text:
    IDA CARLSON et al., Plaintiffs in Error, v. FRED LAFGRAN et al.
    Division One,
    May 31, 1913.
    1. WILL CONTEST: Sufficiency of Evidence. Evidence in a suit contesting a will held sufficient to support a verdict for the proponents.
    2. -: Undue Influence: Instructions. There was some evidence in a suit to contest a will tending to show the following facts: -Lafgran, the residuary legatee, was not related to the testator by either blood or marriage, but had lived near him for many years and had worked for him at times and was aiding him to some extent during the early days of his -last illness; a short time before the will was executed Lafgran took the testator to his own home, the latter’s condition having become such that he could not care for himself; at this time the testator was very sick, his wife had died some ten days before, he was seventy-five or eighty years old and quite feeble, both in body and mind, before he became ill; from the time óf his removal to Lafgran’s home until the will was made and thenceforward until his death he was cared for in Lafgran’s family, though there was no evidence that Lafgran personally waited upon him; on the morning of March 16 Lafgran sent for Backland, Uttenberg and Fly, the two former being attesting witnesses and the latter the scrivener who drew the will; while the will was being prepared Lafgran was in the room with the testator and upon the latter’s saying he would keep some of his property as he would need it when he got well there was some evidence that Lafgran went to the bedside and explained in the Swedish language that the will would not operate like a deed but would only take effect at death; that while the will was being drawn and after Backland had talked with the testator for some time in Swedish and had said that he “couldn’t drive nothing into his head,” Lafgran went to the bedside and talked with Mr. Johnson and said, “Didn’t you promise you would give me a lot to bring .you here and take care of you?” and the testator said: “Yes, I want you to have something for taking care of me;” that Backland touched Lafgran on the shoulder and told him he mustn’t talk that way and Lafgran replied: “I was telling him what I ought to have;” that Lafgran then told the scrivener what to write. The estate was worth, above debts and funéral expenses, about $3000, and of this Lafgran was given all but $700, of which sum plaintiffs, who are the testator’s nephews and nieces and only living relatives, were given $100 each. There was some evidence that plaintiffs were and had been on friendly terms with their uncle. Held, that this evidence was sufficient to take the issue of undue influence to the jury, and an instruction was erroneous which directed a verdict in case the jury found certain facts, but entirely ignored the issue as to undue influence.
    3 -: Testator's Understanding of English: Instructions. Where there was substantial evidence on both sides of the question whether the testator understood English well enough to grasp the meaning of the instrument he signed and whether in fact he did understand that instrument and understand it to be a will and that he was executing it as his will, instructions given for the plaintiffs were erroneous which did not require the jury to find that as a fact the testator did so understand, before they could render a verdict for the proponents; and instructions given at the instance of the plaintiffs which sufficiently required a finding of this fact only tended to confusion.

      Appeal from Lawrence Circuit Court. — Hon. F. G. Johnston, Judge.
    Eeversed and remanded.

      I. V. McPherson, P. H. Karris and Edward J. White for plaintiffs in error.
    (1) The court erred in refusing the demurrer asked at the close of the proponents’ evidence, (a) There was no proof of testamentary capacity on- the part of the alleged testator as required by the statute, E. S. 1909, sec. 535; there was' no proof of execution of the will. Cowan v. Shaver, 197 Mo. 208 ; Cash v. Lust, 142 Mo. 630; Crumm v. Crumm, 231 Mo. 626; G-ibony v. Poster, 230 Mo. 106; Winn v. Crier, 217 Mo. 420., (b) There was no proof of a request expressed or implied by the testator that his will should be attested, and that in pursuance of such request the signatures of the witnesses were affixed to the alleged will in his presence. Hughes v. Eader, 183 Mo. 630'; Hach v. Eollins, 158 Mo. 190; Avaro v. Avaro, 235 Mo. 424. (c) The alleged will was unreasonable and unnatural and very slight evidence was sufficient to warrant the conclusion of incompetency or undue influence. Muller v. Hospital Ass’n, 5 Mo. App. 390, 73 Mr. 342. (d) One subscribing witness, Bachland, testified that he could not make him understand the nature of his will, and did not know whether he had explained it to him after he had dictated the will or not. The other subscribing witness, Uttenberg, testified that he did not believe he understood the nature of the will -and quoted the Swedish language which he used to say that he had nothing to give away. This witness also stated that after attempting to make the alleged testator understand, Bachland came back and said, “he couldn’t make him understand.” (e) The deceased was 80 years old, understood the Swedish language, but was unable to read or write English, in which language the will was written. Neither witness to the will testified to any declaration of the decedent, or any act on his part except that of touching the pen, and no declaration in the presence of either witness was testified to, indicating that the deceased knew the contents of the paper or that he intended to execute it as his last will, but all the evidence taken together proves the deceased was ignorant of the nature of a will. This instrument fixed up.in such a manner and under such conditions was not the legal will of the alleged testator. Mittenberger v. Mittenberger, 78 Mo. 29; 1 Redfield on Wills, p. 534; 1 Jarman on Wills, 64. (2) The court erred in giving instructions .1 and 2 on behalf of the proponents. The first instruction submitted the case to the jury as though the attesting witnesses had ascertained that the deceased had sufficient intelligence to understand the act he was performing, the property he possessed, the disposition he was making of it, and the persons and objects he was making the beneficiaries of his bounty; whereas, the evidence of the two attesting witnesses, and all the others present when the alleged will was executed, was directly to the contrary. The seqond instruction was predicated upon the theory that the deceased had himself sent for the subscribing witnesses, and that the will had been read over to the testator before he signed it, or made his mark; whereas, the uncontradicted evidence was that the will wa's not read over to the testator in the Swedish language at all, but was only read over by the scrivener, in the English language, and that the testator could not understand the English language at all, and that he had not sent for these persons to witness his will because he was ignorant of the nature of a will. Both of these instructions, therefore, were based upon conditions not shown to exist in the concrete case before the court and hence were clearly error, because there was no evidence upon which to base them. (3) The court erred in refusing the plaintiff’s instruction numbered eight. The plaintiffs’ instruction 8 was based upon the undue influence of the defendant, Fred Lafgran, a stranger to the deceased, who went to his little home after his wife’s death and loaded him into a wagon and took him to his house a week or so before he died. The evidence was to the effect that he had-importuned the deceased in a threatening manner to leave him his property in consideration of his taking care of him until he died, and he was then in a helpless and hopeless and dying condition. This was sufficient evidence to base the instruction upon, and it should have been given. The evidence showed a confidential relar tion existed between Fly and testator and between the testator and Lafgran. Campbell v. Carlisle, 162 Mo. 634.

      William B. Skinner for defendants in error.
    (1) When a will is contested it devolves upon the proponents to prove its execution and that the testator was of the requisite age and sane. This makes a prima facie case and it then devolves on the contestants to establish his incompetency and undue influence. By competency to make a will is meant intelligence sufficient. to understand the act he is performing, the property he'possesses, the disposition he is making of it and the persons or objects he makes the beneficiaries of his bounty. Imperfect memory caused by sickness or old age, forgetfulness of names of persons he has known, idle questions, or requiring a repetition -of information will not be sufficient to establish incompetency, if he has sufficient intelligence to fulfill the .above definition. Sehr v. Lindemann, 153 Mo. 276; Winn v. Grier,' 217 Mo. 446; Hughs v. Eader, 183 Mo. 630; Gibony v. Foster, 230 Mo. 131. (2) Where the evidence showed that witnesses are present for the purpose -of attesting a will, that the will is prepared in the presence of the-testator, that it is read to him and he signed it, and it is then passed to a table in the same room, and there, in the presence of the testator and of each other, the witnesses sign it, such acts constitute, in effect, a request from the testator to sign it, and the mere fact that one of the beneficiaries requested the attendance of the witnesses, and that the testator does not proclaim the paper to be his last will and testament, nor verbally request the witnesses to attest it, are not sufficient to annul the will on ground of non-compliance with the statute. Hughes v. Rader, 183 Mo. 630; Martin v. Bowdern, 158 Mo. 389; Schierbaum v. Schemme, 157 Mo. 1. (3) “There is not much contrariety of opinion in the courts as to what constitutes undue influence, such as will vitiate a will. It must constitute an influence exerted male fide to produce a result which the party, as a reasonable person, was bound to know was unreasonable and unjust, and it must have the effect of producing illusion or confusion in the mind of the testator, so as to either overcome free agency, or power of judging upon the true relationships between himself and those who might be supposed to have just claims upon his bounty. It must not be such as arises from influence of gratitude, affection or esteem, but it must be the control of another will over that of the testator, whose faculties have been so impaired as to submit to that control, so that he has ceased to be a free agent, and has quite succumbed to the power of the controlling will.” Carl v. Gabriel," 121 Mo. 296; Campbell v. Carlisle, 162 Mo. 646; Hughes v. Rader, 183 Mo. 633. “In order to authorize the submission of the question of undue influence to the jury there should be at least some substantial and satisfactory proof that the will was procured by coercion and importunity which could not be resisted and that by such coercion and importunity the execution of the will was procured. ’ ’ Winn v. Grier, 217 Mo. 460. “The influence denounced by the law must be such as amounts to overpersuasion, 'coercion or force, destroying the very agency or will power of the testator and substituting’ therefor the will of another.” Hughes v. Rader, 183 Mo. 633. In-fluence gained by kindness and affection will not be regarded as undue, if no imposition of fraud is practiced, even though it induce the testator to make an unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.” Campbell v. Carlisle, 162 Mo. 647. It would be a great reproach to the law, if, in its jealous watchfulness over the freedom of the testamentary disposition, it would deprive age and infirmity of the kindly ministrations of affection, or the power of rewarding those who bestow them.” Campbell v. Carlisle, 162 Mo. 647.
   BLAIR, C.

This is a proceeding instituted by the heirs at law of Neis Johnson to contest the validity of an instrument purporting to be and duly probated as his will. Prom a verdict and judgment for proponents plaintiffs appealed.

The petition alleges that (1) Johnson lacked testamentary capacity, (2) the will was the product of undue influence and (3) Johnson did not understand English and did not sign the instrument "as and for his will, understanding and knowing the terms and contents thereof."

On the trial there was ample evidence warranting a verdict in favor of the will, but there was also evidence for plaintiffs tending to prove the allegations of the petition.

The principal question presented concerns the correctness of instructions given for proponents, as fol-' lows:

“Gentlemen of the Jury: (1) If you find and believe from the evidence that the instrument of writing mentioned in the petition and offered and read in evidence in this case was signed by Neis Johnson by making his mark thereto, as his will, in the presence of two witnesses and that the witnesses subscribed their names to such instrument, in his presence and at his request and that at the time of signing such instrument of writing said Neis Johnson was twenty-one years -old or more and had at such time intelligence and mind sufficient to understand the act he was performing, the property he possessed, the disposition he was making of it, and the persons and objects he was making the beneficiaries of his bounty, then your verdict should be that such instrument of writing is the will of said Neis Johnson.
“ (2) The court instructs the jury that if you find from the evidence that the witness Bachland and Uttenberg were sent for by Neis Johnson, the testator, to act as witnesses to his will, and that they were present in the room where the will was written for the purpose of 'witnessing it, that such will was written and prepared in the presence of said witnesses and said testator, and read over to said testator and he said he was ready to sign it and he did sign it by making his mark to his signature in the presence of said witnesses and it was then passed over to the said witnesses Bachland and Uttenberg and the certificate on such will they were required to sign was read over to them in the hearing of said testator and in his presence and' the witnesses there in the room in the presence of the testator, signed their names to the will where they were directed and shown by Mr. Fly, then such acts constitute, in effect a request from said Neis Johnson the testator that such witnesses sign the will and you should so find.”

1. Preliminarily it may be stated that the suggestion the evidence does not support the verdict has not sufficient basis in the record to justify a detailed statement of the facts. The . , . scrivener, the attending physician, one of 'the attesting witnesses and others testified directly to the sanity of Mr. Johnson. The evidence to the contrary, while sufficient to take the case to the jury on that issue, was not convincing and it is not surprising it did not convince the jury. There was direct evidence to support a finding that the will was duly signed, published and attested; the testator being of the requisite age, this made a prima facie case. [Avaro v. Avaro, 235 Mo. l. c. 429.] The fact that one of the attesting witnesses expressed doubts as to Mr. Johnson’s sanity and did not remember being expressly requested to attest the will was of little consequence in view of the above mentioned testimony and the further fact that there was much evidence tending to show that Mr. Johnson sent for the witnesses for the express purpose of making a will, that in the presence of the witnesses he directed the disposition made of his property in the instrument, had the witnesses act as interpreters, the discussion concerning the will being carried on in a language the witnesses fully understood and the instrument being re.ad over to him in their presence he said he was ready to sign and did sign it, understandinglv, and it was then handed to and attested by them in' his presence. When the instrument was offered for probate both witnesses gave the customary evidence as to due execution and the sanity of the testator. In these circumstances subsequent doubts of one attesting witness as to Mr. Johnson’s sanity and his failure to recall an express request to attest the will fall far short of' a showing sufficient to justify the trial court in directing a verdict against the will. [Hughes v. Rader, 183 Mo. l. c. 701, et seq.]

It may be added that while there was some evidence Mr. Johnson did not understand English sufficiently to comprehend the meaning of the instrument after it had been drawn up in that language, there was abundant evidence that he did understand its meaning and that it was drawn following directions he had given in Swedish to the attesting witnesses which they interpreted for the benefit of the scrivener.

2. (a) With respect to the first instruction it directs a verdict in case the jury find certain facts but, entirely ignores the issue as to undue influence.

There was some evidence tending to show the folfowing facts: Lafgran, the residuary legatee, was not related to Mr. Johnson by either blood or marriage but had lived near him for many years and had worked for him at times and was aiding him to some extent during the early days of his last illness; a short time before the will was executed Lafgran took Mr. Johnson to his own home, the latter’s condition having become such that he could not care for himself; at this time Mr. Johnson was very' sick, his wife had died some ten days previously, he was seventy-five or eighty years old and quite feeble, both in body and mind, before he became ill; from the time of his removal to Lafgran’s home until the will was made and thenceforward until his death he was cared for in Lafgran’s family, though there was no evidence that Lafgran personally waited upon him or acted as his nurse; on the morning of the 16th of March Lafgran went for Back-land, Uttenberg and Fly, the two former being attesting witnesses and the latter the scrivener who drew the will; during the time the will was being prepared Lafgfan was in the room with Mr. Johnson and upon the latter’s saying, he would keep some of his property as he would need it when he got well there was some evidence'Lafgran went to the bedside and explained in the Swedish language that the will would not operate like a deed but would only take effect at death; that while the will was being drawn and after Backland had talked with Mr. Johnson for some time in Swedish and had said that he “couldn’t drive nothing into his head,” Lafgran went to the bedside and talked with Mr. Johnson and said, “Didn’t you promise you would give me a lot to bring you here and take care of you?” and Mr. Johnson said: “Yes, I want you to have something for taking care of me; ’ ’ that Backland touched Lafgran on the shoulder and told him he mustn’t talk that way and Lafgran replied:. “I was telling him what I ought to have;” that Lafgran then told the scrivener what to write. There was, also, evidence Mr. Johnson at the time was mentally as well as physically weak and •feeble.

The estate was worth, above debts and funeral expenses, about $3000, and of this Lafgran was given all but $700, of which sum plaintiffs, who are Mr. Johnson’s nephews and nieces and -only living relatives, were given $100 each. There was some evidence plaintiffs were and had been on friendly terms with their uncle.

It is true there was a great deal of evidence contradicting and explaining that recapitulated in so far -as it possessed any sinister significance whatever> but this fact does not constitute an answer to the contention that the evidence stated was sufficient to take the issue of undue influence to the jury. It may be conceded that the weight of the evidence seems from the record to be with proponents and yet this does not meet the question raised. That question is not whether this court thinks it. would find against undue influence on this record nor whether, from the record, it thinks the jury ought to have found against it if the issue had been properly submitted. In legal effect the trial court’s action was equivalent to telling the jury there was no substantial evidence of undue influence which they had a right to believe and; equivalent to instructing them to find for proponents on that issue. [Crum v. Crum, 231 Mo. l. c. 636.] Plaintiffs had not abandoned but were insisting-upon the submission of the issue and it is clear, when the evidence stated is measured by the applicable rule (Carl v. Gabel, 120 Mo. l. c. 295, et seq.; Teckenbrock v. McLaughlin, 209 Mo. l. c. 550, 551; Gibony v. Foster, 230 Mo. l. c. 137; Cowan v. Shaver, 197 Mo. 203) that the court was in error in ignoring it and practically excluding it from the jury by the first instruction given at proponents’ instance. It was the jury’s province to pass on the conflicting evidence on the issue of undue influence and this the trial court did not permit them to do. Since every known living relative of Mr. Johnson was made a legatee the requirement in the first instruction that he must be found to possess sufficient mental capacity to understand “the persons and objects he was making the beneficiaries of his bounty” closely enough approximated the usual and therefore safer formula.

(b) There was substantial evidence on both sides of the question whether Mr. Johnson understood English well enough to grasp the mean-l°^ the instrument he signed and whether, in fact, he did understand that instrument and understand it to«be a will and that he was executing it as his will when he signed it and it was attested. The evidence was entirely sufficient to warrant an affirmative finding, but there was substantial evidence to the contrary. In view of this fact instructions one and two in so far as they ignored this last mentioned evidence are erroneous. In the circumstances, a mere capacity to understand was not all that was required. The jury should have been required to find that as a fact Mr. Johnson did understand. Nor, in the circumstances, unless he in fact understood, would the facts predicated in the second instruction have the effect ascribed to them. The rule laid down in Hughes v. Rader, 183 Mo. l. c. 701, et seq. and Walton v. Kendrick, 122 Mo. 504, is sound enough but does not, on the evidence in this record, warrant an assumption in the instructions that Mr. Johnson understood the will as written in English. [Miltenberger v. Miltenberger, 78 Mo. 27.] In this connection instructions given at the instance of plaintiffs sufficiently required a finding of the fact that Mr. Johnson did understand the- will but the result was a conflict which could only tend to confusion.

3. So far as concerns the suggestion that Mr. Johnson’s intent was that Lafgran’s right to take under the will should be conditioned upon his paying over a specified sura to an orphan’s home it is only necessary to say that the sixth instruction given for plaintiffs sufficiently covered that issue. [Cowan v. Shaver, 197 Mo. l. c. 212, et seq.]

The judgment is reversed and the cause remanded.

Brown, C., concurs.

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

All the judges concur — Woodson, J., in the result.


source: Caselaw Access Project

author: BROWN", C.

license: Public Domain

text:
    FRANK JOHN MARTIN v. ELIZABETH MARTIN et al.; KATHRYNA SCHENK, Appellant.
    Division One,
    May 31, 1913.
    1. PARTITION: Equitable: Practice. Equitable interests in land may be partitioned. While such proceeding is called an equitable one in distinction from the action at law prescribed by tbe statute, the practice is regulated by the statutory provisions so far as applicable.
    2. --: -: Establishing Equitable Title: Parol Evidence. Where it is sought, in a suit in equity for partition of lands, to establish a trust or other equitable title by parol evidence, the proof must be clear and convincing. Consideration is the' foundation of such interests.
    3. ---: -: -: -: Contract Legitimating Child. Parol evidence set out in the opinion held sufficient to establish the making of a contract by a husband with his wife to make her child, born ten months before the marriage, his own.

      Appeal from Cooper Circuit Court. — Hon. W. H. Martin, Judge.
    Affirmed and remanded.

      W. V. Draffen, Williams S Williams, and Jeffries & Corum for appellant.
    The court erred in finding the issues for the plaintiff. The plaintiff offered no evidence tending to sustain the contract pleaded or warranting the decree rendered. Walker v. Bohanan, 243'Mo. 119; Forrester v. Sullivan, 231 Mo. 373; Grantham v. Gossett, 182 Mo. 671; Asbury v. Hicldin, 181 Mo. 672; McElvain v. Mc-Elvain, 171 Mo. 257; Kinney v. Murray, 170 Mo. 700; Steele v. Steele, 161 Mo. 573.

      John Cosgrove and Daniel W. Cosgrove for respondent.
    The evidence in this case clearly establishes the fact that John Martin, Jr., considered that he had adopted the plaintiff and brings the case clearly within the principle announced in: Lynn v. Plockady, 162 Mo. Ill; McElvain v. McElvain, 171 Mo. 254; Plealy v. Simpson," 1.13 Mo. 347.
   BROWN", C.

This is a suit for partition of land instituted March 25, 1909, by filing the following petition :

“Frank John Martin, Plaintiff, v. “Elizabeth Martin, Defendant.
“Plaintiff states that John Martin, Jr., died in the county of Cooper, State of Missouri, on or about the 25th day of October, 1908, seized of the north half of the southeast quarter of section twenty-one and the northwest quarter of the southwest quarter of section twenty-two, all in township forty-eight, range eighteen, situated in said county of Cooper and State of Missouri.
“Plaintiff further states that John Martin, Jr., was the husband of the defendant, Elizabeth Martin; that said John Martin, Jr., was married to the defendant in Cooper county, Missouri, May 1, 1865; that the plaintiff is the son of the defendant; he was born June 14, 1864; that before the said John Martin, Jr., and defendant were married said John Martin, Jr., promised and agreed that if the defendant would marry him he would adopt her said child and would make him his heir, and in all manner and respect consider him and keep him as his lawful son, and if any child or children were born of said marriage that plaintiff should share with said child or children thereafter to be born the same as if plaintiff were the natural son of John Martin, Jr.; that after the marriage of the said John Martin, Jr., and the defendant, plaintiff’s name was changed from John Grillett to Prank John Martin, and the said John Martin, Jr., during his lifetime treated plaintiff as his child, introduced him and spoke to others of him as his son, and in all ways treated him as such; that plaintiff was led to believe by the said John Martin, Jr., and did believe that he was a natural son of the said John Martin, Jr., and did not know the contrary until he had grown to manhood; that said John Martin, Jr., called the plaintiff “son” and plaintiff called him “father;” that plaintiff lived with the said John Martin, Jr., in his home until he was over forty years of age, worked on the farm and helped accumulate and pay for whatever estate the said John Martin, Jr., had at the time of his death; that said John Martin, Jr., had no other child or children and left surviving only the plaintiff and defendant; that no other persons have interest in said land, and plaintiff Says that as the adopted, child of the said John Martin, Jr., he is .entitled to share in said real estate in all respects as if he were the natural son of the said John Martin, Jr., deceased. Plaintiff says that he is entitled to an undivided one-half of said real estate and the defendant is entitled to the other undivided one-half thereof in fee simple; that the debts of the said John Martin, Jr.’s estate have been paid and no part of said real estate will be required to pay the debts of the said estate. •
“Plaintiff further states that Said land can be divided in kind between himself and the defendant.
“Plaintiff therefore prays that partition be made of said land according to the respective rights of the parties, and that if it be foqnd that partition cannot be made in kind that said land be sold and the proceeds appropriated according to the respective rights of the parties hereto, and for such other and further relief as to the court shall seem meet and just.”

Mrs. Schenk was afterward, on her own petition, made a defendant, and filed answer stating' that she was the only sister of John Martin, Jr., and his sole heir other than Elizabeth Martin the original defendant; so that the suit became a contest solely between her and the plaintiff.

The appellant, in her brief, admits that John Martin, Jr., died October 25, 1908, the owner of the land described in the petition, that the defendant Elizabeth Martin is the widow, and the defendant Kathryna Schenk his sister, and that the plaintiff is.the illegitimate son of the defendant Elizabeth Martin and was born June 14, 1864, and that his mother was married to John Martin, Jr., on May 1, 1865; so that plaintiff was then about ten and a half months old. It is not questioned that the plaintiff lived with his mother and her husband, working on the farm, until he was forty-two years old, when he married and settled near them. He was always known by the name of Martin, and John Martin, Jr., treated him as and called him his son and the evidence shows that he talked freely with the neighbors about his position in the family. Mr. Maim, one of the old. neighbors, said that he had heard him talk about it maybe a hundred times — about Prank being his son and that he wanted him to have everything he had; that he married Mrs. Martin with the understanding that he would adopt him and take him as his son. The last talk this witness had with Mr. Martin was only three or four years before the trial. • He asked Mr. Martin if he had made any provision for Prank, and he said he did not feel it was necessary, that Prank was his child, and he considered him his son. He said that he had promised the priest that he would treat Prank as Ms own son.

Mrs. Pisher, Mr. Martin’s sister-in-law, who had lived with them eleven or twelve months when Prank was about three years old, said that Mr. Martin called him his own son and that hardly anybody knew to the contrary, that he often caressed him and showed affection for him. The witness left the neighborhood when Prank was eight or nine years old, staying away about eight years, then returned, and remained in the neighborhood ten or twelve years, - during which she visited the Martins, staying perhaps a whole week at a time. Prank was always introduced as Mr. Martin’s son — a child of the house. Many times he would take him up and caress him and say he was his own child.

Mr. Gerhardt, another neighbor, said that after Prank was twenty-one years old he heard that he was not Mr. Martin’s own son and asked the latter about it, and was told that he took him as'his son and that whenever he died all that he owned was Ms. He said “whatever we got is Prank’s after my death.”

- Mr. Roe lived in the neighborhood and knew the Martins. He had heard Mr. Martin speak frequently of Prank as his son, and heard him say that when Prank was a young man growing up, boylike he liked to have some times as well as other boys, and thought he was pretty closely confined at work sometimes. He said that Frank thought he had a pretty hard time but “it’s all for Frank anyhow; Frank gets it all when we are done with it, and I think I will let him do some of the work.” Frank remained continually on the farm and worked until he married, and the witness lived on adjoining farms the most of the time for thirty-five years and was intimate with them and saw Mr. Martin at his home the day he died.

Barney Martin, a cousin of Mr. Martin, testified that Mr. Martin said that Frank was his son, and that he claimed him as such all the time.

The defendant introduced no evidence. The court found for plaintiff and determined that as heir of John Martin, Jr., he was entitled to share in the distribution of the estate as a child and that the defendant Kathryna Schenk had no interest in the land or any part thereof, and adjudged that the dower and homestead be set off to the defendant Mrs. Martin; that the remainder of the land be vested in the plaintiff; and appointed commissioners to make partition accordingly. This appeal is taken by Mrs. Schenk from the interlocutory judgment.

The defendant Mrs. Martin testified, but her testimony was afterwards excluded by the court on the ground that she was incompetent as a witness. In the light in which we view the testimony her statements were simply cumulative and neither added to nor detracted from its weight.

It has been necessary in the foregoing statement to set forth the p&tition in ¡iaec verba because the difficulties of the case depend upon its form and effect. Had it been drawn with reference to the facts in evidence these would have been eliminated. It appears with great distinctness, however, that the object of the proceeding is partition. The petition states that the plaintiff is entitled to an undivided one-half of the land and his mother to. the other undivided one-half in fee simple. Had the plaintiff seen fit to rest his title upon this averment alone the proceeding would have been a simple statutory suit for partition in which the legal title alone would have been involved; and we would he called upon to decide whether or not the plaintiff, under the provisions of section 341 of the Eevised Statutes of 1909, was a legitimate child. For, as was said by Judge Valliant for this court in Gates v. Seibert, 157 Mo. 254, 272, “ a legitimate child under our law is one born in lawful wedlock, or of a widow within ten months after the death of her husband, or born before the marriage of its parents who afterwards marry, and receives the recognition of its father; and one such child is just as legitimate before the law as the other. The statute has made them equal before the law and the courts cannot make them unequal.” But the plaintiff, in view, no doubt, of facts not otherwise disclosed in the record, saw fit to ignore in the petition the illegitimacy of the plaintiff and to place his rights in this case squarely upon equities arising out of an alleged contract of Mr. Martin'with his mother. The case was tried and the finding of the court made upon that theory, and we will consider it from the same point of view.

Parol Evidence. That equitable interests in land may be partitioned in an appropriate proceeding for that purpose has been long settled in this State. While such a proceeding is called an equitable one in distinction from the action at law prescribed by the statute in such cases, it is also settled that the practice will be regulated by the statutory provisions so far as applicable. [Donaldson v. Allen, 213 Mo. 293, and cases cited at pp. 299, 301.] It is equally true that where it is sought in such cases, to establish a trust or other equitable title by parol evidence, the proof must he clear and convincing; in fact it must leave no reasonable doubt iu the mind of the chancellor ag to the existence of the facts upon which the equity depends. The consideration is the foundation of such interests, and where equity intervenes to remove the inhibition of the Statute of Frauds, it is usually upon the ground that one who has received the consideration of the transaction is guilty of a fraud if, keeping it, he refuses to render the thing for which it was paid. When he thus imposes upon the confidence of the victim until he surrenders the consideration before receiving the thing he buys, equity will not permit the statute enacted to make the evidence of the transaction clearer and more reliable, to be used as the controlling instrument of concealment and fraud. But in granting this relief it requires a case to be made with the same force and certainty that the statute was designed to insure. In doing this the consideration is the foundation upon which the evidential structure is built.

Here we have the fact that a woman is alleged to have made the agreement in question to give a name and home to her illegitimate child. This circumstance is not inconsistent with moral rectitude and innocence. She may have been induced by deception or ignorance into .a void matrimonial relation, or the misfortune she was attempting to mitigate may have come to her and the child in any one of the many ways that we can imagine, without moral fault on her part. As was said by the Supreme Court of New York in Townsend v. Van Buskirk, 68 N. Y. Supp. 512, “we must not lose sight of the fact that she is entitled to the full benefit of the presumption of innocence of any wrongdoing, moral or otherwise, until the contrary is shown by a fair preponderance of evidence.” It is only when one enters upon a cohabitation known to be meretricious that the presumption of innocence fails, [1 Bish. Mar. & Div., sec. 961.] In this case there is no pretence that there was anything meretricious in the cohabitation which resulted in the birth of the plaintiff, and the position of the mother has been treated with most perfect consideration in the trial and presentation of the case. When her child was ten months old she formed a matrimonial relation with Mr. Martin in which they lived in apparent happiness for forty-three years, during which the plaintiff was a member of the family, and engaged in the common work. It is said that there is no more meritorious consideration upon which to found an undertaking or conveyance than marriage. In this case the sacred duty rested upon the mother to give her offspring a name and to preserve it from the stigma of bastardy. The man who would willingly take the mother into his own life without assisting her in this would be inconceivable; so that we have united the most meritorious of considerations, the strongest of the human instincts, and the spontaneous impulse of a healthy manhood as the foundation for the agreement and evidence of its probability.

As we would naturally expect under such circumstances, Mr. Martin having assumed the position of father to the child made no secret of the new relation. He delighted in talking about it. Conversations of which he made it a subject were related or referred to in evidence covering the entire forty years during which the family was together. Pie freely spoke of the promise to the mother. Among the remarks attributed to him in the testimony, were the statements that he wanted Frank to be his own son; that he married the mother with the understanding that he would adopt him and take him as his son; that Frank was his child and he considered him his son; that he took her child for his .own; that he took him as his son and that all that he (the father) owned was his when he died; it is all for Frank; he gets it anyhow when we are done with it; that Frank would get all he had when lie died; and other expressions of which those mentioned constitute fair samples. No attempt has been made to discredit this class of testimony by showing even that Mr. Martin was reticent with his neighbors. And the life of this family, living together under one roof, working together to all appearances for a common end, addressing one another in language of the hearthstone, expressive of filial ties and the filial affections; all these things, as was said by Judge Valliant for this court in Lynn v. Hockaday, 162 Mo. 111, 124, speak louder than words “and these acts testify to what the agreement was more surely than witnesses who attempt to repeat the substance of conversations which they listened to twenty years before. ” It is said that all this testimony is uncertain and valueless on account of the absence in most instances of the word adopt. It seems to be contended that these other expressions — that Mr. Martin would take him as his own son and that he was his own son and his child and that he would get all he had when he died — -are valueless to prove such a contract as is here asserted because they do not state the name of a legal process or proceeding by which all this was to be accomplished. It is true that they only express the result to be attained and not the details of its accomplishment. In the ease we have just cited, which bears a striking resemblance to this, it was said by the man who took the child “that the grandmother had given her to them to raise as their child.” Of this language Judge Valliant said: “When we consider who the old grandmother who dictated the terms was, and her condition in life, we cannot expect her to have been posted as to the technical requirements of the statute in regard to adoption, but we see that she did understand the difference between merely giving the child out to service or. to rear, and giving her to one who would take her for his own child. Her words were as descriptive of the condition as if she had used the technical word adoption.”

The rule so well expressed in the above quotation is of universal application. Contracts may be made in the plain language understood by those who make them. Should a vendor say, “I have sold the white acre to A. for $1000 which he has fully paid to me,” it would be futile to deny that the writing cqntaining the statement constituted a contract for the sale of the tract of land described because it did not also contain an agreement to make a deed; for all things necessary to effectuate the sale would be included within its terms. It is objected also that when Mr. Mann asked Mr. Martin if he had made any provision for Prank the answer was that he did not feel it was necessary; that Prank was his child and he considered him his son. This is interpreted by the appellant as a declaration by Mr. Martin that he was under no obligation to execute any act of adoption and as a denial that he had agreed to do so. This is only an expression of opinion at the. very most. If he had agreed to make the child his son so that he woqld take his property at his death, and this could only be done by formal adoption, then he was bound formally to adopt him. If he did not believe this was necessary that opinion would not affect the character of his undertaking. It may be that he had been advised and believed that no further act than his public recognition of the relation was necessary. A majority of the judges of the United States Circuit Court of Appeals in Adger v. Ackerman, 115 Fed. 134, were of the opinion that under the Missouri statute to which we have already referred, the recognition by the husband of the illegitimate children of the wife born before the marriage, is conclusive evidence that he is their father and legitimates them, and this court, in Breidenstein v. Bertram, 198 Mo. 328, 347, seemed, from the complimentary manner in which it referred to and quoted the opinion of Judge Thayer in the former case, to be then unprepared to disapprove that proposition. We think that in the light of this judicial uncertainty, Mr. Martin was excusable if he thought that he had done all he could and all the law required to be done to place Prank in the position of his son and heir.

The evidence in this case being of such a nature that it leaves no substantial doubt, in our minds, that at the time of the marriage of Mr. and Mrs. Martin it was agreed between them that in consideration of the marriage he would make her child his own, it was his duty to fulfill the obligation so assumed by doing all acts necessary to the accomplishment of that purpose to the fullest extent permitted by law. If it required the execution of a deed of adoption under the provisions of the statute to invest the plaintiff with all the rights of a legitimate child, which we will assume to be the case but find it unnecessary to decide, then it was his duty, in the performance of his obligation, tq execute such deed. Having failed to do so the court, in the exercise of its equitable jurisdiction should, as has been done in this case, enforce the rights growing out of such duty.

“Equity looks upon that as done which ought to have been done.” [1 Story’s Eq. Jur. (12 Ed.), sec. 648.] “All agreements are considered as performed which are made for a valuable consideration, in favor of persons entitled to insist on their performance. They are to be considered as done at the time when, according to the tenor .thereof, they ought to have been performed.” [Ibid.] This maxim has been correctly looked upon as the very foundation of all distinctly equitable property rights, of all equitable estates and interests both real and personal. [1 Pomeroy’s Eq. Jur., sec. 364.] It has been called “a fruitful maxim.” Its application to this case is well illustrated in Frederick v. Frederick, 1 P. Wms. 710. A man had contracted at the time of his marriage, to become a citizen of London, but died before he had done so by taking up his freedom. His widow brought suit for the distribution of Ms personal estate according to the custom of London, which applied only to citizens. Lord Chancellor Macclesfield in deciding the case said: “Mr. Frederick having upon good consideration made the agreement to become a freeman of London within a year, and having survived that year, he shall in equity be taken for a freeman, and his personal estate distributed accordingly.”

So in this case, Mr. Martin having agreed, for a valuable consideration, which has been fully performed, to adopt the plaintiff, that act will be taken in equity as having been done in time and manner contemplated in the agreement. We have carefully examined the cases cited by the appellant, and find nothing in them contrary to the conclusion here indicated.

It follows from what we have said that the judgment appealed from is right, and it is accordingly affirmed, and the cause remanded for further proceedings.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: LAMM, J.

text:
    LAURA BENDER v. GEORGE WEBER and ELIZA WEBER, Appellants.
    Division One,
    May 31, 1913.
    1. NEGLIGENCE: Contributory: Not for Consideration. Where defendants breached no duty they owed plaintiff, the question of whether her injuries were due to her own negligence is put aside.
    2. ---: General Principles: Private and Public Ways. Announcements of courts on one state of facts are not to be applied automatically to another state of facts; but the general language of decisions must be read in the dry light of the very case held in judgment, and not otherwise. The principles announced in cases where traps are laid or dangerous openings are left so close to the line of travel in a public highway that travelers thereon are likely to stumble into them, are not to be applied in a case where plaintiff, while attempting to pass through a private inclosed courtyard at the rear of defendants’ houses, constructed for the accommodation of their tenants, fell into a cellarway and was injured.
    3. -: Liability of Landlord: Courtyard Reserved: Injury Therein. Where the owner of premises lets them to different tenants and there is a private courtyard in the rear of all of them, reserved by the landlord and kept under his control for the accommodation and convenience of the tenants and their customers, the landlord is liable to a customer .of one of them for a negligent maintenance of the way, if the customer is injured in the part of the courtyard so reserved, but is not liable if the injury occurred in a part not so reserved.
    4. -: -: Invitees of Tenant: Injury on Premises Under Tenant’s Control. An invitee or customer of a tenant stands in the shoes of the tenant and has no greater rights against the landlord for personal injuries than the tenant has. If the injury to the tenant’s invitee occurred in that part of a private way under the tenant’s control, and not under the landlord’s control, the landlord is not liable.
    5. -: -: -: Falling Into Cellarway. There was a private inclosed courtyard or passageway in the rear of the buildings owned by defendants, paved and constructed for the accommodation of grocerymen, milkmen, breadmen, etc. One of the buildings was leased to a grocer, and just at its rear door was a cellarway leading into a basement used in connection with the store. The steps were perpendicular with the wall of the building, and along the other side of the cellarway and along the end furthest from the door, was a banister or railing, but-the end next to the door, at the head of the steps, was left ¡open. The upper step began about nine inches from the door jamb, and was about two inches lower- than the door step. Plaintiff, a servant of an adjoining tenant, came to the rear door to purchase groceries, and in backing out of the door fell down the steps and was injured. Held, that the steps or cellarway were under the exclusive control of the tenant of the store, and the injury did not occur in that part of the courtyard reserved by the landlords and^ under .their control, and therefore they are not liable for plaintiff’s injuries.
    6. -: -: Injury to Licensee. Absent some form of active mischief on the landlord’s part, he is not liable for injuries to his mere licensee.

      Appeal from St. Louis City Circuit Court. — Hon. Charles C. Allen, Judge.
    Eeveesed.

      Claud D. Hall for appellants.
    (1) The court- erred in refusing the instructions offered by defendants in the nature of a demurrer to the evidence at the close of plaintiff’s case and at the close of the whole case. Buesching v: Gas Light Co., 6 Mo. App. 85; Larkin v. O’Neil, 119 N. T. 221; Kean v. Schoening, 103 Mo. App. 77. (2) The court erred in permitting the plaintiff to introduce evidence to the effect that children played in the alleyway. Fitzgerald v. Paper Co., 155 Mass. 155. (3) The court erred in refusing to permit witness Gaborino to state whether there was anything peculiar about the construction of the alleyway and e^llarway. Cobb v. Eailroad, 149 Mo. 609; Beard v. Car Co., 72 Mo. App. 591; Woerheide v. Car Co., 32 Mo. App. 369; Goins v. Eailroad, 47 Mo. 181. (4) There was no evidence that the defendants exercised exclusive control over the paved alleyway, or of the ingress or egress to these buildings, or that the public were authorized to use the alleyway or the rear door of the grocery. Shearman and Eedfield on Negligence, sec. 503; Leonard. v. Stores, 115 Mass. 89; Mellen v. Morrill, 126 Mass. 545. There was no evidence that these defendants had knowledge that the public used the alleyway or the rear door of the grocery, or that' they licensed or invited the public or this plaintiff to use this alleyway or the rear door of this grocery store. (5) The petition does not show any relation of any character, existing at the time of the accident, between the plaintiff and defendants which imposed any duty or obligation upon the defendants toward plaintiff. Southcate v. Stanley, 1 Hurl. & N. 246; Gautret v. Egerton, 2 L. E. C. P. 370; Bolch v. Smith, 7 Hurl. & N. 738; Hounsel v. Smyth, 97 Eng. C. L. 729; Glaser v. Rotlichild, 106 Mo. App. 418; Sweeny v. Railroad, 10 Allen (Mass.), 372; Barry v. Cemetery Association, 106 Mo. App. 358; Stevens v. Nichols, 155 Mass. 472; Sterger v. Van Sicldin, 132 N. Y. 499; Winkler v. Railroad, 169 Mo. 592; Davis v. Congregational Society, 129 Mass. 370; Nicholson v. Railroad, 41 N. Y. 529. The petition does not allege that the rear door of the grocery was used by the public entering and leaving the store, with the knowledge of the defendants. McCarthy v. Poster, 156- Mass. 511; Whitley v. McLaughlin, 183 Mo. 160. It was not negligence to fail to put a gate on the cellar stairway. Buesching v. Gas Light Co., 6 Mo. App. 85.

      John T. Talty and E. V. Sellech for respondent.
    (1) When a defect exists in a way or walk leading to several .tenements leased to different tenants, and used in common by the tenants, and also by the public, the landlord is liable for injuries sustained in using the same. 1 Taylor on Landlord & Tenant (9 Ed.), p. 221; Carson v. Quinn, 127 Mo. App. 525; Poor v. Sear, 154 Mass. 539; Center v. Treadwell, 39 Ga. 210; Milford v. Holbrook, 9 Allen, 17; Buesching v. Gas Light Co., 73 Mo. 219; Redman v. Conway, 126 Mass. 251; Dallard v. Roberts, 130 N. Y. 273; Sawyer v. McGillicuddy, 81 Me. 322. (2) Respondent in proving the averments of her petition, that the way or walk was used in common by appellants’ tenants, and also the public, was entitled to show that children as well as adults used it. (3) The petition contains every averment necessary in stating a cause of action of this character, and is well and carefully drawn and in no way susceptible to criticism even.
   LAMM, J.

Negligence. Personal injuries. Verdict and judgment for plaintiff for $1250. Appeal to the St. Louis Court of Appeals. Affirmed there by a divided court. Certified here under section 6 of the 1884-Amendment of the Constitution.

The pleadings fill no office for present purposes.

The case on the facts is this: There are' two streets in St. Louis (Cardinal and Laclede) cutting each other at right angles. In one of such angles there is a group of buildings owned by defendants, husband and wife. The ground floors and basements of some are leased for business purposes, while the upper floors of those and the whole of the other buildings are flats or dwellings occupied by tenants for living purposes. There is a paved private courtyard or passageway for footmen only (somewhat like a patio) for access to the rear of all. For convenience of expression, we will call it the “courtyard,” passim. To fill its office suitably (which office was that of giving access by way of common use to tenants and those other persons having a right to go to the rears of the group of buildings — e. g.,- grocerymen, meat market-men, milkmen, hreadmen on their delivery rounds) said courtyard runs east and west and then turns north, taking the form of an “L.” As said, this courtyard is private property, belongs to defendants, being cut off by lattice screens from both Cardinal and Laclede, with latched doors in the screens for ingress to and egress from the courtyard. It is not connected with any public alley. As said, defendants’ tenants made common use of this courtyard when occasion called, this in addition to the use mentioned above. A minor or sporadic use also grew up, incident to the "Woods tenement, which will he recurred to further on. At a certain place in this courtyard, the locus in quo, it is eight feet six inches wide from wall to wall, i. e., from north to south. The width is less at some other places. Ranged along the sides of this courtyard are breadboxes, gasoline tanks, ash bins (the latter possibly permanent) for the convenience of tenants — we suppose, put there by them. There are also some cellarways running east and west lengthwise with the courtyard, and hard by the,rear building walls, which cellarways lead to the basement cellars of those buildings having such cellars. These cellarways make openings, say, eight feet long and two feet three inches wide severally. They have no trap doors on top, .but are cut off and guarded from the courtyard by wooden railings or banisters at one end and along one side (the other side being protected by the building wall) and one end was left open at the head of the cellar stairway, the latter leading down, say, eight feet, to the outside cellar door to the basement proper. The upper step of each of these cellar stairs is flush with the paved courtyard; and these stairways were built and arranged, as above described, some years gone, to-wit, at the time the group^ of buildings were constructed by their former owner in accordance with an architect’s design.

At the times in hand the ground floor of one of these buildings was in the possession of two brothers, named Wood, as tenants of defendants, the Woods running a grocery there. The cellar under that ground floor was leased with the ground floor itself to them for that purpose, including the right to the use of the stairway leading thereto. In this cellar the Woods stored and kept goods, boxes, etc., and their necessary outside access to this cellar was, as suggested above, by one'of the described cellar stairs, opening into the courtyard, and subjected to this private and exclusive use every day about their business.

There was a rear door to Woods’s grocery opening on the courtyard. The upper step of the cellar stairway in question (said step being at a right angle to the building) began nine inches or so west of the west jamb of this rear door, and the door sill of that door was about two inches above the level of the courtyard pavement. We take it from the record, including photographs in evidence, that the ordinary line of travel east and west in this courtyard (that is, the customary use) was on about six feet of clear space of pavement, to-wit, the whole courtyard, saving and except the space taken up next to the rear building walls by ash bins, breadboxes, oil tanks, cellarways, etc. It will thus be seen that to fall into this cellar-way anyone leaving this rear door would have to turn to the west, directly on stepping out, and in the line of the obstructions on that side, instead of taking pains to go north far enough to get outside the line of said obstructions and into the clear space or line of travel of the courtyard east and west.

In this condition of things, and not otherwise, on a Sunday evening, October 28, 1905, plaintiff (an intelligent housemaid thirty-three years of age, with good eyes) entered this courtyard from Cardinal on an errand for her mistress, a Mrs. Conley, to get from Woods’s grocery some oysters and milk for lunch. Mrs. Conley was one of defendants’ tenants, and the rear of her tenement, with windows therein, was on this courtyard and but a few feet away from Woods’s rear door and in plain view of said door and cellar-way from said windows.

Lying right under her eye, plaintiff could see and did see this cellarway from the Conley tenement windows, as said. Moreover, she had been in and out the grocery through this rear door. She admits she knew all the time she lived with Mrs. Conley that this cellarway was open at one end, the end next to Woods’s rear door, but she says she did not know how close on the west its upper step was from the- door sill of this rear door. All the testimony is to the effect that it was not dark but it was “just getting dusk.” We take it the light was such that plaintiff could have seen everything there was to see if she had looked at the immediate time. She says she saw. at the very time the banisters of the cellarway and saw the opening at one end where the steps begin “but did not know it was so close.” Her story is that coming with a bucket in hand to the rear door she took hold of the door knob, turned it and walked in; that she found there the proprietors and some others and “started” to buy what she went for. At that instant, and before trying to buy anything, she remembered ‘ ‘ something” and wanted to speak to her mistress about it. So, after saying “good-evening” to the persons in the store, she faced about and stepped, face to the front, straight north out of 'the door, “just stepped in and stepped out,” and as soon as she got out, when her hand was yet on the door knob, she fell (evidently having stepped to the west or westwardly along the building wall) through the open end of the cellarway, headlong down to the foot of the cellar stairs and thereby badly hurt herself.

That she did injure herself is conceded, indeed no question is made over the extent of her severe injuries.

Defendants introduced testimony from several witnesses, of great probative force, to the effect that plaintiff near dusk came with a bucket to the locked rear door of the grocery; that on knocking the door was opened; that several parties in the rear room of the grocery were smoking and drinking beer, “socially;” that plaintiff, herself intoxicated, stood in the doorway and asked for beer; that she said nothing about buying groceries; that, being refused beer, she, with her face to the south, i. e., away from the courtyard, backed out of the door laughing and talking and in so doing backed northwest into the cellarway.

The grocery had the usual front door and it was open at the time. There was no testimony that the rear door was intended by the owners of the building as a means of access to the storeroom by customers of the tenant occupying the ground floor, or was built for any purpose outside of the ordinary use such a rear door is put to for the backdoor convenience of the tenant. Neither is there any evidence showing or tending to show that defendants, the landlords, knew that their tenants, the Woods, permitted or solicited the use' of this rear door by their customers in coming-in or going out of the store. It stands conceded that no other rear door leading into this courtyard from any of defendants’ other tenements was so used. Defendants did not live on the premises, but some distance away, and collected their rents through an agent. It seems the Woods kept their grocery store open during part of each Sunday for the sale of groceries, and, as said, the front door was open at the time. Furthermore, it appears that Mrs. Conley was a customer of the Woods and that she and her housemaid used the courtyard as a near way or shortcut to the grocery through this rear door. Plaintiff had worked for Mrs. Conley for about two weeks, though she had been familiar with the courtyard for a much longer time, and testified that she saw “people going in and getting, groceries” through this rear door. There was testimony that other tenants of defendants at times made the same use of it, and sometimes outsiders, but the extent of this latter use is not disclosed. It was also shown that at times “people” were seen going through this courtyard and that children sometimes played there. It was testified to by Mrs. Conley on behalf of plaintiff, and denied by Mr. Weber, that prior to the accident she had notified him to close up the open end of the Woods’s cellarway and gave as a reason that it was dangerous to her children. There was uncontradicted testimony on behalf of defendants that the customary way of building in St. Louis is to leave cellarways, intended for uses such as this, in the rear of premises on private grounds, like this, open at one end. That “the general practice is to inclose all but one side- — that is, where yon go down the step-s.”- -As already pointed out, there was no testimony that anyone besides the Woods had any right to use the cellar-way or that its use was common to other tenants of defendants or to any part of the public at large.

Questions on the admissibility of testimony were ruled against appellants. So, a ruling was made on objections to an alleged improper argument by one of respondent’s counsel to the jury. Error is assigned in both particulars. Others relate to giving and refusing instructions — one a demurrer to the evidence hinging, in part, on the question whether respondent was not guilty of contributory negligence as a matter of law, and, in part, on another question presently stated. So, while the sufficiency of the petition was not challenged below, it is argued here it does not state facts sufficient to constitute s cause of action.

The record relating to the enumerated list of assignments needs no attention until such time as a main 'question raised by appellants (and hinted at above) is settled, to-wit:

Did they, as landlords, breach any duty they owed plaintiff by not fencing off the entrance of their tenants’ courtyard cellarway, and hence, should not the demurrer to the evidence have been given

If that question be ruled against appéllants, other assignments will be reached in due order and, in that event, any record pertinent thereto, if not already set forth, will appear in connection with a determination of those points. But, contra, if that question be ruled for appellants then the ease fatally breaks at that point and the other assignments will be reserved as not necessary for decision and to be ruled in some other case turning on them.

I. In determining that question it is better to clear the way by first defining it by eliminating or canceling out certain propositions and factors discussed in briefs and in authorities cited on both sides, and finally, as in paragrapli e, infra, differentiating and distinguishing our case from another closely allied to it.

(a) In the first place, and obviously, the question up is badly disconnected in nature and principle from another looming large on this record-, to-wit, that of plaintiff’s alleged contributory negligence. Hence the knowledge of plaintiff of the. existence of the open stairway and its location, her possession of good eyes, the state of the light at the time of the accident and whether she was intoxicated, or whether she went face forward (as she says) or walked backward (as defendants say) into the cellarway, not being elements of any deciding value, are put away from us and laid on the shelf.

(b) In the next place, a good rule, of every day service, is that judgments of appellate courts on one state of facts may not be applied automatically to another state of facts, but, contra, the general language in decisions must be read in the dry light of the very case held in judgment, and not otherwise. [State ex rel. v. St. Louis, 241 Mo. l. c. 238 et seq.] Therefore it will not do to indiscriminatingly invoke the principles and doctrines announced in cases where traps are laid or dangerous openings are left so close to the line of travel in a public highway that travelers thereon are likely to stumble into them whether in day time or night time, or where under circumstances of danger and surprise they suffer injuries from the proximity of such unguarded excavations or pits to public highways. This because: The courtyard was in no just sense a public highway but was private inclosed ground devoted to the convenience of defendants’ tenants and tenements and no express or implied invitation was extended to the general public to use it as a highway. The doctrine and reasoning of such eases, then, as Smith v. St. Joseph, 45 Mo. 449; Bassett v. St. Joseph, 53 Mo. 290; Buesching v. Gas Light Co., 73 Mo. 219; Fehlhauer v. St. Louis, 178 Mo. 635; Benton v. St. Louis, 248 Mo. 98; Dalay v. Savage, 145 Mass. 38; Babbage v. Powers, 130 N. Y. 281 (some of which are cited and relied on by counsel), furnish little or no aid in this case. In so far as those cases, or any of them, discuss and announce the joint duty of owners and tenants, or the separate duty of either of them or of municipalities to persons traveling on public highways, they are not at first blush, or at bottom, applicable to the instant case on the question up.

(c) In the next place, there is a doctrine of the law, hinging on the express terms of leases, whereby the duty to make repair or keep tenements fit is taken from the shoulders of the tenant or occupier (where it generally belongs, Ward v. Fagin, 101 Mo. 669) and is put upon those of the landlord, and wherein the breach of. that duty has been sometimes (but not always) allowed some significance as lex prívala in determining the liability of the landlord to the tenant or his guests or customers for injuries. This is so because:

In this case the terms of the lease between defendants and the Woods are not before us. Nor does the petition count on a breach of any contractual duty springing from the verbiage or provisions of the lease itself. Therefore that doctrine and cases discussing it are afield.

(d) So, there are other doctrines of the law regulating rights and duties between landlords and tenants pr between them (or either of them) and other persons, arising where tenements are let for an expressed purpose set forth in the lease, or are warranted as fit for such purpose, or where the landlord conceals from the tenant dangerous defects or noxious hidden conditions known to him but unknown to the tenant, or where premises are let with an existing and present nuisance thereon, affecting the public. Cases dealing with one or another phase of those doctrines — e. g., Riley v. Pettis County, 96 Mo. 318; Whiteley v. McLaughlin, 183 Mo. 160; Baker v. Tibbetts, 162 Mass. 468; Bowe v. Hunking, 135 Mass. 380; Edwards v. Railroad, 98 N. Y. 245; State to use v. Boyce, 73 Md. 469; Buesching v. Gas Light Co., 73 Mo. l. c. 227-are not in point on this record.

(e) So, there is a well established general doctrine that may be guardedly stated after this fashion: It is the tenant, not landlord, who has surrendered domination and control, who is liable for the negligent maintenance of the premises. But where the owner of premises lets them to different tenants, and there is a stairway, hall, roof, way or the like intended for and devoted to the common use of all of them and their guests or customers, which stairway, hall, way or roof is reserved from or not included in the demises but is kept in the control of the owner, then a liability of the owner may spring (based on his negligent maintenance of thfe way, hall, stairway or roof) to the tenant, his domestic, guest or customer, lawfully and with due care using the way, hall, stairway or roof for its intended purposes. That doctrine is quite universally announced in cases and text-books, as will presently appear. If, now, plaintiff was hurt in that part of the courtyard designed for, and appropriated to the common use described above, and which was not under lease but was reserved and kept under the control of defendants as owners (and such part surely existed under this record) we would have one ease here for determination. If on the other hand (as appears to be the case) she was not, then we have another and different case here for determination. It is in the light of the premises, and not otherwise, that the question in hand must be ruled.

II. Coming to our question, as thus narrowed, we are of opinion it should be ruled for appellants. This because:

(a) The record shows beyond all question that the outside stairway at the rear of the grocery passed to the Woods by their lease. The owners reserved no control whatever over it. So, the exclusive control of the access to this stairway from the courtyard or from the rear door of the grocery passed to them with their demise, together with the preclusive right to use that rear door and way of access. These defendants had no right to intermeddle or interfere with that use or access and were not charged with any duty under the law to make that use safe to their tenants or such customers as were invited or permitted by them to make use of it in entering 'or leaving the store. The lessees took it as they found it, for better or worse. As to the invitees of the tenants, they stood in the shoes of the tenants and had- no greater rights against the owner. “In such a case the guest can have no greater claim against the lessor than the lessee himself and the members of his family have.” [McKenzie v. Cheetham, 83 Me. l. c. 550.]

The doctrine of caveat emptor applied in such cases and if any third persons are injured in the use of it on their invitation or permission the tenants in control, and not owners out of control, are liable. Such injured parties must look to those who invited them, not to those who had no hand in doing so.

May A not rent to B a tenement in a known tumbled-down condition without being liable to B’s invitees? Withal if A is liable, as, for example, for the absence of a gate or bar where the upper tread of the cellar stairway began, how could he ever discharge or acquit himself of that liability? Must he keep the gate shut or the bar up from day to day ? If he provide one and B is remiss in using it, what then? It is plain that to rule as respondent wishes us to would be to let in a flood of strange and deep water for the landlord to struggle with. Fortunately it is not so written in the law.

As pointed out heretofore we are not dealing here with a condition dangerous to the general public which condition appertained to a use by the owner intended to be. public (or which was necessary to the public), nor or we dealing with a public nuisance per se..... Subject to limits suggested in this and the former, paragraph, the proposition announced seems good and acceptable doctrine. [3 Shear, and Red. on. Neg. (6 Ed.), sec. 709, 709a, and especially 710; 1 Taylor on Land. and Ten. (9 Ed.), p. 221.]

The doctrine is exemplified in the cases. Take-one to illustrate: In Sawyer v. McGillicuddy, 81 Me. l. c. 320-1, it is held as follows:

“The tenant for the time being is in the place of the owners, taking the property as he finds it. These circumstances are so connected with the repairs, that the law deems it reasonable and proper that, in this respect as well as in others, the tenant should take the place of the owner and authorizes the inference that such was the intention of the parties, in the absence of controlling facts. This would also be true of all appurtenances connected with, or ways to, the premises when such appurtenances and ways were included in the lease, with the same right of possession in the tenant as in the premises. This rule is now beyond controversy.”

Take another case, Mellen v. Morrill, 126 Mass. 545:

“It appears that the plaintiff was injured by falling down an embankment adjoining a walk leading from, the street to the door of a building owned by the defendant but leased to a tenant. The accident happened in the night time. There was no defect in the walk itself. It was rendered dangerous, if at all, by the want-of a railing, or by the absence of a light or some other warning. The plaintiff can hold the defendant liable only upon the ground that he was guilty of negligence towards her.
“The occupier of a building, who negligently permits the building or the access to it to be in an unsafe condition, is liable for an injury occasioned thereby to a person whom he by an invitation, express or implied, induces to enter upon it. He is liable because it is negligence in him to invite a person to enter upon a dangerous place without proper warning. [Sweeny v. Old Colony Railroad, 10 Allen, 368; Carleton v. Franconia Iron and Steel Co., 99 Mass. 216.] But the defendant was not the occupier of the land, and did not, expressly or impliedly, invite the plaintiff to enter upon it. He had leased it to a tenant, and there is nothing to "show that he retained any control over the walk, or any right to 'direct the purposes for which the premises should be used.”

In short, the reason of the thing is that as to customers and invitees generally, the tenant, standing in the shoes of the owner, pro hoc vice is the owner.

The student yearning to follow principles of law up to their ultimate sources and reasons in the exposition of philosophical jurists may on this score profitably consult Sheridan v. Krupp, 141 Pa. St. 564; Burdick v. Cheadle, 26 O. St. 393; McKenzie v. Cheetham, 83 Me. 543; Leonard v. Storer, 115 Mass. 86; McCarthy v. Foster, 156 Mass. 511; Marwedel v. Cook, 154 Mass. 235; Jennings v. Van Schaick, 108 N. Y. 530.

We will not swell this opinion by excerpts from those cases, but content ourselves with saying they, some in one and some in another phase, support the conclusions reached by us.

In so far as the question ruled has been before the appellate courts of this State in related or analogous features, we think nothing can be found militating against pronouncements herein made. [City of St. Louis v. Kaime, 2 Mo. App. 66; Vai v. Weld, 17 Mo. 232; Whiteley v. McLaughlin, 183 Mo. 160; Ploen v. Staff, 9 Mo. App. 309; Little v. Macadaras, 29 Mo. App. 332; Carson v. Quinn, 127 Mo. App. 525; Kean v. Schoening, 103 Mo. App. 77; O’Donnell v. Patton, 117 Mo. 13.]

(b) Again: Respondent, putting her very best foot foremost, an invitee as to the Woods, was a mere licensee as to appellants. In such case, absent some form of active mischief on appellants ’ part, as here, they are not liable for her injuries. [Kelley v. Benas, 217 Mo. l. c. 9; Glaser v. Rotchschild, 221 Mo. l. c. 185.]

We hold that, on the reasoning employed and conclusions s.et forth, appellants are not liable and the demurrer to the evidence should have been given'. Whether there are other grounds for reversal we do not determine.

As there is nothing to indicate that respondent’s case was not fully developed, another trial will serve no purpose of justice.

Let .the judgment be reversed. It is so ordered.

All concur.


author: GRAVES, J.

text:
    SAMUEL HARRIS v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    May 31, 1913.
    1. NEGLIGENCE: Claw-Bar: Proximate Cause of Injury: Plaintiff’s Negligence. Whether or not the broad rule that the master must furnish his servant a reasonably safe tool with which to work applies to simple appliances, the servant cannot recover where the tool was a claw-bar used in drawing spikes from railroad ties, and he had used it on ten spikes before his injury, each time it slipped off of the spike four or five times, at each time he was assisted by a co-employee and he did not fall, and with this knowledge he threw his whole weight on the claw-bar, without waiting for his co-employee, and it slipped and lie fell and was hurt; for, under the circumstances, his throwing his whole weight on it was negligence and the proximate cause of his injury.
    2. -: Concurring Negligence. Plaintiff cannot recover where his own negligence in the use of the tool combines with the negligence of his employer in furnishing him a defective tool.
    3. -: Contributory: Made to Appear by Plaintiff’s Testimony. . Where plaintiff’s contributory negligence is made to appear by his own testimony, the character of defendant’s pleadings is not material.
    Appeal from Newton Circuit Court. — Hon. F. G. Johnston, Judge.
    Reversed.

      Gyrus Grane and O. L. Cravens for appellant.
    (1) When a servant has a choice of two ways of performing his labor, one safe, and the other risky, which latter he voluntarily chooses, such choice is contributory negligence precluding recovery for the resulting injury. Montgomery v. Railroad, 109 Mo. App. 88; Moore v. Railroad, 146 Mo. 572; Smith v. Box Co., 193 Mo. 715; Pauck v. Beef.Co., 159 Mo. 639; Holmes v. Brandenbaugh, 172 Mo. 66; Anderson v. Box Co., 103 Mo. App. 382; Sparks v. Railroad, 31 Mo. App. Ill; Haviland v. Railroad, 172- Mo. 106; Hurst v. Railroad, 163 Mo. 309; Towner v. Railroad, 52 Mo. App. 648. (2) Even if- the claw-bar was defective and unsuitable, plaintiff knew such fact, or it was a fact perfectly obvious to his senses, and, having continued its use thereafter, he assumed the risk of injury therefrom. 1 Labatt on Master & Serv., sec. 154; 1 Bailey on Per. Inj. Relating to Master & Serv., sec. 503; Martin v. Highland P. M. Co., 128 N. C. 265; Webster M. Co. v. Nisbett, 205 III. 273; Cregan v. Marston, 126 N. Y. 568; Marsh v. Chickering, 101 N. Y. 396; Relyea v. Tomahawk P. & P. Co., 110 Wis. 307; Garnett v. Bridge Co., 98 Fed. 194; Railroad v. Minnick, 61 Fed. 635; 20 Am. & Eng. Ency. Law (2 Ed.), 89; Hefferen v. Railroad, 45 Minn. 471; Miller y. Railroad, 47 N. Y. Supp. 285; Lynn v. Grlucose'Co., 104 N. W. (Iowa), 597; Corcoran v. Grás. Co., 81 Wis. 191; Holt v. Railroad, 94 Wis. 596; Borden v. Mill Co., 98 Wis. 402; Olson y. Lumber Co., 102 Wis. 264; Steinhauser v. Spraul, 127 Mo. 541; Post v. Railroad, 121 Mo. App. 562; Anderson y. Box Co., 1.03 Mo. App. 302; Bobn v. Railroad, 106 Mo. 429; Nicholds v. Plate Class Co., 126 Mo. 55; Berning v. Medart, 56 Mo. App. 443; Devitt v. Railroad, 50 Mo. 302; Harf■ v. Creen, 168 Mo. 308; Covey y. Railroad, 86 Mo. 635; Hurst v. Railroad, 163 Mo. 309; Shea v. Railroad, 76 Mo. App. 29; Lucey v. Oil Co., 129 Mo. 32.

      M. E. Benton and Horace Ruarle for respondent.
    (1) “That the master’s duty is to furnish his servant with reasonably safe tools and appliances with which to do his work and to use reasonable care to keep such tools and appliances in a safe condition has been so often ruled by the appellate courts as to become axiomatic.” Huth y. Dobble, 76 Mo. App. 671; Lee v. Railroad, 112 Mo. App. 372; Curtis v. McNair, 173 Mo. 270; Franklin v. Railroad, 97 Mo. App. 473; Bohn v. Railroad, 106 Mo. 429; Huth v. Doble, 76 Mo. App. 671; Beard v. Car Co., 72 Mo. App. 583; Siela v. Railroad, 82 Mo. 430; Covey y. Railroad, 86 Mo. 641; Pouts v. Swift Co., 113 Mo. App. 526. (2) The servant does not assume the risk arising from the master furnishing defective tools and appliances, though the use of such tools may raise a question of contributory negligence upon the part of the servant: Craci v. Constitution Co., 121 Mo. App. 709; Brady v. Railroad, 206 Mo. 509; Smith v. Kansas City, 125 Mo. App. 150; Cole v. Transit Co., 193 Mo. 81; Pauck v. Dressed Beef Co., 159 Mo. 467. “It is the established rule, that if the situation is not so glaring and imminently dangerous as to threaten immediate injury, or if it is such that it would appear to a reasonably prudent person that he might continue in the service with safety to himself by exercising care on his part, a recovery for the resulting injury is not barred as a matter of law under the doctrine of contributory negligence. The mere fact of the servant’s knowledge that there is some danger is not sufficient to defeat his right unless that knowledge discloses imminent and immediate danger which a reasonably prudent man should know could not be averted by the exercise of care.” And unless the danger is so threatening and glaring the matter of the defendant’s contributory negligence is always for the jury. G-raci v. Construction Co., 124 Mo. App. 719; Pippen v. Railroad, 196 Mo. 321; Obermeyer v. Chair Co., 120 Mo. App. 59; Charlton v. Railroad, 200 Mo. 413; Butz v. Construction Co., 199 Mo. 279; Daken v. Chase & Son, 197 Mo. 238; Lee v. Railroad, 195 Mo. 400; Shepard v. Transit Co., 189 Mo. 362; Warren v. Railroad, 113 Mo. App. 498; Kielty v. Construction Co., 121 Mo. App. 58; Clippard v. Transit Co., 202 Mo. 432; Solder v. Railroad, 100 Mo. 673. And in order to defeat recovery the servant must 'know and appreciate the danger. Parsons v. Packing Co., 96 Mo. App. 372; Studenroth v. Packing Co., 106 Mo. App. 480. The fact that the work is done in the presence of and under the immediate direction of the master’s foreman is equivalent to an assurance that the servant may safely proceed with it; he is not bound in such case to search for danger, but may rely for his safety upon the judgment and conduct of the foreman. Smith v. Kansas City, 125 Mo. App. 157; ITerdler v. Stove & Range Co., 136 Mo. 3; Sullivan v. Railroad, 107 Mo. 66. Where ordinarily there is no danger in the servant adopting one of two ways he cannot be held negligent in so doing. Benedict v. Railroad, 104 Mo. App. 218. (3) The question of plaintiff’s contributory negligence'must be determined from a “view of the whole evidence .in the most favorable aspect it presents in behalf of plaintiff.” Myers v. Transit Co., 99 Mo. App, 369. There is a presumption that the person injured was careful and not negligent. Rogers v. Printing Co., 103 Mo. App. 683. And the burden of proving contributory negligence rests upon the defendant. Riska v. Depot Co., 180 Mo. 169. Where ordinarily there is no danger in the servant adopting one of two ways he cannot be held negligent in so doing. Benedict v. Railroad, 104 Mo. App. 218. (4) The doctrine of non-liability where the master furnishes a defective tool or appliance that is simple and easily understood, has never obtained in Missouri. Warner v. Railroad, 62 Mo. App. 184. This court has held the master liable for the furnishing of a ladder with a rotten or defective rung. Iinth v. Dobble, 74 Mo. App. 671. Where the servant was injured by the use of a defective and ordinary board used to unload- barrels from a wagon. Beard v. Car Co., 72 Mo. App. 671. A defective rope: Reeder v. Zinc Co., 107 S. W. 1016. A defective hammer : Dnerst v. Stamping Co., 163 Mo. 607; Roberts v. Mining Co., 105 Mo. App. 78. A defective maul: Franklin v. Railroad, 97 Mo. App. 473. Defective boxes: 86 Mo. App. 429. Loose planks: Conroy v. Iron Works, 62 Mo. 35. A defective rope: McG-owan v. Railroad, 61 Mo. 528. An ordinary bolt, which the servant was tightening by means of a claw bar: Browning v. Railroad, Í18 Mo. App. 449. (5) The fact that a tool was simple in construction and in common use, does not relieve the master of his duty to use ordinary care to see that it was in a safe condition. The courts of this State and of most other States in the Union, have never adopted the Illinois doctrine as to simple tools. Denker v. Milling Co., 135 Mo. App. 340; Reeder v. Lime Co., 129 Mo. App. 107; Dando v. Tel. Co., 140 Mo. App. 511; Buckner v. Stockyards, 221 Mo. 700; Phelps v. Zinc Co., 218 Mo. 572. (6) The fact that a tool is simple and in common nse does not relieve the master from liability for furnishing it in a defective condition, as a matter of law. Such fact may become important and material in determining some other proposition of law involved in the case and such are the decisions cited by appellant, but in no case cited has the non-liability of the master been put upon the ground that the tool was simple and in common use.
   GRAVES, J.

Plaintiff, once a section man in the employ of defendant, sues for damages in the sum of $4000 for injuries alleged to have been sustained by him, whilst in defendant’s service, by reason of having had furnished to him a defective claw-bar with which to pull spikes from railroad ties. He recovered, by the verdict of a jury, $500, and from a judgment upon such verdict the defendant appealed to the St. Louis Court of Appeals, where by the majority opinion the judgment was reversed, but by a dissenting opinion the cause was duly certified to this court for determination. Negligence is thus charged in the petition.

“That as plaintiff’s employer, it was defendant’s duty to furnish plaintiff with good and reasonably safe tools with which to perform his work. That the defendant, wholly disregarding its duty in that behalf, furnished to plaintiff a claw-bar which was old, worn, bent and out of repair, and the claws of said bar sprung and spread apart, so that tHe claws of said bar would not hold upon a spike when in use, which said fact- was well known to defendant, but was unknown to plaintiff and could not have been discovered by the exercise of due care on his part. That while plaintiff, in the performance of his duty was engaged in the performance of his duties, and using the said defective claw-bar, the plaintiff placed the claws of the said bar under a spike and threw his weight upon the bar so as to draw or remove the spike. That the claws of the said defective claw-bar, on account of the bent, worn and old condition and being out of repair, slipped off the said spike, thereby throwing plaintiff violently to the ground, where his knee came in violent contact with another spike or piece of iron, whereby his knee was greatly bruised or injured.”

The material portion of the answer after a general denial, reads:

“Further answering, defendant says that plaintiff’s injuries, if any, were caused solely by, and are due directly to, his own carelessness and negligence and that of his co-employees, all directly contributing thereto; and that the injuries, if any, to the plaintiff, were due to risks assumed by plaintiff in his employment and work for defendant.”

We find no reply in the abstract of record, but this is immaterial, as the case proceeded below as if one had been filed.

Plaintiff in his testimony says 'that he was a farmer, thirty years old, and had lived all his life near Tipton Ford, a point on defendant’s railroad; that he had worked on the “extra gang” for a few days, at a time previous to his last employment by the defendant ; that he had been working on the section some four or five days, when the foreman gave him a claw-bar, and put him and one Morris to pulling spikes from some ties which had been piled up along the railroad; that this was on November 21, 1906; that he had no experience in the use of claw-bars; that the foreman had never told him about the bar given to him; that the claw-bar was " all worn out between the forks and would not pull;’’.that Morris drove the claws of the bar under the spike’s head with a hammer or maul, and that both of them would then bear down on the handle of the bar to pull the spike; that this was done each time until the time he was hurt; that the claw-bar would slip off three or four times in pulling each spike; that when he was hurt, Morris had driven the claws under the spike, and he then without Morris’s assistance attempted to pull the spike; that in so doing he threw his whole weight upon the bar, and when it slipped, as it had done every time theretofore, he was thrown down and struck his knee upon the head of a spike and thus received the injury to the knee complained of in this action. On his cross-examination he thus describes the situation:

"Q. How many spike's did you pull before this accident? A. I think about ten, I guess.
"Q. Did it slip out any other time? A. Tes, sir; four or five times on every spike.
"Q. Four or five times before that? A. On every ,spike.
"Q. Slipped on every spike? A. Yes, sir.
"Q. Did you see this other man working with this bar before you got it? A. Which man?
"Q. Joe Morris. A. We was both working there together.
"Q. Did you work with this crow-bar? A. No, sir; generally always drove it up with a hammer.
"Q. Was he driving it up at the time you was injured? A. Yes, sir; he drove it up.
"Q. Where was he at that particular time? A. Standing by me.
“Q. Looking at you? A. I don’t know, he was there ready to bear down on the bar when I did.
"Q. Did he bear down on the bar with you? A. No, sir.
"Q. Did he bear down on the bar those other times when it had slipped off the spikes? A. Yes, sir.
"Q. Did you fall the other times? A. No, sir; never fell before.
"Q. How did it happen you didn’t fall before? A. Just happened I didn’t bear .down hard enough to fall; throw my weight on it hard enough to fall.
"Q. Did you throw more weight on to this one than the others ? A. On that one, I throwed my whole weight on it.
“Q. Did you fall because you didn’t have a good hold on the bar? A. I had hold on the bar.
"Q. Yon did have a good hold? A. Yes, sir; the bar fell when I did.
“Q. What made you say you thought you had a good hold on the bar? A. I said I thought I had a good hold on the spike with the bar.
"Q. Yon didn’t say spike a while ago. A. That is what I was talking about.
"Q. Did Morris fall when he was using this spike puller? A. No, sir; he never would bear down hard enough on it to fall.
"Q. That is what makes it fall, bearing hard on it? A. The bar slips is what makes it fall.
"Q. What makes you say he didn’t bear hard enough to fall? A. He never did fall.
“Q. How long was this projecting point of the bar that you have described to the jury? A. I suppose about as long as your fingers.
"Q. And the place is about as big as this, when your fingers are spread apart? A. Only they are worn out.
"Q. How big are they naturally? A. The other one was not half as wide in between as this old one, the good on$ wasn’t.”

As we gather it from the evidence a claw-bar is a bar of iron five or six feet in length, having at one end two forks something like those of the ordinary claw-hammer, and back of these claws or forks was the heel, which extended back of the handle, as the prongs or claws extended to the front of the handle or bar. This heel served a dual purpose, i. e.: (1) the operator struck it with a maul to drive the claws under the head of the spike, and (2) it served as a fulcrum when the operators bore down upon the handle to draw tne spike. It is shown that these forks or claws were worn so that they were wider apart than in a new bar, and that the heel was battered from the use of the maul or hammer. Other matters of evidence may be required and will be given in the course of the opinion at the proper point. For the present this sufficiently states the case.

I. That it is the general law that the master must furnish to the servant a reasonably safe tool or appliance with which to work cannot be questioned. this case able counsel for de fendant urges with much force that thU broad rule does not and should not apply to simple appliances, such as the one here involved. Much learning is collated upon this question as well as upon other questions. Much is said by our brothers of the Court of Appeals, but to my mind we need not go into these contested questions for a determination of this case. This case is determined by plaintiff’s statement of the facts. Grant it that he did not at first fully appreciate the condition of this claw-bar, because that can be granted and leave the net result the same. Plaintiff says that they used this bar upon ten spikes before they used it upon the one being pulled at the' time of his alleged injuries. He further says that it slipped off of each of these spikes four or five times. Yet, with this knowledge, gained by this experience, when the claw-bar is placed upon the last spike, without waiting for the help of his co-employee, he deliberately threw his whole weight .upon the bar. When he did this, he had good reasons to know that the bar would slip and if it did slip, he knew that he must fall. With his whole weight thrown upon the bar he could do nothing else but fall, if the bar slipped from the head of the spike. As a man of any sense he knew that he must fall from this act if the bar should slip, and he further knew that the bar had slipped upon each and every previous spike. As to the latter he so testifies. Had lie waited for Ms co-employee and had he not thrown his whole weight upon the bar the result would have been different, although' the claw-bar might have slipped. The act of throwing his whole weight upon this claw-bar under the circumstances of this case was negligence upon the part of the plaintiff, and this negligence was the direct and proximate cause of his injury. Such negligent act may have been combined with negligence of the defendant in producing the injury, but this does not help the plaintiff’s case. To my mind the case turns more upon the facts than upon the law. We can concede all the legal questions contended for by the able counsel for plaintiff, but we cannot concede from this case this patent fact made apparent by plaintiff’s version of his case. If for no other reason this judgment should be reversed on the ground of plaintiff’s contributory negligence, which contributory negligence is made to appear by the evidence for plaintiff. Where the contributory negligence is made to appear by the plaintiff’s proof of his case, the character of defendant’s pleadings is not very material. [Sissel v. Railroad, 214 Mo. 515.]

It requires no citation of authority upon the proposition that if the negligence of the plaintiff coupled with the negligence of the defendant is the proximate cause of the injury, then the plaintiff cannot recover. In this case it may be conceded that the defendant was negligent in furnishing this unsafe simple tool or appliance, and yet the injury would not have occurred but for the rash and negligent conduct of the plaintiff in throwing, his whole weight upon a claw-bar which he knew had slipped upon each previous spike. To use his own language, “I throwed my whole weight on it.” The most inexperienced boy should have known better under the facts disclosed by this record. Let the judgment be reversed.

All concur; Woodson, P. J., in result.