author: GANTT, J.

text:
    JAMES S. WILLIAMS v. WILLIAM H. LOBBAN, Administrator de bonis non of Estate of SAMUEL LOBBAN, deceased, Plaintiff in Error.
    Division Two,
    July 13, 1907.
    1. CONVEYANCES: Acknowledgment: New Point. A cause on appeal must be heard on the same theory it was tried below. If no objection was made at the trial that the acknowledgments of certain deeds were defective in that the officer who took them did not write out his official title but simply added to his name at the end of the certificate “N. P.,” that objection is not available on appeal.
    2. -: -: Initials “N. P.” Where the official seal of the notary is attached to the deed, and that seal shows he was a notary public, the acknowledgment is not defective simply because he added only the letters “N. P.” after his written name to the certificate.
    3. JUDGMENT: By initials: Attachment: Jurisdiction. A judgment and deed under an attachment proceeding describing the attachment defendant as “N. W. Lobban” instead of Napoleon W. Lobban, will not be held void, in the absence of proof that the order of publication and the notice in pursuance thereof were directed to him by the name and style of “N. W. Lobban,” in view of the fact that his interest in the land was attached in the attachment proceeding brought in the circuit court of the county. The jurisdiction of the parties' cannot be impeached merely because the record is silent on the question. The circuit court of the county had jurisdiction over the subject-matter, and it was the land that was attached, and no order or proof of publication showing that the proceeding was against N. W. Lobban being offered in evidence, it will not be held 'that the court did not have jurisdiction to sell the land of Napoleon W. Lobban.
    4. WILL: Land to Be Sold: Execution. Where the owner of land by will gave it to his wife and directed that at her death it should be sold and the proceeds divided among his eight children, the interest of one of the children could, during the widow’s life, be seized in an attachment suit and sold under execution.
    5. -: -: -: Equitable Conversion. The land, by the direction to sell at the widow’s death and to divide the proceeds among the children, was not converted into personalty at the time of the testator’s death. On the contrary, the will vested tbe land in tbe devisees, subject to tbe widow’s life estate, and whether tbe estate of each devisee be considered real estate or personalty, it could be sold either by tbe devisee voluntarily, or by judgment and execution against him.
    6. -: -: -: -: Election: Proceeds: Sale. Tbe purchaser at such execution sale of a devisee’s interest would be, if the land was sold, entitled to the proceeds, and as ■ he has acquired the interests of all the other devisees by voluntary conveyances, he is not bound to submit to a sale of the land and the attendant expenses and costs, but is entitled to the land.
    Error to Randolph Circuit Court. — Hon. A. H. Waller, Judge.
    Affirmed.

      Jno. N. Hamilton for plaintiff in error.
    (1) The direction to sell contained in the will being absolute, and the time for the sale, though in the future, being fixed (viz: the death or re-marriage of the widow), the land was converted into personalty on the day of the testator’s death. Compton v. McMahan, 19 Mo. App. 498; Craig v. Leslie, 3 Wheat (U. S.) 577; Peter v. Beverly, 10 Pet. (U. S.) 532; Rinehart v. Harrison, 1 Bald. (U. S.) 184; Cropley v. Cooper, 19 Wall. 167; High v. Worley, 33 Ala. 196; Baker v. C'openbarger, 15 111. 103; Greenwood v. Greenwood, 178 111. 387; Brolaski v. Gaily, 51 Pa. St. 509; Evans’ Appeal, 63 Pa. St. 183; Yerkes v. Yerkes, 200 Pa. St. 419; Wayne v. Pouts, 108 Tenn. 145; Pazewell v. Smith, 1 Rand. (Va.) 313; Com. v. Martin, 5 Munf. (Va.) 121; Harcum v. Hudnall, 14 Gratt. (Va.) 369; Trelawny v. Booth, 2. Atkyns, 307. (2) Though it be conceded that the heirs may elect to consider the land as realty, and that, in such case, it will not be held to have been converted into personalty, yet there can be no reconversion unless such election is the concurrent, unanimous and unequivocal act of all the heirs. Holloway v. Radcliffe, 23 Beav. 171; Biggs v. Peacock, 22 Oh. Div. 284; Fletcher v. Ashbumer, 1 Brown Ch. Cas. 500; Baker v. Copenbarger, 15 HI. 103; Beal v. Stehly, 21 Pa. St. 382; High v. Worley, 33 Ala. 196; Harcnm v. Hndnall, 14 Gratt. (Ya.) 376; McDonald v. O’Hara, 144 N. Y. 566; Bennett v. Chapin, 77 Mich. 526; 3 Pom. Eq. Jnr. (3 Ed.), sec. 1176. Some cases go so far as to hold that, in case of an out-and-ont conversion, there can be no reconversion. Comm. v. Martin, 5 Munf. (Ya.) 117; Fluke v. Fluke, 16 N. J. Eq. 478 ; Crittenden v. Fairchild, 41 N. Y. 289. It is at least true that no one or more of such heirs, less than the whole, can make such election. See cases cited above under this head, especially Biggs v. Peacock, 22 Ch. Div. 284; High v. Worley, 33 Ala. 196; Baker v. Copenbarger, 15 111. 103; Mellen v. Mellen, 139 N. Y. 120. (3) If each heir, acting separately, can elect, then those first electing have the power to render the will nugatory. Thus, in this case, the fact that one man secured the interests of a part of the children, enables him to get for a small price the remaining shares, and to thus entirely nullify the intention of the testator that the children should all be put upon equal footing. (4) The provision that four of the children should each receive in the distribution $200 more than each of the other four makes it essential that there should be a sale and distribution of cash. In that way only could this provision of the will be effectuated. Hence, there could be no election. (5) Even were it to be conceded that it is sufficient that all the legatees elect, and that it is not essential that their election be concurrent, and though it be conceded that each legatee may make his or her election at a time different from the others, still there has been no election in this case, for the reason that some of the legatees have never elected. 1. The burden is on those who claim there has been a reconversion to show acts upon the part of the legatees which will necessarily constitute an election. Wayne v. Fonts, 108 Tenn. 157. 2. Election signifies choice. It is a personal act by the person exercising the choice. The act must be done with the intent to elect. Brawford v. Wolfe, 108 Mo. 398; Wilson v. Fisher, 172 Mo. 20; 15 Cyc., p'. 249 ; 11 Am. and. Eng. Ency. Law (2 Ed.), 99; Oil Co. v. Hawkins, 74 Fed. 398; 3 Words and Phrases, p>. 2336. No one can make an election for another; it is a personal right. Oastleman v. Castleman, 184 Mo. 444; Welch v. Anderson, 28 Mo. 299. 3. As Napoleon’s share was sold out involuntarily, he cannot be said to have made an election. 4. William H. does not mortgage any land. He mortgages only his interest in the estate. And that was personalty. His mortgage does not describe any land. It does not contain the word “land,” nor the words “real estate,” nor the word “realty.” (6) The judgment on publication against N. W. Lobban cannot affect the title of Napoleon W. Lobban. Vincent v. Means, 184 Mo. 344; Skelton v. Sackett, 91 Mo. 377: Spore v. Ozark Land Co., 186 Mo. 656 ; Gillingham v. Brown, 187 Mo. 181; Burkham v. Manewal, 195 Mo. 500.

      Shackleford & Benny and W. M. Williams for defendant in error.
    (1) The point made concerning the interest of Napoleon W. Lobban cannot be maintained. 1. The abstract of the record does not set out the order of publication that was made in the case. The proceeding was in a court of general jurisdiction, and the presumption is that it proceeded according to law and in a regular and proper manner. If defendant intended'to attack the sufficiency of the publication, he should have introduced it in evidence and set it out in his abstract. McClanahan v. West, 100 Mo. 320. 2. The court acquired jurisdiction by the writ of attachment and its levy upon the property of the defendant in that suit. Hardin v. Lee, 51 Mo. 241; Freeman v. Thompson, 53 Mo. 193. 3. Napoleon W. Lobban, defendant in said attachment suit, had an interest in the real estate that could be seized by attachment and sold under execution. The legal title was in the heirs, subject to * the power of sale. Eneberg v. Carter, 98 Mo. 647. (2) The legal title to the land in controversy vested in the children of Samuel Lobban, deceased, subject only to the power of sale in the will. Eineberg v. Carter, 98 Mo. 647; Crittenden v. Fairchild, 41 N. Y. 289'. (3) “Where the testator directs land to be sold and the proceeds divided, the persons entitled to the money may elect to take the land divested of the power of sale. 2 Woerner, Administration (1 Ed.), p. 728; 2 Underhill on Wills, secs. 703, 719. (4) The mortgages and deeds, read in evidence, conveyed to W. C. Harvey, plaintiff’s grantor, all of the right, title and interest of the remaindermen in and to the property of Samuel Lobban, deceased. He acquired whatever interest they had and became entitled to all the rights of his grantors and assignors. Reed v. Underhill, 12 Barb. 113; Horst v. Dague, 34 Ohio St. 371; Mandlebaum v. McDonald, 29 Mich. 86; 2 Underhill on Wills, sec. 723; Eneberg v. Carter, 98 Mo. 647. (5) The remaindermen had such an interest as was subject to sale under the laws of this State. Godman v. Simmons, 113 Mo. 122; Eneberg v. Carter, supra. And the transfer of all the right, title and interest of an heir in an estate passes all interest the heir may have in real estate belonging to the ancestor, and which he may mortgage. Watson v. Priest, 9 Mo. App. 263. (6) The land descended to the heirs, subject only to the power of sale contained in the will. They had the legal title, and in case of a sale under the power, the proceeds would belong to them. They could convey the legal- title, or assign their interest in the proceeds, and their assignee or grantee would be substituted to their rights. Reed v. Under-hill, 12 Barb. 113; Horst v. Dague, 34 Oh. St. 371; In re Ledrich, 68 Hun 396. (7) Plaintiff’s grantor, W. C. Harvey, having, prior to any attempt to execute the power of sale contained' in the will, acquired the legal title of all of the remaindermen in and to the land in controversy, and having succeeded to all of their rights in and to said property, would, in the event of a sale, be entitled to the entire proceeds. He was, therefore, entitled to keep the land and was not bound to submit to a sale in order that he might re-purchase it with the proceeds to which he was entitled. He conveyed the property and real estate to the plaintiff. The party who is entitled to the entire proceeds of a sale under a power, may elect to take the property without a sale. 2 Underhill on Wills, sec. 719; Mellen v. Mellen, 34 N. E. 925; Hetzel v. Barber, 69 N. Y. 1; Prentice v. Janssen, 79 N. Y. 478; Garvey v. McDavitt, 72 N. Y. 556. (8) Injunction is the proper remedy to prevent a sale of land under a power, after the parties beneficially interested have elected to keep the land without a sale. Mellen v. Mellen, 34 N. E. 925 ; 2 Underhill on Wills, sec. 723.
   GANTT, J.

Plaintiff in his petition sought and the circuit court of Randolph county awarded him a perpetual injunction to prevent the sale under a power contained in the will of Samuel Lobban, deceased, to a tract of land, to-wit, the northwest quarter of section 34, township 53, range 16, containing one hundred and sixty acres and lying in Randolph, county, by the defendant William H. Lobban as administrator de bonis non with the will annexed.

Samuel Lobban died in 1867 seized in fee simple of the real estate above described and leaving a will whereby he devised all his property to his wife for her life or her widowhood, and at her re-marriage or death, he directed said property to be sold and divided among bis eight children, except that four of them were to have two hundred dollars more than the others to make them equal with previous advancements. The widow was appointed sole executrix and qualified as such in October, 1867. She made two settlements of the estate, but the records do not show that anything further was done in the estate. She never remarried and lived until 1897. The widow sold and conveyed her interest in the land to Dr. W. 0. Harvey, who also acquired at different times the interests of all the other children in said property in the manner hereinafter specified, and subsequently sold all of said real estate to James S. Williams, the plaintiff in this suit. In the year 1903, it appears that letters de donis non upon the estate of Samuel Lobban, deceased, were granted to the defendant William H. Lobban, who had advertised this tract of land for sale under the power contained in Samuel Lobban’s will, and thereupon the plaintiff brought this injunction to restrain the sale of said land by said William H. Lobban,

In addition to the deed of the widow to her life interest in the land to Dr. Harvey, it appears that the defendant William H. Lobban on the'27th of March, 1869, executed a mortgage wherein the estate mortgaged was described as, “The following described interest in the estate of Samuel Lobban, deceased, the one undivided eighth part situated in Randolph county, Missouri.” This mortgage was given to secure a note of four hundred dollars bearing interest at the rate of ten per cent per annum in favor of James R. Jackson. A suit was brought to foreclose this mortgage on the 22nd of March, 1880, and the court in that case determined that the mortgage was a lien upon the interest of William H. Lobban in the real estate in controversy herein and entered a judgment directing the sale of all of his right, title and interest therein for the payment of the said mortgage debt. There was a sale under this judgment or decree and at said sale James R. Jackson became the purchaser and he subsequently conveyed the interest acquired by him to Dr. W. C. Harvey. Another of the children, Mary C. Wisdom, on the 2d of January, 1877, sold and conveyed to John W. Lobban all her right, title and interest as heir or devisee either at law or under the will of Samuel W. Lobban, deceased, of, in and to all property real and personal belonging to' said Samuel W. Lobban, deceased — the real estate being the same as above hereinbefore set out, with an addition of lot 8 in block 4 on the west side of Bradford street in Roanoke, Missouri. John W. Lobban then executed a deed of trust upon his right, title and interest in the said real estate and that acquired by him from Mrs. Wisdom on the 7th of April, 1877. A default having been made in thp payment of the note for which said deed of trust was given, the trustee in the deed sold the interest of the said John W. Lobban and Jacob' Fischer became the purchaser. Afterwards Fischer and wife sold and conveyed the interest thus acquired in the land in suit to Dr. William C. Harvey on the 24th of March, 1888. Mrs. Phipps, Mrs. Warren, Mrs. Perrin and Mrs. Rice all conveyed their interest in the said real estate by deeds to' Dr. W. C. Harvey in the years 1888, 1889' and 1898. The interest of the remaining child, Napoleon W. Lobban, was acquired in the following manner: John R. Christian brought a suit against him by attachment in the circuit court of Randolph county at the September term, 1879. A writ of attachment was issued and levied upon his interest in the land. The judgment itself was offered in evidence. The order of publication and the publication itself were not introduced in evidence although the judgment recites there was a publication and proof thereof made to the satisfaction of the court in the attachment suit. A judgment was rendered in this attachment proceeding and a sale made thereunder at which John R. Christian became the purchaser and obtained a sheriff’s deed for all the right, title and interest and estate of the said N. W. Lobban in the above-described real estate. - Afterwards on September 7th, 1887, John R. Christian conveyed said interest so obtained to Dr. W. C. Harvey. It was admitted in evidence that Mrs. Warren was the only child of James, the deceased son of the testator. After having thus acquired the various interests of the devisees in said land, on the 7th of March, 1901, Dr. William C. Harvey conveyed the same by deed to the plaintiff James P Williams for $4,800.

I. Before proceeding to the discussion of the controlling proposition in this case, the objection to the acknowledgments of the deeds of the three remainder-men, Mrs. Phipps, Mrs. Perrin and Mrs. Rice, urged in the brief of counsel for the defendant, must be considered. The objection is made in this court for the first time that the acknowledgment of these deeds was defective in that the officer who took the same did not write out his official title and simply added to his name to the certificate the initials “N. P.” It is sufficient to say no such objection was interposed in the trial court and the case must be tried here upon the same theory as in the circuit court. But even if timely objection had been made, we think there is no merit in the point. The official seal of the notary was attached to the deed and it is said in Devlin on Deeds (2 Ed.), section 501: “An abbreviation of the official name of the1 officer taking the acknowledgment is sufficient. . . . The letters ‘N. P.’ are sufficient to show that the officer beside whose name they are written, is a notary public. ’ ’ And we may add, especially where the officer, as in this case, certified that he affixed his official seal at his office, etc. And that seal shows he was a notary public. [Rowley v. Berrian, 12 Ill. 198; Summer v. Mitchell, 29 Fla. 179, 30 Am. St. 106.]

II. It is next insisted that the plaintiff acquired no title to the interest of Napoleon W. Lobban, because the judgment offered in evidence and the deed under the attachment proceedings described him as N. W. Lobban. Counsel refers us on this point to Skelton v. Sackett, 91 Mo. 377; Spore v. Land Company, 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Burkham v. Manewal, 195 Mo. 500; and Vincent v. Means, 184 Mo. 327, all of which were actions under the tax law to enforce the State’s lien in which the statute required the suit to be brought against the owner of the property, except the case of Vincent v. Means, which was an action to quiet title. And in all of which it appeared that the defendant was only designated by his initials and not by his full name. Those cases are the settled law in this State in that character of cases, but the plaintiff in this case asserts title to the share of Napoleon W. Lobban under and by virtue of an attachment proceeding in the circuit court of Randolph county, a court of general jurisdiction. The defendant in this case did not introduce the order of publication or the proof of the publication showing that the proceedings in that case were against N. W. Lobban and not Napoleon W. Lobban. In McClanahan v. West, 100 Mo. l. c. 320, it was said: “A domestic judgment, rendered by a court of general jurisdiction, cannot be impeached by the parties to it merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally as conclusive on the parties thereto, whether it recites, or whether it fails to recite; that jurisdiction has been acquired. Nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so.” Again, in Freeman v. Thompson, 53 Mo. l. c. 194, it was said by this court : “In attachment causes the jurisdiction over any given matter is obtained by tbe levy tbereon of a writ properly issued. And no matter wbat, or how great ■errors or irregularities may subsequently occur, tbe res remains still in tbe grasp of tbe court, and its judgment in regard thereto will be valid and binding, until reversed on error or by appeal, or set aside in a direct and appropriate proceeding for that purpose.” In tbe absence, therefore, of any proof that tbe order of publication and tbe notice in pursuance thereof was directed to Napoleon W. Lobban by tbe name and style of N. W. Lobban and in view of tbe fact that bis interest in tbe land in suit was attached in attachment proceeding in the circuit court of said county, the judgment and the deed thereunder cannot be held to be void.

III. It is next insisted that under the will of Samuel Lobban, deceased, Napoleon "W. Lobban, the defendant, in said attachment suit, had no interest in tbe real estate of which bis father died seized that could be seized by attachment and sold under execution, and in support of this contention tbe doctrine is invoked that where a will contains an absolute direction to sell tbe land and distribute tbe proceeds, and fixes tbe time when tbe sale is to be made, leaving neither tbe sale itself nor tbe time when it is to be made discretionary with tbe executor, tbe land is converted into personalty from tbe date of tbe testator’s death, and that equity will consider things directed to be done as actually performed. In Eneberg v. Carter, 98 Mo. 647, tbe testator after making certain devises and declarations directed “tbe remainder of my estate to be equally divided between my children” (naming them), and in tbe next clause appointed Jesse P. Alexander tbe executor of bis estate and directed “that my executor will dispose of all m.y real estate as soon as it can be done without loss to my estate.”

After bis death a judgment was obtained against one of the sons, execution issued and all of the son’s right, title and interest in the property was sold and the plaintiff became the purchaser. The son after-wards conveyed or attempted to convey his undivided one-fifth interest in the land to Alexander. The plaintiff charged that this conveyance was fraudulently made to evade the collection of the judgment and prayed that said deed to Alexander might be set aside. Upon this state of facts this court said: '“As seen from the premises, the heart of this cause is involved in the question: Had Carter, the devisee, such an interest in the land that the lien of the judgment could operate thereon? Under our statutory provisions, all interests of a debtor in land, whether legal or equitable, are bound by the lien of a judgment rendered in the same county, and consequently are subject to sale under an execution issuing upon such judgment. [R. S. 1C79, secs. 2730, 2731, 2767 and 2354; Slattery v. Jones, 96 Mo. 216.] So that it may he safely affirmed it is a general rule, a rule almost without exception, that the interests of a defendant debtor in land are never beyond the reach of an execution.” In that case, the claim was made by counsel, as it is here, that the clause of the will operated as an equitable conversion of the land covered by it, and that such conversion of the land was of even date with that of the death of the testator. It was conceded by this court that if this claim was sound then the judgment created no lien on John Carter’s interest in his father’s estate and'the plaintiff took nothing by his sheriff’s deed. But, said the court: “Did the clause of the will in controversy operate by its own force and without action on the part of the executor, to convert the land into money, and thus place it beyond the lien of the judgment and the execution issued to enforce it? I am not of the opinion it did, and for these reasons: ‘It is a well-known maxim that an heir at law can only be disinherited by express devise or necessary implication, and that implication is defined to he such a strong probability that an intention to the contrary cannot be supposed. ’. [2 Powell on Devises, 199.] And his title cannot be defeated unless there was a disposition of the subject to some other person capable of taking. [1 Ponb. Eq. 51; Habergham v. Vincent, 2 Ves. 224; Pickering v. Lord Stamford, 3 Ves. 493.] In the present case, there was certainly no express devise in fee to the executor, nor are there any such words in the will as to raise a fee in him by force of a strong implication. Therefore, the fee remained in the heirs at law, both by the devise to them, as well as by the statute of descents, until it should be divested by a sale by the executor under the terms of the will; and until such sale no conversion could occur. [Citing numerous eases.] I have been able to find no case where the doctrine of equitable conversion has been so applied as to cut out and dominate the title of the heir except where the donee of the power took a fee by necessary and inevitable implication, or where such fee was in express terms conferred upon such, donee; otherwise, the title remains vested in the heirs until the donee of the power actually exercises it.” Accordingly, it was held that John Carter had such an interest in the real estate that the judgment lien bound the same and that the execution thereunder conveyed his interest. In that case it will be observed the power to sell was given to the executor in express terms, but the court' held there was no estate vested in him but simply a power of sale coupled with a trust which a court of equity would recognize and enforce. In the case at bar, it is to be regretted that counsel have not preserved in the bill of exceptions the exact language of the will. But it is stated in the bill, “That said will provided that after the payment of his just debts, all his property was devised and bequeathed to his wife during her life or as long as she should remain his widow, and when she should marry or die, the property was to be sold and divided among the children equally except that four of them were each to have in the division two hundred dollars more than the other four. The widow was appointed sole executrix, but the will did not appoint any person to make the sale.” Obviously as the sale was only to be made after the death of the widow she could not make it and no person was appointed to make the sale. But counsel rely upon section 137, Revised Statutes 1899', which provides, ‘ The sale and conveyance of real estate under a will shall be made by the acting executor or administrator with the will annexed, if no other person be appointed by the will for that purpose, or if such person fail or refuse to perform the trust.” But it seems to us that if the executor in Eneberg v. Carter, supra, did not take a fee so as to divest the fee of the heirs at law, much less can it be said in this case that a fee was granted to any person so as to divest the fee of the heirs. Clearly no such fee was granted to the widow because the whole context shows that the sale was not to be made until after her death and no other person is named as her successor to make the sale and divide the proceeds. Counsel for the defendant urges that this court reached a wrong conclusion in Eneberg v. Carter, but that case has never been criticised or challenged, and we see no reason for refusing to accept it as controlling on this point, consequently it must be held that Napoleon W. Lobban had an interest in the real estate in suit, which was subject to attachment and sale under the attachment proceedings of Christian against him, and that his interests therein passed by the deed under those proceedings. [Crittenden v. Fairchild, 41 N. Y. 289.] But conceding the doctrine of equitable conversion of land into real estate, it is equally well settled that the ultimate and absolute owner or ■ owners, if sui juris, may elect to take the property in its existing state before it has been actually sold, if it is land, or invested in land if personalty, and put an end to the constructive conversion, and as equity will do nothing in vain the court will not compel the trustee to sell, for the beneficiary, who is absolutely entitled, may immediately reconvert the property. And a court of equity will not compel a trustee to execute a trust against the wishes of the cestui que trust, but will permit him to take the land if he elect to do- so before the conversion has actually been made. [2 Underhill on Wills, sec. 719, note 3, and cases cited.] And this presents the controlling question in this case. Counsel for the defendant has with great care and discrimination collected a number of authorities to establish the rule that an equitable conversion of this land took place at the death of the testator Samuel Lobban and deduces therefrom that the devisees, his children, had no such interest therein that they could convey as land. But, as was said in 2 Underhill on Wills, section 703, “It must be noted that the rule that the land is converted as of the date of the death of the testator is based upon the presumption of an intention where the will is silent as to the time of sale. It yields to a clear expression of a contrary intention fixing the time of sale in the future. If the testator expressly directs the sale to take place at a particular future time, as so. many years after his death or after a life estate, or if he has made it to depend upon the request or consent of others, no conversion takes place until the date arrives which is indicated by the will when it ought to be sold. ” And this was the rule announced by the Court of Appeals of New York in Savage v. Burnham, 17 N. Y. l. c. 569, and Moncrief v. Ross, 50 N. Y. l. c. 435 and 436. In Meehan v. Brennan, 45 N. Y. Supp. 57, it was ruled: “A conversion of realty into personalty is effected as of the time when the sale should have been made under the implied power contained in the will, disposing of the proceeds of real estate, but not designating the person by whom the sale should be made.” In this case it is plain that Samuel Lobban directed his real estate to be sold after the death of his widow, but named no person by whom the sale should be made. In Richey v. Johnson, 30 Ohio St. l. c. 293, in which the contention was that the conversion should take place as of the date of the death of the testator, it was said: “But we see no reason for giving a construction to the will — that is, in ascertaining the intent of the testator — why we -should regard the conversion of the farm into money as taking place at the death of the testator, or at any time prior to- the death of the widow. It is quite certain, that the testator intended or contemplated no such conversion during her life. She was to have the use of the farm, as such, during her natural life.” See, also, Brothers v. Cartwright, 2 Jones’ Eq. (N. C.) 113. In our opinion then it was the intention of Samuel Lobban that the sale of this real estate should be made after the death of his widow and that the conversion of the same into personalty should not be construed as taking effect prior to that time. Before that time, however, had arrived, as we have seen by the accompanying statement, all of the devisees of Samuel Lobban except Napoleon Lobban had voluntarily elected to take their interest in the land as land, and had conveyed the same, and by mesne conveyances the plaintiff herein had become the owner of their interest therein, and Napoleon Lobban’s interest had also passed to the plaintiff by virtue of the deed under the attachment proceedings instituted by Christian. With much industry counsel for the defendant has collected the cases showing that one of the several beneficiaries under a will which directs the land to be sold and the proceeds to be divided cannot by electing to take his part in realty defeat the purpose of the will and prevent the sale for distribution.- But he concedes that by the unanimous and 'concurrent act of all the devisees the estate may he reconverted into realty, and the contention of the plaintiff in this case is that that is just what occurred in this case, and that the question as to whether one of several beneficiaries can defeat the purpose of the testator is not presented by this record. As we have already seen in Eneberg v. Carter, it was held that the title to the land vested in the devisees subject to the life estate of the widow, and the power of sale for distribution contained in the will. That is to say, each devisee had a vested interest, and, whether the property be considered real estate or personalty, could sell and dispose of that interest and the same could be sold by proper process against such child or devisee. See also Godman v. Simmons, 113 Mo. 122. But while conceding that all of the distributees could elect to have the property reconverted into realty, counsel for the defendant insist that this can only be done by the concurrent and simultaneous act of all of the devisees and that they could not by separate deeds and at different times bring about such reconversion even though all their interests had passed into one common grantee. Counsel cite a number of cases, especially English cases, to the effect that, .“the trust for conversion, on the death of the widow, was for the benefit of all the next of kin, and unless they all concurred in electing to take the property as land, the trust took effect, and that it would be repugnant to the principles on which the doctrine of conversion and reconversion rests, to hold that one of the legatees of an undivided share in the products of real estate directed by the testator to be converted into personalty, could, without the assent of the others, elect to take his share as unconverted and in the shape of real estate.” [Holloway v. Radcliffe, 23 Beavan 163; Biggs v. Peacock, L. R. 22 Chan. Div. 284; Fletcher v. Ashburner, 1 Brown’s Chan. Cases 497.] But as already said this is not that character of a case. In this ease all of the interests of all of the devisees have passed into the hands of the one common grantee prior to the date fixed for the sale and conversion of the land into realty. On the contrary, it was ruled in Reed v. Underhill, 12 Barb. 113, that “Where lands are not devised to executors to sell, but there is a mere naked power for that purpose, no estate vests in the executors, but descends to the heirs at law subject to the power of sale, and a deed from such cestui que trust, for a valuable consideration, must be deemed an election, so far as he can elect, to take the estate unchanged, and will have the effect to transmit such interest and estate as he had in the premises, to the grantee.” It was not held in that case, as defendant’s counsel seem to insist, that one of the heirs by such a conveyance could prevent the execution of the power of sale by the executors, but it was simply held that he might convey his interest in the real estate as land and in case of a sale under the power the grantee would be entitled to that portion of the purchase money to which his grantor would have been entitled under the will. The doctrine of that case was expressly reaffirmed by the Court of Appeals of New York in Sayles v. Best (1893), 35 N. E. 636, and in this connection it may be well to remark that the laws of New York in regard to the vendibility of interests in real estate are very similar to’ ours. See also Hetzel v. Barber, 69 N. Y. 14. In Greenland v. Wadell, 116 N. Y. 246, among other things the court said: “By that conveyance Mrs. Busch acquired the entire beneficial interest in the property. Her deed to the plaintiff had the éffect to vest in him the title of the land. Since all the parties having any beneficial interest in it or its proceeds have thus joined in and made the conveyance, there remains no occasion for the exercise of the power of sale given by the will; and upon the principle that the beneficiaries in the equitable conversion of real property into personalty, may effectually elect to have a reconversion in the realty and take it as land, rather than the proceeds of it, we think the exercise of such power of sale may be deemed dispensed with and defeatéd. [Story’s Eq. Juris., sec. 793; Hetzel v. Barber, 69 N. Y. 1; Prentice v. Janssen, 79 N. Y. 478; Armstrong v. McKelvey, 104 N. Y. 179.] ” In Bank of Ukiah v. Rice, 76 Pac. 1020, where there had been a devise of real estate for the wife for life, and the direction that after her death it be sold and the proceeds divided between certain beneficiaries therein named, it was held that the mortgage by one of the beneficiaries of his undivided interest in the land, followed by the subsequent execution of the sheriff’s deed foreclosing the mortgage, was an act of such unequivocal character as to indicate his election for a reconversion and had the effect to vest in the plaintiff his interest in the land as well as in the proceeds from the sale in' case the power should be subsequently executed. Citing Reed v. Underhill, 12 Barb. 113; Sayles v. Best, 140 N. Y. 376; Gest v. Flock, 2 N. J. Eq. 108. In the last-named case a conveyance of the land by the beneficiary is evidence of such an election. Counsel for the defendant construes the cases which require all of the beneficiaries to elect in order to reconvert the estate into realty to mean that it must be done at one and the same time, or practically by the same instrument, and cites Harcum’s Admr. v. Hudnall, 14 Gratt. 369; High v. Worley, 33 Ala. 196; Beal v. Stehley, 21 Pa. St. 376; McDonald v. O’Hara, 144 N. Y. 566, as supporting his contention. As we construe these cases they unquestionably do hold that less than the whole number of beneficiaries cannot produce a reconversion of the estate into realty, but the cases we have cited hold that each beneficiary for himself may make his election by selling and conveying his individual interest and that if they all make conveyances a re-conversion will be held to have been taken place we think is inevitable from the doctrine announced in Reed v. Underhill and the cases that we have cited approving that case and our own decision of Eneberg v. Carter, 98 Mo. 647. Indeed, in McDonald v. O’Hara, 144 N. Y. 566, it was expressly said: “It is, however, well settled that thé persons who are exclusively entitled to the fund arising from the sale may, if they so elect prior to the actual sale, take the real estate in its unconverted form. ” It must logically follow that, if each and every one of the beneficiaries conveys his interest to a common grantee, such common grantee becomes the person entitled to the fund which would arise from the sale and subsequently may elect to take the real estate as land and not personalty and thus dispense with the sale. The case of Mandlebaum v. McDonell, 29 Mich. 78, on this point, is exactly like this case; there the testator devised to his wife an estate for her life or widowhood and then provided for a sale of the land and distribution of the proceeds among the children; the children by separate deeds conveyed their respective interests in the property and by mesne conveyances all the right, title and interest conveyed by the deeds of the children were transferred to the complainant. And although there was a limitation in the will upon the power of the children to convey, the court in a most learned and exhaustive opinion held that the complainant had acquired all the interest in the property and as such was entitled to take the land free from the power of sale contained in the testator’s will. Our conclusion is then that as it clearly appears that the plaintiff has acquired by proper conveyances and proceedings the interest of all the beneficiaries under the will of Samuel Lobban, he would, in the event of a sale under the power contained in the will, be entitled to the entire proceeds, and is entitled to the land and is not bound to submit to a sale of the property and the attending expenses and cost thereof, and the court below ■ was right in granting him a perpetual injunction to prevent the saie.

The judgment of the circuit court is therefore affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    FRANK O. BEEBE, Administrator of Estate of DAVID W. SILLS, Deceased, v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    July 13, 1907.
    1. NEGLIGENCE: Master and Servant: Appliances. The master must use ordinary and reasonable eare to provide and maintain safe machinery, tools and appliances with which to do the master’s work. But he is not required to furnish absolutely ' safe appliances. Nor is he an insurer of the absolut© safety of either the servant or the appliances.
    2. -: -: -: No Substantial Evidence. Where there is no substantial evidence that the defendant railway company had failed to use reasonable care in procuring and using a reasonably safe controller, which exploded and injured the plaintiff, a motorman, or that it had failed to exercise ordinary care to inspect the controller, and none to show that by the exercise of reasonable care in making inspections defendant might have discovered its dangerous condition, plaintiff cannot recover.
    3. -: -; — : -: Inferred from Accident: Numerous Causes. Plaintiff was a motorman on an electric car, and while operating it the controller exploded, and badly injured him. The controller was inclosed in a box, and was used to apply and regulate and cut off the electrical force which constituted the motive power of the car, and the motorman was ignorant of its construction and interior arrangement, and it was not his duty to keep it in a safe condition. Those controllers used at the time were the best on the market. There was evidence tending to show that any foreign substance in a controller, such as dirt, water or grease, might cause a slight flash or explosion, which might be prevented by inspection, but there was no evidence that defendant failed to inspect the controllers as often as seemed necessary, and the evidence further shows that any ope of numerous causes might have brought about the explosion, among which was the accumulation of dirt in the controller, and that dirt might have gotten into the controller at any time while the car was in charge of plaintiff while at work on the track, without any fault or negligence on the part of defendant, and the evidence does not show what particular thing caused the explosion. Held, that defendant’s negligence cannot be inferred from the mere fact that an explosion occurred, and no negligence on defendant’s part being established plaintiff cannot recover.
    4. -: Conjecture. Where the cause of the explosion which produced plaintiff’s injuries is purely conjectural, he cannot recover.
    Appeal from Boone Circuit Court. — 1Son. Alex. H. Waller, Judge.

    Reversed. ■

      Boyle & Priest, Edward T. Miller and J. W. Jamison for appellant.
    (1) A master is not required to furnish, his servant absolutely safe appliances. He is not an insurer of the sufficiency, nor of the absolute safety of the appliances furnished by him. Chrismer v. Bell Tel: Co., 194 Mo. 189; Bowen v. Railroad, 95 Mo. 268;- Gutridge v. Railroad, 105 Mo. 520 ,* Blanton v. Dold, 109 Mo. 64; Brown v. Herschy L. & L. Co., 65 Mo. App. 162; Marshal v. K. C. Hay Press Co., 69 M01. App. 256; Glascock v. Swofford Bros. D. G. Co., 74 S. W. 1040; Zellers v. Mo. Water & Light Co., 92 Mo. App. 107; Glover v. Kansas City Bolt & Nut Co., 153 Mo. 327. An employer cannot be adjudged guilty of a failure of duty where he furnished machinery and appliances which are reasonably safe when used in the manner intended to be used, but which may become dangerous if their use is perverted by the employee. Grattis v. Railroad, 153 Mo. 380. A master may use any reasonably safe machine he chooses. Chrismer v. Bell Tel. Co., 194 Mo. 189; Muirhead v. Railroad, 19 Mo. App. 634; Bowen v. Railroad, 106 Mo. 429; Huhn v. Railroad, 92 Mo. 440; Friel v. Railroad, 115 Mo. 503; Blanton v. Dold, 109 Mo. 520; Berning v. Medart, 56 Mo. App. 443; Higgins v. Railroad, 43 Mo. App. 547; Harrington v. Railroad, 78 S'. W. 663; C'urtis v. McNair, 173 S, W. 170. Whatever is according to the general, usual and: ordinary course adopted by those in the same business is reasonably safe "within the meaning of the law. The test is general use. Mason v. Fourteen Mining Co., 82 Mo. App. 367; Kane v. Falk Co., 93 Mo: App. 207; Minnier v. Sedalia, etc., 167 Mo. 99. No inference of negligence can arise where the evidence shows that an implement used by a servant in the performance of his work is such as is ordinarily used for like purposes by persons engaged in the same kind of business. Bohn v. Railroad, 106 Mo. 429; Holt v. Railroad, 84 Mo. App. 443. Negligence of the master is not presumed, but must be shown. It must be shown that there was a defect, and that it was, or ought to have been, known to defendant. Brooks v. Railroad, 71 S. W. 507. (2) As under the law defendant was not required to exercise the highest degree of care for the safety of plaintiff, the doctrine of res ipsa loquitur does not apply. Glascock v. D. G. Co., 106 Mo. App. 664; Wojtylak v. Coal Co., 188 Mo. 260; Fuch v. St. Louis, 167 Mo. 620; Hough v. Austin, 46 Ohio St. 386; Cosulich v. Standard Oil Co., 122 N. V. 123; Walker v. Railroad, 71 Iowa 658; Losee v. Buchanan, 51 N. T. 476; Oglesby v. Railroad, 177 Mo. 272; Hope Salt Co. v. Vieth, 57 L. R. A. 410; Girard v. Griswold, 8 Am. Neg. Rep. 643; Cothron.v.. .Packing Co., 98 Mo. App. 343; Goranson v. Mfg. Co., 186 Mo. 300; McGrath v. Railroad, 197 Mo. 104; Trotter v. Railroad, 99 S. W. 508. (3) The duty of the master to inspect the appliances in order to maintain them in a reasonably safe condition is continuous. This does not mean that a continuous inspection must be exercised from moment to moment, but only that it must be such as is reasonable under all the circumstances. Krampe v. Brewing Assn., 59' Mo. App. 277; Shea v. Railroad, 76 Mo. App. 29; Huth v. Dhole, 76 Mo. App. 671. There must be substantial evidence that the defendant failed to exercise ordinary care in keeping the appliances in repair. O'’Donnell v. Baum, 38 Mo. App. 245 ; Krampe v. Brewing Assn., 59 Mo. App. 277; Breen v. Cooperage Co., 50 Mo. App-. 202; Bohn v. Railroad, 106 Mo. 429. (4) There is no evidence to support the verdict, and the verdict is against both the evidence and thé weight of the evidence and the law as declared by the court, and there was no evidence to support plaintiff’s instructions. Chrismer v. Bell Tel. Co., 194 Mo. 189'; Danker v. Goodwin Mfg. Co., 102 Mo. App. 723; State v. North-way, 164 Mo. 513.

      Richard F. Ralph and Barclay & Fauntleroy for respondent.
    (1) The occurrence out of which this action grows demonstrates, by its own circumstances, that defendant was negligent (in the particulars charged against defendant in the petition) requiring some explanation by defendant. If ever facts speak for themselves, they do in this case, in favor of this motorman, against whom not even an allegation of any sort of negligence on his part is made. Jones v. Railroad, 178 Mo. .544; Gannon v. Gas Co., 145 Mo. 502; Rose v. Railroad, 11 Fed. 438; Tateman v. Railroad, 96 Mo. App. 448; Judson v. Powder Co., 107 Cal. 549; Kearney v. Railroad, L. R. 5 Q. B. 411; McCoy v. Gas Co., 212 Pa. St. 255; Houston v. Brush, 66 Yt. 346. The precept that the “thing itself speaks” (as applying to evidence of negligence) is held to govern cases of master and servant as well as other actions. Gorman v. Milliken, 86 N. Y. Supp. 699; Blanton v. Dold, 109 Mo. 64; Nat. Biscuit Co. v. Wilson, 78 N. E. 251; Solarz v. Railroad,. 29 N. Y. Supp. 1123 (affirmed, 155 N. Y. 645); The Wm. Branfoot, 48 Fed. 916 ; Posey v. Scoville, 10 Fed. 140; Sackewith v. Biscuit Co., 78 Mo. App. 144; Shuler v. Railroad, 87 Mo. App. 618; Snyder v. Elect. Co., 43 W. Va. 668; Highland Bay Co. v. Pouch, 124 Fed. 148; Griff en v. Manice, 166 N. Y. 195; Dean v. Railroad, 97 S. W. 910. (2) But there was also direct testimony to prove negligence of defendant as alleged. The undisputed testimony of the experts proves that such a shock or “explosion” as here is shown, was not ordinary or usual in the employment, but that it necessarily resulted from negligence charged in omitting the duty of inspection to discover the obvious defective condition of the electrical machinery. Such a dangerous agency as electricity demands care in its use by the master, affected by the circumstances. Reasonable care toward employees requires that the machinery should be inspected occasionally, and be maintained in a condition precluding such an “explosion” as here appears. Geisman v. Elect. Co., 173 Mo. 654; Alexander v. Light Co., 209 Pa. 571; Bradford v. Kizer, 113 Fed. 894; Railroad v. Lynch, 90 S. W. 511; Schoepper v. Chem. Co., 113 Mich. 582; Moran v. Engine Co., 21 R. I. 386; Thomas v. City, 97 S. W. 420. (3) The expert proof affirmatively indicates the cause of the “explosion” to be the defective condition of the controller, and want of necessary inspection to reveal and to correct that condition. The duty resting on the master was not performed in this case, according to the positive evidence, even beyond the reasonable inferences to be drawn from the facts of the “explosion” and its deadly force. Circumstantial evidence’ of the cause of such an “explosion” or injury as here appears is sufficient, and it need not exclude every other possible'hypothesis. Delahunt v. Tel. Co., 215 Pa. 241; Railroad v. McDade, 191 If. S. 64; Rose v. Transpt. Co., 11 Fed. 438; 'Woodall v. Railroad, 78 N. E. 446; Grimsley v. Hankins, 46 Fed. 400; Excelsior Co. v. Sweet, 57 N. J. L..22.
   BURGESS, J.

This is an action for damages for personal injuries, and was instituted by David W. Sills, the original plaintiff herein, against the defendant in the circuit court of the city of St. Louis. The venue of the cause, upon application of the plaintiff, was changed to the circuit court of Boone county, at the June term, 1904, of which court, upon trial had, a verdict and judgment in the sum of fifteen thousand dollars was rendered in favor of plaintiff. Defendant’s motion for a new trial having been overruled, it appealed. Since the said judgment was rendered, David W. Sills, the original plaintiff, 'died, and the cause was revived by consent in this court in the name of his said administrator.

It is stated in the petition that on December 12, 1902, defendant was engaged in operating a system of electric railways in the city of St. Louis; that plaintiff was in the employ of defendant, and on the last-mentioned date had been assigned by defendant to duty as motorman, and plaintiff was engaged in his duties on defendant’s car No. 1921, which was north-bound on Grand avenue, near the Grand avenue bridge, about 5:45 o’clock a. m,, when a sudden explosion took place within the controller box of said car.

Said controller box was an appliance fastened to said car on the front platform. “It contained machinery used to apply and regulate’and to-cut off the electrical force which constituted the motive power of said car. Said machinery was hidden from view in said box and was operated by a controller-lever on the top (outside of said box). It was part of the duty of plaintiff as such motorman to manipulate said lever on said controller in order to set said car in motion and to regulate its momentum, and to stop said car, as occasion might require, in the operation of said car, for the purposes of defendant’s business as a carrier of passengers on its said line of street railway. Plaintiff was then and there ignorant of the construction and interior arrangement of said machinery so used to operate said ear, and plaintiff’s duties as motorman for defendant did not require him to have any knowledge of said machinery within said box, but merely to move said controller as aforesaid in the operation of said car. Said explosion of said controller box on said day, December 12, 1902, was due to the omission of defendant to use reasonable and ordinary care to maintain said controller and the machinery within it, in a reasonably safe condition for use by plaintiff as motorman upon said car, as aforesaid, and to defendant’s omission to use ordinary care to take reasonable precautions to have the operation of the electrical power in and upon said machinery ordinarily safe for employees, required to use same in the manner in which plaintiff was using said instrument as aforesaid at the time of said explosion, which manner of use was that necessarily incident to the duty of motor-man on said-car, then and there; and said injury to plaintiff was further due and directlyascrib-able to defendant’s omission to use ordinary care to provide reasonably safe machinery for use in operating said motive power as aforesaid. Plaintiff avers that said appliance which exploded as aforesaid was defective and not reasonably safe, and such defective condition thereof at and prior to said explosion was wholly unknown to plaintiff, and could not have been discovered hy plaintiff by the use of ordinary care on his part; but the said dangerous and defective condition of said machinery which exploded could not have been discovered by defendant by ordinary care in inspecting said1 controller prior to its explosion in ample time to have prevented said explosion.”

Plaintiff further states that by reason of said explosion he was immediately thrown from the said car into the street and sustained severe injuries.

The injuries and damages alleged to have been sustained by plaintiff as a result of the explosion are enumerated in the petition and include bodily injury, loss of time and earnings, a permanent impairment of earning capacity, liability for medical expenses and treatment, and plaintiff prays for judgment on account of such damages in the sum of thirty thousand dollars.

The answer was a denial of each and every allegation in plaintiff’s petition contained.

The evidence showed that plaintiff, David W. Sills, was a motorman on one of defendant’s street cars on the Bellefontaine line; that while in the discharge of his duty on the front platform of the car there occurred an explosion of the electrical controller thereon which was so violent that Sills was thereby blown or thrown entirely off the car and he fell upon the pavement or' sidewalk on the Grand avenue bridge, over which the car was passing at the time. He was unconscious when picked up, after being thrown from the car. His left thigh bone was found broken, his right shoulder dislocated and the muscles tom between the elbow and shoulder. Three of his ribs were fractured, and he also sustained internal injuries as well as an impairment of his hearing. The left leg was permanently deformed and rendered an inch and a half shorter than the other leg. As results of his injuries he suffered great pain, and was also afflicted with nervousness, insomnia, loss of appetite and melancholia. Before he was injured he was in good health and had no deformity of any kind. He was twenty-eight years of age at the time of the accident, and was earning as motormap between twelve and fourteen dollars per week; he had been unable to resume work since the time he was injured.

Sills testified that lie had no technical knowledge of the controller box or the electrical appliances on the car, and had received no special instruction from defendant or from any other source as to any machinery inside of the controller, except that he was shown by two of defendant’s employees, before he began his duties as a motorman, “how to cut out the motor if one should break down. ’ ’ He received instruction as to the manipulation of the lever on top of the controller box by the moving of which to the right or left the speed of the car might be accelerated or retarded, and stated that on the top of the controller were marks or points which would indicate the extent of the power; that seven of such points were visible, and two not visible. When asked to state what happened when the so-called explosion took place, and what he did, he explained that the car, without any power on, had been going down hill from Chouteau avenue toward the bridge, and that as there was a rise as the bridge is approached the car begins to check up. “As it began to check up I began to put the power on at the regular rate, and about the time I hit the fifth point I could tell then that something was wrong, but it was so quick I don’t know anything about how I got off or anything, only that I was picked up on the bridge. I knew enough to know that I was shocked, and that was all. The car had shocked me a number of times before that, after we came from the sheds, but not strong enough to knock me down. ’ ’ He was asked to state what he saw, if anything, in the way of arcing or any display in the way of an explosion, and he replied: “It was so quick I didn’t see anything. In fact, I hardly realized anything of it. I have a slight remembrance of a flash of light as I got the shock, but that was all.” Witness said that he had been in the employ of the defendant company about three months, and was not confined to the us of any one particular car; that the motorman didn’t have anything to do with the machinery of the car, or the car itself, after the daily run was finished and the car was returned to the shed. Being asked to- state what method of inspection or examination of the controller boxes existed in the car shed from whence he took his car on the morning of the accident, witness answered: “The only inspection system I saw there was, where a car had to be fixed, where it had a bad break, the light wire was bad, or anything was wrong when you got done with it and was ready to put it away for the night, you marked on a book showing what was the matter with the car. That is the only inspection system I knew of.” The motorman, he said, would write down what was wrong with the car on a book in the office after bringing the car in for the night, which book was expressly provided for that purpose. He had experienced, as motorman, some slight shocks before, and at one time, as the result of a shock, he lost hold of the lever in going over a switch; that he was knocked over for two seconds perhaps, but that was all; that he had received on the morning of the accident some slight shocks on the way down to the G-rand avenue bridge, but that he did not stop to examine into the cause as the motormen were not allowed to do so; that motormen on street cars frequently receive shocks of that kind while operating the cars, and that sometimes they pay attention to them, and sometimes not. He did not notice that morning, prior to the time of the accident, any arcing or flame about the motor, only that there was a little puff of smoke at one time’.

After plaintiff was injured he was taken to the city hospital, at St. Louis, where he was treated by Dr. Culbertson. He stayed there nearly three weeks, and was then taken to the St. Louis Hospital, and! treated there by Dr. O'. 0. Raines. He remained at the latter hospital from New Year’s day till March 23, and then removed to 1616 Franklin avenue, where he continued to receive medical treatment, and was still under treatment at the time of the trial. Plaintiff belonged to a hospital association, and by reason of his membership therein his expenses for medical treatment at the St. Louis Hospital amounted to but fifty cents a month. He was charged nothing at the City Hospital. For medicines which he obtained at drug stores he paid eight or ten dollars.

Dr. Raines, who, had been treating the plaintiff, testified at the trial and explained the nature of plaintiff^ injuries, some of which he regarded as permanent, and stated that the injury of his ribs would render him susceptible to lung and other pulmonary trouble. The reasonable value of his medical and surgical services to Mr. Sills, including the hospital treatment, was, he said, about $226.

Herman F. Pabish testified for the plaintiff, and stated that he was an electrical and mechanical engineer, and was in the employ of defendant, about the 20th of December, 1902, and had been so employed since the organization of the company, about four years before that time; that he was acquainted with the mechanism of the controller and the connection by which the electric power was applied to the motor of said cars; that the defendant was using different kinds of controllers, one being manufactured by the G-eneral Electric Company, and the other by the Westinghouse, and, that all controllers were of the same general character. Witness identified a picture of a controller in use by defendant, and by means thereof illustrated and explained to the jury how the electrical force was applied, increased or diminished. The conditions present at the time when plaintiff was injured were embraced in a hypothetical question put to the witness, who was asked to state what would cause a disturbance or explosion similar to that mentioned as having occurred when plaintiff was hurt. His answer was that it might be caused by dirt, water or grease, or any other foreign substance almost, in the controller, and he expressed the opinion that, in order to keep the controllers in good condition, the door or part of the casing of the controller should be opened up every day, and the mechanism cleaned. He further stated that it would be a mere accident if an explosion should occur in the controller through an increase of the voltage from the amount usually carried, and that if there was a defect in the controller not detected at the factory, or if it had been used for a long time, an explosion or arcing might occur if the voltage of the electric current were increased beyond the actual capacity; that if there was but a slight imperfection in the condition of the machinery from dirt or other foreign substance being there, or if the contacts were imperfect, and the full extent of the mill voltage turned on, it would be more likely to produce arcing and a severe shock than if the conditions were perfect as to machinery and points of contact. Witness could not say just what did cause the particular arcing on the occasion of the accident, and all he could do would be to enumerate a list of things that might have caused it; but stated that such a disturbance as that occurring when plaintiff was injured could not have happened if the voltage supplied by the electrical current had been normal in quantity and quality and the controller in perfect order in regard to contact, cleanliness, etc. He further stated that the makers of such machinery have been unable to make it absolutely perfect, and that accidents and derangements take place from time to time in spite of all they can do. Witness did not know the practice of the defendant with regard to the examination of these instruments on the cars that run on the line of street railway where plaintiff’s employment took him at that time, as witness was then located at another place working for the defendant.

Plaintiff read in evidence the deposition of Owen Ford, which deposition had been taken for and on behalf of defendant. Mr. Ford first qualified to speak as an electrical expert. His .testimony with respect to the electrical appliances in use on defendant’s cars, the handling of electricity and its use in the operation of cars, was practically the same as that of witness Pabish. He said that there was no way by which the motorman could control the amount of current that reached the controller box, his control being limited to its application to the motive power of the car, and that explosions occur at infrequent intervals in spite of all and every precaution that might be taken to prevent them. "Witness never knew of an explosion occurring in a motor-box of sufficient force to break the metal of the box, or to injure the operator or motorman.

At the close of plaintiff’s evidence defendant offered an instruction in the nature of a demurrer to the evidence which the court refused to give to the jury, to which action of the court defendant duly excepted.

The defendant offered no evidence, but stood on plaintiff’s case.

At the instance of plaintiff, and over the objection and exception of defendant, the court instructed’ the jury as follows:

“1. The court instructs the jury that if you believe from the evidence that on December 12, 1902, plaintiff was in the employ of defendant as a motorman on a car of the Bellefontaine line, and that while plaintiff was operating the machinery in his charge as motorman on the front platform of said car, an explosion took place within the controller box on said platform, and that in consequence of said explosion plaintiff was thrown from said car and severely injured; and if you further believe from the evidence that the injuries which plaintiff received as aforesaid were directly caused by negligence (that is to say, by want of ordinary care) on the part of defendant, in the particulars mentioned in the next two instructions of the court, and that plaintiff was using ordinary care for his own safety and in other particulars, at and before the time of said, explosion, then your verdict should be for the plaintiff.

“2. The court instructs the jury that if you find from the evidence that an explosion took place as mentioned in the first instruction, and that it was directly caused by the failure of defendant to use reasonable care in procuring and using a reasonably safe controller, or that it was directly occasioned and caused by the failure of defendant to exercise ordinary care to inspect said controller, and to use reasonable care to discover its condition, and'that defendant by the exercise of reasonable care in so inspecting said controller, could have discovered its dangerous condition (if you find from the evidence it was in such condition) and averted the injury to plaintiff, and that defendant in failing to use reasonable or ordinary care as aforesaid was negligent and thereby failed to use reasonable care to furnish to plaintiff reasonably-safe machinery for use by him as motorman on said car, then defendant was guilty of negligence within the meaning of the first instruction of the court.

“3. The court instructs the jury that if you believe from the evidence that an explosion took place, as mentioned in the first instruction of the court, and that it was directly caused by the omission of defendant (by its agents and servants) to use reasonable and ordinary care to provide electrical machinery which should be reasonably safe for use by a motorman on duty on said car, and that said electrical machinery within said controller box was not within view of the plaintiff and that plaintiff could not, and did not, know its condition, by the exercise of ordinary care on his part, and that plaintiff was not required by defendant to acquaint himself with the nature and operation of said machinery within said controller box, and that the explosion mentioned in the first instruction of the court (if you find it took place) occurred because of defendant’s previous omission and failure to use reasonable care to have said electrical machinery inspected and maintained in a condition of reasonable safety for use by a motorman on duty on said car, in the situation and circumstances of plaintiff as shown by the evidence, then the defendant was guilty of negligence within the meaning of the first instruction of the court.

“4: The court instructs the jury that by the term ‘ordinary care’ and ‘reasonable care’ (as those terms appear in the instructions in this case) the court means that amount or degree of care which a person of ordinary prudence and caution (according to the usual and general experience of mankind)' would exercise in the same situation and circumstances as those of the person or persons mentioned in this case, who were required by law to exercise ordinary or reasonable care as stated in the instructions of the court; and the failure or omission of said person or persons to use such care as is above defined was negligence, in the sense in which that term is used in the instructions of the court.

“What constituted reasonable or ordinary care, as above described, is to be determined upon a full view and consideration by the jury of all facts and circumstances of each particular event or situation pointed out in instructions of the court in connection with the terms ‘ordinary care’ or ‘reasonable care.’

“5. The court instructs the jury that the question whether or not plaintiff was guilty of any negligence, in the circumstances shown by the evidence, is not an issue in this case.

‘ ‘ 6. The court instructs the jury that if, under the evidence and other instructions of the court, you decide to fiad in favor of the plaintiff, you should assess his damages at such an amount as you believe from the evidence to be a reasonable compensation for any physical and mental pain and suffering which you believe from the evidence plaintiff endured as a direct result of said injury or injuries as you find1 from the evidence plaintiff received by reason of said explosion, and for any expense paid by plaintiff on account of the reasonable value of such medical care and treatment, as you may believe from the evidence became necessary to plaintiff in consequence of said injury or injuries, as well as a reasonable compensation for the value of any loss of time or earnings which you may believe from the evidence plaintiff has suffered as a direct result of said injury, and also a reasonable compensation for any permanent injury (if any) which you may find from the evidence to have resulted to plaintiff as a direct consequence of the said injury or injuries to plaintiff, but the total amount of damages awarded to plaintiff in your verdict may not exceed the amount of $30,000, which is the sum claimed by plaintiff in his petition.”

■ At the request of defendant, and over the objection and exception of plaintiff, the court gave the following instructions:

“1. The court instructs the jury that defendant did not insure the safety of plaintiff, nor the safety of the controller in use on defendant’s car. Defendant was only required to use reasonable care and foresight in procuring and using a reasonably-safe controller.

“2. The court instructs the jury that they cannot find for the plaintiff merely because they may find that there was an explosion in the controller box and that plaintiff was thereby thrown from the car and injured. Nor can the jury guess at the cause of the explosion or surmise that the defendant was negligent. But the law requires the plaintiff to prove to the reasonable satisfaction of the jury that the explosion in the controller box was due to some defective or unsafe condition of such controller and that the defendant by the exercise of reasonable care could have discovered such defect or unsafe condition and removed the same in time to have prevented the accident.

“3. You are instructed as a matter of law that defendant was not required to furnish plaintiff with an absolutely safe controller; nor was defendant required to furnish the latest, most approved or safest controller known or in use, but the law only required defendant to exercise ordinary care to furnish plaintiff a reasonably-safe controller and to exercise ordinary care to keep the same in repair.

“6. In accepting employment in the service of defendant for the performance of the work stated in his petition plaintiff assumed all of the ordinary, dangers and hazards pertaining to such work; and should the jury find from the evidence that the injury sustained by plaintiff was the result of an accident, and not the negligence of defendant as explained in other instructions, liable to occur in the performance of the work plaintiff was engaged in at the timé of said accident but was a risk incident thereto, then the plaintiff cannot recover and the jury should find for the defendant.

“7. The court instructs the jury that if they are unable to determine from the evidence whether or not the defendant, by the exercise of reasonable care, could have discovered any defects or unsafe condition in the controller box and its appliances, then they cannot find the defendant guilty of negligence in respect to the condition of said controller box. ’ ’

The general rule of law is that the master must use ordinary and reasonable care to supply and maintain safe machinery, tools and appliances with which to do the master’s work; but the master is not required to furnish his servant machinery, tools and appliances •which are absolutely safe; nor can an employer be held guilty of negligence in the failure of the discharge of his duty towards his servant where he furnishes machinery and appliances which are reasonably safe when used in the manner intended to be used, but which may become dangerous if used for a purpose for which they were not intended or adapted. [Grattis v. Railroad, 153 Mo. 380.]

The case was submitted to the jury upon the theory that a case of negligence was made out against the defendant if the jury should believe from the evidence that the defendant had failed to use reasonable care in procuring and using a reasonably-safe controller, or that defendant failed to exercise ordinary care to inspect the controller which was in fact procured, when by the exercise of reasonable care in making inspections defendant might have discovered the dangerous condition of the controller, if it was dangerous.

Defendant insists that in support of these issues there was no substantial evidence, or evidence sufficient to justify the submission of the case to the jury. Upon the other hand, the plaintiff contends that the evidence that the controller “exploded” because it was not duly inspected, and that it was not in a reasonably safe condition, is direct and pointed, but that even if the experts had not testified, the inference of negligence on the part of the defendant, under the circumstances, was cogent and persuasive.

The evidence showed that the controller boxes in use by defendant on its cars, on the date when plaintiff was injured were what are known as the General Electric or Westinghouse controller boxes, and that they were at the time of the accident the best on the market.

While there was evidence tending to show that any foreign substance in the controller, such as dirt, water or grease, might produce arcing, that is, a slight flash or explosion, which might be prevented by inspection, there was no evidence of a failure by defendant to inspect the controllers in use as often as was seemingly necessary. So that it is not shown by the evidence that the defendant failed to use reasonable care in procuring for use on its cars a reasonably safe controller. Upon the contrary, the evidence shows that the controller which exploded and caused the injury was the “best on the market.” The master is not required to furnish his servant absolutely safe appliances or machinery with which to work, but discharges the full measure of his duty towards his servant when he exercises ordinary and reasonable care to supply and maintain safe machinery, tools and appliances with which to do the master’s work. [Minnier v. Railroad, 167 Mo. 99; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Holmes v. Brandenbaugh, 172 Mo. l. c. 64; Tabler v. Railroad, 93 Mo. 791; Grattis v. Railroad, 153 Mo. 403.] This duty, however, does not make the master an insurer of the safety of the servant. [Grattis v. Railroad, supra.]

It is asserted by plaintiff that “the expert proof affirmatively indicates the cause of the éxplosion to be the defective condition of the controller, and want of necessary inspection to reveal and to correct that condition; that the duty resting on the master was not performed in this case, according to the positive evidence, even beyond the reasonable inferences to be drawn from the facts of the explosion and its deadly force; that circumstantial evidence of the cause of such an explosion or injury as here appears is sufficient, and it need not exclude every other possible hypothesis.”

We are unable to agree that the expert proof affirmatively indicates the cause of the explosion to be the defective condition of the controller, or the want of necessary inspection. These were facts which it devolved upon plaintiff to prove, or to prove a state of fácts from which they might reasonably be inferred. Delahunt v. Tel. Co., 215 Pa. St. 241, is relied upon by plaintiff as sustaining his position; but in that case there was positive evidence of defendant’s negligence in permitting its wire, which was not properly insulated, to come in contact with the wires of another company, heavily charged with electricity, whereby the electric current was conveyed to the telephone of the deceased, when he was making proper and lawful use thereof, and in consequence of the negligence of the defendant company deceased received a heavy shock of electricity and was killed.

It is true that in Grimsley v. Hankins, 46 Fed. 400, it is held that a steamboat boiler explosion, causing injuries, is prima-facie evidence of negligence on the part of the owners and officers; but it is also held that this may be rebutted by evidence.showing due diligence in supplying suitable machinery. From the evidence in the case at bar, it is indisputable that the controller was of the best.

In the case of the Excelsior Electric Co. v. Sweet, 57 N. J. L. 224, the general rule is held to be that the occurrence of the accident does not raise the .presumption'of negligence, but when the testimony which proves the occurrence by which a person is injured discloses circumstances from which the defendant’s negligence is a reasonable inference, a case is presented which calls for a defense. In our view, there were no circumstances disclosed by the evidence in this case from which negligence on the part of the defendant, either in the selection of the controller or the inspection of it, can reasonably be inferred.

Another case relied upon by plaintiff is Rose v. Stephens, 11 Fed. 438. That was a suit by a person who was injured by the explosion of a steam boiler used by the defendant to propel a vessel chartered by the defendant to be used for the transportation of passengers and freight. It was held, when, an accident happens as by the bursting of a boiler, in the absence of explanatory circumstances, negligence will be presumed, and the burden is cast upon the owner to disprove it.

In discussing the same subject in the case of Transportation Company v. Downer, 78 U. S. l. c. 134, it is said: “There was no presumption, from the simple fact of a loss occurring in this way, that there was any negligence on the part of the company, A presumption of negligence from the simple occurrence of an accident seldom arises, except where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible. ’ ’

The rule announced in these cases only applies when the affair speaks for itself. “It is not that, in any ease, negligence can be assumed from the mere fact of an accident and an injury; but, in these cases, the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain, without further proof, sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and .the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer. The accident, the injury, and the circumstances under which they occurred, are in some cases sufficient to raise a presumption of negligence, and thus cast upon the defendant the burden of establishing his freedom from fault. In the words of Baron Channell, ‘where it is shown that the accident is such that its real cause may be negligence of the defendant, and that whether it is so or not is within the knowledge of the defendant, the plaintiff may give the required evidence of negligence without himself explaining the real cause of the accident, by proving the circumstances, and thus raising a presumption that, if the defendant does not choose to give the explanation the real cause was negligence on the part of the defendant.’” [1 Shearman & Redfield on Negligence (4 Ed.), sec. 591.]

In Tuttle v. Railroad, 48 Iowa l. c. 239, it is said: “It is true that where a dangerous accident occurs which, under ordinary circumstances, would not have happened had the defendant and its employees exercised due care, prudence and' watchfulness, proof of such an. accident, with its attendant circumstances, raises a presumption of negligence, and the burden of proof is then cast upon the defendant to rebut this presumption. To this end defendant must show that in the selection and operation of the machinery which caused, or contributed to, the accident, it used due care, prudence, skill and watchfulness. This is as far as, upon any well-recognized legal principle, the burden of proof can. be cast upon the defendant, and is as far as any adjudication, to which we have been referred, has gone.”

This rule, however, has no application to the case at bar, for the reason that plaintiff alleges in his petition specific acts of negligence on the part of the defendant, in that “the dangerous and defective condition of said machinery which exploded could have been discovered by defendant by ordinary care in inspecting said controller prior to its explosion in ample time to have prevented said explosion.” This question was submitted to the jury by plaintiff’s instruction, and thus plaintiff assumed the burden of establishing the allegations of the petition. [Dowell v. Guthrie, 116 Mo. 646; Yarnell v. Railroad, 113 Mo. 570.]

The general rule is that the burden rests upon the plaintiff to prove the negligence of the defendant as alleged in the petition, and that such negligence was the proximate cause of the injury. “In other words, negligence is not presumed, but must be proved. The difficulty of proving the negligence charged' does not affect the principle.” [6 Thomp. on Law of Neg., sec. 7695; Miller v. Railroad, 186 Pa. St. 190.]

We are firmly of the opinion that the doctrine of res ipsa loquitur is not applicable to the facts in this case. This, we think, is clearly demonstrated by the opinion of the St. Louis Court of Appeals in the case of Breen v. St. Louis Cooperage Co., 50 Mo. App. 202. Judge Rombatjer, speaking for the court, said:

“In Jones v. Yeager, 2 Dillon 68, the injury was the result of a boiler explosion. Judge Dillon, after briefly stating the well-known rules of law governing the master’s liability in such cases, charged the jury as follows: ‘In the application of these principles to the evidence, you will first inquire whether the boilers in this case were unsafe or unfit for use, and, if so, whether the defendant knew it, or as a reasonable man, having a due regard for the safety of his employees, ought to have known it; for, if he ought, his neglect in this respect would be equivalent in imposing liability to actual knowledge; and in the next place you must inquire, and, in order to hold the defendant liable, must find from the evidence, that this defect was the direct and immediate cause. of the accident, without which it would not have happened; and, if you thus find, then the defendant would thus be liable. ’ That charge was given in a case where there was ample evidence tending to show that the boiler which burst was weak and worn, and expert evidence tending to show that it burst owing to such weakness. This clearly shows that the rule of res ipsa loquitur cannot be applied- with any sense of reason to a case of complicated machinery, nor can the jury, from the mere fact that some defect exists in some part thereof, conjecture not only that such defect was the direct and immediate cause of the accident, but also that it was the duty of the defendant to foresee such conjectural result and guard against it. The employer fulfills his duty by guarding against the probable result of defects, even, if such defects are shown. Holding him responsible for conjectural results shifts his liability from the ground of negligence to that of insurance.

“I have examined many cases on this subject, but find none sufficiently analogous in its facts to the present case to furnish a precedent of any value. Touching the law there is very little difficulty, but touching its application to the particular facts in this case the difficulty is great. That it is not for the defendant to account for the accident on a theory consistent with due care, but that it is for the plaintiff to account for it' on a theory inconsistent therewith, all the cases concede. That such theory must not rest upon bare conjecture, but must rest either upon direct proof, or upon proof of facts establishing a direct and immediate connection between the defects and accident complained of by logical inference, is equally conceded.

“The cases which probably come nearer in their facts to those of the present case are Searles v. Railroad, 101 N. Y. 661, and Dobbins v. Brown, 119 N. Y. 188, in both of which verdicts were set aside on appeal as resting not on legitimate inference, but on bare conjecture. In the first, the cause of the injury was a cinder which had lodged in the plaintiff’s eye. Judge Earle, in delivering the opinion of the court, said: ‘Where the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and lie must fail, also, if it is just as probable that they were caused by one as by the other, as the plaintiff is bound to make out his case by a preponderance of evidence. The jury must not be left to mere conjecture, and a bare possibility that the damages were caused in consequence of the negligence and unskillfulness of the defendant is not sufficient/ In the second case, the cause of the accident was the precipitation of the plaintiff’s intestate from a bucket while descending a mine. The evidence showed that the cable attached to the bucket was broken after the accident, but there was no evidence how it came to be broken. Rtjger, C. J., in delivering the opinion of the court, said: ‘ The trial court, in its charge to the jury, authorized them to infer that the accident might have happened from the accidental stoppage of the dummy yoke or follower at' some point in the course of its descent, and its sudden fall thereafter, from a great dis-. tance, on the bucket. Any inference that the accident happened in the maimer suggested would, it seems to us, have been substituting conjecture for proof, and violates the rule requiring proof always to be made the basis of recovery.’

“In Callahan v. Warne, 40 Mo. 136, Judge Holmes says: ‘Negligence is something invisible, intangible, and, for the most part, incapable of direct proof, like sensible facts or physical events. It is, in general, a matter of inference from other facts and circumstances which admit of direct proof, and which may raise a presumption of the truth of the main fact to be proved. These facts and circumstances must be such as would warrant a jury in inferring from them the fact of negligence by reasoning in the ordinary way, according to the natural and proper relation of things and consistently with the common sense and experience of mankind.’ In Smith v. Railroad, 37 Mo. 292, the same judge says: ‘It is not enough that a part of the facts involved in the injury are made to appear. The whole issue must he proved, and the burden of proof is upon the plaintiff. If he failed to prove the whole issue, he comes short of making out a primafacie case, and the jury should be instructed to find a verdict for the defendant.’ ”

That the controller in question was a very complicated piece of machinery is clearly shown by the evidence, and brings the case squarely within the principles announced in the next preceding case. The evidence shows that anyone of numerous causes might have brought about the explosion, among which causes was the accumulation of dirt in the controller. Such dirt might have gotten into the controller at any time while the latter was in charge of the plaintiff while on the track, without any fault or negligence on the part of defendant and the explosion have occurred before defendant had any opportunity to inspect the controller; so that the cause of the explosion was purely theoretical and conjectural, and no judgment should be permitted to stand with no foundation whatever for its support.

Other points are insisted upon by appellant for reversal, but as the conclusion reached disposes of the case, we deem it unnecessary to pass upon them.

The judgment is reversed.

All concur.