Dennig v. Meckfessel. equity alone has jurisdiction. Undoubtedly the property is held as security, but, defendant having paid nothing as an indorser, is not yet in a position to share therein. On payment of the judgment in this case he will be entitled to an undivided interest in the property; and the trial court very properly suggests that the execution can be so controlled as to protect his interest in that regard. But at the trial defendant had paid nothing on his indorsements and had no legal or equitable claim to the property and nothing to set off. "The right to contribution arises upon payment of the common burden; and he who so pays may recover from those jointly liable with him without waiting to realize upon property that may have come to his hands through such payment. The property will of course stand as security common to all in proportion to their contribution to the burden. "The surety is not barred from his remedy in contribution merely by the fact that he holds security, and there can be no set-off on account of the indemnity unless its value is ascertained, either by reducing it to money or otherwise,' Stearns on Suretyship, p. 494. The plaintiff, in an action for contribution, after having paid out his money is not compelled to wait until he can realize upon some collateral indemnity, while his co-surety has paid nothing. This would not make their burdens equal. [Williams v. Riehl, 127 Cal. 365, 371.]” The same ruling was made in Mosely v. Fullerton, 59 Mo. App. 143, by the Kansas City Court of Appeals. Broussard v. Mason, 187 Mo. App. 281, is not opposed to this view. The question of limitation was not involved. In that case Broussard, by fraud and chicanery, wrecked the principal, a Texas corporation, for which he and Mason were accommodation indorsers, and caused the default. He wrongfully converted the assets of the corporation, paid the debt, and, with unparalleled effrontery, came into Missouri and sued for contribution. "A surety cannot have contribution if the default resulted from his wrongful act." [32 Cyc. 285.] Broussard was president and manager of the corporation; he oc Dennig v. Meckfessel. cupied a relation of trust and confidence. Mason, being a stockholder, was entitled to an accounting for his interest in the corporation. Acts of 1919. III. Appellants further contend that by the proviso of Section 1315, Revised Statutes 1919, the cause of action "shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage therefrom is sustained and is capable of ascertainment." This proviso of the section was enacted and became effective May 12, 1919, and is prospective in its operation. The actions were barred before its enactment and the contention need not be considered. But, if this proviso were applicable, it is plain that by its terms the causes of action accrued when the obligations were paid, as the liability of each guarantor was then capable of ascertainment. The judgments are affirmed. Railey, C., concurs. PER CURIAM:-The foregoing opinion of HIGBEE, C., is adopted as the opinion of the court. All of the judges concur. ON MOTION FOR REHEARING. HIGBEE, C.-Appellants, in their motions for rehearing, contend that the payments of dividends by the assignees of the Furniture Company were, in legal effect, payments by one co-guarantor to other co-guarantors in reduction of the amount eventually to be recovered by way of contribution, and had the legal effect of stopping the running of the Statute of Limitations. This proposition was considered in Paragraphs I and II of the opinion. The second contention is that the Statute of Limitations is a special defense, and is not available on a general denial or general demurrer, and that the court erred in sustaining an objection to the introduction of evidence. The petition showed that the cause of action arose in one case on April 14, 1913, in the other on June 30, Dolph v. Maryland Casualty Co. 1913; the general assignment was made in February, 1915, and the final dividend paid March 22, 1920. The petitions were filed June 8, 1920. A special demurrer was filed in each case on the ground that the petition on its face showed the action was barred by the five-year Statute of Limitations, and overruled. Thereupon answers were filed specially pleading the statute. At the trial the court sustained an objection in each case to the introduction of any evidence, for the reason that the petition showed on its face the action was barred by the five-year Statute of Limitations. This was equivalent to a re-consideration and sustaining of the special demurrers. Plaintiffs, in order to avoid the statute, pleaded the assignment and the payment of dividends by the assignees, which we have held did not interrupt the running of the statute. In Burrus v. Cook, 215 Mo. 496, we held that the defense of the statute might be raised by a special demurrer. On page 503, LAMM, J., said: "And, if the cause of action is such that it may be obviated by some exception in the statute, the facts stated in the petition should show such exception. In other words, the exception relieving plaintiff from the statute should be pleaded by him." This was affirmed in an opinion by WHITE, J., in Am. Radiator Co. v. Plumbing & Heating Co., 277 Mo. 548, 552, 211 S. W. 56. Such an exception not being pleaded, there was no error in the ruling of the court. The motions for rehearing are overruled. Railey, C., not sitting. PER CURIAM:-The foregoing opinion of HIGBEE, C., is adopted as the opinion of the court. All of the judges concur, except White, J., not sitting. CLIFFORD M. DOLPH v. MARYLAND CASUALTY COMPANY, Appellant. Division Two, April 7, 1924. 1. JUDGMENT: Conclusiveness: Indemnity Insurance. A final judg. ment between the same parties in a former action is conclusive of Dolph v. Maryland Casualty Co. all matters decided by it or that might have been litigated therein, but it is not conclusive of any other fact which it was unnecessary to prove in connection with the matter determined; and where the causes of action are different the judgment is conclusive only of the matters that were in fact litigated in the former action. In an action against the owner of an eight-story building brought by an electrician, who, in an attempt to discover what had caused the south elevator of a shaft to stall, was injured by the descent of the counterweight of the adjoining north elevator, a judgment determining that the negligence of the operator of the north elevator was the cause of the injury was not a decision that an indemnifying accident insurance policy issued to the owner did not cover the south elevator, nor was it necessary to prove any other fact bringing the injury within the terms of the policy, which is the cause of action sued on by said owner in this case. 2. INSURANCE: Ambiguities in Policy. Ambiguities in an indemnifying accident insurance policy must be resolved against the insurer, and the insured must be given the benefit of doubtful constructions. 3. 4. : -: Ordinary Repairs. An indemnifying policy which does not cover accidents to persons making additions or alterations or extraordinary repairs "except ordinary repairs of such elevator or elevator plant" means that any one making ordinary repairs is covered by the terms of the policy; but if the repairer, in making ordinary repairs on the machinery, or on the plant, is injured, his injury does not come within the terms of the policy against which liability is insured unless it occurs in the manner covered by other terms of the policy. -: Shaft: By Reason of. In a space fifteen or sixteen feet long from north to south and seven or eight feet wide, two elevators, the north elevator and the south elevator, were operated from the first to the seventh floor of a building owned by plaintiff. In the space between the elevators were two counterweights, one for each elevator; each was a little heavier than the elevator it was used to balance, and descended as the elevator ascended. The south elevator was stalled at the first floor, and an electrician got down in the pit to see conditions at the bottom, but before doing so told the operator of the north car not to go to the seventh floor, but stop at the sixth, so that the counterweight would descend only to the second floor; he got into the pit under the north car, and crawled through the space where the counterweight of the north car worked, to get under the south car, and while he was in the space in which the counterweights worked the operator of the north elevator ran it to the seventh floor, and its counterweight 5. 6. Dolph v. Maryland Casualty Co. descended on him, and caused an injury for which he recovered a judgment for damages against the owner of the building. A policy -issued by defendant insured said owner "against loss from the liability imposed by law upon the assured for damages on account of bodily injuries accidentally suffered by any person while in, or entering, or leaving the south elevator or hoist, or by reason of the existence of the well, shaft, or hoistway of said elevator or hoist, or the appliances, attachments or appurtenances contained therein, or the machinery directly connected therewith," but the policy further recited that it "does not cover accidents to or caused by any person while making additions to, or structural alterations in, or extraordinary repairs upon, any elevator or elevator plant, unless written permission is granted by the company specifically describing the work, except that ordinary repairs of such elevator or elevator plant may be made without such permit." Held, first, that there was but one shaft, and the contract cannot be restricted to the south hoistway and appliances therein; second, that the injury was caused "by the existence of the shaft," although the negligence of the operator of the north elevator, in permitting its counterweight to descend, was the immediate cause of the injury; and, third, the insured having paid the judgment rendered against him in favor of the electrician, is entitled to recover on the indemnifying policy the amount of the judgment on the day he paid it, plus six per cent interest from said date. : : Shaft of Elevator: Meaning. The words of an insurance policy indemnifying the insured against damages recovered by any person injured "by reason of the existence of the well, shaft or hoistway" of an electric elevator must be interpreted in the way in which they are ordinarily understood, and the word "shaft" used in such a contract must be understood as the parties thereto and persons acquainted with such an appliance would understand it; and although there were two electric elevators and a space between them in which the counterweights descended as they ascended, the "shaft" must be interpreted as one shaft where experienced workmen, as shown by their testimony, understood the space occupied by both elevators as one shaft, and not two. : : By Reason of: Proximate Cause. The words "by reason of" used in an insurance policy indemnifying the insured against damages for an injury accidently suffered by any person "by reason of the existence of the well, shaft or hoistway" of an elevator, is synonymous with "on account of" or "in consequence of," and the clause embraces the negligent act of the operator of the elevator in permitting its counterweight to descend upon an electrician who was at work in the shaft, for that was a negligent |