text:
    HORNSTEIN v. UNITED RAILWAYS COMPANY et al., Appellants.
    Division One,
    March 30, 1906.
    1. NEGLIGENCE: Precaution: Looking Before Crossing Track: Warning Signal. Common prudence dictates that a passenger, who alights from a street car and passes behind it in an endeavor to cross the other track, stop for a moment, until he can have an unobstructed view of the other track before he attempts to cross it; and if he fails to exercise that precaution, but proceeds at once to cross the other track without waiting for an unobstructed view, which is not at the moment available to him because the car he has just left obstructs the view, and that failure contributes to and is the proximate cause of his injury by a car which suddenly approaches at a lawful rata on the track he is about to cross, he cannot recover for his injuries, although the motorman of the car which struck him failed to give a warning signal. A failure by plaintiff to use such precaution is a failure to exercise ordinary care.
    2. -: Speed. A speed of seven miles an hour is not an unlawful and dangerous rate of speed for a street car, in the absence of any ordinance fixing a slower rate.
    3. -: Negative Evidence. There is no material difference between negative evidence that the gong of a street car which struck plaintiff was not sounded and positive evidence that, it was not sounded, so far as the question of whether plaintiff has made out a prima facie case for the jury is concerned.
    4. -: Looking and Listening: Street Cars. There is as much danger to pedestrians in stepping on street-car tracks, where the cars are run by electricity and at a rapid rate and at short intervals, as there is in stepping on steam-railroad tracks; and the obligation of the pedestrian to look and listen for an approaching car, and to stop if necessary to avoid injury, is the same in each case.
    Appeal from St. Louis City Circuit Court. — Eo#. O’Neill Ryan, Judge.
    Beversed.

      George W. Easley with Boyle & Priest for appellants.
    The trial court erred in submitting the case to the jury. The demurrer to plaintiff’s evidence should have been sustained. Plaintiff’s conduct was so negligent as to bar his recovery. Myer v. Railrad, 6 Mo. App. 30; Hanselman v. Railroad, 88 Mo. App. 122; Dunn v. Railroad, 21 Mo. App. 188. Certainly, where a man of mature years, in the possession of all his senses and faculties, suddenly emerges from behind a car, and crosses the space between the two tracks, and runs into or allows himself to be struck by the side or corner of the car on the other track, without pretense of evidence that he was seen, or could have been seen, before he emerged from behind the other car, it presents no case of negligence against the motorman of the car, but does show a clear case of contributory negligence on the part of such man. Weber v. Railroad, 100 Mo. 204; Buzby v. Railroad, 129 Pa. St. 539; Smith v. Railroad, 29 Ore. 539; Creamer v. Railroad, 126 Mass. 320; Railroad v. Boddy, 8 Am. Neg. Rep. 556 ; Railroad v. Helms, 1 Am. Neg. Rep. 63: Hornstein v. Railroad, 97 Mo. App. 278. The question has been put at rest in this State by the recent case of Gtiardina v. Railroad, 185 Mo. 330.

      Lee Sale for respondent.
    (1) The trial court properly held that plaintiff’s conduct was not such as to bar his recovery, (a) Because there was affirmative evidence tending to show that plaintiff listened for the approaching car and that he also looked for it as soon as he was in position to do so. The proof thus showing that plaintiff exercised some care and caution, it was clearly the province of the jury to say whether, in so doing, he measured up to the standard of ordinary care, (b) Because, even if there had been no evidence as to whether plaintiff looked or listened, a presumption that plaintiff was exercising care for his own safety arising out of the instinct of self-preservation, coupled with plaintiff’s right to rely upon the defendant’s performing its duty to him as a pedestrian at a street crossing and as a discharged passenger, including its duty to comply with its own rule in force at the time as to sounding the gong and slowing up, made the case one for a jury to say whether, under the circumstances, plaintiff was acting with ordinary care. There is no absolute duty to look and listen before crossing a street railway track at a street crossing, but only a duty to exercise one’s senses of sight and hearing to the extent that a person of ordinary prudence would have done under the circumstances. Bur-bridge v. Railroad, 36 Mo. App. 669; Railroad v. Snell, 54 Ohio St. 197; Railroad v. Gentry, Adm. (Ind.), 37 L. R. A. 378; Railroad v. Scott, 58 N. J. L. 682; Railroad v. Goodin, 62 N. J. L. 394; 'Robbins v. Railroad, 165 Mass. 30; Bass v. Railroad, 100 Ya. 1; Ernst v. Railroad, 35 N. Y. 9; Garrity v. Railroad, 112 Mich. 369; Dobert v. Railroad, 91 Hun 28; Smith v. Railroad, 18 Wash. 351; Railroad v. Robinson, 127 111. 9; Weber v. Railroad, 100 Mo. 202; Riska v. Railroad, 180 Mo. 168; Eckhard v. Railroad, 89 S. W. 602. (2) There is no rule of law which required plaintiff, after he had alighted from defendants ’ south-bound car, to stop and wait until the south-bound car had passed out and given him an unobstructed view of the north-bound track. Railroad v. Whitcomb, 66 Fed. 915.
   MARSHALL, J.

— This is an action for $10,000 damages for personal injuries received by the plaintiff, on the 6th of June, 1901, about half past six o’clock p. m., in consequence of a collision with the defendants’ street car, at the corner of Vandeventer avenue and Page avenue, in the city of St. Louis. There was a verdict and judgment for the plaintiff for $6,000, from which the defendants appealed.

THE ISSUES.

The petition alleges, that, at the time of the accident, the defendants ’ cars were provided with a bell or gong, “which it was customary and nsnal for said motorman to ring, for the purpose of warning persons of the approach of said car, whenever said motorman had reason to anticipate the sndden appearance of persons upon or near the track, on which the car was running, ’ ’ and were further provided with a brake for stopping the car, or checking the speed thereof; that on the day named, the plaintiff was a passenger on one of defendants’ cars, going south on Yandeventer avenue, and that when the car reached the south side of Page avenue, it was stopped for the purpose of permitting passengers to alight from said car; that plaintiff alighted from said car, and was proceeding in the rear thereof, along the south side of Page avenue, going from the west track of defendants’ railway to the pavement on the east side of Yandeventer avenue; that as he approached the east track of defendant’s railroad, upon said Yandeventer avenue, and was about to cross the same, a north-bound car, in charge of defendant’s servants, as aforesaid, carelessly and negligently ran into plaintiff and knocked him down, and injured him in a painful manner; that the injuries were caused “by the carelessness and negligence •of defendant’s servants in operating its cars in the following respects, to-wit: that immediately prior to the happening of the said injury, and while said south-bound car was discharging its passengers upon the street on the south side of Page avenue, defendants’ servants in charge of said car carelessly and negligently failed to give the plaintiff, as he was alighting from said car, and was about to cross defendants’ eastwardly track, any warning of the- fact that said north-bound car was approaching and was near to the .south side of Page avenue; that while said south-bound car was so discharging its passengers as aforesaid, including the plaintiff, said north-bound car was negligently permitted to run at a high and dangerous rate of speed, as it approached and passed the corner of Page avenue; that notwithstanding the fact that his view of the south crossing at Page and Vandeventer avenues was obstructed by defendants’ south-hound car, and he had reason to anticipate the sudden appearance of persons desirous of crossing the eastward track of said road, at said point, the motorman of said northbound car negligently and carelessly failed to ring his gong, or to give any warning whatever of the approach of said north-bound car to Page avenue, and negligently and carelessly failed to check the speed of his said car, or to have said car under control; and that the said motorman negligently failed to keep watch for persons approaching said eastward track, or to stop said car as soon as he could have done after he saw, or by the exercise of ordinary care could have seen, plaintiff in a position of danger. Plaintiff further states that but for the carelessness and negligence of the defendants’ servants in operating its said cars, as aforesaid, the injuries herein complained of would never have happened. ’ ’

The answer is a general denial, coupled with a plea of contributory negligence, in that, the plaintiff stepped upon or near the railway track while the car of the defendants was in close proximity to him, and, in that, the plaintiff failed to look or listen or heed the approach of the ear. The reply is a general denial.

The case made is this:

Vandeventer avenue runs north and south. Page avenue runs east and west. The defendants have a double street-car track on Vandeventer avenue. The south-hound cars run on the west track, and the northbound cars run on the east track. The space between the said two tracks is four feet eight inches, according to the plaintiff’s statement, or five feet, according to the defendants ’ statement. The space between the passing cars is ten inches, according to the plaintiff’s statement, and one foot according to the defendants’ statement. The plaintiff lived on the south side of Page avenue, and east of Vandeventer. He worked down town. On the day of the accident, as was his custom, he took the car to go home, which would take him.west to Vandeventer avenue, and thence south to Page avenue. When the car reached the south crossing of Page avenue on Vandeventer avenue, a passenger alighted therefrom before the car stopped, and crossed Vandeventer towards the east. When the-car stopped, the plaintiff alighted, and immediately passed around the rear of the south-bound car, for the purpose of crossing Vandeventer avenue towards the east, in order to reach his home.

The testimony for the plaintiff tends to prove that as he passed along the rear of the south-bound car, he listened for the bell, to see if a north-bound car was approaching, and heard no bell, and that no bell was sounded; that his view to the south was obstructed by the south-bound car from which he had alighted, so that he could not see whether a north-bound car was approaching; that as he passed to the east side of the south-bound car, he stooped to look toward the south for a north-bound car, and that, at that time, he was ‘ a little over the west track, one foot over the west track, I guess, with my left foot I went over a little. . . ; Q1. Had you gotten as far as the north-bound track when you saw the car? A. Yes, sir. • Q. You just now told me that you had gotten to the corner of that car. A. Yes, sir. Q. The corner nearest to your house ? A. Yes, sir. Q. The corner is between the east track and the west track isn’t it? A. Yes, sir. Q. Had you got as far as the east track, the car track that goes north — had you gotten that far? A. Pretty near it, near that. Q. Then you had not gotten that far; you say you had gotten or had stepped beyond the west track with your left foot? A. Yes, sir; the west track with my left foot, yes; that is right. Q. Do you remember how you turned back? A. I can remember that when I saw the car coming I turned right back with my body, at the same time the car struck me on my right shoulder, the car running north, the car on the east track, and 1 fell down and I fell unconscious. ’ ’

For the plaintiff Miss Caroline Zwalhas, a music teacher, testified that she lived in a flat, upstairs, on the south side of Page avenue, three doors east of Vandeventer avenue;'that “I was looking out of my window and I saw Mr. Hornstein coming towards his house, and just as he was about to cross the east track, he turned his head to the south, and then I heard someone halloo, ‘Look out;’ just that instant the car struck him. Q. Where was Mr. Hornstein when you first saw him? A. He was right behind the south-bound car. Q. In what track, or whereabout in the street? A. On the west track. Q. You saw him coming east towards his home? A; Yes, sir. Q. On what side of Page avenue? A. On the south side. Q. He was coming on the south side, and when you saw him he was there? A. He was on the track, on the west track, the first time I saw him, and then he was coming towards the east track, he stooped and looked around to the south. Q. Will you show the jury exactly how he stooped? A. Well, he was walking this way (indicating) as if looking behind something, just as a person would when looking behind something that was there. Q. Where was he, do you say, when he stooped as if looking behind something? A. Well, on the track. Q. How is that ? A, On the track, on the west track, or a little beyond, a little more to the east. Q. A little beyond the west track? A. Yes, sir; on the east side. Q. Which direction did he look? A. To the south. Q. With reference to that action on his part, when was he struck? A. Just as I saw him do that movement somebody hallooed out, ‘Look out,’ and then he was struck just the same time, those three things went all together, I could not say it as quick as it was done. ’ ’

Conrad Cohnheim, the passenger who alighted ahead of the plaintiff, testified for the defendants, and said that he got off of the ear before it stopped, and had crossed the track going eastwardly. He then testified as follows: “ Q. At the time you got off, did you see Mr. Hornstein? A. I did not. Q. When did you first see him? A. I first seen him when I crossed the tracks, and he was coming around the car, the rear end of the car. Q. Which end was he coming in? A. He was coming east. Q. What direction was he facing? A. He was facing slightly northeast. Q. When you saw him state whether he was standing still or moving? A. He was moving when I first saw him. Q. Did you see this north-bound car coming? A. Yes, sir, I did. Q. What, if anything, did you say to Mr. Hornstein at that time? A. When I got across the street, at the east crossing of Yandeventer and Page avenue, I turned around and I seen the car, and I hallooed to him to stand back. Q. In what tone did you halloo? A. A very loud tone. Q. Louder than you are speaking now ? A. Yes, sir, a good deal louder. Q. He was then looking in your direction, was he? A. Yes, sir. Q. State whether or not, at any time, after he started 'towards the east track, you saw him look towards the south. A. I did not. Q. Did you see the car strike him? A. Yes', sir, I did. Q. What portion of the car struck him? A. Why, the front end of the platform; that is, the northwest corner of the dashboard. Q. Did you see the north-bound ear stop? A. Yes, sir. Q. Where was it when it stopped? A. The rear end stopped about ten feet from where it struck him. . . . Q. State whether or not, at any time, after Mr. Horn-stein started towards the east, behind the south-bound car, you saw him stop before he was hit. A. Well, I don’t know as he did stop, he simply was walking along and seemed to look more towards the north. Q. And was in that position. A. And was in that position when he was struck. ’ ’

The testimony of Miss Zwalhas was that the bell on the north-bound car was not rung.

Mrs. Fleming, a witness for the plaintiff, who was more than one hundred feet west of Yandeventer avenue, testified that she heard the car, from its noise, coming north, half a block away from the crossing. The testimony of the defendants’ witness, Cohnheim, was that he did not remember hearing any gong sounded, on the north-bound car. It is conceded in the briefs that the car was running at a speed of seven miles an hour, and that the grade on Yandeventer avenue, at the point of collision, was a slight up-grade towards the north. Over the objection and exception of the defendants, the plaintiff read in evidence a rule of the defendants as follows: “When passing a car that is discharging passengers, or when at or near the crossings, the gong should be sounded once when within one hundred feet of each other, and once when half way past. The current must be turned off, and the car slowed up so that it could be stopped instantly in case any person should attempt to cross the track in front of the moving car. The gong must also be sounded one hundred and fifty feet before the crossing at all streets both day and night. ’ ’

At the close of the plaintiff’s case, and again at the close of the whole case, the defendants demurred to the evidence, the court overruled the demurrers and the defendants excepted, and now assign that ruling as the chief error relied on.

I.

The first error assigned is the refusal of the trial court to give the instruction asked for a nonsuit. The ease was formerly tried and resulted in a verdict for the plaintiff for $1,000. The defendants appealed to the St. Louis Court of Appeals, where the judgment was reversed and the cause remanded. The majority of the court (Judges Barclay and Goode) voted in favor of a reversal, because of the failure of the trial court to give an instruction in reference to joint, mutual and concurring negligence. Bland, P. J., wrote the opinion, and held that the demurrer to the evidence should have been sustained. Thus making the court unanimous in favor of a reversal, the two named being in favor of remanding, while the one was in favor of reversing without remanding. The case is reported in 97 Mo. App. 271. The opinion of Bland, P. J., upon the question now being considered is so terse, lucid and convincing, that it is a pleasure to reproduce it here. It is as follows:

“Defendant insists that its demurrer to plaintiff’s evidence should have been given. In the circumstances^ of the ease negligence of defendant is not to be inferred from the mere happening of the injury; [Murphy v. Railroad, 115 Mo. 111; Yarnell v. Railroad, 113 Mo. 570; Harper v. Standard Oil Co., 78 Mo. App. 338; Breen v. St. Louis Cooperage Co., 50 Mo. App. 202.]
“There is no evidence in support of the first, second and fourth allegations of negligence in the petition: In respect to the third allegation of negligence, the failure to give the warning signal, it is unquestionably the law that the duty of the motorman in charge of the car running north was to have sounded the gong on approaching the crossing. The omission of this duty was negligence. [Dixon v. Railroad, 109 Mo. 413; Weller v. Railroad, 164 Mo. l. c. 195.]
“While there is no direct proof that the signal was not given, there is negative evidence of the fact, and it was within the power of the defendant to have proven affirmatively by the motorman in charge of the car, if it was a fact, that the warning was given. Defendant failed to produce the motorman as a witness or to account for his absence. The negative evidence of the failure to give the warning signal and the failure of defendant to prove affirmatively that it was sounded, if such was the fact, was sufficient proof of the third allegation of negligence to send that issue to the jury, and there was no error in refusing defendant’s peremptory instruction, unless the evidence is all one way that plaintiff was guilty of such contributory negligence as to preclude his right of recovery, notwithstanding the defendant was guilty of negligence in failing to give the warning signal.
“The plaintiff testified that he looked for the north-bound car as he was moving out of his car, but he saw none; that he looked and listened when he got off, but that he neither saw nor heard the approaching car. He could not see on account of the obstruction caused by the car he had just left; looking, under the circumstances, was a useless performance. The car from which he had alighted, he testified, began to move away when he was in the middle of the west track. Had he then halted but for one moment, the car that was obstructing his vision would have moved away and he could have seen the north-bound car, but he did not take this precaution. He moved on towards the east track without halting or hesitating and arrived sufficiently near that track just in time to come in contact with the corner of the vestibule of the car. This was negligence of the most pronounced sort. It was plaintiff’s duty, in the circumstances, to have stopped and waited until he could see whether or not there was an approaching ear on the east track before blindly proceeding to cross over that track. [Weller v. Railroad, 164 Mo. l. c. 198; Dlauhi v. Railroad, 139 Mo. 291; Kelsay v. Railroad, 129 Mo. 362; Childs v. Bank of Missouri, 17 Mo. 214; Easley v. Railroad, 113 Mo. 236; Culbertson v. Railroad, 140 Mo. 35; Pinney v. Railroad, 71 Mo. App. 577; Lien v. Railroad, 79 Mo. App. 475.]
Common prudence would have dictated, when the south-bound car began to move away, that the plaintiff stop for a moment that he might have an unobstructed view of the east track and see whether or not it was safe to proceed across the street. His failure to exercise this precaution was negligence, and there is no escape from the conclusion that this act of negligence contributed to and was the proximate cause of his injury: where this is the case, the law is well settled that no recovery can be had. [Weber v. Railroad, 100 Mo. 194; Hogan v. Railroad, 150 Mo. 36; Moore v. Railroad, 146 Mo. l. c. 580; Corcoran v. Railroad, 105 Mo. l. c. 405, and cases cited; Tesch v. Railroad, 53 L. R. A. 618.] ”

There is substantially no difference in the facts as they appeared when this case was before the Court of Appeals, and the facts as they appear in this record. Counsel for plaintiff claim that the evidence here is different from the evidence there, in this, that at the former trial there was no evidence as to the exact speed of the north-bound car as it passed Page avenue; whereas, at the second trial defendants’ witnesses admit a speed of seven miles an hour; also that at the former trial there was only negative evidence that the bell was not sounded, whereas, here there is positive evidence that the bell was not sounded. ■ These considerations, however, do not make the essentials of the case here presented different from the case that was presented to the St. Louis Court of Appeals, for conceding the speed of the car to have been seven miles an hour, that was not an unlawful or dangerous rate of speed, and was not shown to have been in excess of the authorized rate of speed; and there is no material difference between the negative evidence that the gong was not sounded and positive evidence that it was not sounded, so far as the question of whether or not the plaintiff had made out a prima-facie case for the jury was concerned. The reasoning and' conclusions of Bland, P. J., above quoted, are strictly in harmony with the rules of law declared by this court in the opinion of Valliant, J., in Giardina v. Railroad, 185 Mo. 330. In that case the plaintiff went to a car, going in one direction, to give his brother a key, and after he had done so, crossed in the rear of that car and was injured by a collision with the car coming in the opposite direction on the other track. The rule of the company as to the running of the cars, that was introduced in this ease, was also introduced in that case. The trial court sustained a demurrer to the evidence in that case, and the plaintiff appealed; and the correctness of the ruling of the trial court was the sole point decided by this court. Valliant, J., said:

‘ ‘ Plaintiff testified that he had noticed that it was a custom of the company, in the operation of its cars, to have the motorman of a car which was approaching a car that had stopped, to sound his gong and go slowly and, knowing this custom, he, before attempting to cross the north track, passed behind the east-bound car and listened, but hearing no gong, concluded that no car was coming west, stepped out and was struck.
“The tracks looking east from where the plaintiff stood were straight for 1,000 feet and the car coming west could have been seen from that distance if one had been looking.
“It may be conceded that the defendant was negligent in running its car at a high rate of speed and without sounding the gong past a standing car from the rear of which the motorman ought to have known that people were liable to pass. It is not likely that the peremptory instruction was given on the theory that no negligence of the defendant -was shown, but rather, that the plaintiff failed to observe that degree of care that was to be expected of a man of ordinary prudence, and that his negligence contributed with the negligence of the defendant to produce the injury complained of.
“Plaintiff was familiar with the location and also the movements of the cars; he had even taken such notice of the operation of the cars that he was aware that it was the custom for a running car, passing one that had stopped, to be checked in its speed and its gong sounded freely. He was so confident of this custom that he seemingly on this occasion staked his life on its observance, for, after pausing to listen for the sound of the gong and hearing none, he stepped on the north track or in front of the coming car without looking and was struck. From where he stood the body of the eastbound ear shut off his view to the east, but one who was as familiar with the movements of the cars as he said he was, in fact, any man of common experience in the plaintiff’s place, should have known that in a moment the east-bound car would have gone and the obstruction to his vision have been removed. But even if he had not had that moment to spare he could have leaned forward beyond the line of the standing car in perfect safety and have seen the west-bound car coming. The measured distance between the tracks was six feet ten inches. One witness for plaintiff said that the distance between two cars passing on those tracks was about one foot, but he also said that the distance between the tracks was about four feet; he had made no measurement for either estimáte; he was short two feet and ten inches in his estimate as to the distance between the tracks. But even if the space between the passing cars' was only one foot, it was sufficient to enable the plaintiff to have looked and if he had looked he would have seen the car coming and would not have been hurt. His act in stepping on or near the north track without looking for the west-bound ear was negligence and it contributed to cause the accident. If authorities are needed to sustain this view of the law, they may be found in the cases cited in the brief for respondent, and the cases cited in the brief for appellant are not to the contrary. ’ ’

In that case it appeared that the car that struck the plaintiff was running at a high rate of speed, and without sounding the gong while passing the standing car, and thus it was shown that the defendant was guilty of negligence, but a recovery by the plaintiff was denied solely on the ground that although defendant was negligent, the plaintiff was also guilty of such contributory negligence as barred his recovery. There is no substantial difference between that case and the case at bar, except in this, that here it is not shown that the car was running at a high rate of speed, but on the contrary it is conceded that the car was running only seven miles an hour, and that rate of speed is not shown to have been an unauthorized rate, nor was it negligence in itself. .

The principal contention of the plaintiff here is that there is no law which requires him to stop until the car from which he had alighted had moved away, so as to afford an unobstructed view of the north-bound car. But even if this contention be conceded to the plaintiff, nevertheless, it is and must be admitted that the common-law duty was cast upon the plaintiff to exercise ordinary care, before stepping upon the northbound track, or getting so close' thereto as that a collision with a car thereon was almost inevitable, to discover whether or not there was a car approaching on the north-bound track.

The argument of the plaintiff is that there was only a. space of four and one-half feet between the two tracks, and a space of only ten inches between the passing cars, and that the plaintiff could not, by the exercise of ordinary care, have discovered the approach of the car on the north-bound track, because there was not space enough between the passing ears for him to have looked around the rear of the south-bound car, without getting so close to the north-bound track that a collision with the car coming on that track was inevitable. And plaintiff differentiates this case from the G-iardina ease by claiming that'in the latter there was a distance of six feet ten inches as against four feet eight inches here, and a distance of one foot between the passing cars as against a distance of ten inches here. The distance between the tracks is immaterial, and the difference between the distance between the tracks in the Giardina case and here was only a difference of two inches, which is too insignificant to constitute a difference between the principles of the Giardina case and of this case. But conceding that there was not space enough between the passing cars for the •plaintiff to have looked around the rear of the southbound car to see whether there was a car coming on the north-bound track, and that without so doing he could not have determined whether there was or was not a car approaching, it also follows that the motorman of the north-bound car could no more have seen the plaintiff in his position, at the rear of the south-bound car, than the plaintiff, in his position, could have seen the approach of the north-bound car.

These considerations necessarily compel the conclusion that common prudence on the part of the plaintiff demanded that he take some other precaution to discover whether or not there was a car approaching on the north-bound track, before getting so close to that track as to make a collision with the ear inevitable. The plaintiff lived in that immediate vicinity and was familiar with the conditions there existing. He traveled ■on the same road every day. He knew the frequency with which cars passed. He knew the distance between the tracks, and the distance between the passing cars, or at any rate, was chargeable with notice thereof, for he had the means constantly at hand of knowing those facts. It would have been but the loss, at most, of a second or two for the plaintiff to have paused, before getting so near to the north-bound track as to come in contact with a passing car, long enough to have permitted the car from which he had alighted to move southwardly far enough for him to see whether or not it was safe for him to attempt to cross the north-bound track. As was well said by Bland, P. J.: “ Common prudence would have dictated, when the south-bound car began to move away, that the plaintiff stop for a moment that he might have an unobstructed view of the east track, and see whether or not it was safe to proceed across the street. His failure to exercise this precaution was negligence, and there is no escape from the conclusion that this act of negligence contributed to and was the proximate cause of the injury; where this is the case the law is well settled that no recovery can be had. ’ ’

The report of this ease before the St. Louis Court of Appeals shows that counsel for plaintiff then cited: Railroad v. Snell, 54 Ohio St. 197; Railroad v. Gentry (Ind.), 37 L. R. A. 378; Consolidated Traction Co. v. Scott (N. J.), 33 L. R. A. 122; Railroad v. Robinson, 127 Ill. 9; Smith v. Railroad, 18 Wash. 351. Counsel for plaintiff now also cite those same cases, and in addition thereto, the following cases: Dobert v. Railroad, 91 Hun 28; Bass v. Railroad, 100 Va. 1; and Railroad v. Whitcomb, 66 Fed. 915.

The cases then and now citéd differentiate between steam railroads and street cars, and whilst conceding that it is contributory negligence for a person to thus enter upon or near a steam railroad under circumstances like those here presented, hold that it is not contributory negligence for one so to do with reference to street cars. In fact, some of them go to the extent of holding that it is not the duty of the person to stop, look or listen before attempting to cross a street car track.

Counsel for defendant have been equally diligent, and in addition to the cases from other jurisdictions cited by them in this case when it was before the St. Louis Court of Appeals, now refer the court to the following cases: Buzby v. Traction Co., 126 Pa. St. 559; Smith v. Railroad, 29 Ore. 539; Creamer v. Railroad, 156 Mass. 320; Railroad v. Boddy, 8 Am. Neg. Rep. 555, which hold to the rule that where a person deliberately walks from behind a street car, from which he has alighted, and attempts to cross a public street without using his powers of observation, and is injured by an approaching car which could have been avoided by the use of ordinary care, he cannot recover damages for such injury. In some of the eases cited by plaintiff, notably Railroad v. Whitcomb, supra, it is said that the doctrine contended for by defendant is the rule in Pennsylvania, that the courts of the other states have not adopted it, and that it is not the rule in the Federal courts. The learned judge who made that statement evidently had not had the benefit of the research of counsel that is afforded this court by the cases cited. The sum of the matter as to the state of the law in other jurisdictions may, therefore, be said to be, that in Ohio, New York, Virginia, Illinois, New Jersey, Washington' and Indiana, the rule contended for by plaintiff obtains, and likewise the distinction between steam railways and street cars also obtains, or did obtain before the adoption of rapid transit, such as now exists in all large cities. Whereas, in Pennsylvania, Maryland, Oregon and Tennessee the rule stated by the defendants obtains.

The later cases in Missouri do not recognize such a distinction between steam railroads and street railroads, with respect to the obligation of the pedestrian to look or listen for an approaching car, and if necessary stop, but the courts of this State, keeping pace with the progress of the times, recognize that there is quite as much danger to be apprehended now from stepping on the street-car tracks, where the cars are run by electricity and at a rapid rate, and with great frequency and at short intervals, as there is from stepping on the steam-railroad tracks, where the cars do not run as often. And therefore common prudence requires increased care on the part of the pedestrian in proportion to the dangers to be apprehended. In other words, the decisions in this State have kept step with the times. This is the rationale of Giardina v. Railroad, supra, and the principles there announced have been followed by this court ever since.

Plaintiff, however, cites the cases of Riska v. Railroad, 180 Mo. 168, and Eckhard v. Railroad, 190 Mo. 593, as holding- a different doctrine. But an examination of those cases clearly demonstrates that the contention is untenable. In Riska v. Railroad, the conditions here presented were not shown to have existed. That was a plain casé of a person stepping onto the track, without any obstruction,. such as a car from which he had just alighted, preventing his seeing the approach of the car. There was no evidence to show whether the deceased in that case looked or listened before stepping onto the track. The car was running from fifteen to thirty' miles an hour. The authorized rate of speed was ten miles an hour. The ease went off entirely on the proposition that the ear was being operated at an unlawful and dangerous rate of speed, and the presumption that the deceased listened and saw the car, hut that he indulged the presumption, ‘ ‘ as he had á right to do, ’ ’ that the car was not running at an unlawful rate of speed, and that he could cross the track in safety. That case is easily distinguishable from the case at bar, in that, the plaintiff walked behind the rear of the car and was struck by a car coming in the opposite direction. But it was unlike the'case at bar, in that, the deceased had almost completely crossed the track, on which the car was coming that struck him — one more step would have put him in a place of safety — and the car that struck him was running at an unlawful rate of speed of from twenty to twenty-five miles an hour; and that the motorman saw the deceased when he was from thirty to fifty feet away from him; and upon the presumption that the deceased was exercising ordinary care, and that he had a right to presume that the railroad company would obey the ordinance, with reference to speed. The vigilant watch ordinance of St. Louis also figured in the case. A recovery was sustained in that case on the ground of the unlawful rate of speed of the car, and the question of the contributory negligence of the deceased was held to be a proper question for the jury, because fair-minded men might reasonably differ as to whether or not it was exercising ordinary care for the deceased to attempt to cross the track, under the circumstances, upon the presumption that the car was not running at a higher rate of speed than the law authorized. Stress was also laid upon the fact that the deceased was not instantly struck upon stepping on or near the track, but that he had almost crossed the track before the collision occurred. -

That case is very different from the case at bar, and does not support the contention, here made, that a person is not obliged, when passing along the rear of one car, to stop until that car moves far enough for him to see whether it is safe to attempt to cross the other track, if it is impossible for him to see while the car from which he has alighted obstructs his view, and likewise impossible for'him to look around the end of the car from which he has alighted without getting so .close to the other track as to- be necessarily struck by an approaching car. The physical facts in this case, even under the most favorable view that can be taken of the plaintiff’s testimony, show that he got so close to 'the north-bound track, before looking to discover whether a car was approaching on that track, as that a collision with that car was inevitable, and that there was- either no necessity for him so to do, or that if there was such a necessity, it was his ■duty to wait until the car from which he had alighted had moved far enough away to the south to enable him to see whether a car was approaching on the north track, and would have only been a matter of a second, for the evidence is that the north-bound car was then only half a carlength from the place of collision.

The plaintiff says that when he looked around the south-hound car he saw at once the north-bound car coming, and then “I turned back and the car struck me on my shoulder.”

Conceding that there was only a space of ten inches between the passing cars, and that the plaintiff, therefore, had only that space in which to look for the approaching car, still he could have so looked without placing himself in such close proximity to the approaching ear as to make it necessary for him to “turn back,” or as to be struck on his shoulder by the approaching car.

Upon the case made, therefore, the conclusion is inevitable and irresistible that there is no essential difference between the case at bar and the Giardina case, and the prior decisions of this court applicable to facts like those here presented.

Even conceding that the defendant was guilty of all the negligence charged, nevertheless, under the unquestioned facts in this ease, the plaintiff was guilty of contributory negligence, which bars his recovery.

The trial court, therefore, erred in overruling the demurrers to the evidence, and its judgment is reversed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    HILL v. BUTLER COUNTY, Appellant.
    Division One,
    March 30, 1906.
    1. APPEALS: Record Matters. The record proper, on appeal, must show that the motion for a new trial was filed, and the ruling of the court on such motion, and the order extending the time for filing a bill of exceptions, if there was such order, and an entry in the record of the court ordering the bill to be filed or an entry in the record showing that it was filed. A recital in the bill of exceptions that these things were done does not prove that they were done, and if such recitals are contained only in the bill of exceptions the bill of exceptions will not be considered on appeal.
    2. PROSECUTING ATTORNEY: Fees: Felony Cases: Prelimiinary Examinations. A prosecuting attorney is entitled to no fee for attending and representing the State in a preliminary examination before a justice of the peace of his county in a felony case. For such service he is compensated by his salary, and is entitled to no fee.
    3. -: -: Allowed Only by Statute. A public officer is entitled to no fee for services performed for the State or county unless such fee is specifically allowed him by statute. And the statutes are reviewed and it is held that they do not entitle a prosecuting attorney to fees for services rendered the State as its representative in preliminary examinations before justices of the peace in felony cases.
    Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge.
    Reversed.

      J. T. Davison for appellant.
    In addition to the salary based upon the population of his county, the prosecuting attorney shall also receive for his services in the circuit and other courts such fees as are allowed by law. Sec. 4949', R. S. 18991. The prosecuting attorney “shall also attend and prosecute, on behalf of the State, all cases before justices of the peace when the State is made a party thereto;”which -undoubtedly includes preliminary examinations, hut no provision is here made for a fee for the prosecuting attorney for his services in such cases. See. 4951, R. S. 1899. Section 3237, Revised Statutes 1899; provides what fees shall he allowed prosecuting attorneys for their services; but therein there is no fee specified for preliminary examinations. No officer is entitled to fee of any kind for any services unless they are provided for by statutes allowing such fees. State ex rel. v. Brown, 146 Mo. 401. All statutes in reference to costs must be construed strictly, and an officer cannot legally claim remuneration unless the State has especially conferred the right. Jackson County v. Stone, 168 Mo. 577. The county is liable for costs in felony cases only when the punishment may he imprisonment in the county jail, a fine or both. Secs. 2830, 2831, R. S. 1899. The rendition of services by a public officer is to be deemed gratuitous unless a compensation is provided by statute, when the officer is confined to the mode, manner and amount prescribed by the statute, and is entitled to no other or further compensation, or to any different mode of securing the same. State ex rel. v. McCracken, 60 Mo. App. 650; Gammon v. Lafayette Co., 76 Mo. 675

      David W. Hill pro se.

    (1) A prosecuting attorney is a county officer and entitled to receive his pay from the county, unless otherwise provided by law. This is indisputable. (2) Section 4949, Revised Statutes 1899, after fixing the prosecuting attorney’s salary, uses the following language: “And the said prosecuting attorney shall also receive for his services in the circuit and other courts such fees as are allowed by law.” (3) Among other things, section 4951, Revised Statutes 1899, provides as follows: ‘ ‘ He shall also attend and prosecute, in behalf of the State, all eases before justices of the peace, when the State is a party thereto.” (4) Section 2441, Eevised Statutes 1899, provides that a person may be charged in writing, on oath, with a felony before a magistrate, etc., which instrument of writing is neither an indictment nor an information. (5) Sections 2447, 2453 and 2455, Eevised Statutes 1899, provide for the holding of a trial as in a court of record. In such cases, the State being a party, the prosecutor is required to attend and represent the State, and generally earns his money. (6) And section 3237, Eevised Statutes 1899', contains the following clause: “For judgments had under proceedings of a criminal nature, otherwise than by indictment or information,- five dollars.”. Such is the judgment of a justice of the peace of probable guilt of one charged with a felony. That clause means nothing, if it does not cover the prosecutor’s services in preliminary examinations. (7) However, the Legislature, in order to make the prosecutor secure in matters of compensation, by section 3237, supra, provided as follows: ‘ ‘ For his services in all actions -which it is, or shall be, made his duty to prosecute or defend, five dollars.” And, by this clause, it appears that it was intended that a prosecutor should have at least five dollars for his services, regardless of results, in all matters not otherwise specifically provided, for this clause certainly covers preliminary examinations.
   VALLIANT, J.

—While plaintiff was prosecuting attorney for Butler county he attended eighteen preliminary examinations in felony cases before justices of the peace and presented his bill for services in those cases to the county court for ninety dollars, being five dollars for each case. The county court disallowed the bill, and the plaintiff appealed to the circuit court where a trial was had and judgment rendered for the plaintiff, from which judgment the county prosecutes this appeal.

I. The ease comes here on a short transcript which shows the judgment and order allowing the appeal. There is in the abstract filed what purports to be a bill of exceptions which purports to contain the evidence, instructions, those given and those refused, the motion for new trial, order overruling the motion, exception, and order extending time for filing bill of exctpfions; there is also what purports to be the indorsement of the filing of the bill of exceptions by the clerk, within the period of the alleged extension. But there is nothing appearing on the record proper or the abstract of the record proper showing that the motion for a new trial was filed, or the ruling of the court on such motion, or an order of the court extending the time for filing the bill, or an entry in the record of the court ordering that the bill be filed, or an entry in the record showing that it was filed. A bill of exceptions cannot prove itself by reciting on its face that those acts were done, the doing of which the law requires to be entered in the record proper. We have said that so often that it seems unnecessary to say it again. In this condition of the record this bill of exceptions must be discarded from further consideration.

II. The only question that the record proper presents is, does the plaintiff’s bill for services in attends ing the preliminary examinations in felony cases before justices of the peace in his county, state a cause of action? If so, the court having rendered judgment in plaintiff’s favor, we must presume, in the absence of a bill of exceptions, that .the plaintiff proved his claim and that no error occurred during the trial.

Is a prosecuting attorney entitled to a fee for attending and representing the State in a preliminary examination before a justice of the peace of his county in a felony case? There is no question of quantum meruit in this case; if the officer is entitled to the fee claimed he can point to the statute'which gives it to him, and this he has attempted to do.

Section 4949, Revised Statutes 1899, begins thus: The prosecuting attorney shall receive for his services, to be paid out of the county treasury, in all coun'ties having a population,” etc. Then the section goes on to prescribe the salary of the officer, grading it according to the population of his county, from $300 to $1,000, after which it adds: “and the said prosecuting attorney shall also receive for his services in the circuit court and other courts such fees as are allowed by law.” Thus the Legislature has provided that the officer is to be compensated for his services in two ways, by salary and by fees, both as, and only as, expressly prescribed by statute. If the law imposes on him a certain duty, but prescribes no particular fee for its performance, he cannot say that it imposes on him a duty for which he receives no compensation, because the statute says that his salary is given him in payment of his services. We do not mean that the salary is given as compensation for only such services as for which no particular fee is prescribed, for that is not the meaning of the statute; the salary is in payment of all his services, with the addition that for certain services particular fees are also given, and there may be other services for which no particular fee is given, but which are fully compensated by the salary. The general duties of a prosecuting attorney are declared in section 4950, R. S. 1899); then follows section 4951, prescribing certain particular duties in which it is made his duty to attend to all civil suits and give advice in matters in which the county is interested, after which comes this clause: “He shall also attend and prosecute, on behalf of the State, all cases before justices of the peace, when the state is made a party thereto. ’ ’ That is the clause which the plaintiff thinks makes it the duty of a prosecuting attorney to attend preliminary examinations in felony cases before justices of the peace.

Section 3237, Revised Statutes 1899, specifies the fees a prosecuting attorney may have in certain cases. In that section are two clauses, either of which the plaintiff thinks sustains his claim: first, “for judgments upon any proceeding of a criminal nature otherwise than by indictment or information.” The preliminary examination before a justice of the peace in a charge of felony is not embraced in that clause; that contemplates a proceeding before a court in which a final judgment may be rendered and a mere preliminary examination is not that kind of a proceeding. Besides, it cannot be said of a felony case, at any stage, that it is merely of a criminal nature; it is essentially criminal The second clause in that section reliedonis the concluding clause of the sentence:“for his services in all actions which it is or shall be made his duty by law to prosecute or defend, five dollars.” The foregoing are the statutory provisions on which the plaintiff relies to sustain his two propositions, first, that the statute made it his duty to attend the preliminary examinations; second, that it prescribed a fee of five dollars for his services in each case.

Attending preliminary examinations before a committing magistrate is within the general scope of a prosecuting attorney’s duties, but it is not especially prescribed in the clause of section 4951 above quoted or in any other statute. The “cases before justices of the peace, where the State is made a party thereto,” mentioned in section 4951, are cases for trial in a justice’s court, nor mere preliminary examinations. This is not only apparent on the face of the section itself, but is shown in the two sections next following; section 4952 makes it the duty of the prosecuting attorney to attend in behalf of the State in habeas corpus proceeding; then comes section 4953: “No justice of the peace or judge of a court of record having jurisdiction shall allow any such cases as are alluded to in the two preceding sections, to be tried before him, unless the prosecuting attorney shall be present or some one properly qualified to prosecute for him; and it shall be the duty of any justice of the peace or county judge, before trying such cases as are alluded to in the two preceding sections, to give due notice to the prosecuting attorney. ” If the clause in section 4951 on which plaintiff relies should be construed to include preliminary examinations, then section 4953 operates as a serious hindrance to the power of a magistrate to conduct such an examination, it forbids him doing so in the absence of the prosecuting attorney; that is not what the statute means.

Returning to the clause in section 3237 above quoted: “for his services in all actions which it is or shall be made his duty by law to prosecute or defend, five dollars,” we construe the word “actions” as there used to mean suits in court upon which judgments may be rendered ; it does not include preliminary examinations before a committing magistrate.

For services of the kind rendered by the plaintiff in the case before us he is compensated by his salary and is entitled to no fee. The account or bill sued on does not constitute a cause of action against the county. The judgment is therefore reversed.

All concur.


author: GrANTT, J.

text:
    CHICAGO HERALD COMPANY v. WILLIAM S. BRYAN, Appellant.
    (No. 1.)
    Division Two,
    April 10, 1906.
    1. CONVERSION: Respondeat Superior: Change in Situation: Payment by One Tortfeasor: Discounting Notices. Defendant and a publishing company had an agreement by which the company was to publish defendant’s book, and he was to have one-third the profits. The company sold the books to plaintiff, on twelve months’ time, the first six months without interest, and when the books were sold plaintiff gave to the publishing company its six-months’ notes without interest, and as they matured plaintiff was to deliver to the publishing company other notes of like amount to be discounted by the publishing company, the proceeds to be returned to plaintiff to be applied to the payment of notes first maturing. In accordance with this arrangement plaintiff delivered the notes sued on to the publishing company, which at that time was largely indebted to defendant, and it turned them over to defendant to be discounted at his bank, the proceeds to be returned to the publishing company and by it returned to plaintiff. Defendant discounted the notes and kept the proceeds, and plaintiff sued him at once for the amount of the notes. Thereafter, the publishing company put into the hands of plaintiff enough books to protect it against loss, and the account between it and the publishing company at the time of the trial had been settled and closed, and this suit is really prosecuted by plaintiff in the interest of the publishing company.

      Held, first, that had plaintiff not accepted satisfaction from the publishing company, an action might have been maintained by plaintiff against the publishing company for the torts of its agent, the defendant, committed within the scope of the business entrusted to him, on the principle of respondeat superior, even though the publishing company was not willingly a party to the unlawful conversion.

      Held, second, that at the commencement of the suit plaintiff had a cause of action against defendant, for, although the publishing company was indebted to him, when he received the notes from it he knew that it was not the owner thereof, but that by an agreement between it and plaintiff the notes were to be discounted and the proceeds turned over to plaintiff.

      Held, third, that plaintiff by accepting satisfaction of the notes from the publishing company, after this suit was commenced, surrendered all legal right to maintain this suit against defendant in its own name, either in its own behalf or that of the publishing company.

      Held, fourth, that the release of one of two joint tortfeasors releases the other, and the plaintiff by accepting satisfaction of the notes from the publishing company barred itself from demanding payment thereof from defendant who had wrongfully converted the prpceeds of the notes to his own use.
    2. -: Satisfaction by One Joint Tortfeasor: Extent of Rule. The rule that an acceptance of a satisfaction from one of two tortfeas'ors releases the other, is not limited to those who are in strict sense joint tortfeasors. It applies to torts for which an injured party has an election to sue one or more parties severally. And where a plaintiff accepts satisfaction of its notes from a publishing company, which was not willingly a party to the conversion thereof by defendant, who discounted them and converted the proceeds to his own use, plaintiff cannot thereafter demand a further satisfaction from defendant for the one injury, nor can plaintiff in the interest and on behalf of the publishing company maintain a suit against defendant for the proceeds of the notes so converted by him.
    Appeal from St. Louis City Circuit Court. — Hon. Franklin Ferriss, Judge.
    Reversed,

      S. T. G. Smith and Ihos. S. Meng for appellant.
    (1) Where an injury has been sustained under such circumstances that a number of persons are liable therefor, either jointly or severally, the person injured is entitled to but a single satisfaction. If he receives satisfaction from one, it is a bar to recovery against the others, even though it were stipulated to the contrary. Hubbard v. Railroad, 173 Mo. 249; Railroad v. Sullivan, 21 Col. 302; Brown v. Cambridge, 3 Allen 474; Breslin v. Peck, 38 Hun 623. (2) It appearing that plaintiff, a non-resident, was a mere nominal party, prosecuting this action for the sole use and benefit of an insolvent corporation, which was indebted to defendant in a greater sum than the amount sued for here, defendant was clearly equitably entitled to offset his claim against the claim of plaintiff. North Chicago R. U. Co. v. St. L. 0. & S. Co., 152 U. S. 615; Reppy v. Reppy, 46 Mo. 571; Fulkerson v. Davenport, 70 Mo. 542; Taylor v. Stowell, 4 Mete. (Ky.) 176; Blake v. Langdon, 19 Yt. 493; Gemmell v. Hueber, 71 Mo. App. 297. (3) Where plaintiff is a mere nominal party, defendant is entitled to the benefits of all defenses, offsets and counter-claims which he may have against the real party in interest. Frazier v. Gibson, 7 Mo. 271; Hobbs v. Duff, 23 Cal. 626; Keightley v. Walls, 27 Ind. 386. (4) Plaintiff in this case sues expressly for the conversion of certain money, being the proceeds of the discount of certain notes aggregating $10,967.40. The receipt of the notes was admitted as well as the-fact that they had been discounted and the proceeds received by defendant. There was neither evidence nor admission as to the amount or rate of discount, or as to the amount of the proceeds of the notes. The word “discount” necessarily implies that somthing less than the face of the notes was received. The judgment is therefore unsupported by the evidence. The burden of proof is on the plaintiff to show the identity, amount and value of the articles converted. Bank v. Johnson, 104 IJ. S. 276; Bell v. Ober & Sons Co., 96 Ga. 219; Harrow v. Railroad, 43 Minn. 72. (5) The evidence shows that the money for which plaintiff seeks to recover was borrowed by defendant from the bank, upon credit of defendant and N. D. Thompson Publishing Company, as well as upon the credit of plaintiff. Defendant by his endorsement of the notes became liable for the payment of the same, ai).d whatever right plaintiff might have against defendant, the money obtained by the discount was not specifically and in kind the property of plaintiff. As plaintiff’s action is based solely on its title to the specific fund, and as it had not paid the notes, at the time of the institution of the suit, it cannot recover in this action.

      SeldPM P. Spencer for respondent.
    (1) In answer to appellant’s point one, it may be said: (a) That defendant is alone liable to the Chicago Herald Company, (b) That even if the Thompson Publishing Company was equally liable with the defendant, there has been no satisfaction of the debt as yet by either, (c) That the question of what is a satisfaction of a debt is always a question of intent of the parties in the absence of a technical release or judgment. Arnett v. Railroad, 64 Mo. App. 368; Bloss v. Plymale, 3 W. Ya. 393; Chicago v. Babcock, 143 111. 358; Bell v. Townsend, 43 Iowa 372. (d) The intention of both the Thompson Publishing Company and the Chicago Herald Company is clearly shown, negativing any idea of satisfaction for Mr. Bryan’s wrongful conversion. (2) In answer to plaintiff’s second point: Plaintiff is not the “nominal party” alone, but is the real party in interest. Plaintiff was the owner of the notes, the proceeds of which defendant converted. Even were such not the case, and were the Thompson Publishing Company the plaintiff in interest, nevertheless, equity would not grant an equitable set off, inasmuch as such setoff would enable defendant to prefer his debt against an alleged bankrupt concern, over the debts of all the other creditors of such bankrupt company. “Equality is equity.” More than this, plaintiff’s hands are so soiled as he stretches them out toward the chancellor for relief in his iniquity, that with peculiar force the maxim applies: “He who comes into equity, must come with clean hands.” (3) In answer to the fourth point of defendant’s brief, the petition alleges the amount of the notes. The answer admits their receipt by defendant, and the discounting of them, and the retention of the money by the defendant. The evidence discloses that they bore interest. The law of the State fixes the amount of the interest and makes the chain complete. R. S. 1899, sec. 3705. “Gertum est quod cerium reddi potest.” (4) In answer to plaintiff’s fifth point, it need but be said that defendant voluntarily indorsed the notes without solicitation and without the knowledge of either the plaintiff or the N. D. Thompson Publishing Company, and therefore cannot found upon such unsolicited and unexpected indorsement any right whatever against the plaintiff in this case.
   GrANTT, J.

— This suit was instituted in the circuit court of the city of St. Louis, October 13, 1902, by Chicago Herald Company, an Illinois corporation. The petition alleged that on September 23, 1902, the plaintiff delivered to N. D. Thompson three promissory notes dated October 1, 1902, payable January 2, 1903, aggregating $10,967.40, all of said notes being made by plaintiff to the order of N. D. Thompson Publishing Company. That said notes were delivered to Thompson to be discounted by the publishing company and proceeds returned to plaintiff for the purpose of paying certain other notes due October 1, 1902, aggregating $10,800. That the publishing company failed to discount the notes and delivered, the same to defendant, who represented that he would have the same discounted and return the money to Thompson to he forwarded to the plaintiff. That defendant did have the notes discounted and received the proceeds and wrongfully converted the same to his own use. That plaintiff demanded of defendant the delivery of said money on October 10,1902. Plaintiff asked judgment for the sum of $10,-967.40, with interest from October 1, 1902.

The second amended answer upon which the case was tried admits that plaintiff executed the notes to the publishing company as alleged, and that the same were delivered by the publishing company to defendant, and denied all the other allegations in the petition. The answer further stated that the notes were negotiable and payable to the order of the publishing company, and that the publishing company indorsed the same béfore maturity and delivered the same to defendant, to be indorsed by him and sold, and that he did indorse and sell said notes, and credited the proceeds to an indebtedness of the publishing company to him without notice of any interest of. plaintiff therein.

The answer further set up in bar to the action that the publishing company had settled with plaintiff in full for any and all claims which they might have either to said notes or their proceeds.

The answer, further states that since the time , of said settlement this action has been prosecuted in the name of plaintiff, but solely and entirely by the publishing company, and for the use and benefit of the publishing company. That in 1899 a contract was entered into between the publishing company and defendant for the publication of a book called “Our Island Possessions,” under which contract the profits arising from the sales of said publication were to be divided between defendant and said publishing company, in proportion of one-third to defendant and two-thirds to the publishing company. That continually since the date of said contract the publishing company had been engaged in the sale of said publication, and had realized therefrom, after deducting the cost thereof, profits amounting to the sum of $150,000, to one-third of which defendant was entitled and which amount was due and owing from the publishing company. That the publishing company was insolvent and that defendant could not realize from it the money so due him by the ordinary process of law. The answer further prayed that an accounting might be had to determine the amount due defendant on account of said profit-sharing contract. The answer further prayed that the indebtedness from the publishing company to. defendant on account of said contract should be taken and treated as an offset against the claim for the proceeds of the notes sued for in this case.

The reply to this answer was a general denial.

The case was heard on March 11, 1903, before the court. At the hearing the plaintiff produced as a witness A. A. McCormick, secretary and general manager of the Chicago Herald Company, who testified that the Chicago Herald Company, had been buying of the publishing company large quantities of the publication known as “Our Island Possessions.” That the books were' purchased on twelve months’ time, the first six months to be without interest and the next six months with interest. That from time to time, as purchases were made, six months ’ notes were to be given, without interest, and as the maturity of these notes approached plaintiff was to deliver to the publishing company other notes of like amount to be discounted by them and the proceeds returned in time to be applied to the payment of the notes first maturing. That in accordance with this arrangement the plaintiff had given certain notes to the publishing company for book purchases in April, 1902, these notes aggregating $10,800. That the notes in controversy were delivered to Thompson in September, to be by the publishing company discounted and the proceeds returned to plaintiff in time to be applied to the payment of the original notes.

The witness further testified that on the day the notes were discounted by the defendant, or the day-after, the publishing company notified the plaintiff of the fact and turned over to plaintiff in Chicago, four thousand sets of the publication called “Our Island Possessions,” being of value sufficient to cover the amount of the notes in controversy, as security for the claim of plaintiff for the proceeds of the notes in controversy here, which proceeds plaintiff was entitled to receive from the publishing company, but did not receive. That plaintiff had been buying these books from the publishing company from a period commencing about January 1, 1902, and that it continued to purchase them up to about the end of December, 1902, covering a period of approximately one year. That in December, 1902, a settlement was had between plaintiff and the publishing company covering their book purchases up to that time. That in this settlement the publishing company was given credit for all the “Island” books which had been delivered to plaintiff, including the four thousand sets delivered on October 7th, or 8th, 1902, as security. That the publishing company was charged with the full amount of the proceeds of the notes in controversy here, and that plaintiff gave to the publishing company a note for the balance due it, and that the account between plaintiff and defendant was closed on plaintiff’s books. That Mr. N. D. Thompson was present at this settlement and consented thereto and approved of the same. That it was further agreed that whatever amount plaintiff might be able to realize out of this suit should be turned over to the publishing company and the suit should be prosecuted at the expense of the publishing company. Mr. McCormick also testified that at the time the “Island” books were delivered to plaintiff as security, which was five days prior to the institution of this suit, it was agreed between plaintiff and the publishing company that all of the expenses of the litigation to recover the proceeds of these notes from defendant should be borne by the publishing company. That this was the agreement from the beginning. That Mr. Thompson had selected the attorneys to be employed in the matter.

The witness further testified that Judge Spencer, who appeared for the plaintiff at the trial of the cause, did not really represent the Chicago Herald Company in this litigation, although he afterwards stated that he had written a letter which was offered in evidence authorizing Judge Spencer to appear in this cause on behalf of plaintiff, provided, however, that plaintiff should be at no expense whatever for his services.

The witness also testified that the three notes discounted by W. S. Bryan were each indorsed by the said W. S. Bryan.

Plaintiff also produced N. D. Thompson as a witness who testified as to the sales of the “Island” books to the Chicago Herald Company. He testified that the business amounted to $20,000 a month. That Mr. Bryan, the defendant, was interested in'the contract with the Chicago Herald Company and was as familiar with its terms as the witness. That when the notes had been delivered to him by the Chicago Herald Company in September he had attempted to have them discounted in Chicago through brokers there. That these brokers had agreed to place the paper to the amount of $100,000, but had stated that they were unable to discount this paper, giving as a reason a monetary flurry at the time in .Wall street. That the notes were then sent to St. Louis, and that he attempted to discount them through brokers there, and also with a party in East St. Louis. That his bank had -told him that they had enough Record-Herald paper and did not want any more of it. He had therefore defaulted in Ms obligation with the plaintiff to deliver them funds on or before October 1st. with which to take up the maturing notes. He stated that while matters stood this way, Mr. Bryan called upon him at his office and he explained the situation to him. That Mr. Bryan said that he could have the notes discounted at his bank. That after another ineffectual attempt by the witness to have the notes discounted himself, when Mr. Bryan called a few days later he was given the notes. Thompson says that he told defendant that he was very anxious to obtain the proceeds that day to send them to plaintiff and that Bryan agreed to give him a check for the proceeds that day if it was possible to get them through the bank. That the next he heard from Mr. Bryan was a letter from his attorney, which was offered in evidence, in which it was stated that Mr. Bryan had discounted the notes and had applied the proceeds on account of the indebtedness existing to him from the publishing company on account of the profit-sharing contract for the “Island” publication.

Plaintiff also offered in evidence the original answer filed by defendant and also the first amended answer. These answers admit the execution of the notes by plaintiff to the publishing company and that said notes were indorsed and delivered by the publishing company to defendant, and that defendant indorsed and delivered the same to the National Bank of Commerce in St. Louis. There are no other admissions in these answers further than are contained in the second amended answer, upon which the case was tried.’

There was no evidence offered to show the amount of the proceeds of the discount of the three notes in controversy.

Defendant offered in evidence the contract of date March 29, 1899, between defendant and the publishing company for the publication of the book known as ‘ ‘ Our Island Possessions.” This contract provided that the work should be written and compiled by defendant, who was also to supervise the mechanical processes of the publication of the same and see it through the press. That the book was to be published and put on the market by the publishing company and that the profits arising from the sale thereof were to be divided between defendant and the publishing company in the proportion of one-third to defendant and two-thirds to the publishing company. This contract was excluded by the court on plaintiff’s objection and over defendant’s exception. Defendant proved, upon cross-examination of. N. D. Thompson, that a petition in bankruptcy had been filed against the publishing company October 9, 1902. That a proposition of compromise was gotten up between the' company and its creditors, under the witness’s supervision. That the condition of the company at the time of the trial was about the same as in October, 1902.

Defendant also offered in evidence the composition agreement between the publishing company and its creditors providing for the settlement of its indebtedness in monthly notes for fifty per cent of the face of its obligations. This was excluded on plaintiff’s objection and over defendant’s exception, as well as other testimony offered to prove the insolvency of the publishing company.

Defendant offered to prove by W. F. Ryan, an expert accountant, who had examined the books of the publishing company with reference to the amount due by it to W. S. Bryan on account of the “Islands” publication, that according to the books of the publishing company it was indebted to defendant in a sum exceeding the amount sued for in tbis case, on account of his share of the profits of the “Islands” publication. The books of the publishing company were in court and were offered in evidence in connection with this expert testimony.

This testimony was objected to by plaintiff on the ground that it was immaterial and irrelevant, as the publishing company was not a party to this cause, and because defendant had an adequate remedy against the publishing company. The objection was sustained and the testimony excluded over the defendant’s exception.

Defendant asked a peremptory declaration of law, to the effect that the finding of the court must be in his favor, which was refused. Defendant also asked a declaration to the effect that as the proof showed that the plaintiff was not the real party in interest, the finding must be for defendant. Defendant also asked a declaration that if the notes had been delivered by the publishing company to defendant to be discounted in bank and that defendant had indorsed the same and became liable for the payment thereof, then the finding must be for the defendant. Also declarations to the effect that if a settlement had been made between the publishing company and plaintiff for the proceeds of the notes in controversy wherein plaintiff had received full satisfaction of the amount of said proceeds, then this was a satisfaction and discharge of plaintiff’s cause of action and that no recovery could be had. These declarations were refused over the exception of defendant.

The court rendered judgment for the plaintiff for the sum of $11,261.75, being the full amount of the face of the three notes and interest on said notes up to the time of the rendition of the judgment.

Defendant in due time filed his motion for a new trial, in which his objections and exceptions as herein-before set out were renewed, which motion being overruled, defendant excepted to the ruling, and an appeal was taken to this court.

I. At the date of the commencement of this action the plaintiff unquestionably had a cause of action against defendant for the proceeds of its notes which it had entrusted to the N. D. Thompson Publishing Company, for the purpose of having the same discounted and the proceeds forwarded to plaintiff to meet plaintiff’s notes which fell due October 1, 1902, pursuant to the contract between plaintiff and the Thompson Publishing Company. The evidence leaves no doubt whatever that when defendant received the notes from the Thompson Publishing Company, he was fully cognizant of the arrangement between plaintiff and the Thompson Publishing Company as to the application of the proceeds of the notes when they should be discounted, and that defendant moreover expressly undertook and agreed with the Thompson Publishing Company to discount the notes and send or turn over the proceeds of the same, on the next day, to the Thompson Publishing Company, to be forwarded to plaintiff. He knew the Thompson Publishing Company was not the owner of the notes and would not be entitled to the proceeds. Having discounted the notes and obtained the proceeds thereof, as between him and plaintiff, defendant in these circumstances was liable directly to plaintiff for the proceeds of the notes, and when he undertook to and did apply the same to his own use, by crediting the amount on his account against the Thompson Publishing Company, he was guilty of an unlawful conversion thereof, and plaintiff had the right to elect to proceed directly against defendant for the unlawful conversion of the proceeds of the notes. That an action might also have been maintained by the plaintiff against the N. D. Thompson Publishing Company for the tort of the defendant, its agent, committed within the scope of the business entrusted to him, on the principle of respondeat superior, is also clear, even though it is obvious the publishing company was not willingly a party to the unlawful conversion.

There can be little or no doubt that the Thompson Company recognized its liability for the misfeasance of defendant, since it immediately advised plaintiff of the unlawful conduct of defendant and at once turned over four thousand sets of the “Island” books to secure the plaintiff against loss by reason of defendant’s unlawful conversion.

While the plaintiff had at the commencement of this suit on October 13, 1902, a clear right of action against the defendant for the proceeds of its notes converted by him to his own nse, without right or authority, we are brought to the contention of defendant that by the subsequent conduct of plaintiff and the N. D. Thompson Company, in December, 1902, the only loss which plaintiff could possibly have sustained by the conduct of defendant, was satisfied by the N. D. Thompson Publishing Company assuming the full responsibility for the misappropriation of plaintiff’s notes and charging itself therewith in a settlement with plaintiff, and that, as plaintiff has sustained but a single injury, tó-wit, the loss of the proceeds of its notes, and this loss has been satisfied, plaintiff cannot now recover a second time for the same injury. It is settled law in this State that a release of one of tYo joint tortfeasors releases the other. [Hubbard v. Railroad, 173 Mo. l. c. 255.]

But it is insisted that the Thompson Publishing-Company and defendant were not joint tortfeasors and the above rule cannot be invoked. It may be conceded that in strict law, the Thompson Company was not a joint tortfeasor with defendant, in that it did not knowingly or willingly consent to or connive at defendant’s unlawful conversion of the proceeds, but is the rule above announced confined to joint tortfeasors in a strict sense? In other words, can plaintiff assert, as it did, a claim for satisfaction- for the loss of the proceeds of its notes from the N. D. Thompson Publishing Company, and that company acquiesce in the demand, and fully satisfy it, and after receiving this satisfaction, be heard to say that the Thompson Publishing Company was in fact not liable to it, and, therefore, a satisfaction by it of the one injury is no bar to a suit by plaintiff against defendant for the same injury? Or, what is even more pertinent in the light of the testimony, that this action is being prosecuted wholly at the cost of the Thompson Publishing Company and in fact for its sole benefit, can that company be heard to say it was not liable for the proceeds of the notes but satisfied the same in full, and that plaintiff can still maintain its action for the use of the Thompson Company, for the same injury? We think the rule has been given a much more extended application and applies to torts for which an injured party has an election to sue one or more parties severally. It is clear that plaintiff assumed that the'Thompson Publishing Company was liable for defendant’s conversion of its notes and the publishing company acquiesced in this claim. In Hubbard v. Railroad, 173 Mo. l. c. 255, this court approved Leddy v. Barney, 139 Mass. 394, in which it was said: “The rule that a release of a cause of action to one of several persons liable, operates as a release to all, applies to a release given to one against whom a claim is made though he may not in fact be liable. The validity and effect of a release of a cause of action do not depend upon the validity of a cause of action.” In Brown v. Cambridge, 3 Allen (Mass.) 474, it is said: “The same doctrine applies to all joint torts and to torts for which the injured party has an election to sue one or more parties severally. Where, for example, a master is liable for the tort of his servant, a satisfaction from one discharges both, though they'cannot be sued jointly/’

The liability of the principal for his agent’s tort is not based upon any presumed authority in the agent to do the act, but upon public policy, and that it is more reasonable when one of two innocent persons must suffer from the wrongful act of a third person that the principal who has placed the agent in the position of trust and confidence should suffer than a stranger. Andrews, J., in Higgins v. Turnpike Co., 46 N. Y. l. c. 27, said: “It is sufficient to make the master responsible civiliter, if the wrongful act of the servant was committed in the business of the master, and within the scope of his employment, and this although the servant, in doing it, departed from the instructions of Ms master. This rule is founded upon public policy and convenience. Every person is bound to use due care in the conduct of his business. If the business is committed to an agent or servant the obligation is not changed. . . . If he employs an incompetent or untrustworthy agent, it is his fault; and whether the injury to third persons is caused by the negligence or positive misfeasance of the agent, the Ttiayim respondeat superior applies, provided, only that the agent was acting at the time for the principal, and within the scope of the business entrusted to him. ’ ’ And this is the doctrine announced by this court in Garretzen v. Duenckel, 50 Mo. 104.

On the face of plaintiff’s petition it appears that plaintiff had delivered its three notes to the Thompson Company to discount for plaintiff and the Thompson Company entrusted the discounting to defendant. Defendant in discounting the notes was acting strictly within the scope of his authority, but in neglecting to pay over the proceeds to the Thompson Company and in converting the proceeds, defendant was guilty of an actual misfeasance, for which the Thompson Company, his principal, was liable to plaintiff, within the rule first announced. [1 Am. and Eng. Ency. Law (2 Ed.), 1151, 1152.] When the plaintiff and the Thompson Company entered into a settlement of the injury thus suffered, by the plaintiff by reason of the unlawful conversion of the proceeds of plaintiff’s notes and the Thompson Company fully satisfied plaintiff for said injury, plaintiff no longer had a cause of action for said injury against defendant, and this action could no longer be prosecuted by plaintiff against defendant for said injury.

Having reached this conclusion the question in regard to the equitable set-off or counterclaim of defendant against the Thompson Company and the accounting between the Thompson Company and the defendant are not before us for adjudication at this time,, as the Thompson Company is not a party to this action and the plaintiff is in nowise interested in their adjustment.

Our conclusion is that plaintiff has received complete satisfaction of the injury it has received for the unlawful conversion of its notes by defendant and the instruction in the nature of a demurrer to the evidence, should have been sustained.

For the refusal to so declare the law, the judgment of the circuit court is reversed.

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