclusive as in certiorari. [Ed. Note.-For other cases,

see Taxation, tion: Cent. Dig. § 1219; Dec. Dig. § 597.*]

"On motion, the board proposed to increase 4. TAXATION (8 467*) — ASSESSMENT – Power the assessment of the following.” Then are OF CITY BOARD OF EQUALIZATION,

enumerated a number of different names, among Rev. St. 1899, p. 2562, art. 25, § 3, pro- which is included the Title Guaranty Trust vides that all laws requiring any officer of any Company, $680,060.00, proposed to increase to county to perform any duty, service, or trust $2,500,000.00.". shall include all corresponding city officers The records of the board read in evidence named in the charter and scheme of separation show that Messers, Rohan, Allen, and Gottfor the government of the city and county of St. Louis. By Laws 1903, P. 253 (Rev. St. | lieb appeared before the board in behalf of 1909, $ 11,407), the board of equalization of the the defendant on April 5, 1911, and furnished county of St. Louis was given power to assess to the board evidence on the question of deomitted property. Held, that the giving of such fendant's taxable property. On April 8th folpower to the county board likewise conferred it upon the city board of equalization.

lowing a committee representing defendant [Ed. Note. For other cases, see Taxation, again appeared before the board. On April Cent. Dig. $8 831-836; Dec. Dig. § 467.*] 15, 1911, the following entry was made in the 5. TAXATION (S 482*)-ASSESSMENT - ASSESS- records of the board: MENT OF OMITTED PROPERTY

NOTICE "On motion, the board increased the personal WAIVER.

assessment of the Title Guaranty Trust ComWhere the board of equalization of the pany from $680,060.00 to $861,000.00.” city of St. Louis, in adding omitted property, failed to give the notice required by Rev. St.

No notice of the action of the board taken 1909, § 11,407, the taxpayer who appeared be-on April 15, 1911, was given to defendant. fore the board cannot defeat the assessment on The evidence before the board of equalizathe ground of want of notice; his appearance tion and on the trial showed that the item of having waived it.

[Ed. Note:-For other cases, see Taxation, $93,597.34 was the face value of the solvent Cent. Dig. $S 854-857; Dec. Dig. 8.482.*] notes held by the defendant, secured by real

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

estate, and which had not been pledged for the bonds. It bought the equity, leaving the

1 the payment of bonds. Such evidence also i be taken care of, so far as personal showed that the Lincoln Trust Company had obligation is concerned, by the Lincoln Trust owned notes secured on real estate to the Company, and so far as security is concerned amount of $549,385.56, which it had placed in by the lien on the notes. Did the defendant, the Union Trust Company of St. Louis as by buying an interest (equity) in the notes trustee to secure the payment of $500,000 of valued at $49,385.56, become at once subject first mortgage gold bonds issued by the Lin- to assessment for $549,385.56 ? Surely one coln Trust Company. The latter company who owns some small interest in a horse, a by an agreement in writing conveyed to the promissory note, a stock of goods, or other defendant its equity in the notes so deposit- personal property is not subject to taxation ed with the Union Trust Company, in con- for its full value. He is to be taxed only sideration of the payment by the defendant on his interest in the property, whatever that to the Lincoln Trust Company of the amount interest may be. of $49,385.56, just the difference between the [3] II. The records of the board show amount of the notes and the amount of bonds merely an increase in the valuation of the they were deposited to secure. The board, property already assessed. At least that is after hearing the evidence, added to the total the effect of the entry. But the fact is that of the original assessment list as returned by the board added to the list what it adjudged the defendant the full amount of the hypoth- to be omitted property, and then reduced the ecated notes, making $680,060+$549,385.565 total amount by 30 per cent. It is our duty to $1,229,445.56. The board then estimated the go beyond the surface of things and to distotal value at 70 per cent. of the latter sum, cover what the real facts were. This is not a and fixed its total assessment in round num- proceeding by certiorari, where the court bers at $861,000 a net increase of $180,910 of must take the record of the board as conthe total assessment. The total rate of taxa- clusive, as in State ex rel. v. Baker, 170 Mo. tion for all purposes is $2.22 on the $100 of loc. cit. 203, 70 S. W. 470. valuation.

In State ex rel. Cunningham, 153 Mo. 642,

55 S. W. 249, it was held that the board had Wilfley, Wilfley, McIntyre & Nardin, of St. ! no right to add other property to the list unLouis, for appellant. Edward W. Foristel der the disguise of “increased valuation." In and Frank H, Haskins, both of St. Louis, for that case it was held that the board had no respondent.

power to add other property to the list. The

law on that question has since been changed ROY, C. (after stating the facts as above). (State ex rel. v. Baker, 170 Mo. 383, 70 S. W. [1, 2] 1. The Lincoln Trust Company acted 872); but we still say that the board cannot under the provisions of the eighth clause of add to the list under such disguise property section 1124, R. S. 1909, when it placed the which is not legally taxable against the de$549,385.56 in notes in the Union Trust Com- fendant. pany to secure the bonds issued by the Lin- III. In State ex rel. v. Lesser, 237 Mo. 310, coln Trust Company. Appellant truly says 141 S. W. 888, the taxpayer had, in due form that the bonds thus issued were not exempt. of law, been assessed with stock in a foreign ed by that or any other law from taxation. corporation. In a suit against him to collect It further says that to tax both the bonds the tax, based on such assessment, this court and the notes would be double taxation. We held that such stock was not legally subject think not. There is no law which enables a to assessment against him. In that case the taxpayer to deduct the amount of his debts property assessed against the taxpayer was from the amount of his taxable property. owned by him, but not subject to assessment. When a taxpayer holds a solvent note and in this case the $500,000 in the notes was places it as collateral to secure a note made not owned by the defendant. Surely the to another party by him, he is subject to tax- court has the same power to furnish relief ation on the full value of such collateral note, in this case as in the other. because the law taxes his property ignoring [4] IV. Section 3 of article 25 of the “laws his debts. The Lincoln Trust Company was specially applicable to the city of St. Louis,” taxable with the full value of the pledged as it appears on page 2562, R. S. 1899, pronotes; it having no power to deduct the vides that: bonds which it had sold against those notes. “All laws requiring any officer of any county But the defendant does not stand in the to perform any duty, service or trust, under the

laws of this state, shall include all correspondshoes of the Lincoln Trust Company. The ing city officers named in the charter and scheme latter company did not sell to the defendant of separation for the government of the city the entire interest in the notes. It sold only and county of St. Louis.” the equity in them, amounting to $49,385.56. Many sections of those laws specially appliAs between all the parties concerned in the cable to St. Louis have been published in the notes or bonds, the defendant owns only the revision of 1909 in various different subdivi. equity in those notes, while $500,000 of their sions of that revision. Section 3, above revalue must be applied to the payment of the ferred to, does not appear in that revision, so bonds. So far as the facts appear, defend- far as we have been able to discover, but it ant did not buy the notes and assume to pay is still the law, because it has never been

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repealed. It appears as section 408, on page, the date of the judgment heretofore entered 159 of Rombauer's Revised Code of St. Louis. in this cause by the circuit court of the city

Prior to 1903 neither the county boards of of St. Louis, together with all costs of suit. equalization, under section 11,404 of the Rev. Stat. 1909, nor the board of equalization of WILLIAMS, C., concurs. St. Louis, under section 24 of article 5 of the city charter, had power to add omitted prop PER CURIAM. The foregoing opinion is erty to the assessment. By the act of 1903, adopted as the opinion of the court. BROWN now section 11,407, the county board was and WALKER, JJ., concur. FARIS, J., congiven such power. Every reason which curs in result. prompted the giving of such power to the county boards applies to the city board. In our opinion, the section above referred to ex. MCGINNIS v. HYDRAULIC PRESS BRICK tends the application of the amendment to

CO. (No. 16696.) the city board of equalization, and gives it (Supreme Court of Missouri, Division No. 2. power to assess omitted property.

July 14, 1914.) [5] V. Said section 11,407 provides that 1. MASTER AND SERVANT (8$ 101, 102*)—Mas. when the board shall add any property to


A master has the right to arrange his own the books, it shall serve notice on the owner, premises in any way which suits his convenstating the kind and class of property, and ience, and, as to a servant thereon in the line the value, and stating the time and place of his duty, injured by stumbling over a foot or when the owner may be heard. It must be only required to furnish him a reasonably safe

mud scraper at the entrance of the office, was conceded that the notice in this case did not place of ingress and egress. state that any property had been added to (Ed. Note. For other cases, see Master and the books. The language of the notice very Servant, Cent. Dig. $$ 135, 171, 174, 178–184, clearly indicates that it was given in ac- 192; Dec. Dig. $S 101, 102.*] cordance with section 24 of article 5 of the 2. MASTER AND SERVANT ($ 235*)-CONTRIBU

TORY NEGLIGENCE-PLACE FOR WORK. charter above mentioned, which only con

Plaintiff, on his master's premises in the templated an increase in the assessment of line of his duty and somewhat familiar thereproperty already on the books.

with, and who on leaving the office in broad 1 Cooley on Taxation (3d Ed.) p. 782, says : foot scraper outside of the entrance to the of

daylight and in an open space failed to see a “Yet by appearing before the board he waives fice, permanently fixed and plainly visible, and all objections to the absence or insufficiency of tripped over it to his injury, was, as a matter notice.

of law, guilty of contributory negligence. It was so held in State ex rel. v. Baker, 170 [Ed. Note. For other cases, see Master and Mo. loc. cit. 383, 390, 70 S. W. 872.

Servant, Cent. Dig. 88 710–722; Dec. Dig. 8

235.*] [6] VI. The fact that the record of the board did not show the special class of prop

Appeal from St. Louis Circuit Court; Leo erty to which the omitted property was add. S. Rassieur, Judge. ed does not inv idate the action of the board.

Action by William T. McGinnis against the Had the record entry shown that the omit- Hydraulic Press Brick Company. Judgment

Afted property was added to the list of solvent for defendant, and plaintiff appeals. notes secured by deeds of trust, it would not

firmed. have made the result in any way different, so Action for personal injuries, tried in the far as the defendant is concerned. The form circuit court of the city of St. Louis. At the of the entry was merely an irregularity not close of the plaintiff's evidence the court nisi affecting the rights of the defendant.

instructed the jury that, upon the proof adWe pass no opinion on the process by which duced, plaintiff was not entitled to recover. the board added the full amount of the notes Thereupon plaintiff took an involuntary nonwhich were placed as such security and then suit with leave to move to set same aside. fixed the assessment at 70 per cent. of the Thereafter, his motion to set aside this nontotal amount. We do find the fact to be suit being by the court overruled, he ap that the interest of the defendant in the pealed. pledged notes—i. e. $49,385.56—was properly The negligence pleaded is that which the charged in the assessment against the de- courts for convenience have denominated fendant, and that said assessment as fixed by common-law negligence, distinguished the board was valid to the extent of the orig- from negligence bottomed upon the violation inal assessment increased by $49,385.56, of a statute or an ordinance. The injuries amounting to $729,445.56. · The rate of taxa- accrued to plaintiff from his having tripped tion being $2.22 on each $100 valuation, the upon a mud scraper, and having been thereby principal of the tax legally due is $16,193.69. thrown with considerable violence to the

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The judgment is reversed, and the cause brick pavement, sustaining in his fall injuremanded, with directions to enter judgment ries to the wrists of both hands. This mud for the latter amount named as taxes (and, scraper was maintained outside of the ensince by its appeal substantial relief has trance to the office of defendant. The specific accrued to appellant), with interest thereon elements of the negligence alleged by plainat the rate of 6 per cent. per annum from tiff and on which he bottoms his right to re

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

cover are thus succinctly stated by him in his, the building sat 8 feet back from the property petition :

line. In front of defendant's building all the "(1) In placing and maintaining the mud way out to where the construction work was scraper, by which plaintiff was caused to fall, going on, about 26 feet, there was a uniform of the size and character and in the location above stated; (2) in permitting the iron portion pavement of brick without any curbing or of said scraper to become bent over as stated, breaks. This building was constructed with and in permitting same to remain in that condi rooms on either side of a central hall. The tion ; (3) in failing to furnish plaintiff a reasonably safe place to pass in and out of said entrance to the building was by three or four building in the course of his employment, be- steps, and on either side of the approach to cause of the presence of said mud scraper as these steps there was a mud scraper intended then and there maintained by defendant."

for use of persons entering the building in The answer was: (1) A general denial; scraping the mud from their shoes. These (2) a plea of assumption of risk; and (3) mud scrapers, one upon the north and one contributory negligence of the plaintiff. upon the south of the entrance, were about

The locus in quo is graphically shown by 7 feet apart, and were about 10 inches long, the below picture:

and stood at right angles to the line of low.

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Plaintiff asked for $15,000 as damages; est step and about 2 feet in front of-that is, hence our jurisdiction. The salient substan- east of-it, and were entirely surrounded by tive facts as shown by the evidence of the the brick-paved space. Each scraper conplaintiff (defendant, of course, put in none) sisted of an oak plank 10 inches wide by 15% are fairly set out by plaintiff, who, in fair- inches thick inserted in the ground with its ness to himself, we permit to speak for him- width running east and west, the eastern self, adopting as ours his statement of the edge of the scraper being 3 feet 842 inches facts, with minor emendations: Defendant's west of the western line of Kingshighway. office building was situated on defendant's The top of the wooden post stood 5 inches premises on the west side of Kingshighway above the ground, and to this post there was between the tracks of the Missouri Pacific bolted a piece of sheet iron 10 inches long and the Frisco Railroads. Kingshighway and three-sixteenths of an inch thick, which ran north and south, and at the time of the stood, when in its upright position, about 214 injury to plaintiff, October 7, 1910, a viaduct inches above the wood. For some two weeks was being constructed along Kingshighway, or more prior to the 7th of October, 1910, the across the railroad tracks, and in front of de- iron portion of the northernmost scraper bad fendant's premises. The office building in been bent down towards the south so that it question was of brick, and the main line of stood horizontally about 4 inches above the it was 8 feet west of, and parallel with, the pavement and extending 348 inches southwest line of Kingshighway. In other words, I wardly from the wooden post to which it

was fastened. Plaintiff was an employé of, close of plaintiff's evidence. In other words, the defendant, whose duties, amongst other upon the facts shown, should the case have things, it was to go to different localities in gone to the jury? If a case was made by the city where defendant was delivering brick | plaintiff, we should reverse; if not, we must for paving purposes, and to there receipt for affirm. the brick as it was delivered by the wagons. Plaintiff had been employed by defendant On the day before his injury he had been some several years. But the office building of receiving brick at a locality on Penrose defendant had been in use by it only some street, and had been instructed by his im- four or five months prior to the casualty by mediate superior to call up the office to as- which plaintiff was injured. He had been in certain what job he was to go to the next this building only some two or three or four day. This the plaintiff tried to do, but did times before this; he tells us he does not not succeed in getting connection with the remember definitely the number of times. office by phone, and so on the next morning, He was hurt about 7:30 o'clock in the mornhaving plenty of time, he went down to the ing, in the early part of October, in broad office building in question to see Mr. Pleasant, daylight, and on a bright day, plaintiff "supthe shipping clerk, from whom he was to re- poses, though it may have been a little ceive the instructions as to where to go to cloudy”; of this he is not sure. work. This was a new building, about four The mud scraper which caused plaintiff's or five months old, and Mr. McGinnis had hurt was 10 inches long 842 inches high origbeen in it about three or four times prior to inally, but bent down to 5 inches when plainthe occasion in question. He went into the tiff was hurt. It was on a board set into building about 7 o'clock in the morning and the brick payment, with which this part of got his instructions from Mr. Pleasant, and defendant's premises was paved. This board then went out of the building to go to the was originally 155 inches thick, but since the locality where he was to work. As he came iron scraping part was bent down the whole out the door at about 7:30 o'clock, on what scraper when plaintiff got his hurt, looked plaintiff says he "supposes was a bright at from above, was nearly 5 inches wide on morning mayb

a little dy," he noticed top. It was placed on the premises of dethat between the building and a hole in the fendant, inferably as an appliance of cleanstreet where the viaduct work was going liness. To be of use in the intended behalf, on-a distance of about 26 feet—a wagon it must then needs be about or near the enwas standing from which lumber was being trance to defendant's office; a foot or mud unloaded, and driving north just in front of scraper for the feet of entrants to the office the building, and within about 212 feet of would obviously subserve no scintilla of its the lowest step, was one of defendant's load- intended office if located at a window, or in ed brick wagons. Mr. McGinnis' destination the rear yard, or upon the fire escape. from the building was toward the north Obviously, regard being had to the testialong Kingsbighway, and as he came out of mony of plaintiff that he never saw either of the building and down the steps he saw th the mud scrapers till he tripped and fell over there was room for him to pass between the the north one, it can make no difference steps and the wagon driving north, but as he whether the iron part of this scraper was started northwardly his right foot caught un- bent down or not. Its condition in this beder the horizontally projecting iron portion half had nothing to do with the injury to of the northernmost mud scraper, causing plaintiff, so far as the finite mind can see. him to fall forward to the street, whereby If he had known it was there, from having his wrists were badly hurt, and he suffered theretofore observed it and, so knowing its the injuries for which he here sues. He was location, assumed its being in repair, and had, unable to arise, but was helped up by some so assuming, been injured from its being out men who saw him fall, and was sent by de- of repair, there would be something in this fendant to a doctor, and thence to his home. contention. As the facts are, we drop out of As stated, plaintiff had been in this building our discussion the physical condition of disrethree or four times before, but had not, he pair of the scraper, and come to look to the swears, noticed these mud scrapers. One only remaining debatably tenable contention witness testified that about two weeks before that the maintenance of it at all, in the place the plaintiff's injury witness had heard de- it was set, was negligent act. fendant's superintendent tell one of its em

[1] It is said in 3 Labatt's Master and ployés to straighten up this bent-over mud Servant, $ 939, that: scraper.

“An employer has a right to arrange his own Kinealy & Kinealy, of St. Louis, for appel- premises in any way which suits his conveni

ence Anthony v. Leeret, 105 N. Y. 591, 12 lant. Garner W. Penney and Percy Werner, N. E. 561. both of St. Louis, for respondent.

It is reasonably plain that any other rule

would in actual practice have the effect of FARIS, J. (after stating the facts as making an employer an insurer of the safety above). The sole point to be ruled is the cor- of an employé. This for the reason that the rectness of the trial court's action in instruct- conduct of the master's business would othering the jury to find for defendant at the wise be subjected to shifting rules of alleged

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