author: BLAIR, C. PER CURIAM.

text:
    EXCELSIOR PRODUCTS MANUFACTURING COMPANY v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    December 31, 1914.
    1. MASTER AND SERVANT: Scope of Employment: Laborers Living in Bunk Cars: Escape of Fire: Washing Clothes: Not Necessary Incident of Living. Railroad laborers, wlio while off duty and not in charge of an employee of the road, built a fire on the right of way and near the bunk cars in which they lived, for the purpose of heating water to wash their clothes, were not acting within the scope of their employment so as to render the railroad liable for their negligence to the owner of adjoining property destroyed by fire communicated from the one they built.

      2. NEGLIGENCE: Railroads: Combustibles on Right of Way: Evidence. Where there is no evidence that any combustibles on the defendant railroad’s right of way became ignited and communicated fire to the plaintiff’s property, defendant’s negligence, if any there was, in permitting combustibles to accumulate was not the proximate cause of the plaintiff’s damage.
    3. NUISANCE: Bunk Cars for Laborers: Adjacent Property: Loss by Fire. A railroad company did not- create a nuisance by placing bunk cars, in which its laborers lived, on its right of way adjacent to the property of the plaintiff, and accordingly it is not liable on that ground alone for loss caused by a fire kindled on the right of way by the laborers to heat water to wash their clothing, and communicated to the plaintiff’s property.
    4. NEGLIGENCE: Railroads: Dry Vegetation on Right of Way: Statutes: Loss by Fire. Sections 3150 and 3151, R. S. 1909, relating to fires set out by engines and those communicated by the ignition of dry vegetation negligently permitted to remain on the right of way, do not render a railroad liable for damage caused by a fire kindled on its right of way by its laborers, outside the scope of their employment, and communicated to adjoining property without the ignition of trash or rubbish on the right of way.
    5. -: Escaping Fire: Liability of Owner of Premises. The owner of premises who discovers fire thereon, for the origin of which he is not responsible, is hound to use ordinary care to prevent such fire spreading to adjoining property.
    6. MASTER AND SERVANT: Notice: Scope of Employment. The knowledge of railroad laborers who, while acting outside the scope of their employment, kindle a fire on the right of way, is not to be imputed to the -company so as to bind it to the use of due care to prevent the spread of fire.
    7. NEGLIGENCE: Master and Servant: Duty of Passenger Conductor Who Sees Fire From Train. Where a passenger conductor saw on the right of way a fire burning under a wash kettle, in charge of laborers and not apparently dangerous to neighboring property, the company cannot be held liable, on account of his failure to stop his train and extinguish the fire, for any loss that may have resulted from its escape later.
    Appeal from Jackson Circuit Court.- — Hon. J. H. Slover, Judge.
    Reversed.

      Gyms Grane and George J. Mersereau for appellant.
    (1) On the whole case plaintiff was not entitled to recover, (a) Defendant is not liable for fire set ont by its employees in furtherance of their own personal business. 26 Oyc. 1536, 1539-D; 20 Am. & Eng. Ency. Law, p. 526; Morrier v. Railroad, 31 Minn. 351, 47 Am. Rep. 793; Railroad v. Fuel Go., 152 Fed. 920; Railroad v. Shields, 47 Ohio, 387'; Slater v. Thrasher Go., 97 Minn. 305; Railroad v. TIarvey, 144 Fed. 806; Garretson v. Duenckel, 50 Mo. 104; Snider v. Railroad, 60 Mo. 419; Walker v. Railroad, 121 Mo. 584; Farber v. Railroad, 32 Mo. App. 378; Cousins v. Railroad, 66 Mo. 577; Hartman v. Mnehlebach, 64 Mo. App. 574; Milton v. Railroad, 193 Mo. 56; Stringer v. Railroad, 96 Mo. 299; Sherman v. Railroad, 72 Mo. 62; Farber v. Railroad, 116 Mo. 81. (b) Defendant was not guilty of negligence after the fire was started on the right of way in failing to extinguish it. Kenney v. Railroad, 70 Mo. 252. (c) The charges of negligence contained in the petition considered in detail, under none of them is deféndant liable. (2) (a) The court erroneously submitted this case to the jury on an instruction as to the measure of damages only, (b) The court erred in refusing defendant’s instructions withdrawing' from the jury’s consideration each separate charge of negligence, (c) The court erred in refusing defendant’s instruction 8-D. The evidence was not sufficient to make ont a statutory fire case much less one at common law. Manning v. Railroad, 137 Mo. App. 631; Gibbs v. Railroad, 104 Mo. App. 276; Markt v. Railroad, 139 Mo. App. 456; Foster v. Railroad, 143 Mo. App. 547.

      Joseph P. Fontron and Fyhe & Snyder for respondent.
    (1) The placing and maintaining, without necessity, in an open and sparsely settled country territory, of the string of bunk or living cars in immediate and close proximity to plaintiff’s property, inflammable and combustible, at a point where rubbish, trash, loose bark, sticks and scraps of wood were collected or were likely to accumulate, in which bunk cars these irresponsible employees were kept and maintained, as a part of the consideration of their employment, as is disclosed in evidence, where they carried on the ordinary, customary and usual activities and work connected with daily living, such as cooking, washing, with the necessary and constant building of fires therefor, whether in, around or about said cars, with the continuing menace of the danger of escaping and flying sparks in the face of customary and usual south winds which generally prevail during the month of April in each year in this climate, whether said sparks be blown from smokestack or from fires built on the adjacent right of way, constitutes a nuisance, for the maintenance of which defendant was negligent, and for resulting damages occurring by reason of its existence, the defendant is justly liable. Scalpino v. Smith, 154 Mo. App. 534; Berger v. Gas Light Co., 60 Minn. 296. While no such case exactly like this one has been pleaded or proved that we know of, yet on principle other cases sustain us in the above contention. Vaughan v. Menlove, 3 Bing. N. Cas. 468, 32 E. C. L. 208; Railroad v. McGrath, 160 S. W. 444; Rolfe v. Railroad, 69 N. EL 476; Harrington v. Railroad, 143 Mo. App. 418; Marine Ins. Co. v. Railroad, 41 Fed. 643; Pratt v. Railroad, 139 Mo. App. 502. The fact is, the proximate cause of the setting out of the fire was the placing of the dangerous agent in close proximity to plaintiff’s property in the first place. If the cars and those in them had not been thus constituted a nuisance to plaintiff’s property, manifestly the little camp fir© never would have been set out at that place. Ross v. Traction Co., 224 Pa. St. 86; Pratt v. Railroad, 139 Mo. App. 502. Counsel for appellant asserts that defendant is not liable for fire set out by its employees in furtherance of their own personal business, and we take no exceptions to what they have to say with regard to the general law upon that proposition, but say that the cases cited by them under that head are not in point or decisive of this case in the light of the evidence. (2) After these negro laborers had started the fire and the danger from said fire was apparent, and after defendant’s conductor Courtway had seen the fire, and while Stiles was there at the line of bunk cars, no one representing the Railroad Company attempted to put the fire out. Elliott on Railroads, sec. 1229. It has been held, however, that though the servants and agents of a railroad company may have been acting without the scope of their employment in kindling the fire, the company may yet be liable, if under the circumstances negligence in failing to prevent the spread of a fire can be imputed to it. Railroad v. Ford, 65 Ark. 96; Morier v. Railroad, '31 Minn. 351; 13 Am. & Eng. Ency. Law, p. 440. (3) We'think that under the evidence in this case it was proper to submit to the jury the question as to whether or not the fire was set out by the men under the permission, sanction or understanding or general custom of the defendant. Railroad v. Nitsche, 126 Ind. 229; Grant v. Railroad, 94 Mo. App. 312; Lewis v. Schultz, 98 La. 341.
   BLAIR, C.

This appeal is from a judgment for $35,000 for damages by fire to plaintiff’s factory and raw material.

Plaintiff manufactured excelsior, and on its lot adjoining defendant’s right of way had its factory and had collected a large quantity of cottonwood which was stacked north of and near-plaintiff’s private switch track which was on the south part of its lot. South of this was the north line of defendant’s right of way and near that line defendant had a switch track on which it had placed some “bunk” cars in which were housed some laborers who were engaged in constructing for defendant a concrete subway some hundreds of yards west of these cars. One Sunday morning, in April, one of- these laborers built a fire on the right of way south of the “bunk” cars for the purpose of heating water to wash clothing. A south wind was blowing and soon plaintiff’s wood was discovered to be on fire and in a short time the wood and factory were in flames.

The specific allegations of negligence are as follows :

“Plaintiff further states that at said time one of two alternatives was true, and plaintiff is ignorant of which alternative was true, viz: that either said employees or concrete men were under the direct charge, care, protection and direction of a foreman, Oscar Carrington, and a subforeman or straw boss, whose name was Frank Stiles, whose general duties were to care for, oversee and watch over said cars and said employees, and to see that nothing was done by said employees in the ordinary acts of living in or about said cars that would endanger the property of this plaintiff and others having property along the right of way of defendant; or said employees were carelessly and negligently permitted by defendant to be and remain and live in and about said cars without being placed in charge of any foreman, overseer or guard; that on said 11th day of April, 1909, said string of cars was yet standing in said place on said side track south of the cord-wood piled along on plaintiff’s ground some thirty feet west of the factory of the plaintiff; that said day was Sunday, and the wind at said time was blowing at a high velocity from the south — from the direction in which said cars stood, toward the property and cordwood of this plaintiff; that at said time the said cars were occupied and used by the said employees of the defendant aforesaid, and said cars and employees were then and there in the charge and care of the defendant’s said foreman, or straw boss, Frank Stiles, as aforesaid, or were carelessly and negligently permitted by defendant to be and remain in and about said cars without being placed in charge of a foreman, overseer or guard.
“Plaintiff further states that on said day and at about 10 o ’clock a. m. of said day, one or more of the said employees or concrete men, the agents and servants of the defendant, whose names are now unknown to plaintiff, while in the employ of defendant and while in the pursuit of the ordinary duties of living in and about the said bunk cars, as provided for by defendant, carelessly and negligently built and caused to be built a fire upon the ground along the side of the east car of said string of cars belonging to defendant, for the purpose of heating some water over said fire, and built said fire within a small circle of a single tier of bricks, making said fire of wood; that said place was a dangerous place in which to build a fire as said Frank Stiles and said employees knew or in the exercise of care and caution should have known; that the water was heated by placing a bucket of water and resting same upon said bricks and the blaze of said fire arose at said time high about said bucket; that the defendant had carelessly and negligently permitted an accumulation of straw and debris on said right of way under said car and over to the property of the plaintiff; that at said time said fire blazed up fiercely and the said high wind catching said flame and sparks, caused said sparks to be passed and carried and communicated across and to the said trash and debris and through the air across the intervening distance between said car to plaintiff’s property, causing plaintiff’s property to become ignited and burned; that the said employees of the defendant at no time after building said fire and when they saw said fire threatening and dangerous to plaintiff’s property, made any effort to extinguish said fire or to prevent said fire from spreading and being carried across the said right of way to the said cordwood of the plaintiff; that said fire spread through said cordwood with great velocity and communicated to said factory belonging to plaintiff, entirely destroying said factory and destroying said cord-wood.
“Plaintiff further states that it would not have suffered said loss by said fire if it had not been for the carelessness and negligence of the defendant, its agents and servants as aforesaid, in this, to-wit:
“1. That it was careless and negligent of the said defendant, its agents and servants, to place said living or bunk cars in and upon said sidetrack in such close proximity to plaintiff’s property, as to make it highly dangerous to plaintiff’s property to have said living cars so close to said plaintiff’s property, in view of the necessity of said employees or said section men to do and perform the ordinary and customary duties connected with living, such as building fires for preparing meals, heating water and other necessary things for which fires are built in ordinary modes of living; and that it would so be highly dangerous and hazardous to plaintiff’s property for said living or bunk cars to be so placed and used, was known to defendant, its agents and servants, or in the exercise of ordinary care and prudence could have been known by it and them.
' ‘ ‘ 2. That it was careless and negligent in said defendant and its said subforeman, Prank Stiles, then and there in charge of said employees and said cars, to permit said employees to build said fire at said time and place, in a position so near to plaintiff’s property and in the face of such a high, wind, making it a dangerous place in which to build said fire, all of which was well known to said Prank Stiles and to the said employees, or in the exercise of ordinary care and prudence could have been known; or by the other alternative, if defendant had no foreman, overseer or guard over and in charge of said employees, it was careless and negligent in not placing a foreman, overseer or guard over said employees in charge of them to prevent them from setting out or building fires alongside of or near plaintiff’s property to endanger same.
“3.' That it was careless and negligent on the part of the defendant, its said agents and servants, the said subforeman and said employees, to permit and allow said fires so built tipon its said right of way, to be blown, spread and escape from defendant’s said right of way to plaintiff’s property.
“4. That it was careless and negligent in the said defendant and its said agents and servants, the said subforeman and said employees, in failing to extinguish said fire after it had been built upon said right of way and in failing to prevent its spreading after they saw or in the exercise of ordinary care and judgment should have seen that said fire was exceedingly hazardous and dangerous to plaintiff’s property.
“5. That it was careless and negligent on the part of the defendant, its agents and servants who had charge of the said tracks and right of way of defendant at said place, to permit or allow rubbish, trash or debris to gather and accumulate upon said tracks and right of way, whereby fires set out by said employees of defendant could spread and communicate from said right of way to the said property and cordwood of the plaintiff, and that such accumulation of rubbish, trash and debris would be dangerous to plaintiff’s property in case of such a fire, was well known to the defendant, its agents and servants, or in the exercise of ordinary care and prudence, could have been known by them.”

The answer was a general denial.

The evidence tended to show that on the Sunday morning when the fire occurred the wind was blowing strongly from the south and the weather had been clear for several days; defendant’s bunk cars, occupied as living quarters by some fifteen laborers employed on week days in constructing a concrete subway 600 or 800 feet west of the cars, had stood for some weeks upon a switch track near the north boundary of defendant’s right of way and some six' or eight feet south of plaintiff’s private switch track on its lot; north of this last mentioned track plaintiff had piles of cottonwood intended for use in the manufacture of excelsi- or; there is some evidence that there was some loose wood near the north side of the private track; on Sunday morning, April 11, some of the laborers built a fire for the purpose of washing their clothing;' this fire they built between the bunk cars and defendant’s main line track at a point about 25 feet from the nearest of plaintiff’s wood and about 50 feet .west of its factory; pieces of bark and wood were used in building the fire and it was built around a bucket or can placed on bricks and filled with water; it appears that this fire was kindled probably about 9 a. m. and that some of the laborers were seen around it; 30 or 40 minutes later fire was discovered in the wood about 25 feet north and when discovered was nearly or quite beyond control; in a very few minutes the factory caught and was quickly consumed.

The men did not work on Sundays and were not on duty on the Sunday morning in question and had not been since six o’clock p. m. the preceding Saturday; they were free to come and go as they pleased except while at work on the siibway on week days; they paid for their own provisions and paid their cook, the amounts being prorated and paid out of their wages by the foreman; there is some evidence that the stoves in the cook cars were available for heating water for washing, but it does not appear they were so used nor does it appear that any arrangement for washing or laundry work was made by defendant nor that the men made any joint arrangement concerning it; there is no evidence defendant furnished any untensils for that purpose or concerned itself with the matter further than that the foreman testifies he directed that no fire be kindled outside on April 11, his attention being drawn to this possibility by one of the men asking him on Saturday to buy him a cake of laundry soap.

The man designated as foreman superintended the work on the subway, but did not stay in or near the bunk cars at night or on Sundays, and there is no evidence defendant charged him with any duty of oversight except on the work on the subway. One Stiles, a carpenter, at times acted as “straw boss,” which term seems to mean (in this instance, at least) a sort of substitute foreman, selected by the foreman to act in the latter’s absence. Stiles slept in one of the cars, and there is some testimony he was in his car on the Sunday in question, though nd one testifies he saw him there or that Stiles saw the fire at any time or was himself seen about the cars that morning. There is no substantial evidence Stiles had any authority to superintend the laborers outside of the hours they were actually employed on the subway. One witness did testify that when Carrington, the foreman, was not present “they looked to” Stiles, adding: “There had to be somebody around there to govern them or the deuce would be to pay. There always was a white man there usually.” On motion of defendant’s counsel, plaintiff’s counsel consented to have this last quoted portion of the answer stricken out.

There was some evidence tending to slow that the men had done some washing on previous Sundays, but no evidence they had previously built a fire at the place the fire was built on the day the loss occurred. One witness testified that all previous fires had been built some distance south of the bunt cars, across the tracks therefrom. Another testified fires had previously been built “out on the tracks; that is, between the tracks.” The other witnesses added nothing to this. There were at least three tracks south of that on which the bunk cars stood — and perhaps others. The country was open — a house here and there. The switch track south of the main line tracks was used for oil cars and in making up trains.

As to the condition .of the right of way around and under the bunk car, one witness described it thus: “Well, there were a few dry weeds and a few green weeds and then some scraps of cordwood bark and little chunks of coal, and everything.” Another said the ground “was pretty well cleaned up around there.” The other witnesses were not questioned about it.

There was no testimony that debris on the right of way caught fire or that there was any fire on the right of way except that kindled by the men to heat water for washing.

I. The workmen were off duty and in kindling a fire to wash their clothing were not acting within the scope of their employment.

“A master is not responsible for any act or omission of his servants which is not connected with the business in which they serve him, though in general he is responsible for the manner in which they execute his orders and for . . .... . their negligence m selecting means by which the orders are to be carried out. In determining whether the particular act is done in the course of a servant’s employment, it is'proper, first, to inquire whether the servant was, at the time, engaged in serving his master. If the act was done while the servant was at liberty from his service and pursuing his own ends exclusively, there can be no question that the master is not responsible, even though the injuries complained of could not have been committed without the facilities afforded by the servant’s relations to his master. [Shearman & Redfield on Negligence, sec. 63.] ” [Garretzen v. Duenckel, 50 Mo. 104; Milton v. Railroad, 193 Mo. l. c. 55, 56.]

This principle has been applied to facts bearing considerable resemblance to those in this case. In the United States Circuit Court of Appeals for the Fourth Circuit, the case of Southern Railway v. Power Fuel Co., 152 Fed. 917, was decided. In that case the defendant had placed near plaintiff’s property bunk cars occupied by laborers engaged in building a trestle. One Ayrés, a subboss, who had, in the foreman’s absence, charge of the men while at work on the trestle, occupied one of these cars. Some of the negro laborers regarded Ayres as in charge at night in the foreman’s absence, but the evidence all showed (the court says) he was, outside of regular working hours, “a free man.” His car was provided with a kerosene lamp. On the night of the fire Ayres seems to have .been drunk, and when fire was discovered in his car was standing at the car window making no effort to subdue the fire. The car was filled with kerosene smoke and the bedding was ablaze. It was held that plaintiff could not recover because Ayres “was not engaged in performing any duty as an employee,” and defendant was, therefore, not liable, either under the common law or the South Carolina statute.

A case on the same facts (North River Ins. Co. v. Southern Ry., 93 S. C. 358) was instituted in the State court. The Supreme Court of South Carolina, on appeal from a judgment on a verdict directed for defendant, remanded the case on the ground that there was evidence in the record tending to show that Ayres was the agent of defendant and acting' foreman and in charge of the train at the time. Under a South Carolina statute railroads are liable for all loss resulting from fire originating on their right of way from the acts of employees, negligent or otherwise. The evidence is.not reported, simply the conclusion of the court as to its tendency to prove that Ayres was at the time on duty as defendant’s employee. It does not appear, therefore, what difference the evidence showed when compared with that in Southern Railway v. Power Fuel Co., supra.

In this case there is no substantial evidence that Stiles was in charge of the cars or had any duty to perform except while at work on the subway. The evidence in this case, in this particular, is strikingly like that reported in Southern Railway v. Power Fuel Co.

Clark v. Railroad, 129 Fed. 341, subsequently referred to, clearly affords plaintiff no support on the branch of the case now being considered. -There the ground of liability was the negligent failure to prevent the spread of fire after notice of its presence in ample time to have prevented loss. It did not turn in any sense on any relation to defendant borne by those who kindled the fire.

In McLaughlin v. Tie & Post Co., 119 Minn. 454, defendant’s foreman and another, by its direction, were driving a raft down a natural stream flowing through plaintiff’s lands, and it became necessary, at a point near plaintiff’s house, to remove from the stream a stump which interfered with their progress. To dry their clothing defendant’s employees then kindled a fire which spread and destroyed plaintiff’s timber, poles, etc. The court held that “the execution of the work intrusted by the defendant to its employees required'them to pass over the plaintiff’s land along the banks of the stream, and the defendant owed to the plaintiff the duty of exercising due care to prevent injury to the plaintiff’s land in the course of the work assigned to its employees. The building of the fire by the driver to dry his clothes was not, as a matter of law, a departure from the course of his employment, for it was incidentally connected therewith, and was made necessary by his going into the stream to remove the obstruction, which was a part of the work assigned to him.”

The court points out the distinction between that case and Morier v. Railroad, 31 Minn. 351, saying that in the Morier case the facts were “that the employees of the defendant were engaged in repairing its railroad track and were charged with no duty outside of it. They usually went to their boarding house for their dinners, but on the day in question they brought their dinners with them, and at noon left their work, went upon the right of way and built the fire, which destroyed plaintiff’s property, for the purpose of warming their coffee. These special facts distinguish that case from the one at bar. ’ ’

In like manner is this case distinguished from the McLaughlin case, and for stronger reasons. The Morier case has been criticized in Baxter v. Railroad, 73 Minn. l. c. 191, but that criticism was leveled at that part of the opinion which refused judicial notice that duties of section men included the extinguishment of fire on the right of way, in some circumstances. That criticism did not affect the decision in so far as it held that in kindling the fire the section men were not acting within the scope of their employment.

Nor is the washing of clothing by employees, for themselves, such a necessity of usual modes of living that it can be said that courts can say employment of the kind shown in this case includes it as an incident and as incidental to the employment. Such a view has been taken by some courts of eating, drinking and other absolute necessities, but none, so far as we discover, has applied such a rule beyond the actual necessities of living.

The cases in which servants have negligently left water running in lavatories provided for their use are not in point or of like character. They depend upon negligence in the use of conveniences furnished by the master, for both the control and use of which he is legally responsible.

There is no principle which justifies the conclusion that the men, in kindling the wash fire, were acting within the scope of their employment, and the judgment cannot be maintained on that ground.

II. There was no evidence that combustibles negligently allowed to collect on the right of way became ignited and thus communicated fire to plaintiff’s wood. As a ' consequence there is, of course, no support for the allegation that defendant’s negligence in permitting combustibles to accumulate was the proximate cause of the fire. In these circumstances the question whether there was substantial evidence of the negligent accumulation of combustible matter on the right of way need not be discussed.

III. The contention most strongly pressed by plaintiff’s counsel is that by placing the bunk cars where it did, occupied as they were, the existing circumstances considered, defendant created a nuisance which caused loss to plaintiff, and must, consequently, respond in damages.

In this connection plaintiff relies upon some facts of which there is no evidence and some others which in no way contributed to the loss. These must be eliminated. The debris on the right of way, even if it be assumed there was substantial evidence of a negligent accumulation of it, is negligible because it in no way contributed to plaintiff’s injury; nor does the fact, if it be a fact, that the bunk cars were furnished in part consideration of the services of the laborers add anything to plaintiff’s cp.se; nor is-there any evidence that the laborers were “irresponsible” in the sense in which counsel use the term; nor is there any evidence that fire used in the cars in cooking or otherwise contributed to the ignition of plaintiff’s wood; nor is there evidence of “constant building fires around . . . or about” the cars, nor of the building, previously, of any fire outside the cars at the place the fire was built April 11 or at any other place by which plaintiff’s property was endangered; nor is there any evidence that for any considerable time previous to the morning mentioned there had been any loose wood on plaintiff’s lot.

Eliminating these things and looking to relevant facts supported by substantial evidence, it appears that plaintiff’s real position is that living quarters for laborers near cordwood constitute a nuisance because the ordinary processes of living include the washing of clothes and the use of fire in that connection.

In support of their position counsel cite several decisions. Manifestly the rule that one may not, in blasting, cast stones upon his neighbor’s property and escape liability for ensuing damage (Scalpino v. Smith, 154 Mo. App. l. c. 534) is not applicable. In the case cited there was a direct invasion of another’s right by an act defendant did or authorized to be done. "Whether done negligently or with due care, defendant did it. In the use of fire ordinary care (in the absence of a controlling statute) is a defense (Berger v. Gaslight Co., 60 Minn. l. c. 300, 301), and neglig’ence must be proved before liability for its escape arises.

Nor, for the same reason, is the rule applied in this last cited case (cited also by plaintiff) that one who collects petroleum on Ms premises and allows it to escape and go upon those of another, is liable without regard to negligence, applicable here.

The case of Vaughan v. Menlove, 3 Bing. New Cas. 468, is likewise inapplicable. In that case defendant stacked hay near plaintiff’s cottage with notice that the condition of the hay was such that spontaneous combustion was likely. It ensued and defendant was held on the ground of his own negligence.

St. Louis Southwestern Railway v. McGrath, 160 S. W. (Tex.) 444, simply applied the rule that a railway consenting to the use of its road by the engines of another was liable for loss resulting from fires negligently set out by such engines.

In Rolfe v. Railroad, 69 N. H. 476, it was decided that heating a car to prevent the freezing of vegetables was reasonable and necessary and a part “of the actual operation of the road” and that the company could not escape liability to a third person for the destruction of his storehouse by fire resulting from negligent management of fire in the car by the shipper of the vegetables, whom it permitted to maintain the fire in consideration of his relieving the company of loss to Mm from the freezing of his vegetables. The court said the company could not avoid liability for damages from negligent exercise of its extraordinary powers by contracting for their exercise by some irresponsible person. In other words, it held, in effect, that defendant was negligent in the operation of its road and was liable on that ground.

In Harrington v. Railroad, 143 Mo. App. 418, a judgment was affirmed in which the trial court found, in effect, that mules shipped in a car in which hay had been placed for bedding had been injured by reason of fire which caught from sparks, the car having been negligently placed too near the engine.

In Pratt v. Railroad, 139 Mo. App. 502, a judgment was affirmed for damages for the death of a switchman, killed at night by being- thrown under the wheels of a car on which he was riding when it came into collision with another which a brakeman negligently stopped before it cleared the “lead track” along which the moving car was passing. This was a case of simple negligence of an employee, as was the preceding case.

In Ross v. Traction Co., 224 Pa. St. 86, defendant was held liable for the death of a child of seven whose clothing caught fire from embers fanned into a blaze by the wind, the fire having been set out by defendant’s servant acting in the scope of his employment, but negligently left by him before it died to the point of harmlessness.

The case of Marine Ins. Co. v. Railroad, 41 Fed. 643, is cited. The Circuit Court for the Eastern District of Arkansas found that about 4000 bales of cotton had accumulated, filling warehouses of a compress company and sheds not intended for storing cotton, and also being piled along and across a public street (of Little Rock) leaving only a narrow passageway for public use. The cotton was exposed to sparks from engines, and for five weeks persons smoking cigars and cigarettes were continually passing through the narrow passageway left. The cotton had caught fire more than once .previously.

The court found that defendant was responsible for the accumulation of the cotton and that the cotton in the street, in the circumstances, constituted a nuisance, and that cotton having caught fire and that fire having been communicated to the cotton insured by plaintiff, defendant was liable for damages for the loss.

On appeal a like case (St. Louis, I. M. & So. R. R. v. Ins. Co., 139 U. S. 223) was reversed for error in instructions submitting the question of defendant’s responsibility for the accumulation of the cotton, and subsequently the ease cited was reversed on stipulation (154 U. S. 515).

Waiving the weakening effect of these matters, the case is nevertheless not authority for plaintiff’s position. It may be conceded that the placing of combustible matter, such as cotton, in a public street and leaving it there for five weeks constantly exposed tó fire dropped by careless passersby who several times set the cotton on fire, constituted a nuisance. The fire causing the loss was actually set by a boy lighting a cigarette (139 U. S. 223).

That is not this case. It cannot be said that bunk ears, properly constructed, are nuisances in all cases, though occupied as living quarters by laborers. Nor does it appear there was any danger of fire in plaintiff’s wood in this case from any reasonable use of the cars themselves, nor that loss resulted from any use of the cars. Plaintiff’s loss resulted from the negligence of the men in kindling the wash fire at a place at which, so far as the evidence shows, they had not kindled a fire previously.

The nuisance in this case, if nuisance it can be called, required the addition, to what defendant did, of the negligence of the men. Unless defendant is responsible for that in some way it is not responsible for the so-called nuisance of which that negligence is an essential element.

In the case of Marine Ins. Co. v. Railroad, supra, the conditions which resulted in the ignition of the cotton were present and apparent when the cotton was put in the street, and the obstruction of a public street is in itself a nuisance. In this case the cars were on defendant’s own property and the element which endangered and destroyed plaintiff’s property was added by the negligent act of the men occupying the cars.

“The liability of a defendant for injuries caused by a nuisance depends solely upon whether it was caused or continued by him” (6 Labatt on M. & S. [2 Ed.], sec. 2396) and, conversely, he must cause or continue it or he is not liable.

It is suggested that the washing of clothing is a necessary incident to ordinary modes of living and and that the use of fires outside the cars was a necessary means of performing this function. No cases are cited in support of this view, though there are authorities which apply such a principle to the absolute necessities of living, such as eating, drinking, etc., but none, so far as we can find, which go to the length plaintiff’s suggestion goes.

So far as the argument as to the creation of a nuisance is concerned, in this case, it is clear enough that plaintiff’s position can be supported only on the theory that defendant was in some way responsible for the act of the men in kindling the fire, and this depends simply upon the question of defendant’s responsibility as master. That question has already been considered.

IY. It is argued, in substance, that the fact defendant did not, before plaintiff’s wood was ignited, extinguish the fire kindled by the laborers, constituted actionable negligence.

As already pointed out, defendant cannot be held responsible for the act of the men in kindling the fire in the first instance. Neither is there any evidence that dry weeds or other combustible matter on the right of way contributed to plaintiff’s loss. The plaintiff is not, therefore, aided in any way by the sections of the statutes (Secs. 3150, 3151, R. S. 1909) relating to fires set out by engines and those communicated by the ignition of dry vegetation and undergrowth negligently permitted to remain on the right of way. 'The facts of this case do not bring it within their purview.

We do not understand plaintiff to contend that a railroad company is liable in every case for damages resulting from loss from fire on its right of way originating from no act of its own, negligent or otherwise. Nor could such a contention be successfully maintained. The rule is that the owner of premises who discovers fire thereon, for the origin of which he is not responsible, is bound to use ordinary care to prevent such fire spreading to adjoining property. [Baird Bros. v. Chambers, 15 N. D. 618.] Apply it to this case. The knowledge of the laborers of the existence of the fire they kindled on the right of way was not defendant’s knowledge, for the same reason that their act in kindling the fire was not defendant’s act — they were not acting for defendant or within the scope of employment by it at the time.

The only evidence that the fire was seen by any employee of defendant before plaintiff’s wood caught fire is that which shows it was seen by a conductor of one of defendant’s passenger trains which passed the spot at 9:25 a. m., but a few minutes before the wood caught and the fire therein got beyond control. When the conductor saw the fire he was engaged in taking his train into Kansas City; the fire was in charge of the laborers who had kindled it; the bunk cars were between it and plaintiff’s wood, which was twenty-five feet away, and there was no fire other than that under the wash kettle. It does not appear that the conductor knew of any loosely piled wood upon plaintiff’s lot or that any other employee or representative of defendant had knowledge of it, nor does it appear that the cordwood in ricks or stacks could reasonably have been expected to catch from sparks from the fire mentioned. The failure of the conductor to stop his passenger train to extinguish the fire under the wash kettle did not, in the circumstances, constitute negligence. There is no evidence defendant imposed' any such duty upon its passenger conductors, and it would too much endanger the lives of passengers, whose safety so much depends upon trains complying with their schedules, for the courts to require the stopping of passenger trains in order that those in charge might extinguish fires on the right of way, in circumstances like those in this case at least. [Railway v. Donaldson, 73 Tex. 124; Pittsburgh, etc., R. R. v. Brough, 168 Ind. 378.] It is also clear there is no evidence the conductor had any opportunity to report the fire to defendant in time for it to have saved plaintiff’s property. That phase of the case need not, therefore, be discussed.

In any view, consequently, there is no substantial evidence to support the contention that there was a negligent failure to extinguish the fire.

The case of Clark v. Railroad, 129 Fed. 341, does not support plaintiff’s position. In that case some of the facts bore considerable resemblance to those in this case. A gang or crew of laborers, housed in bunk cars, kindled fires, for washing clothes, near plaintiff’s warehouse and maintained such fires all day. Defendant had notice, however, m the forenoon, of the fires and of the danger to plaintiff’s property, but took no precautionary measures. The warehouse caught fire at 11 p. m., the fires first having been, kindled about 9 a. m. Defendant was held liable on the ground of its failure, after “the fires became a known fact and condition on” its premises, to employ ordinary care to prevent damage to adjacent property, that question and that as to plaintiff’s contributory negligence being for the jury. In that case there was notice and ample time thereafter to act. In that vital particular it differs from this case.

The judgment should be reversed.

Brown, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All of the judges, concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    CLARA MUELLER, Appellant, v. EDWIN J. BECKER et al.
    Division One,
    December 31, 1914.
    1. DEED OF TRUST: Sale: Duty of Trustee. A trustee under a deed of trust may divest himself of the title and of all the responsibilities with which he is charged, by a fair sale of the property in compliance with all the terms of the instrument, so that no interest remains in him or in any one representing him or represented by him, and he may then deal with the property as any other stranger to the title,' but if he repurchase it, equity will look with a suspicious eye upon the transaction and jealously scrutinize it to ascertain whether he has used the powers given him for the benefit of others to facilitate its acquisition for himself.
    2. -: -: -: Redemption: Setting Aside Trustee’s Deed: Laches: Coverture. In settlement of a suit hy attachment brought by the Pabst Brewing Company, and in which there was a levy upon land held in the plaintiffs name, she and her husband in 1895 executed in favor of the company a second deed of trust, for $1064, and named the company’s local attorney as the trustee. The trustee sold under this deed in 1896 and conveyed the land to the company. When in 1898 the land was about to be sold under the prior deed of trust, given to secure a debt of $1500, the company’s local manager urged - the company to bid it in, but it refused to do so. At the sale the company’s manager and local attorney together bought the land for $1710, the actual value then being perhaps $3800. They then offered it to the company at the price they had paid, and the company again declined to take it. Notice to quit was then given plaintiff’s husband in the name of the company, and in answer to a request for more time the company wrote that it eoiild do nothing, since the manager and the attorney had become the owners of the land. In October of that year the plaintiff and her husband surrendered possession. In 1908 the plaintiff sued to set aside the trustees’ deeds and to redeem. Held, that plaintiff’s rights in the premises, if any she had remaining, are barred by her delay in bringing suit, and her coverture does not excuse her delay.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Aeeikmed.

      William C. Forsee for appellant.

      Beardsley, Schaich & Beardsley, J. E. Fórreme and Hadley, Cooper, Neal & Wilson for respondents.
   BROWN, C.

This suit was instituted August 20, 1908. The amended petition was filed at the October term, 1909. Its general object is to secure the cancellation of two trustee’s deeds; one from Wash Adams, trustee, to Pabst Brewing Company, dated May 28, 1897, and the other from William S. McLeod, trustee, to Edwin J. Becker, dated June 3, 1898. It also seeks an accounting, to redeem from the deed of trust under which the McLeod sale was made, and,for general relief, and offers to do and perform “whatever the court ought in equity to require.” It also asks “that plaintiff’s title to said lands as against each of the defendants be confirmed and established,” and for general relief.

The defendants are Edwin J. Becker, William B. Conrod, John R. Wilson, A. L. Cooper, M. M. Sweet-man and Pabst Brewing Company.

Becker answered claiming title through the trustee ’s sale mentioned, and alleging that he had conveyed an undivided one-half of the land to the defendant Conrod, denying the other allegations of the petition, and pleading the ten-year statute of limitation of actions for the recovery of lands.

Wilson, Sweetman and Cooper answered, claiming under a deed of trust to the first named as trustee to secure the payment of notes aggregating $2000 to Cooper and Sweetman, given before the institution of this suit for money loaned Becker. They also claim that to that extent they are innocent purchasers, without notice of any claim of plaintiff.

Conrod answered, denying the allegations of the petition, and stating, among other things, that Becker, on June 21, 1901, conveyed an undivided one-half of the land to Adams for $1000, and that Adams, on December 29, 1904, conveyed the same undivided half to him (Oonrod) for $3500; that he purchased in good faith without any knowledge of any adverse claim either legal or equitable; and that plaintiff had been lax in asserting her alleged right; and asked that the court ascertain, determine and adjudge the title and interests of the parties, and for general relief.

Issue was joined by'replication, and the cause went to trial on these issues. The principal facts in evidence are as follows:

August Mueller, who was the husband of plaintiff, was on February 25, 1893, the owner of the thirty-acre tract of land in controversy, and on that day his wife joined him in a deed of trust conveying it to W. D. McLeod, trustee, to secure payment of a note to James McKensie, for $1500, due five years from date, with 6 per cent interest evidenced by semi-annual coupons. In January, 1894, Mr. Mueller caused the land to be transferred through one Schwecten to the plaintiff, subject to the McKenzie deed of trust. On January 19, 1895, plaintiff and her husband joined in a deed of trust to "Wash Adams, trustee, to secure a note of that date for $1064, signed by both, and payable to Pabst Brewing Company one year after date. This represented a balance which Mr. Mueller owed the brewing company on settlement, and upon which a suit by attachment was pending at the time the deed of trust was given. Mr. Adams was, at the time, local attorney for the brewing company at Kansas City, and continued to be until after 1898. The defendant Becker was the manager of what was called the Kansas City Branch of the company continuously from January 1, 1890, until June, 1900, and as such had general supervision of its collections and the enforcement of the payment of debts,due it, taking the initiative unless specially instructed by the company. He does not remember informing the company of this transaction at any time before tbe sale under tbe Adams deed of trust, nor does be remember who got that deed from Mueller and wife. Such transactions were generally handled by the attorney, from whom he would get his information.

The land was sold by Adams, subject, of course, to the McLeod deed of trust, on May 16, 1896, and a certificate of purchase was made on the 18th to the Brewing Company as purchaser, in which its bid was recited as $500; and $450 was credited by Mr. Adams on the note as the net proceeds of the sale.

The evidence of -the cash value of the land at the time of these transactions takes a wide range, but the estimate of Becker in a letter to his company, of $3812.50, is probably fair.

On May 17,1897, Mr. Adams wrote the Pabst Company “that pursuant to the powers vested in him as trustee in the deed of trust to secure the $1064 note, be had on May 16,-1896, sold the land; that the same had been bid in by the local representative of the company in the name of tbe company; that be bad thereupon executed a certificate of purchase, and that unless the land was sooner redeemed, he would at the expiration thereof execute a deed to the company, as grantee, and asking that the certificate of purchase and the original deed of trust be returned to him in order that he might execute a trustee’s deed.” There was no answer to this, and there is no evidence that it was mailed or received. It does not appear that up to this time the home office of the company had any information that there had ever been any such thing as tbe Mueller deed of trust. On tbe 28th of May, Mr. Adams made and acknowledged bis trustee’s deed to the company, and it was recorded the 1st day of June following. Then, on August 17,1897, Becker wrote the company as follows:

‘Kansas City, Mo., Aug. 17/97.
“Pabst Brewing Co.,
“Milwaukee, Wis.
“Bear Sirs:
“We are tlie owners of a farm in this (Jackson) county of 30% acres which came into our possession on a foreclosure of a second deed of trust given us by Aug. Mueller. The second deed of trust stands on our books $1062.33. There is a first mortgage on this farm of $1500. After getting title to the same I placed it in the hands of a real estate agent to sell, not naming any figure at that time. This agent was aware of what we had against it at the time the foreclosure was made. A few weeks ago he called and asked if we would take $2700 for the farm. I refused the offer and asked him $125 per acre, which would be $3812.50 for the farm. The agent was at the office this morning and made a proposition for one Aug. Sehstedt in which he asks us to rent him the place at $200 per year and give him the privilege at the expiration of three years to purchase the farm at $125 per acre. I informed him that I would lay his proposition before you and give him an answer as soon as I heard from you. The party of course expects by this proposition to receive the benefit of any increase in valuation on this farm. I do not think $125 per acre is too much at this time, whether it would increase in three years from now it is hard to say. If we should rent him the farm at $200 per year we would be obliged to take up the $1500 deed of trust when it becomes due. The party holding the first deed of trust of $1500 has also paid some back taxes. In all I find, according to my figures it would not cost us to exceed $2700, including our account. The farm is located about seven miles from Kansas City. Will you please give this your early consideration and reply.
“Yours respectfully,
“E. J.'Becker, Manager.”

This brought the following answer under date August 19, 1897:

“Mr. E. J. Becker, Pabst Brewing Co.,
“Kansas City, Mo.
“Dear Sir:
“In reply to your letter of the 17th inst., beg to state that we do not care to rent the farm, but authorize you to sell it if you can get out the money we have invested in the farm. We do not wish to hold the farm any longer than necessary. If you cannot get more than $2700 accept that amount and notify us what you have done.
“Yours truly,
“Pabst Brewing Company,
“By M. H.”

On November 12,1897, Becker wrote the company:

“We herewith hand you trustee’s deed from Wash Adams to the Pabst Brewing Co., made on the 20th day of May, 1897, properly recorded in the recorder’s office Jackson county. This is for 30% acre farm for claim had against Aug. Mueller, subject to an encumbrance of $1500.”

The company answered on the 15th as follows:

“In reply to yours of the 12th inst., we would request you to send us all the papers, such as abstract, etc., pertaining to the August Mueller farm, as you may have, also give all particulars relating to this case, and the full amount you expect to credit to August Mueller. If there is a mortgage of $1500 ahead of our claim on thirty and one-half acres of land, we do not see what we.can possibly gain by accepting the trustee’s deed.”

Other correspondence followed, which resulted in the Pabst Company definitely declining to take up the McKenzie deed of trust although strongly advised by Mr. Becker to protect itself by doing so. The land was finally advertised for sale under that deed and sold on June 3, 1898, Becker becoming the purchaser for himself and Adams under a previous arrangement made between them for that purpose. A trustee’s deed was made to Becker the same day. On the following day both wrote the company. Mr. Becker’s letter is as follows :

“Kansas City, Mo., June 4/98.
“Pabst Brewing Co.,
“Milwaukee, Wis.
“Dear Sirs:
“On Thursday, June 2d, I wired you asking for instructions in regard to the sale of the Mueller farm by foreclosure, to which you replied on June 2nd: ‘We do not desire to purchase first mortgage.’ I wish to say that this property was offéred for sale by the trustee named in the deed of trust and was sold yesterday for $1710. The first mortgage was for $1500 and the expenses attached to the sale outside of the sum named above, interest, taxes for last year and cost of foreclosure, which in all would amount to from $100 to $110. Myself and Mr. Adams considered the property was being sacrificed and privately bought the same in at $1710, having borrowed the money from the bank for thirty days on a joint note, interest of which is $11.73. We believe that we will be able to dispose of this property, otherwise would not have bought it, within the time named. Thought however we would inform you of the facts in the case and if you desire to take the property, to let you have it at the cost of the same which would be $1710 plus $11.73 for interest and $1.25 for filing the deed, making a total of $1722.98. Of course $100 of this money would not have to be paid as that is about the amount that would be coming to the company whether or no ■ you take the land. I thought I would place this matter squarely before you and think possibly the company might save a little more out of it. Mr. Adams and myself are perfectly willing to hold the same for our account if the company does not want it. I felt it was.my duty to protect yon as far as I conld, therefore attending the sale and made this bid. Should the company hold to the position taken in their telegram of June 2d, we would pay over the amount above the first deed of trust and the expense attached thereto which, as I said before, would be from $100 to $110, leaving a balance of about $100 coming to the company. Will you please let me hear from you at your earliest convenience.
“Tours respectfully,
“E. J. Becker, Manager.”

Mr. Adams wrote as follows:

“Kansas City, Mo., June 4, 1898.
“Pabst Brewing Co.,
“Milwaukee, Wis.
“Dear Sirs:
“On yesterday I was informed by Mr. Becker that you refused to purchase the August Mueller thirty acres, about five miles southeast of Kansas City, and was willing to sacrifice the interest you had in the property, amounting to about one thousand dollars. Mr. Becker and I thereupon determined to buy the property ourselves. I bid it in for $1710. Of this amount about $90 will be coming to you, the balance going to pay the first mortgage and expenses of sale.
“Being your attorney here I deem it wrong to take advantage of my position as such. I therefore suggested to Mr. Becker, he being also your agent, that we forego our purchase and offer you-the privilege of taking the property, if you so desired, at just what we bid it in.
“Mr. B.ecker has written you, no doubt, to the same effect. We bought this property because we considered it a good investment. If you wish to have the property conveyed to yon we will make the conveyance.
“Please let me know yonr decision in the matter. “Truly yonrs,
“Wash Adams.”

The answer to these was addressed to Mr. Becker, and is as follows:

“June 7, 1898.
“Mr. E. J. Becker, Manager Pabst Brewing Co.
“Kansas City, Mo.
“Dear Sir:
“In reply to yours of the 4th inst. we wish to thank you for offering the Mueller property to us. At the same time however, we do not wish to purchase it. Also thank Mr. Adams in our name.
“Yours truly,
“Pabst Brewing Co.
“Fred Pabst, Jr.”

Notice signed by the Pabst Brewing Company was then given the Muellers to quit and surrender possession to the company, and saying that the land had been bought in by the company at that sale. Mr. Becker says he knows nothing about this notice, but that Mr. Adams was his personal attorney as well as the attorney for the company. A copy of this notice sent by Mueller to the Pabst Company at Chicago brought the following response, dated September 6, 1898, and signed by Mr. Fred Pabst, president of the Brewing Company, which the respondents have translated from the original German:

“Your letter of the first of this month I have received and have taken notice of its contents.
“As I wrote you in' my former letter, there is nothing I can do for you in this matter. Messrs Becker and Adams are owners of these lands, and they are responsible for their dealings. I will write to Mr. Becker and ask Mm to give you the requested time, till October.”

The Brewing Company also wrote the Kansas City agency on the next day as follows:

“September 7, 1898.
“Pabst Brewing Co.,
“Kansas City, Mo.
‘ ‘ Grentlemen:
“If you can consistently grant the wish of the writer of the enclosed letter to let him stay on the farm that has been sold by the sheriff on foreclosure proceeding’s until the first of next month, you will oblige me. I note that the ‘notice to quit’ sent to Mueller is signed Pabst Brewing* Co., by Charles B. Adams, its attorney. "Was the property bought in our name? Please let us hear from you in the premises.
•“Yours truly,
“Pabst Brewing Co.,
■ “By Fred Pabst, President.”

The Muellers surrendered the possession of the farm to Becker the same fall in October. Becker by quitclaim deed dated June 21, 1901, conveyed an undivided half to Adams. Mr. Mueller died November 15, 1907.

The amount received by the Pabst Brewing Company as the surplus resulting from the McLeod sale was about $90. While it seems to be admitted that two o’clock was the usual hour for making sales of land at the courthouse in Kansas City, where these trustee’s sales took place, Mr. Kreisel, who went to bid on the land at the McLeod sale, but failed at the last moment to obtain the necessary funds, was there at the bidding, and testified positively that the sale took place at about half past ten in tbe morning. He also testified that within a very few minutes after the ■sale was completed, and while the people who attended it were standing there, Mr. Mueller came up the steps from the yard with a man carrying a black bag, and said he had a man who wanted to bid. Nothing more was said and the men who were at the sale dispersed. The plaintiff and two of her sons testified that Mr. Mueller started to town, ostensibly to attend the sale, early in the forenoon and that he returned about one o’clock. It took about an hour and a half to travel from the courthouse to the farm. On the other hand, Mr. Barber, a bidder, testified that it took place at about half past two and Mr. McLeod, the trustee, and Mr. Becker testified to their own recollection that it took place at two o’clock.

The Pabst Brewing Company, by its quitclaim deed dated December 6, 1909, conveyed all its right, title and interest in the land in controversy to the plaintiff.

At the completion of the trial, April 27, 1910, the court rendered its judgment in which it found the issue for the several defendants and against the plaintiff, concluding after describing the land as follows: “That plaintiff has no claim or equity to the same, or any interest whatever, legal or equitable, therein; that defendant Edwin J. Becker is the owner in fee simple of the undivided one-half interest in said premises subject only to the deed of trust now on record in favor of John E. "Wilson, trustee for A. L. Cooper; that defendant William B. Oonrod is the owner in fee simple of the undivided, unincumbered one-half interest in said premises. Wherefore, it is ordered, adjudged and decreed that plaintiff take nothing by her suit herein, 'and that defendant William B. Oonrod is decreed the owner in fee simple of the undivided, unincumbered one-half interest in said premises; that plaintiff pay the costs of this suit, and that defendants have therefor execution.”

I. The facts above stated present some very interesting questions which we will not undertake to decide; for, in front of them all stands question whether Mrs. Mueller can now call for their consideration. Has she, by her own delay, elected to leave the transaction in the very situation of which she now complains ?

In answering this we must bear in mind that whatever rights the plaintiff may have depend upon the continued existence of the relation created by the deed of trust to Mr. Adams. That instrument defined the nature and extent of the trust and the manner in which the trustee might divest himself of the title and all the responsibilities with which he was charged with respect to it. That this would be accomplished by a fair sale of the property in compliance with all the terms of the instrument, whether expressed upon its face or implied by law from the relation it created, so that no interest would remain in him or in any one representing him or whom he in any way represented, there can be no doubt. That he would then be at liberty to deal with the property as any other stranger to the title is plain. But if •he should repurchase it, equity wo aid look with a suspicious eye upon the transaction, and jealously scrutinize it to ascertain whether he had used the powers given him for the benefit of others to facilitate its acquisition for himself. [Perry on Trusts (6 Ed.), sec. 187 and cases cited.]

Mrs. Mueller knew whether or not Mr. Adams had properly executed his trust and discharged himself from responsibility as her trustee. She knew it because she was aware of all the facts connected with the transaction and the law will presume that she knew their legal effect. It is impossible to conceive that she did not know that the mortgage she was executing was made to secure a debt already in suit, and for which her own land had been attached, and that- the trustee was the attorney of the mortgagee. The trustee’s deed was not void. Admitting her claim to the fullest extent, it was only voidable at her election. No outsider could interfere. It followed that it was her duty, if she desired to avoid the- transaction, .to make her election within a reasonable time. [Perry on Trusts (6 Ed.), secs. 602 and 198.] ' For the first two years, during which there was no change in the situation, she waited, no doubt, with the reasonable hope and expectation that the mortgagee, which was the purchaser at that sale, would make no objection to' her redeeming the property if she could raise the money to do so. At the end of that time her husband, who acted for her as well as for himself throughout the transaction, received the Pabst letter, which conveyed to them the information in unmistakable terms that they could expect no further favors; that the property had already passed into the hands of those who had already joined in what she alleges to be the violation of a trust. They were invested with a perfect and merchantable legal title and the same public policy which encourages the stability and safety of such titles by laws requiring them to be created and shown in visible and permanent form, and providing public records for the preservation of evidence relating to them, demanded that Mrs. Mueller, who had the right to make an election which would overthrow these muniments and destroy these safeguards, should make it without unnecessary delay.

This neglect involves something more than the passive delay by which one becomes barred of the enforcement of his rights by the Statutes of Limitation. In this case he has no right unless he elects to purchase it, and to pay for it by the surrender of another right, the right to insist that things continue as they are. For example, if when the Adams sale occurred, the brewing company had delayed to accept it, and to give the proper credit for the proceeds, the Muellers could have forced them to do so. [Perry on Trusts (6 Ed.), sec. 198.] They would then have sold their right to maintain a suit of this character, by the process of waiver or estoppel, it makes no difference what we call it. But had they at that time disaffirmed the sale, had they the right to do so, they would have sold their right to the purchase price and could proceed in equity to have it set aside. It would have cost them whatever they would have been entitled to unde» the sale. The reasonable time the law gives them to make this choice has no relation to the time allowed by the Statute of Limitations to bring an action, except that “a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor, by his own act, and in spite of the debtor, can make the demand payable.” [Landis v. Saxton, 105 Mo. 486.] ' These statutes do not operate as an inflexible definition of what constitutes a reasonable time in which to perform those duties to others which grow out of our contractual and business relations, and which depends necessarily upon the peculiar circumstances of each case. In this case more than twelve years elapsed from the time of the Adams sale and more than ten years from the time of the McLeod sale before Mrs. Mueller first attempted to exercise her right of election by the bringing of this suit. We think this amounted to an affirmance of both those transactions, unless her coverture during all the time up to November 25, 1907, excused her inaction.

II. That Mrs. Mueller, notwithstanding her coverture, was sui juris with respect to this transaction, cannot be seriously doubted. Although the unlimited right to transact business on her own account, to contract and be contracted with, to sue and be sued and to enforce and have enforced against her property judgments for and against her, with which she is clothed hy the Act of 1889 (R. S. 1909, sec. 8304) does not repeal her statutory exemption from the operation of the Statute of Limitations, it carries with it all the incidents necessary to make those rights available. With respect to all those things she is to be deemed a feme sole, even as to her husband, with whom she may deal at arm’s length as with a stranger. [Rice, Stix & Co. v. Sally, 176 Mo. 107; O’Day v. Meadows, 194 Mo. 588, 614; Bower v. Daniel, 198 Mo. 298, 320; Donovan v. Griffith, 215 Mo. 149; Harvey v. Long, 260 Mo. 374.] With reference to both rights and duties she is placed on an equality with those with whom she deals. One of the duties growing out of the trust relation she created, was the duty to elect within a reasonable time to dis-affirm the action of her trustee both with respect to the sale made by him, and his purchase with Becker at the McLeod sale, had it been open to any objection authorizing such disaffirmance.

The conclusions at which we have arrived make it unnecessary to examine the numerous other suggestions made by appellant in her brief and argument. The judgment of the circuit court will have to be and is affirmed.

Blair, C., concurs.

PER CURIAM.

The foregoing opinion of Brown, 0., is adopted as the opinion of the court.

All the judges concur.


text:
    JEROME B. FLEMING v. LOUISIANA & MISSOURI RIVER RAILROAD COMPANY and CHICAGO & ALTON RAILROAD COMPANY, Appellants.
    Division One,
    December 31, 1914.
    1. OBLIGATION OF CONTRACTS: Amending Railroad Charter: Lease of Railroad to Corporation of Another State. The' defendant railroad company was chartered in 1859 by an act of the Legislature which expressly excepted the corporation from the operation of the then existing statute reserving the right to alter and amend corporate charters. The Constitution of 1865 provided (Sec. 4, Art. 8) that all acts affecting corporate rights and powers passed pursuant .to that section might be altered or amended. The power to lease its road having been for the first time given to the defendant company by an act which took effect March 20, 1870, a general act effective four days thereafter provided that a railroad company leasing its road to a corporation of another State should remain liable as if it operated the road itself. Held, that the power to lease, having been first given in 1870, was, by force of the Constitution of 1865, subject to amendment by the later act fixing the lessor’s liability.
    2. NEGLIGENCE: Liability of Railroads: Lessor and Lessee. A Missouri railroad corporation, liable by virtue of Sec. 3078, R. S. 1909, for the negligence of its lessee, a corporation of another State, is properly joined as defendant with the lessee in an action for personal injuries resulting from such lessee’s negligence.
    3. --: -: -: Removal of Causes. Where a Missouri railroad corporation, liable by virtue of Sec. 3078, R. S. 1909, for the negligence of its lessee, an Illinois corporation, is joined as defendant with the lessee in an action for personal injuries sustained through such lessee’s negligence, the State court has jurisdiction, and the cause is not removable to the Federal court.
    4. -: Pleading: Specific Negligence: Humanitarian Doctrine: Evidence. While it is true that when specific negligence alone is pleaded recovery must .be had thereon or not at all, it is also true that a charge of negligent management- of a train is sufficient to let in the humanitarian doctrine, and where both are pleaded evidence on the issue of mismanagement, letting in the humanitarian doctrine, is not rendered inadmissible by the allegations as to specific negligence.
    5. -: Humanitarian Doctrine: No Evidence of Speed of Train: instructions. Where in an action for damages for being run down by a railroad train there was no evidence as to the rate of speed of the train or the distance within which it could have been stopped, it was error to instruct that the defendant railroad was liable if the trainmen saw the plaintiff, or in the exercise of ordinary care should have seen him, in a perilous position, in time to have stopped the train and saved him, but negligently failed to do so.
    6. ABSTRACT OF RECORD: Respondent’s Additional: Not Filed: Matters for Review. A respondent who wishes to have the benefit of a review of instructions which he asserts were given for the appellant, and which were not set out in appellant’s abstract of the record, must, under the statute, file an additional abstract of the record setting them out, and having failed to do so he will not be heard to contend, after merely including them in his brief, that they cure error in instructions given, for him.
    Appeal from Audrain Circuit Court. — Hon. James D. Barnett, Judge.
    Reversed and remanded.

      Scarritt, Scarritt, Jones & Miller for appellants.
    (1) To bold that section 3078 is applicable to defendant would be contrary to section 15 of article 2 of tbe Constitution of Missouri and contrary to section 10 of article 2 of tbe Constitution of tbe United States, wbicb forbid tbe passage of acts retroactive in operation or which impair tbe obligations of contracts. Section 43 of said defendant’s amended charter of 1870 (Laws 1870, p. 93) gave to said railroad company tbe right to lease its road upon such terms as it saw fit, and without any restriction or condition that it as lessor company should be or remain liable for any acts of tbe lessee company in tbe operation of- said railroad; that such charter constituted a contract between said railroad company and tbe State and that section 3078, enacted after said amended charter was enacted, altered and impaired snch charter, cannot he gainsaid. Said section 3078 cannot, we submit, be sustained as a valid amendment to said defendant’s charter for several reasons, (a) Since the adoption of the Constitution of 186-5 which provides that “the act or part of act amended shall be set forth and published at length, as if it were an original act or provision,” it has not been permissible to amend a legislative act by implication. State ex inf. v. Trust Co., 144 Mo. 595. (b) At the time of the granting of said defendant’s amended charter and at the time of the enactment of said section 3078, there was in effect, applicable to this railroad,, which was originally chartered in 1859, no constitutional or legislative enactment which gave to the Legislature the right to amend its charter at will and without its consent and without notice to it. On the contrary, there was in force and effect at that time a legislative enactment, to-wit, R. S. 1865, chap. 62, sec. 21, p. 330, which expressly forbade that the charter of any corporation should be altered by the Legislature “unless proof be made satisfactory to the Legislature that notice of such proposed alteration, suspension or repeal has been given to the president and secretary of such corporation for at least one month before the time at which such alteration, suspension or repeal will be proposed.” There can be no pretense that such statute was complied with in this instance. We therefore submit that plaintiff did not and could not make any case against said defendant Louisiana & Missouri River Railroad Company, and that the trial court erred in not certifying this case up to the Federal court and in asserting jurisdiction of the case after the filing of such petition and bond for removal. (2) Defendant’s demurrers to the evidence should have been sustained, (a) The trial court erred in submitting this case to the jury upon the humanitarian or last chance doctrine as was done by plaintiff’s instruction No. 1. This instruction was not justified either by the allegations of the petition or by the proof adduced. In the petition plaintiff does not charge directly or indirectly that those in charge of the train in question could have stopped the same after they saw or might have seen plaintiff in a position of peril. The only allegations of negligence in plaintiff’s petition are that defendants did not give plaintiff any warning or alarm and that defendants did not have a brakeman or any agent or servant or employee on the rear of said train while backing. The further allegation of the petition is that said injuries to plaintiff were caused wholly on account of the negligence ... in running its said train as aforesaid.” Plaintiff must recover, if at all, upon the specific acts of negligence charged in the petition. McG-rath v. Transit Co., 197 Mo. 105. (b) There was no evidence whatever as to the speed of the train or ás to the distance in which it could have been stopped. There is no evidence as to what was done or not done toward stopping it. That plaintiff could not recover upon the humanitarian doctrine without proof of these essential things is too obvious to make it necessary to cite authorities. (3) Instructions, cannot and will not be considered by the court unless they appear in appellant’s abstract of the record herein, or respondent has included them in an additional abstract of record.
   BLAIR, C.

The Louisiana & Missouri River Railroad Company (a Missouri corporation) owns a railway line passing through Mexico, Missouri, which the Chicago & Alton Railroad Company (an Illinois corporation) operates as lessee. Respondent having been injured by a train of the latter company, recovered judgment for $1000 against both companies, and both appealed.

In the circuit court the Chicago & Alton Railroad Company in due time filed its petition and bond for removal of the cause to the Federal court. The circuit court approved the bond but refused to order the cause removed, and appellants answered.

In each answer it is averred that the cause had been removed and the court had no jurisdiction; this is followed by a general denial and a plea that respondent’s injury, if any, was due to his “own fault and negligence directly contributing thereto in whole or in part, ’ ’ and each answer avers that the other answering defendant is improperly joined and that there is a misjoinder of parties defendant. In addition, the answer of the Louisiana & Missouri River Railroad Company avers that by its charter it was authorized to lease and did lease its road in such manner that it was relieved of any liability for damages resulting from the negligence of its lessee; that its charter gave it the power so to do, and that to construe section 1060, Revised Statutes 1899 (now 3078, R. S. 1909) to be applicable to it would impair its charter contract with the State and violate section 15 of article 2 of the Constitution of Missouri and section 10 of article 2 of the Constitution of the United States.

The petition alleges that the respondent was injured while walking along the track at a place where persons were accustomed to walk thereon and “which by common consent had been so used by pedestrians as a public thoroughfare for many years;” that while respondent was walking on and along the tracks in a westerly direction the Chicago & Alton Railroad Company’s servants and agents caused a train in their charge to be backed upon and' over respondent, seriously injuring him; that defendants failed to warn plaintiff “and did not have a brakeman or any agent or servant or employee on the rear of said train while backing, although it was their duty to do so; and that said injuries to plaintiff were caused wholly on account of the negligence, willfulness and carelessness of defendant, The Chicago & Alton Railroad Company, its agents, employees and servants, in running its said train as aforesaid. Plaintiff further states that the defendant, the Chicago & Alton Eailroad Company, its agents, employees and servants, were negligent in the running of the said train and in failing to give plaintiff warning and alarm and in failing to have a ‘lookout’ on said train to warn pedestrians on said track, as it was their duty to do. By reason whereof they ran plaintiff down, struck and injured him as aforesaid, by their carelessness and negligence and in violation of the law.”

There was evidence that respondent about 1:30 p. m. on a clear day, on leaving a mill adjoining the right of way, looked east and saw no train; then started west beside the track and then got upon the track and walked along it, without looking back, until struck' by an Alton train backing in from the east and which had come upon the track upon which respondent was walking by means of a switch several hundred feet east of the point at which respondent was struck. The distance respondent walked upon the track is not definitely fixed but may have been 15 or may have been 50 or maybe 120 feet. The train was stopped three car lengths after it struck respondent but before he was discovered by the trainmen. There was a freight train on a track beside that on which respondent was walking.

Eespondent heard no bell or whistle or warning and first saw the flagman as he (respondent) dragged himself from beneath the front of the car next the tender. The flagman was then upon the west end of the coach nearest the engine. The fireman was in the engine and the conductor was not at hand.

At respondent’s request the court instructed the jury upon the theory that if the track was used as a passway and thoroughfare with appellants ’ knowledge and respondent was upon the track and appellants’ servants saw or in the exercise of ordinary care should have seen respondent in a perilous position in time to have stopped the train and saved him and negligently failed to do so, then the verdict should be for respondent.

I. It is urged that the trial court had no jurisdiction. The Chicago & Alton Railroad Company is an Illinois corporation and if sued alone would have been entitled to have the cause removed on the ground of diversity of citizenship.

It is contended that the Missouri corporation is, as a matter of law, not liable for damages resulting from negligence of its lessee, was therefore not properly a party to the suit, and, consequently, its being joined did not affect the Alton’s right to remove the cause; and, therefore,- the petition for removal should have been sustained and further proceedings of the circuit court were without jurisdiction.

The non-liability of the Louisiana & Missouri River Railroad Company is asserted to arise out of the fact that the company was chartered by the Legislature in 1859 by an act which expressly excepted the corporation from the provisions of section 7 of article 1 of the G-eneral Chapter on Corporations, Revised Statutes 1855, p. 371, which section reserved the right to alter and amend corporate charters. On this ground the application to the company of the Act of March 24, 1870 (formerly Sec. 1060, R. S. 1899, and now Sec. 3078, R. S. 1909) is resisted. That act expressly provided and provides that a railroad company leasing its properties shall remain liable for damages resulting from the negligence of its lessee. The liability of the company has been previously affirmed by this court (Brown v. Railroad, 256 Mo. 522; Dean v. Railroad, 199 Mo. 386; Markey v. Railroad, 185 Mo. 348) and the correctness of these decisions on the questions therein raised is not challenged, bnt it is said a new and controlling question is presented by the fact, now called to this court’s attention for the first time, that by an act approved by the Governor and accepted by the company January 19,1870, and which took effect March 20,1870, four days before what is now section 3078, Revised Statutes 1909, became law, the company was given the right to lease its road on such terms as it could secure, and that to construe section 3078 as qualifying this right would be to construe the section retrospectively and impair the company’s charter contract, thus violating designated constitutional provisions.

Assuming that the Act of 1859 was unamendable without the company’s assent, and that the Act of 1868, amending the former, was likewise, yet neither conferred upon the company any right to lease its road, that right being conferred for the first time by the Act of January 19, 1870. Prior to this enactment the Constitution of 1865 had been adopted and was in force, section 4, article 8 thereof expressly providing that “Corporations may be formed under general laws, but shall not be created by special acts, except for municipal purposes. All general laws and special acts passed pursuant to this section may be altered, amended, or repealed.”

The policy of this section is clear enough; and while it may be conceded contract rights cannot lawfully be impaired even' by the adoption of constitutional provisions affecting them, yet it is true that the right to lease its road could not have been a part of the company’s charter contract in any sense until 1870 (Dean v. Railroad, 199 Mo. l. c. 390; Thomas v. Railroad, 101 U. S. l. c. 84), and since this right to lease was a new, an additional and markedly different power, conferred by the Legislature in 1870, it was subject to any applicable constitutional provisions, which provisions would, of course, remain applicable despite any prior or subsequent legislation, whether found in amendments to the Missouri company’s charter or elsewhere.

The provision in the Act of 1870 (or in former acts which it amended or consolidated) excepting the company from the section of the general law reserving to the Legislature the power-to alter and amend the charter, can in no way impair the force of the constitutional section quoted. We think that section, announcing the general policy of the State, is applicable to that part of the Act of January, 1870, which conferred a new power, the right to lease, upon the company, and that it, by its own force, reserved to the State- the right -to alter and amend the new provisions of the former charter, added after the adoption of the Constitution of 1865 and forming no part of the charter of the company until 1870. Being no part of the original charter contract and being a power accepted after the adoption of the Constitution of 1865, the power to amend the Act of 1870 which conferred the new power was reserved by the constitutional section quoted, and that act was amended by the act of March 24, 1870 (sec. 3078, B. S. 1909), and that is the act now applicable and under it the company is clearly liable for damages resulting from the negligence of its lessee. The Missouri company was properly joined, the application to remove to the Federal court was properly denied and the trial court had jurisdiction.-

II. The question whether the humanitarian doctrine was in the case under the pleadings is raised. It is true that when specific negligence only is pleaded recovery must be had thereon or not at all. [McGrath v. Transit Co., 197 Mo. l. c. 105.] But it is also true that a charge of negligent management of a train is sufficient pleading to let in the humanitarian doctrine. [Hanlon v. Railroad, 104 Mo. l. c. 391.]

In this petition both specific negligence and general mismanagement of the train are pleaded, and evidence directed to the issues raised by the plea of mismanagement was not rendered inadmissible, because, in addition to such plea, there were allegations of specific negligence independently made.

III. The instruction epitomized was erroneously given. There was no evidence as to the rate of speed the train was moving nor was there any evidence as to the distance within which the train, whatever its rate of speed, could have been stopped. There was no basis in the evidence for the instruction.

In respondent’s brief instructions are copied which respondent asserts appellants jointly asked and which are said to proceed upon the same theory as that given for respondent and epitomized above. This, it is argued, cures the error in respondent’s instruction, or, rather, makes the error, if any, common, and therefore unavailable as ground for reversal. The trouble with this contention is that no such instructions appear in the abstract of record, nor does respondent bring them forward in an additional abstract. The statute is clear. If respondent was not satisfied with the abstract of record and desired to complain thereof it was necessary for him, under the statute, to file an additional abstract to which the same statute would have given appellants a right to object to the end that the whole record might then have been certified here and all disputed questions respecting it fairly settled. Not pursuing the statutory course, respondent accepted appellants’ abstract as final, and the latter had the right to rely upon it as so accepted and cannot now be called upon to meet additional matter merely set out in respondent’s brief.

Tbe judgment is reversed and tbe cause remanded.

Brown, G., concurs.

PER CURIAM.

Tbe foregoing opinion of Blair, 0., is adopted as tbe opinion of tbe court.

All tbe judges concur.