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a remittitur of $5,000 as of the date of the | 6. TAXATION (§ 489*) - ASSESSMENT - ENTRY OF ASSESSMENT. judgment in the trial court, the judgment will be affirmed for $10,000 and interest at 6 per cent. from the date of the judgment; otherwise it will be reversed and the cause remanded for a new trial.

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When a taxpayer who holds the legal title to a solvent note pledges it to secure his own debt, he cannot deduct from the amount of the note his debt, and taxation upon the full amount is not double taxation.

City of St. Louis added omitted property, the
Where the board of equalization of the
fact that the record did not show the special
class of property to which the omitted property
was added did not invalidate the assessment.
[Ed. Note. For other cases, see Taxation,
Cent. Dig. §§ 870, 871; Dec. Dig. § 489.*]

Appeal from St. Louis Circuit Court; J.
Hugo Grimm, Judge.

Action by the State, on the relation of Edmond Koeln, Collector, against the Title Guaranty Trust Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

This is a suit for personal taxes in which judgment went for the plaintiff.

At the assessment of June 1, 1910, the defendant returned to the assessor an assessment list or "tax return" showing the following items:

Class.

Fifth.
Sixth.

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Money on hand.... $ 12,735.71
Money deposited in
bank or other safe
place

173,620.31

$185,356.02

of all solvent notes
secured by mort-

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 104-114; Dec. Dig. § 47.*] 2. TAXATION (§ 351*)-PROPERTY SUBJECT TO Eighth. Aggregate statement TAXATION.

Where a trust company deposited notes amounting to $549,000 to secure its bonds amounting to $500,000, and defendant purchased

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

but is subject to taxation only upon the equity amounting to $49,000.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 594; Dec. Dig. § 351.*] 3. TAXATION (§ 597*)-TAX SUITS-APPEALREVIEW.

In an action by the collector to recover personal taxes, the Supreme Court on appeal is not bound by the record of the board of equalization, but must go beyond the bare record entries and ascertain the real proceedings had by the board; the record of the board not being

conclusive as in certiorari.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1219; Dec. Dig. § 597.*] 4. TAXATION (§ 467*) - ASSESSMENT - POWER OF CITY BOARD OF EQUALIZATION.

Rev. St. 1899, p. 2562, art. 25, § 3, provides that all laws requiring any officer of any county to perform any duty, service, or trust shall include all corresponding city officers named in the charter and scheme of separation for the government of the city and county of St. Louis. By Laws 1903, p. 253 (Rev. St. 1909, § 11,407), the board of equalization of the county of St. Louis was given power to assess omitted property. Held, that the giving of such power to the county board likewise conferred it upon the city board of equalization.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 831-836; Dec. Dig. § 467.*] 5. TAXATION ($ 482*)-ASSESSMENT ASSESSMENT OF OMITTED PROPERTY NOTICE WAIVER.

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Where the board of equalization of the city of St. Louis, in adding omitted property, failed to give the notice required by Rev. St. 1909, § 11,407, the taxpayer who appeared before the board cannot defeat the assessment on the ground of want of notice; his appearance having waived it.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 854-857; Dec. Dig. §.482.**]

gage or deed of
trust

Aggregate statement

of all

solvent

bonds, whether

state,

county,

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Tenth.
Subject to state, school and city tax...... $680,060.00

made on the record of the board of equaliza-
On April 1, 1911, the following entry was
tion:

are

"On motion, the board proposed to increase the assessment of the following." Then enumerated a number of different names, among which is included "the Title Guaranty Trust Company, $680,060.00, proposed to increase to $2,500,000.00.".

The records of the board read in evidence show that Messers, Rohan, Allen, and Gottlieb appeared before the board in behalf of the defendant on April 5, 1911, and furnished to the board evidence on the question of defendant's taxable property. On April 8th following a committee representing defendant again appeared before the board. On April 15, 1911, the following entry was made in the records of the board:

"On motion, the board increased the personal assessment of the Title Guaranty Trust Company from $680,060.00 to $861,000.00."

No notice of the action of the board taken on April 15, 1911, was given to defendant.

The evidence before the board of equalization and on the trial showed that the item of $93,597.34 was the face value of the solvent 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 the payment of bonds. Such evidence also bonds.to 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 amount of the notes and the amount of bonds they were deposited to secure. The board, after hearing the evidence, added to the total of the original assessment list as returned by the defendant the full amount of the hypothecated notes, making $680,060+$549,385.56 $1,229,445.56. The board then estimated the total value at 70 per cent. of the latter sum, and fixed its total assessment in round numbers at $861,000 a net increase of $180,940 of the total assessment. The total rate of taxation for all purposes is $2.22 on the $100 of valuation.

Wilfley, Wilfley, McIntyre & Nardin, of St. Louis, for appellant. Edward W. Foristel and Frank H. Haskins, both of St. Louis, for respondent.

ROY, C. (after stating the facts as above). [1, 2] I. The Lincoln Trust Company acted under the provisions of the eighth clause of section 1124, R. S. 1909, when it placed the $549,385.56 in notes in the Union Trust Company to secure the bonds issued by the Lincoln Trust Company. Appellant truly says that the bonds thus issued were not exempted by that or any other law from taxation. It further says that to tax both the bonds and the notes would be double taxation. We think not. There is no law which enables a taxpayer to deduct the amount of his debts from the amount of his taxable property. When a taxpayer holds a solvent note and places it as collateral to secure a note made to another party by him, he is subject to taxation on the full value of such collateral note, because the law taxes his property ignoring his debts. The Lincoln Trust Company was taxable with the full value of the pledged notes; it having no power to deduct the bonds which it had sold against those notes. But the defendant does not stand in the shoes of the Lincoln Trust Company. The latter company did not sell to the defendant the entire interest in the notes. It sold only the equity in them, amounting to $49,385.56. As between all the parties concerned in the notes or bonds, the defendant owns only the equity in those notes, while $500,000 of their value must be applied to the payment of the bonds. So far as the facts appear, defendant did not buy the notes and assume to pay

[3] II. The records of the board show merely an increase in the valuation of the property already assessed. At least that is the effect of the entry. But the fact is that the board added to the list what it adjudged to be omitted property, and then reduced the total amount by 30 per cent. It is our duty to go beyond the surface of things and to discover what the real facts were. This is not a proceeding by certiorari, where the court must take the record of the board as conclusive, as in State ex rel. v. Baker, 170 Mo. loc. cit. 203, 70 S. W. 470.

In State ex rel. Cunningham, 153 Mo. 642, 55 S. W. 249, it was held that the board had no right to add other property to the list under the disguise of "increased valuation." In that case it was held that the board had no power to add other property to the list. The law on that question has since been changed (State ex rel. v. Baker, 170 Mo. 383, 70 S. W. 872); but we still say that the board cannot add to the list under such disguise property which is not legally taxable against the defendant.

III. In State ex rel. v. Lesser, 237 Mo. 310, 141 S. W. 888, the taxpayer had, in due form of law, been assessed with stock in a foreign corporation. In a suit against him to collect the tax, based on such assessment, this court held that such stock was not legally subject to assessment against him. In that case the property assessed against the taxpayer was owned by him, but not subject to assessment. In this case the $500,000 in the notes was not owned by the defendant. Surely the court has the same power to furnish relief in this case as in the other.

[4] IV. Section 3 of article 25 of the "laws specially applicable to the city of St. Louis," as it appears on page 2562, R. S. 1899, provides that:

"All laws requiring any officer of any county to perform any duty, service or trust, under the laws of this state, shall include all corresponding city officers named in the charter and scheme of separation for the government of the city and county of St. Louis."

Many sections of those laws specially applicable to St. Louis have been published in the revision of 1909 in various different subdivisions of that revision. Section 3, above referred to, does not appear in that revision, so far as we have been able to discover, but it is still the law, because it has never been

the date of the judgment heretofore entered in this cause by the circuit court of the city of St. Louis, together with all costs of suit. WILLIAMS, C., concurs.

PER CURIAM. The foregoing opinion is adopted as the opinion of the court. BROWN and WALKER, JJ., concur. FARIS, J., concurs in result.

repealed. It appears as section 408, on page 159 of Rombauer's Revised Code of St. Louis. Prior to 1903 neither the county boards of equalization, under section 11,404 of the Rev. Stat. 1909, nor the board of equalization of St. Louis, under section 24 of article 5 of the city charter, had power to add omitted property to the assessment. By the act of 1903, now section 11,407, the county board was given such power. Every reason which 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 the city board of equalization, and gives it power to assess omitted property.

CO. (No. 16696.)

(Supreme Court of Missouri, Division No. 2. July 14, 1914.)

[5] V. Said section 11,407 provides that
when the board shall add any property to
the books, it shall serve notice on the owner,
stating the kind and class of property, and
the value, and stating the time and place
when the owner may be heard. It must be
conceded that the notice in this case did not
state that any property had been added to
the books. The language of the notice very
clearly indicates that it was given in ac-192; Dec. Dig. §§ 101, 102.*]
cordance with section 24 of article 5 of the
charter above mentioned, which only con-
templated an increase in the assessment of
property already on the books.

1. MASTER AND SERVANT (§§ 101, 102*)—MAS-
TER'S LIABILITY-PLACE FOR WORK.
A master has the right to arrange his own
premises in any way which suits his conven-
ience, and, as to a servant thereon in the line
of his duty, injured by stumbling over a foot or
mud scraper at the entrance of the office, was
only required to furnish him a reasonably safe
place of ingress and egress.

1 Cooley on Taxation (3d Ed.) p. 782, says: "Yet by appearing before the board he waives all objections to the absence or insufficiency of notice."

It was so held in State ex rel. v. Baker, 170 Mo. loc. cit. 383, 390, 70 S. W. 872.

[6] VI. The fact that the record of the board did not show the special class of property to which the omitted property was add

ed does not invalidate the action of the board.

Had the record entry shown that the omitted property was added to the list of solvent notes secured by deeds of trust, it would not have made the result in any way different, so far as the defendant is concerned. The form of the entry was merely an irregularity not affecting the rights of the defendant.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184,

2. MASTER AND SERVANT (§ 235*)-CONTRIBUTORY NEGLIGENCE-PLACE FOR WORK.

Plaintiff, on his master's premises in the line of his duty and somewhat familiar therewith, and who on leaving the office in broad foot scraper outside of the entrance to the ofdaylight and in an open space failed to see a fice, permanently fixed and plainly visible, and tripped over it to his injury, was, as a matter of law, guilty of contributory negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. § 235.*]

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by William T. McGinnis against the Hydraulic Press Brick Company. Judgment for defendant, and plaintiff appeals.

firmed.

Af

Action for personal injuries, tried in the circuit court of the city of St. Louis. At the close of the plaintiff's evidence the court nisi instructed the jury that, upon the proof adduced, plaintiff was not entitled to recover. Thereupon plaintiff took an involuntary nonsuit with leave to move to set same aside. Thereafter, his motion to set aside this nonsuit being by the court overruled, he ap pealed.

We pass no opinion on the process by which the board added the full amount of the notes which were placed as such security and then fixed the assessment at 70 per cent. of the total amount. We do find the fact to be that the interest of the defendant in the 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, as 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 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 reFor 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:

"(1) In placing and maintaining the mud scraper, by which plaintiff was caused to fall, of the size and character and in the location above stated; (2) in permitting the iron portion of said scraper to become bent over as stated, and in permitting same to remain in that condition; (3) in failing to furnish plaintiff a reasonably safe place to pass in and out of said building in the course of his employment, because of the presence of said mud scraper as then and there maintained by defendant."

The answer was: (1) A general denial; (2) a plea of assumption of risk; and (3) contributory negligence of the plaintiff. The locus in quo is graphically shown by the below picture:

line. In front of defendant's building all the way out to where the construction work was going on, about 26 feet, there was a uniform pavement of brick without any curbing or breaks. This building was constructed with rooms on either side of a central hall. The entrance to the building was by three or four steps, and on either side of the approach to these steps there was a mud scraper intended for use of persons entering the building in scraping the mud from their shoes. These mud scrapers, one upon the north and one upon the south of the entrance, were about 7 feet apart, and were about 10 inches long, 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 81⁄2 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 24 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 had 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 3% inches southwest line of Kingshighway. In other words, wardly from the wooden post to which it

close of plaintiff's evidence. In other words, upon the facts shown, should the case have gone to the jury? If a case was made by plaintiff, we should reverse; if not, we must affirm.

Plaintiff had been employed by defendant some several years. But the office building of defendant had been in use by it only some four or five months prior to the casualty by which plaintiff was injured. He had been in this building only some two or three or four times before this; he tells us he does not remember definitely the number of times. He was hurt about 7:30 o'clock in the morning, in the early part of October, in broad

poses, though it may have been a little cloudy"; of this he is not sure.

The mud scraper which caused plaintiff's hurt was 10 inches long 81⁄2 inches high originally, but bent down to 5 inches when plaintiff was hurt. It was on a board set into the brick payment, with which this part of defendant's premises was paved. This board was originally 1% inches thick, but since the iron scraping part was bent down the whole scraper when plaintiff got his hurt, looked at from above, was nearly 5 inches wide on top. It was placed on the premises of defendant, inferably as an appliance of cleanliness. To be of use in the intended behalf, it must then needs be about or near the entrance to defendant's office; a foot or mud scraper for the feet of entrants to the office would obviously subserve no scintilla of its intended office if located at a window, or in the rear yard, or upon the fire escape.

was fastened. Plaintiff was an employé of the defendant, whose duties, amongst other things, it was to go to different localities in the city where defendant was delivering brick for paving purposes, and to there receipt for the brick as it was delivered by the wagons. On the day before his injury he had been receiving brick at a locality on Penrose street, and had been instructed by his immediate superior to call up the office to ascertain what job he was to go to the next day. This the plaintiff tried to do, but did not succeed in getting connection with the office by phone, and so on the next morning, having plenty of time, he went down to the office building in question to see Mr. Pleasant, | daylight, and on a bright day, plaintiff “supthe shipping clerk, from whom he was to receive the instructions as to where to go to work. This was a new building, about four or five months old, and Mr. McGinnis had been in it about three or four times prior to the occasion in question. He went into the building about 7 o'clock in the morning and got his instructions from Mr. Pleasant, and then went out of the building to go to the locality where he was to work. As he came out the door at about 7:30 o'clock, on what plaintiff says he "supposes was a bright morning maybe a little cloudy," he noticed that between the building and a hole in the street where the viaduct work was going on-a distance of about 26 feet-a wagon was standing from which lumber was being unloaded, and driving north just in front of the building, and within about 21⁄2 feet of the lowest step, was one of defendant's loaded brick wagons. Mr. McGinnis' destination from the building was toward the north along Kingshighway, and as he came out of the building and down the steps he saw that there was room for him to pass between the steps and the wagon driving north, but as he started northwardly his right foot caught under the horizontally projecting iron portion of the northernmost mud scraper, causing him to fall forward to the street, whereby his wrists were badly hurt, and he suffered the injuries for which he here sues. He was unable to arise, but was helped up by some men who saw him fall, and was sent by defendant to a doctor, and thence to his home. As stated, plaintiff had been in this building three or four times before, but had not, he swears, noticed these mud scrapers. One witness testified that about two weeks before the plaintiff's injury witness had heard defendant's superintendent tell one of its employés to straighten up this bent-over mud

scraper.

Obviously, regard being had to the testimony of plaintiff that he never saw either of the mud scrapers till he tripped and fell over the north one, it can make no difference whether the iron part of this scraper was bent down or not. Its condition in this behalf had nothing to do with the injury to plaintiff, so far as the finite mind can see. If he had known it was there, from having theretofore observed it and, so knowing its location, assumed its being in repair, and had, so assuming, been injured from its being out of repair, there would be something in this contention. As the facts are, we drop out of our discussion the physical condition of disrepair of the scraper, and come to look to the only remaining debatably tenable contention that the maintenance of it at all, in the place it was set, was a negligent act.

[1] It is said in 3 Labatt's Master and Servant, § 939, that:

"An employer has a right to arrange his own premises in any way which suits his convenience. Anthony v. Leeret, 105 N. Y. 591, 12

Kinealy & Kinealy, of St. Louis, for appelGarner W. Penney and Percy Werner, N. E. 561. both of St. Louis, for respondent.

lant.

FARIS, J. (after stating the facts as above). The sole point to be ruled is the correctness of the trial court's action in instructing the jury to find for defendant at the

It is reasonably plain that any other rule would in actual practice have the effect of making an employer an insurer of the safety of an employé. This for the reason that the conduct of the master's business would otherwise be subjected to shifting rules of alleged

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