author: FOX, J.

text:
    TINKER v. KIER et al., Appellants.
    Division Two,
    March 29, 1906.
    1. CANCELLATION OF CONTRACT: False Representations: Necessary Proof. To obtain a decree cancelling and rescinding a contract for the sale of the stock of a corporation and to compel a refunding of money paid for the stock, on the ground of false and fraudulent representations made by the seller, the purchaser must establish, to the satisfaction of the chancellor, that the representations were false, that they were in reference to material facts connected with the sale, and that the purchaser relied upon them and was thereby induced to enter into the contract and was injured thereby. -And in this case plaintiff’s evidence, though sharply contradicted by defendants,' meets that requirement.

      2. -: -: Reliance. The purchaser of stock of a corporation, entirely without experience in the business it was" • designed to inaugurate, has the right to rely upon the representations of the incorporators.

      3. -: -: Corporation: Free From Debt: Antecedent Mortgage. A representation by the promoters and incorporators of a company that it was free from debt will be held tornean that the land which was its entire assets was free from debt, although the mortgage thereon had been made by the person from whom the company bought the land.
    4. -: -: -: -: Purchase o.f Stock. Defendants, promoters and incorporators of a company which had, through a “straw” man, purchased some undeveloped mining land, on which was already a mortgage for over $100,000, its entire purchase price, except the $5,000 paid for the option, represented to the plaintiff that the company only owed $8,000, and that the purpose of selling the stock, which they represented to be treasury stock, was to raise money with which to-pay that debt. He bought stock of the face value of $25,000 for $8,000, and they did not turn the money into the treasury, but divided it equally among themselves, and turned over to plaintiff stock which had been issued to them in payment for their services and expenses in promoting the company and buying an option on the land. At that time the company did not have a dollar in its treasury, and its entire assets was the equity of redemption in the land, the mortgage on which was foreclosed when the debt became due. Held, that these representations and facts authorize a cancellation of the contract of sale and a judgment for plaintiff for the money he paid for the stock.
    5. -: Weight of Evidence: Number of Witnesses. There is no rule of law which makes the greater number of witnesses testifying to certain facts the test for determining upon which side of the controversy the evidence preponderates.
    6. -: Equity: Deference to Chancellor. It is the duty of the appellate court to carefully weigh and fully review all the evidence developed at the trial of an equity cause, for the purpose of ascertaining whether the decree and findings were in harmony with good conscience and the well-settled principles of equity jurisprudence. But that does not mean that it will not defer somewhat to the findings of the chancellor. Where there is a conflict in the evidence, it will accord a proper deference to his findings, especially where the testimony is oral and the witnesses were before him.
    Appeal from St. Louis City Circuit Court. — Hon. II. D. Wood, Judge.
    Affirmed.

      Johnson, Allen S Richards and Henry W. Allen for appellants.
    (1) In actions to set aside contracts or conveyances on the ground of fraudulent misrepresentations, it must affirmatively appear by the clearest evidence that the representations were false; that the misrepresentations were as to material facts; and that plaintiff was induced by such representations to enter into the contract, or make the conveyance, and was thereby injured. These facts were not established in this ease. Smith v. Dye, 15 Mo. App. 585, affirmed, 88 Ma. 581; Bryan v. Hitchcock, 43 Mo. 527; Wannell v. Kem, 57 Mo. 478; Bailey v. Smock, 61 Mo. 213; Powell v. Adams, 98 Mo. 598; Lewis v. Land Co., 124 Mo. 672; Warren v. Ritchie, 128 Mo. 311; Brownlee v. Hewitt, 1 Mo. App. 360; Franklin v. Holte, 7 Mo. App. 241; Levering v. Scknell, 8 Mo. App. 589:. (2) This being an action in equity, the appellate court should examine all the evidence and is at liberty to determine for itself the weight of the evidence and the credibility of the witnesses. Courtney v. Blackwell, 150' Mo. 245; Dalrymple v. Craig, 149 Mo. 345; Sheridan v. Nation, 159 Mo. 27.; Robertson v. Shepherd, 165 Mo. 360; Bank v. Slattery, 166 Mo. 620.

      Holmes, Blair & Koerner for respondent.
    While it is true, in one sense, that the case is to b.e tried here de novo, still it does not stand on the same basis that it would were it being tried here for the first time. It is the settled rule of this court, as of all appellate courts, to allow great weight to the finding of facts of the court below. Carter v. Dilley, 167 Mo. 564; Dunivan v. Dunivan, 157 Mo. 157; Chance v. Jennings, 159 Mo. 544; Culver v. Smith, 82 Mo. App. 390; Berry v. Hartzel, 91 Mo. 138; Springer v. Kleinsorge, 83 Mo. 159; Mathias v. O’Neil, 94 Mo. 520. The reasons upon which the rule rests apply with great force to this case. The evidence, other than the documentary evidence, was entirely oral. The cause was tried before a judge of great ability and experience, .who sat within six feet of these “evading” promoters while they told their Munchausen tale on the witness stand. He was in a position to accurately determine what weight should be given to their testimony, and we feel confident that there is nothing in the record which will incline this court to reverse the conclusions reached by him.
   FOX, J.

— This cause is here upon appeal from a judgment and decree rendered in the circuit court of the city of St. Louis. The cause of action upon which this decree and judgment rests is thus stated in the petition:

“Plaintiff, for cause of action, by attorney states that heretofore, to-wit, on or about the 5th day of June, 1901, the defendants, being the owners of twenty-five hundred shares of the capital stock of the Kier Lead Company, a corporation organized under the laws of the State of Missouri, desired to sell the same to plaintiff for the sum of eight thousand dollars. That in order to induce and persuade plaintiff to purchase the same, they represented to plaintiff that said Kier Lead Company had a capital stock of seven hundred and fifty thousand dollars, divided into seventy-five thousand shares of the par value of ten dollars each, and that said stock was fully paid up and non-assessable. That the said company had a tract of land in the county of St. Francois, and State of Missouri, of great value. That the company had no indebtedness save some inconsiderable debts owing to a few persons, amounting, in the aggregate, to less than eight thousand dollars, and that it was for the purpose of paying off and discharging such indebtedness that they desired to sell said shares of stock. The defendants further stated to plaintiff that they themselves had invested in the company more than seventy thousand dollars, twenty thousand dollars of which had been expended in boring said land in St. Francois county.
“Plaintiff further states that believing the said representations and statements to be true, and being influenced thereby, he did, on said 5th day of June, 1901, purchase from the said defendants, the said twenty-five hundred shares of stock, being certificates No. 120 for 1,000 shares; No. 121 for 1,000 shares, and No. 122 for 500 shares, paying them, the said defendants, therefor the sum of eight thousand dollars, which sum was paid in the following manner; two thousand dollars in cash on said 5th day of June, 1901, and six thousand dollars in the shape of a draft or acceptance for said amount dated June 5, 1901, at. four months, drawn by the defendant, Henry L. Whitman, •on plaintiff and by plaintiff accepted.
Plaintiff further states that each and every of the said representations and statements made by defendants to plaintiff as aforesaid was false, and was known by defendants to be false at the time the same was made, and that said false representations and statements were willfully made by defendants for the purpose of deceiving, misleading, cheating and defrauding plaintiff.
“That said Kier Lead Company’s stock was not fully paid up and but a trifling amount had been paid thereon. That its property in St. Francois county had a speculative and unsubstantial value only, and was subject to a deed of trust made to secure the payment of one hundred thousand dollars, being almost the entire purchase price thereof. That the company had no assets save the equity of redemption in said St. Francois county land. That the defendants had not invested seventy thousand dollars in said company, but had invested only twelve hundred and fifty dollars each, and had never expended a dollar in boring said land. That defendants did not desire the said eight thousand dollars for the purpose of paying debts of the company, but for their own private use, and plaintiff avers that they did apply the cash and the proceeds of said draft for sis thousand dollars, which they discounted, to their own private uses.
“Plaintiff further states that upon the maturity of the said draft he refused to pay the same, and it was duly protested for non-payment, and has since been taken up and is now held by defendants.
‘ ‘ Wherefore, and on account of the premises, plaintiff herewith tenders defendants said twenty-five hundred shares of stock and prays for a decree of this honorable court rescinding the said sale, ordering and requiring defendants to pay back to plaintiff said sum of two thousand dollars with interest thereon from June 5, 1901, ordering and directing defendants to surrender said draft or acceptance to plaintiff for cancellation,, and enjoining and restraining them from negotiating' or otherwise disposing of the same, and for such other and further relief as to the court may seem just and proper.”

The answer to this petition in substance avers that plaintiff purchased this stock on May 3, 1901, paying for it on June 5, 1901, as alleged in the petition; that the 2,500 shares of stock stood on the books of the company in defendant’s names,' and that they were authorized to sell and did sell them for themselves and as agents' or trustees of William H. Miltenberger, all of which plaintiff well knew. Further answering defendants deny the other allegations of plaintiff’s petition generally, and in addition set up a counterclaim for the mnount of the draft, $6,000, which they were obliged to take up at maturity, and $240 statutory damages because of its non-payment.

The reply denies the allegations of the answer in extenso, and repeats the allegations of the petition.

The evidence introduced by plaintiff was substantially as follows:

In December, 1900, Jacob Day was and for many years had been the owner of a certain tract of land in St. Francois county, Missouri, known as the “Day farm,” and containing three hundred and fifty-eight acres. It was situated in the lead district of St. Francois county; was of small value for agricultural purposes, but of considerable value for lead mining purposes, if the fact that it contained lead in quantities justifying mining operations could be satisfactorily established. From time to time various parties, some three or four in number, had secured options on the land, and had bored or drilled it with diamond drills. The result, in each and every case, was that each of the parties abandoned his option and contented himself with the loss of the money paid for the option and expenses in boring or drilling. During that year Wm. II. Miltenberger and Wm. C. Doak, two promoters, learning of the situation, secured an option on the land, paying so much a month therefor, and later decided to take a deed for the land, give a deed of trust back for the unpaid purchase money, form.a corporation with a large capital stock, convey to it their ownership in the land and then sell stock. In order to raise the amount of cash required to make a payment on this land, and not desiring their names to be used in ■connection with it, it was necessary to associate others with them. The men selected for the purpose were the ■defendants in this case, Dr. Kier, a practicing physician of the city of St. Louis, and Mr. Whitman, the secretary of an agricultural machine manufacturing company. The plan agreed, upon and carried out by these four people was as’ follows: They were to contribute $1,250 each and thus raise the $5,000 required for the cash payment. The $5,000 was to be paid to Jake Day, a deed for the land was to be taken in the name of W. S. Browning, and Browning was to execute notes to Day and a deed of trust securing them for the-remaining $104,800 of the purchase price. Browning was then to convey the land to the defendants, Kier and Whitman, who in turn were to convey it to a corporation to he organized with a capital stock of seventy-five thousand shares, of the par value of ten dollars each, in full payment for such shares. Of these seventy-five thousand shares fifty thousand were to belong to the four promoters organizing the corporation, twelve thousand five hundred to each. Twenty-two thousand five hundred shares were to be set aside, they said, for the purpose of raising a fund for sinking and equipping a shaft and constructing a plant (estimated to- cost about $200,000) and paying off the $104,800 mortgage. The remaining twenty-five hundred shares were to be sold and the proceeds distributed between the four promoters to reimburse them for their outlay of $5,000 and such incidental expenses as they might incur in the way of office rent, printer’s bills, corporation fees, etc. On December 21, 1900, Day deeded the land to W. S. Browning, receiving $5,000 in cash and a mortgage for $104,800. The $5,000 was furnished to Browning by Whitman, and was contributed in equal portions by Kier, Doak, Miltenberger and himself. Browning on the same .day deeded the property to Whitman and Kier, subject to the Day deed of trust, and an additional deed of trust held by Doak for $5,000. The corporation was formed by Kier and Whitman and F. A. Wind, as incorporators. All of the stock was subscribed, save ten shares, by Kier and Whitman. The remaining ten shares were subscribed by Mr. Wind. The certificate of incorporation of the company (The Kier Lead Company), having been duly issued, Kier and Whitman, on January 17, 1901, conveyed to it the Day land. Whitman was made president and treasurer of the company and Dr. Kier was elected secretary.

Several months after the company was organized the respondent, Z. W. Tinker, a wealthy man, engaged in many large enterprises, was introduced to Miltenberger by tbe secretary of tbe Columbia Brewery Company. Miltenberger talked to Mm about tbe property and about what an advantageous place was there afforded for a beer depot. Respondent made inquiry of Miltenberger as to who were interested in the property and on being informed that Dr. Kier was an interested party remarked: “Well, Dr. Kier is a good friend of mine, anything Dr. Keir says goes with me.” Miltenberger succeeded in inducing him to take a trip to the land with him, at what date it is not quite clear, but probably May 1 or 2, 1901. At the Union Station Mr. Whitman joined them, was introduced.to Tinker by Miltenberger, and accompanied them on their trip. They visited the land, dined at Jake Day’s house, and the drill holes and cores were shown to Tinker. Respondent testified that he knew nothing whatever about lead mines or mining; that nothing, however, was said to him about- who had bored the holes or about the condition of the title; that the trip was taken for the purpose of making a physical inspection of the land. Upon their return to St. Louis the three went to Faust’s for supper, and Miltenberger and Whitman telephoned Dr. Kier to meet them. When the four, Kier, WMtman, Miltenberger and Tinker, met at Faust’s, the subject of the sale of 2,500 shares was broached. Tinker testified that while they were sitting at the table Dr. Kier remarked, “Tinker, I am very glad that we have an opportunity of getting you into this . lead business with us. I want you to become interested and I want yon to be the president of the company; yon know lots of people and I think we can make this thing go.” He stated that he had every confidence in Dr. Kier; that he seemed to be the head of the company; that the others were strangers to him. That the first proposition made to him was to sell him 2,500 shares of stock at four dollars a share and then they said they would make it eight thousand dollars for the 2,500 shares; that these propositions were made by Dr. Kier and Whitman; that they told him it was treasury stock; that neither Kier nor Whitman informed him that Miltenbefger had any interest in the 2,500 shares, and that it was a very valuable lead proposition; that the company was capitalized for seven hundred and fifty thousand dollars and that they expected the stock to shortly be worth par. In reply to. some inquiries as to the indebtedness of the company he was told that the company had no indebtedness, save about eight thousand dollars, and that the proceeds of the 2,500 shares, which they were offering to him for $8,000, were to be applied to the payment of that indebtedness, would pay it in. full, and the company would then be entirely free from debt. He was also informed that by an agreement between the originators of the scheme they had set aside 50,000 of the 75,000 shares for themselves, the remainder for the treasury. In response to an inquiry on his part as to what they had in it, they assured him that it had cost them upwards of $70,000. On his expressing surprise at the amount, they explained that they had spent more than $20,000 in drilling the land; that although the company had no capital for its development, its tract of land was of very great value; that it had been thoroughly drilled,«and had been examined by experts and that the existence of lead in vast quantities had been proved and established. That „relying upon the truthfulness of these representations, coming as they did from Dr. Kier, or from others of the four in his presence, and with his sanction, he felt inclined to buy the stock. He was told that Mr. B. B. Graham had agreed to take the stock at $10,000, but they thought they could ‘ ‘ square things ’ ’ with him, and preferred on account of respondent’s large acquaintance to have him in the company. He told them that he would give them his decision later on. Shortly thereafter, possibly the next day, at the solicitation of Whitman, Tinker gave to Whitman the following memorandum: “Columbia Brewing Company,

“St. Louis, Missouri, May 3, 1901.

“Mr. Wm. H. Miltenberger, City:

.“Dear Sir: — I will take the 2,500 shares stock in the Kier Lead Company spoken of by Mr. Whitman, for eight thousand dollars. Will call on you in regard to same upon my return from New York.

“Sincerely,

“Z. W. Tinker.”

Respondent testified that this memorandum was written at the request of Mr. Whitman, the latter even writing the memorandum in pencil and handing to him to copy, which he did.

In company with Miltenberger respondent visted Dr. Kier at his home on Lindell avenue; that Mr. Whitman was present at this meeting. At this meeting matters generally were discussed and a proposition was made to him to elect a new board of directors. That a second visit was made to Dr. Kier’s house, at which time Mr. Miltenberger and Mr. Tate, the manager of the Columbia Theater, were present. On this visit Mr, Tate and Dr. Kier had quite a conversation as to the amount of capital they had invested in this property, and that he heard Dr. Kier tell Mr. Tate that they had upwards of $70,000 in money in the property. That a proposition was made to him to sink and equip a shaft on this property for ten thousand shares of stock. As to when this proposition was made it is not clear from the testimony, but that it was after the letter of May 3rd. That as the shaft would cost about forty thousand dollars the question required some consideration on his part. At the various interviews had upon the subject it was urged upon the respondent that the stock would go to par as soon as the shaft was in lead. Negotiations still pending, the four promoters had their attorney, Mr. Wind, put the matter in the form of a written contract. This contract was exhibited to Mr. Holmes, counsel for Mr. Tinker, May 21st, and was pronounced unsatisfactory. Changes were made in it'but it was not signed by Tinker, he concluding that before he signed a contract for such an amount concerning a subject-matter of which he knew nothing, he would at his own expense employ an expert to examine the matter and report whether the exploration was sufficiently complete to warrant the sinking of the shaft, and what such sinking would cost. He employed Mr. Wheeler, who made a report dated June 3rd; when it was delivered to Tinker, or read by him, does not appear. This report put at rest the sinking of a shaft until further drilling should be done.

In the meantime, May 25th, Tinker purchased from Miltenberger and Browning 4,500- shares at two dollars per share. On the 5th of June Whitman tendered the 2,500 shares referred to in the talk at Faust’s and in* Tinker’s letter of May 3rd, and Tinker having at that time no suspicion of the real state of affairs, accepted them, paying two thousand dollars in cash and six thousand dollars in a four months’ acceptance, drawn on him by Whitman. The two thousand dollars was in the shape of a check, to the order of Whitman, at his request, he stating that the company had no hank account and that he was the president and attended to the company’s finances. No part of the $8,000- was used to pay the debts of the company, but the whole was divided amongst the four promoters.

Thus matters rested until sometime in the latter part of August or the fore part of September, when Miltenberger, having quarreled with his associates, met Mr. Tate at the Columbia Theater. What their conversation was does not appear verbatim, but Tate learned and promptly advised Tinker of the real facts in the case.- Tinker then learned for the first time that the matters had been misrepresented to him by the four promoters, and that at the time they came- to him they had invested in the property $5,000, not $70,000, and they owed $104,800 instead of $8,000. That this money had not paid the company’s debts, bnt had been divided amongst the promoters, and that the stock was without value of any sort and never had any value. He ascertained that the acceptance had been discounted at the Boatmen’s Bank; he notified the bank not to pay it, and in September made a tender of the 2,500 shares of stock to the defendants. On the maturity of the note it was protested and taken up by the defendants Kier and "Whitman, and on February 3, 1902, the deed of trust was foreclosed under the Day deed of trust.

Mr. Tate testified that he was the manager of the Columbia Theater, and that Mr. Tinker, being one of the principal stockholders in that company he was on close confidential business relations with him. He details an account of a trip he made to the lead district of St. Francois county in company with Mr. Tinker and Mr. Miltenberger, sometime in the latter part of April; that this trip was made by Mr. Tinker for the purpose of visting the agents of his brewing company, and to see the Day land. That during the month of May and about ten days after this trip to the lead district, at the request of Mr. Tinker he accompanied him on a visit to Dr. Kier’s house; that respondent suggested to him that he get as much information as he possibly could on this visit. That those present at this meeting were Kier,- Miltenberger, Tinker and himself. That Dr. Kier was delighted to have Mr. Tinker join him in the enterprise and that during the conversation and in the presence of Tinker and Miltenberger he asked Dr. Kier how much money he had in the enterprise, to which the doctor replied: “Why we have got upwards of $70,000; I have just put money in it, been bothered with it, been up to the Boatmen’s Bank and fixed it with old man Lackland to supply the money, have just been sinking money in it ever since I have had it. Now I want to get somebody in it that has got some money, and put it on a strong basis. ’ ’ Mr. Tate testified tbat no statement was made as to any indebtedness of tbe company and tbat after leaving there Mr. Tinker laid great stress on the fact tbat tbe other gentlemen bad money invested in it with him and tbat made him determined to go ahead." This witness states tbat be received bis information as to tbe existence of tbe one hundred thousand dollar deed of trust from Miltenberger; tbat it was at tbe time tbe Columbia Theater first opened and tbat they opened tbe 18th of August of tbat year, and tbat be at once informed Mr. Tinker.

We have carefully read in detail tbe evidence of tbe defendants as disclosed by tbe record; it can serve no good purpose to give tbe details of their testimony, but it will suffice to state tbat their testimony tended substantially to show tbat Tinker was, prior to bis purchase of the 2,500 shares, fully informed by them of the fact tbat they bad paid but $5,000 on tbe land; tbat there was a deed of trust on tbe land for $104,800; tbat tbe drilling which bad been done on tbe land was done by prior companies; also tbat tbe proceeds of tbe 2,500 shares were to be divided amongst tbe four promoters to reimburse them for tbe $5,000 they bad paid on tbe land, and about $2,000 which they bad expended in office rent and miscellaneous expenses. They denied tbat they bad represented to him tbat they bad invested $70,000 in tbe property, $20,000 of which bad been spent in drilling tbe land.

As to what was paid for tbe property and tbe existence of tbe Day deed of trust, Dr. Kier testified tbat either at the meeting at Faust’s or very shortly thereafter at tbe next meeting, four or five days afterwards, Tinker was told tbat only $5,000 bad been paid for tbe property and tbat there was a mortgage of $104,800 on tbe property. Whitman testified tbat respondent asked him one time what they bad in tbe property and tbat be evaded tbe question. He testified tbat be thinks be told Tinker about tbe existence of tbe Day deed of trust on the train going down to visit the land, but is sure that he told him at Dr. Kier’s house. Miltenberger testified that Tinker was told of the existence of the deed of trust while on the land. This statement is contradicted by Day, testifying on behalf of the defendants. Miltenberger further testified that he next spoke of the deed of trust to. Tinker at Dr. Kier’s house and next at Mr. Wind’s office when the contract for sinking a shaft was being prepared. He also testified that at the Faust meeting it was stated to Mr. Tinker that the Standard Lead Company had spent ten to thirty thou- and dollars in drilling the land and that Mr. Day in his presence told the respondent when they visited the land that one of the holes on this land had been drilled by the Doe Run Company and another by the Standard. This statement is also denied by Day. Whitman also testified that Mr. Day stated that the drilling had been done by the Doe Run and Standard Lead companies. Dr. Kier stated that Whitman in offering the stock to Tinker stated that it was owned by the four promoters. Miltenberger, testifying in answer to the question, “What, if anything, was-said to' Mr. Tinker in regard to who the owners of the 2,500 shares were?” said: “I don’t know whether we told Mr. Tinker that there were any owners. I considered that the stock belonged to the Kier Lead Company; that it belonged to ourselves; I don’t remember that I said it' belonged to anybody except that it was company stock. Q. Was there anything said in your presence about it belonging to the promoters, or the proceeds of the sale being divided among the promoters? A. Not that I know of.”

Mr. Tinker was recalled in rebuttal and repeated practically the former testimony; he denied the statments of the other witnesses in relation to his knowledge of the existence of the hundred thousand dollar deed of trust and stated that he did not hear of it prior to August, 1901. ■

This is a sufficient indication of the facts in this case. We will give them such consideration as they may demand during the course of the opinion.

At the close of the testimony the cause was submitted to the court and the following decree and judgment was rendered:

“Now at this day come the parties, plaintiff and defendants by their attorneys, and the cause having been submitted, the court being fully advised in the premises, doth find the issues therein joined in favor of the plaintiff. And the court doth order, adjudge and decree that the contract between plaintiff and defendants set forth in the petition, for the purchase of twenty-five hundred shares of stock (being certificate No. 120, for one thousand shares, certificate No. 121 .for one thousand shares and certificate No. 122 for five hundred shares) of the Kier Lead Company, be and the same is hereby rescinded, cancelled and for naught held.
‘ ‘ The court doth further order, adjudge and decree that the bill of exchange mentioned in said petition and given defendants by plaintiff under said contract in part payment for said shares of stock, said bill of exchange being dated at St. Louis, Missouri, June 5,1901, drawn by the defendant Henry L. Whitman, directed to plaintiff by and under the name of Z. W. Tinker at the said city of St. Louis, requesting the said Tinker to pay to the order of said Whitman four months after the date of said bill of exchange the sum of six thousand dollars, which bill of exchange was on the day of the date thereof accepted in writing by plaintiff under the said name of Z. W. Tinker, and was thereafter indorsed by the defendant William F. Kier, and which bill of exchange was filed in this cause as an exhibit to the answer of the defendants herein, be and the same is hereby cancelled and adjudged to be null and void and of no force and effect, and defendants are required and ordered to surrender and deliver the same to plaintiff.
“The court doth further o^der, adjudge and decree that plaintiff have and recover from the defendants, jointly and severally, the sum of two thousand dollars paid them by him on June 5, 1901, in part payment for said shares of stock, together with interest thereon, amounting in the aggregate to the sum of two thousand two hundred and twenty dollars, and that he have execution therefor.
The court doth further find the issues on the counterclaim filed by defendants in favor of plaintiff. The court doth further order that the defendants 'William F. Kier and Henry L. Whitman pay the costs of the action, and that plaintiff recover his costs from said defendants and have execution therefor.”
Motions for new trial and in arrest of judgment were timely filed and by the court taken up and overruled. From the judgment and decree rendered in this, cause the defendants prosecute this appeal and the record is now before us for consideration.

OPINION.

The record in this cause presents but one proposition for consideration, that is as to the sufficiency of the evidence to support the decree and judgment rendered by the trial court.

This is an action to cancel and rescind a sale of stock in the Kier Lead Company and to compel the refunding of money paid for the same, on the ground of certain false and fraudulent representations, which are fully set out in the petition. There is no dispute as to the law upon the subject involved in this controversy. That plaintiff must establish to the satisfaction of the chancellor that the representations made by defendants were false, that such representations were in respect to material facts in this transaction and that plaintiff relied upon such representations and was thereby induced to enter into the contract and was thereby injured, is clear, and is not controverted by counsel for respondent.

We are 'simply confronted in this record with a pure question of fact; in other words, is the evidence disclosed by the record sufficient to support the judgment and decree of the trial court 1 That the testimony in this cause is in conflict is plainly disclosed by the record.

We have carefully read in detail all the testimony in this cause and if the testimony of the respondent, corroborated as it is in some material particulars by witness Tate, was believed by the trial court, it affords ample support upon which the decree and judgment must rest. At the very inception of the consideration of this controversy we find the respondent without experience in the business, enterprise sought to be inaugurated by the promoters, in other words, a stranger to the business in which the corporation was about to engage; he, therefore, had the right to rely upon the representations of the defendants, who were the promoters of the' enterprise. [Hess v. Draffen & Co., 99 Mo. App. 580, and cases cited.]

Plaintiff clearly testified as to the representations made by defendants, as well as his reliance upon them, which induced him to purchase the stock in the corporation. Doubtless the trial court felt that the reasonable probability of the truth of the testimony of the plaintiff and witnéss Tate was emphasized by the disclosures of the true nature and character of the enterprise sought to be inaugurated, as it appears from the record in this cause; for it is nearly impossible to conceive how any man possessed of the slightest business intelligence would have purchased the stock in the Kier Lead. Company had all the facts been disclosed to him as contended by appellants. Plaintiff testifies that defendants represented that this corporation was free from debt, except about eight thousand dollars, and that his purchase money for the stock would be used for the purpose of settling that indebtedness.

This corporation did not have a dollar in its treasury and its only assets was a mere shadow, consisting of an equity of redemption in the St. Francois county land, upon which there was a deed of trust for over one hundred thousand dollars. However, it is earnestly contended by learned counsel for appellants that this incumbrance upon the land was not a debt of the corporation, but simply a debt by Browning who executed the notes and deed of trust for the balance of the purchase money. While it may be true that this corporation was not liable for this indebtedness, evidenced by the Browning note, it is equally true that this land was the basis and foundation of the corporation, and if the corporation was formed for any purpose other than to get some one to buy stock, it was for the purpose of mining operations upon this land, and unless the promoters expected to assume this indebtedness and hold this land as their capital stock, then we confess that the whole transaction must be treated as the basest fraud upon the public or individuals who might deal with it. The entire talk with respondent related to this valuable lead land, which was understood to be the entire asset of the corporation, and if appellants represented to respondent that this corporation was free of debt, a court of equity would be of dull conscience that would not treat such representations as it would naturally be understood by the party to whom the representations were made. It would be folly to say that representations' were made that a corporation was entirely solvent and not indebted, when as a matter of fact its entire assets, were covered by a deed of trust for over one hundred thousand dollars. A representation that a corporation is free of debt must be treated as it would ordinarily be regarded, that the body or assets of the corporation was not encumbered.

The same conflict of evidence is disclosed as to other allegations of false and fraudulent representations charged to have been made by appellants. The witnesses testifying in this canse upon the most vital questions were all more or less connected in some way with the transaction. It is true the witnesses on the part of the appellants out-number those for the respondent. The record discloses and it is practically conceded that all the promoters of this new enterprise were very much interested in inducing respondent to become a stockholder in the corporation. However, there is no rule of law which makes the greater number of witnesses in a cause, testifying to a given state of facts, the only test of determining • upon which side of the controversy the evidence preponderates or the weight of evidence rests. This is an action in a court of equity and under the uniform rules of this court it is the duty of the appellate tribunal to carefully and fully review, all the testimony developed at the trial of the cause, to the end that it may be ascertained whether or not the finding and decree of the court are in harmony with good conscience and the well-settled rules of equitable jurisprudence applicable to the proceeding in hand. While this is true, it does not mean that we are to pay no deference whatever to the finding of facts of the trial court, and while this court will carefully examine the facts in equity cases, and render a judgment for the right party, notwithstanding the finding of the trial court, it has been the uniform expression of this court that proper deference should always be accorded to such findings, and while such deference and regard for the conclusions of the trial court should not lessen the strictness or carefulness in the consideration of the facts disclosed by the record, yet it is highly important, especially where the witnesses were present in that court and testified orally, to fully and carefully consider the conclusions reached based upon the testimony of such witnesses.

In Carter v. Dilley, 167 Mo. l. c. 571, this court in discussing a record in which there was apparently a conflict of evidence similar to the case at bar, in speaking of the weight to be attached to testimony, said: “Except one deposition, the evidence was all oral. Its weight depended largely on the character, experience, fairness and intelligence of the witnesses. It was patiently heard by an experienced and judicious chancellor. He was in a much more favorable position to wisely determine its preponderance than we are. After a careful reading and consideration of this evidence, we cannot say that he did not determine that preponderance correctly. Hence, deferring to his opinion under such circumstances, as we are accustomed to do, we think his judgment on this issue ought also to be sustained. ’ ’

To the same effect was Dunivan v. Dunivan, 157 Mo. l. c. 160. It was said by this court in that case: “Appellant urges this court to review the testimony and reverse the finding of fact by the trial court as to the notice of and participation in the fraud by defendant Milner, and to enter a decree here in his favor. This court will examine the facts in equity cases and render a judgment for the right party, notwithstanding the finding of the trial court. But proper deference is always accorded the finding of the trial court, especially where witnesses were present in that court and testified orally, and its conclusions and findings will not be lightly treated nor arbitrarily disturbed. It is only where the result is manifestly wrong that this court will Set aside the finding of facts of the trial court, in equity cases.”

We see no necessity for pursuing this subject further. Turning to whatever page of the record disclosing the testimony in this cause you may see fit and we are confronted with the same conflict in the evidence by all these parties, all of whom, as heretofore stated, have some interest in this controversy. All of these witnesses were present and testified orally before the trial judge, who during his occupancy of the circuit bench was recognized by tbe bench and bar as an able, careful and painstaking judicial officer. He had opportunities to judge of the credibility of the witnesses before him and of the weight to be attached to their testimony that are not afforded the appellate court; hence it would be a dangerous precedent for this court, unless the record discloses that the result of his findings were manifestly wrong, to undertake under such circumstances to disturb his finding and conclusions based upon the testimony of witnesses who were personally present in court before him. We know not who the witnesses are; have none of the opportunities afforded us of applying the tests of their credibility, and to reverse this decree and judgment rendered by a careful and experienced chancellor would be merely guesswork, and could only be predicated upon the theory that more witnesses testified for the appellants than did for the respondent, and this we are unwilling to do.

We have carefully reviewed the evidence of all the witnesses, and we have no hesitancy in saying, after a.careful consideration of the history, nature and character of this new enterprise, that the decree and judgment rendered by the trial court is fully supported by the testimony elicited upon the trial and is in harmony with good conscience, justice and equity.

The decree and judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    GILROY v. BRADY, Appellant.
    Division Two,
    March 29, 1906.
    1. HUSBAND’S DOWER: Property Owned at Marriage. The husband of a childless wife is, under the statute, entitled to one-half of all the property she owned at the time of her death, subject to the payment of her debts, whether such property was owned by her at the time of her marriage, prior to the enactment of the statute, or not.
    2. -: Living Husband: Seven Years’ Absence. Where a former husband had not been heard from for seven years prior to her marriage to plaintiff, the presumption of law is that he was then dead. And if he went away soon after the marriage, then came back after an absence of two years, and again went away, and she was afterwards married to plaintiff in the surname of the first husband, and he has not since been heard from, though 13 years have elapsed since her last marriage, these facts, taken in connection with the presumption that she was united in marriage with plaintiff under the belief that her former husband was dead, justify a holding that plaintiff at the time of his wife’s death-: was her lawful husband.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Affirmed.

      Henry B. Davis for appellant.
    (1) The Act of 1895 (R. S. 1899, sec. 2988) did not give to plaintiff a dower right in real- estate owned by Mary Ann (if she was his lawful wife) before the passage of that act. The contention of Gilroy, if sustained, would take away from his wife one-half of her property and vest it in her husband, or take away the right of inheritance from her heirs. But no legislative authority can take away one man’s property and give it to another, nor enact a law which would have the same effect. Gilroy’s contention, if sustained, would give to the Act of 1895 a retrospective action, a position which is pointedly condemned hy controlling authorities. Walker v. Deaver, 79 Mo. 677; State v. Grant,"79 Mo. 117; Deete v. Bank, 115 Mo. 197; Bartlett v. Ball, 142 Mo. 35; Shields v. Johnson Co., 144 Mo.. 82; State v. Switzler, 143 Mo. 326; Clay v. Mayr, 144 Mo. 380'; Arnold v. Willis, 128 Mo. 150. (2) In the face of the evidence the marriage of David and Mary Ann could not have been valid.

      Albert G. Davis for respondent.
    (1) Appellant’s first proposition is without merit. Spurlock v. Burnett, 183 Mo. 524. (2) Equally untenable is appellant’s second proposition. 19 Am. and Eng. Ency. Law (2 Ed.), 1202.
   BURGESS, P. J.

— This is a suit by David Gilroy, husband of Mary Ann Gilroy, deceased, against the devisees named in her will, for the partition of lot 16 in subdivision of northeast part of lot 2 of Sulphur Springs tract in Gratiot League Square, bounded on the north by lot 17, on the south by lot 15, on the west by Sulphur avenue, formerly Davis street, and on the east by Delvin street, in the city of St. Louis. During the lifetime of Mrs. Gilroy she owned said property in fee. She had no children, and by her will, which was duly admitted to probate, she gave to her husband, the plaintiff, the sum of one dollar; to her- brother, Michael Brady, one dollar; and the rest and residue of her estate, real, personal and mixed, wherever situate, she gave and bequeathed to her brother, the defendant, Thomas Brady, and to his heirs forever. -

After the death of Mrs. Gilroy the plaintiff conveyed one-half of his interest in the property to the defendant, Joseph M. Shortal.

The petition alleges: ‘ ‘ That the share of said land to which he (plaintiff) is entitled is an undivided one-quarter interest, and that the interest of the defendant, Joseph M. Shortal, in and to said land is an undivided one-quarter interest, and that the interest of the de-, fendant, Thomas Brady, in and to said land, is an undivided one-half interest. Plaintiff further states that Mary Ann Gilroy, his wife, lately departed this life without children, seized of the property aforesaid, and that an undivided one-half interest in the same descended to him, and an undivided one-half interest descended to the defendant, Thomas Brady, and that heretofore, to-wit, on the 18th day of June, 1902, plaintiff conveyed half of his interest in the real estate aforesaid, or an undivided one-quarter interest in the whole lot, to the defendant, Joseph M. Shortal. Plaintiff further alleges that the other property of the said Mary Ann Gilroy is more than sufficient to pay all claims and demands against her said estate.”

The defendant Brady’s answer was a general denial. Shortal made default.

The court rendered judgment in favor of the plaintiff, as follows:

‘ ‘ On this day comes the plaintiff David Gilroy, by Albert 0. Davis, his attorney, and the defendant Thomas Brady, by his attorney, EL B. Davis, and the defendant Joseph M. Shortal, although duly summoned, appeared not, but makes default, and submit to the court the matters in controversy upon the pleadings and evidence adduced; and the court being duly advised in the premises doth find that the allegations of plaintiff’s petition herein are true. The court doth further find that plaintiff David Gilroy is the widower of Mary Ann Gilroy, deceased, and that said Mary Ann Gilroy died without any child or other descendant capable of inheriting from her, and that the defendant Thomas Brady is the brother and heir and devisee of Mary Ann Gilroy, deceased; and prior to the bringing of this action and subsequent to the death of Mary Ann Gilroy, deceased, the plaintiff David Gilroy conveyed an undivided one-half interest of all his right, title and interest in and to the hereinafter described estate to the defendant Joseph M. Shortal. That the plaintiff David Gilroy is entitled to an undivided one-quarter; the defendant Joseph M. Shortal is entitled to an undivided one-quarter; and the defendant Thomas Brady is entitled to an undivided one-half in and to the following described real estate, situate, lying and being in the city of St. Louis, and State of Missouri, to-wit” (describing property in suit).

To which finding and decree defendant Thomas Brady then and there duly excepted at the time.

And afterwards, and within four days after the rendering of said finding and decree, said defendant Brady filed his motion for a new trial, which was overruled by the court. The said defendant saved his exception, and appeals.

That the title to the property was in Mrs. Gilroy at the time of her death is clearly shown by the record. It is also shown that she never bore any children, and that plaintiff, by quitclaim deed, dated, June 18, 1902, conveyed an undivided one-fourth interest in the property to Joseph M. Shortal.

Defendant Brady testified, as a witness in his own behalf, that Mary Ann Brady was his sister; that she married one Harvison, who went somewhere and never returned. On cross-examination, he said he did not know whether Harvison died; that Mary Ann died May 21, 1902; that he supposed David Gilroy was her husband, as he had seen the marriage certificate. Witness said, on re-direct examination, that he could not tell when Harvison went on his journey, but that it was about seventeen years ago; that Harvison returned once, about fifteen years ago and went away again to Wyandotte, Kansas; that was about the year 1889', since which time witness never heard of him.

Defendant offered in evidence the marriage certificate showing that David Gilroy and Mary Ann Harvison were married in St. Clair county, Illinois, September 21,1889.

By section 2938, Revised Statutes 1899, it is provided that, “When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts.” There can be no question, under the provisions of this statute, but that the plaintiff was entitled ‘ to one-half of all the property that his wife owned at the time of her death, subject to the payment of her debts, provided the law applies to property owned by the wife at the time of her marriage. As to the property owned by the wife at the time of her marriage, and before the passage of the said act, as in this case, defendant contends that the law is retrospective and inoperative. The validity of this law has been passed upon at least twice by this court. [Waters v. Herboth, 178 Mo. 166; Spurlock v. Burnett, 183 Mo. 542.] In the case last cited it was ruled that the statute in question, declaring what interest the widower shall have in the property of his wife who dies intestate and without descendants, applies to any wife who should die thereafter, whether she and her surviving widower, were married prior to its enactment or not. The object of the Legislature in passing said act was to place the husband and wife, as nearly as practicable, on an equal footing, so far as his rights, as widower, in her estate, and her rights, as widow, in his estate, are concerned.

Whether or not Mrs. Gilroy was married to one Harvison prior to her marriage with plaintiff is, under the evidence, a matter of serious doubt. Defendant Brady was the only witness who testified in regard to. such marriage. According to his testimony, it occurred some seventeen years before the trial, the first disappearance about two years after tbe marriage, and tbe return and' second disappearance a little later. Witness was unable to give Harvison’s first name, or tell where he and bis wife, defendant’s sister, lived after marriage. But tbe marriage certificate offered in evidence by said defendant showed that bis sister, under tbe name of Mary. Ann Harvison, was united in marriage to tbe plaintiff by a justice of tbe peace in tbe State of Illinois, on tbe 21st day of September, 1889.

There was no direct evidence as to tbe time when Mrs. Gilroy was married to Harvison,' or that be was living at tbe time of her marriage with plaintiff, or that Harvison bad not been beard from within seven years prior to her said marriage with plaintiff; and as more than seven years bad elapsed since tbe time of bis last disappearance and absence from, this State, be was presumed to be dead. [Sec. 3144, R. S. 1899.]

These facts, taken in connection with tbe presumption that Mrs. Gilroy was united in marriage with plaintiff under tbe belief that her former husband was dead, justified tbe court, in effect, bolding that plaintiff was at tbe time of bis wife’s death her lawful husband, and entitled to one-balf of tbe property which she owned at tbe time of her death. The judgment is affirmed.

All concur.


text:
    WAFFORD, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division Two,
    March 29, 1906.
    1. BILL OF EXCEPTIONS: Nonsuit. A motion to set aside a non-suit, and the action of the trial court upon it must be preserved by bill of exceptions.
    2. -: Not Signed. As the record in this cause fails to disclose any bill of exceptions duly signed and approved by the trial judge there is nothing before'the court for review except the record proper.
    Appeal from Barry Circuit Court.— Hon. H. C. Pepper, Judge.
    Affirmed.

      Mrs. Iowa G. Wafford, pro se.

      L. F. Parker and Woodruff & Mann for respondent.
    (1) This case was brought to this court on full transcript of the record containing a copy of all record entries, copies of all pleadings, and a copy of what purports to be a bill of exceptions. An examination, however, of this transcript will disclose to the court the fact that the purported bill of exceptions is not in fact a. bill of exceptions, that it was never allowed and signed by the trial judge, and does not contain a copy of the motion to set aside nonsuit and grant plaintiff a new trial, etc., that it is, in fact, not a bill of exceptions at all. This being true, there is nothing before this court to pass upon in this appeal but the record proper, and plaintiff not being entitled to judgment upon the record proper, the case will be affirmed. Reno v. Fitz Jarrell, 163 Mo. 411; Cooper v. Maloney, 162 Mo. 684; Roberts v. Jones, 148 Mo. 368; Klotz v. Perteet, 101 Mo. 213; State ex rel. v. Sanford, 181 Mo. 134; Reynolds v. Railroad, 146 Mo. 126. (2) In this connection we would also call the attention of the court to the fact that although appellant in her printed abstract sets out what purports to be a motion to set aside nonsuit and grant plaintiff a new trial filed in this case, and states that same was overruled, there is nothing to show that any exception was saved to this ruling of the court. This was necessary in order that the question be before this court for review. Ross v. Railroad, 131 Mo. 390; Meier v. Hinkson, 146 Mo. 458; State ex rel. v. Sanford, 181 Mo. 136.
   FOX, J.

— This cause is brought here by appeal on the part of the plaintiff from a judgment in the circuit court of Barry county, Missouri.

At the February term, 1903, of the Barry Circuit Court plaintiff brought her suit against the defendant in which she sought to recover damages against the defendant for the negligent killing of her husband, in the operation of its railroad. To the petition of plaintiff filed in this cause, defendant filed its answer, denying all of the allegations in the petition, except those which were expressly admitted, and further answering pleaded contributory negligence on the part of the deceased.

The cause was tried before the court with the aid of a jury, and at the close of the evidence on the part of the plaintiff the court sustained a demurrer to the evidence, whereupon plaintiff took a nonsuit, with leave to move to set the same aside.

In accordance with the leave, plaintiff filed her motion to set aside the nonsuit, which motion was by the court overruled, and judgment of nonsuit duly entered. From this judgment plaintiff prosecuted her appeal and the cause is now before us for consideration.

OPINION.

On an examination of what purports to he the record in this cause, we find that this cause is brought to this court upon what purports to be a full transcript. We have carefully examined the transcript on file and now before us and are unable to find in any part of it where the judge presiding at the trial of this cause allowed and signed what purports to be the bill of exceptions. The motion to set aside the nonsuit and the action of the court upon it must be and can only be preserved for review in this court by bill of exceptions, and the copy denominated by the clerk as the bill of exceptions nowhere contains the motion to set aside the non-suit or the action of the court upon it, nor does it preserve any objections or exceptions to the action of the court in overruling the motion.

We have in this .cause, in the first place, no bill of exceptions duly allowed and signed by the trial judge, and, secondly, no preservation of the motion to set aside the nonsuit and the action of the trial court upon it; hence, under the uniform and well-settled rules of practice in this State, there is nothing before us for review' except the record proper. The motion to set aside the nonsuit and for a new trial can only be preserved in the bill of exceptions; the spreading of it on the record proper does not do so; hence even if the purported bill of exceptions as copied by the clerk had been duly allowed and signed by the trial judge, still unless the motion to set aside the nonsuit and for new trial was contained in it, the action of the court during the progress of the trial is not preserved.

The record proper in this cause presents no error which warrants this court in disturbing the judgment of the trial court, and it therefore should be affirmed, and it is so ordered.

All concur.


text:
    CARR, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division Two,
    March 29, 1906.
    1. NEGLIGENCE: Licensee on Track: Liability.. A railroad company owes no other or greater duty to a naked licensee, exercising the privileges of such in walking on a pathway along the side of the track, than not to negligently or wantonly injure him.
    2. —..... : -: -: Facts in Judgment. Plaintiff, as a matter of convenience to himself, in going to church, chose, instead of a roadway that paralleled defendant’s railroad tracks, a pathway that ran at the ends of the ties, which had quite generally been used by people in the vicinity for that purpose, and while walking along this pathway, a brakeshoe flew out from a rapidly running train on a second track seventeen feet distant, and struck plaintiff and injured him. There was no evidence tending to show that the railroad company was guilty of any negligence contributing to plaintiff’s injury. Held, that he cannot recover.
    3. ERRONEOUS INSTRUCTIONS: Immateriality. Where the verdict was for defendant, it makes no difference whether the instructions given, or asked and refused, or asked, modified and given, were right or wrong, if plaintiff was not, from any point of view, entitled to recover. In such case a demurrer to plaintiff’s case should have been sustained.
    Appeal from St. Louis County Circuit Court. — Row. Jno. W. McElhi/mey, Judge.
    Appirmed.
    P. Wm. Provenchere for appellant. '
    (1) If the tracks or roadbed of a railroad company are used, and have for a long time been used, by the public as a footway, with the knowledge of, and without objection from, the company, one in so using such roadbed would not be a trespasser. Le May v. Railroad, 105 Mo. 370; Lynch v. Railroad, 111 Mo. 609; Morgan v. Railroad, 159 Mo. 279'. The statute (sec. 1105) implies that one may walk on the tracks of a railroad on “a publicly-traveled road.” (2) The company owes it as a duty even to trespassers to take precaution or care not to injure them if there is reason to anticipate their presence. Brown v. Railroad, 50 Mo. 461; Williams v. Railroad, 96 Mo. 281; Fiedler v. Railroad, 107 Mo. 651; 21 Am. and Eng. Ency. Law (2 Ed.), 470; Railroad v. Stout, 17 Wall. 659. (3) A railroad company owes a duty not only to passengers, but to the public, a duty of a public character, to conduct its business in a manner safe to the public, and certainly to all who may be rightfully on its route. Brown v. Railroad, 50 Mo. 467; Lewis v. Railroad, 59 Mo. 504; Hicks v. Railroad, 64 Mo. 439. From the above it follows : If the tracks or roadbed of a railroad company are used, and have for a long time been used, by the public, as a footway, with the knowledge and tacit consent of the company, and one while so using such roadbed is injured through the company’s negligence in having and using on a passing train, in the operation thereof, an appliance that it knew, or by ordinary care would have known, was defective, and liable to fly off and injure persons along the route of the train, the company is liable. (4) In order that a party may be liable for negligence, it is not necessary that he should have contemplated, or been able to anticipate the particular consequences which ensued, or the precise injuries sustained by plaintiff. It is sufficient if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected. That the occurrence causing the injury is unusual or usually harmless is immaterial. 21 Am. and Eng. Ency. Law (2 Ed.), 487; Miller v. St. Louis, 90 Mo. 394; G-raney v. Railroad, 140 Mo. 98; Hoepper v. Southern Hotel, 142 Mo. 388.

      Martin L. Clardy and Henry 0. Herbel for respondent.
    Inasmuch as plaintiff was on our right of way solely for his own convenience, and not for any purpose from which any benefit could possibly flow to us, we were under no duty whatever to protect him from casualties, such as he encountered on this occasion, but in using our right of way for his own convenience and for a purpose wholly disconneceted with any business of the railroad company, he took the license with its concomitant perils. Wencker v. Railroad, 169 Mo. 599; Moore v. Railroad, 84 Mo. 487; Morgan v. Railroad, 7 Fed. 79; Railroad v. Monday, 31 Am. and Eng. R. R. Oas. 425; Gusiek v. Adams, 115 N. T. 55; De La Pena v. Railroad, 74 S. W. 58; Schreiner v. Railroad, 90 N. W. 400; Redigan v. Railroad,' 28 N. E. 1134; Farqua v„ Railroad, 28 So. 850 ; Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Henry v. Railroad, 76 Mo. 295. There was an absolute dearth of evidence to fasten any liability on defendant for this man’s misfortune. Our evidence showed -that this train had been carefully ’ inspected at at least two points before it reached the scene of the accident, and that when it got into the union depot it was found that all the brake-shoes were intact. Plaintiff was using our right of way for his sole convenience and not for any business connected with the railway company, and, therefore, the company owed him, no duty to protect him against injuries of this character. But, even if there had been a duty resting on it to protect him, the accident was one of such unusual occurrence that no human foresight could have anticipated that it would occur, and hence defendant ought not to be liable for not forecasting it.
   BURGESS, P. J.

— -This is an action for damages in the sum of ten thousand dollars for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant. The petition alleges that the public and plaintiff were for a long time accustomed to use as a footway, with the knowledge and consent of defendant, a certain part of its roadbed in the city of Webster Groves, in St. Louis county; that plaintiff, while walking upon that part of defendant’s right of way or roadbed, was struck by a piece of brake-shoe flying from a car of a passing train of defendant; that the said brake-shoe was part of an appliance used for operating the train, and was in a defective and dangerous condition, liable to break in the operation of the train, and a part thereof to fly off and injure persons along the road; all of which defendant knew, or by ordinary care might have known; that defendant negligently permitted the brake:-shoe to be on the train in such defective and dangerous condition, and the brake-shoe, being in a defective and dangerous condition, broke, and a part of it flew from the train and struck and injured plaintiff.

The defenses were a general denial and plea of contributory negligence. Plaintiff replied, denying all new matter set up in the answer.

The facts are substantially as follows:

Plaintiff resides in St. Louis county, just outside the limits of Webster Groves, near the roadway of defendant. Tuxedo station, near which the accident is alleged to have occurred, is on the outskirts of the town.

On Sunday morning, April 20, 1902, plaintiff started to church, and while on the way walked along the north side of the northernmost of defendant’s two tracks, running in an easterly and westerly direction at that point. The track next to the path on which he was walking was what was known as the “west-bound track, ’ ’ and the track south of it, which was the one on which the train was moving at the time of the accident, was known as the “east-bound track.” Plaintiff was walking sixteen or seventeen feet north of the .train from which, he claims the brake-shoe flew and struck him. He testified that the train was the “fast mail,” and his witness, Murphy, who was walking a short distance behind him at the time he was struck, also testified that it was the “fast mail, ” and gave its number as No. 10. This was the regular fast mail train which was due at Lake Junction, a short distance west of Tuxedo, at 6:58 a. m. There was another train, No. 8, which arrived at Lake Junction at 6:45 a. m., or thirteen minutes before the fast mail was due there.

Plaintiff was accompained by a young lady, who was walking immediately behind him. "When Carr got within about two hundred feet of Tuxedo station this fast mail train, No. 10, passed him on the east-bound track, there being the west-bound track between him and the passing train, or a space of at least seventeen feet. As he saw it approaching he stopped and looked at the train while it was passing, and was struck by some dark object which flew from the train, but which he could not distinguish. The lady who was walking immediately behind him, seeing him reel and about to fall, caught him and helped him to his home. She testified that she picked up a part of a brake-shoe at the place where he was struck at the time, but after carrying it a short distance dropped it and assisted Mr. Carr home. Murphy, his other witness, who was a section hand in defendant’s employ, happened to be walking west several hundred feet behind Carr and the lady, saw the fast mail, No. 10, approaching, and as it was going by Carr, saw him reel, and the lady take hold of him to hold him up. He went to them and assisted Carr, who was a next door neighbor of his, to his home. He then, within twenty minutes thereafter, went back to the scene of the accident and found a piece of a brake-shoe about at the place where he saw Carr stagger and threw it down the embankment. Mrs. Carr, his sister-in-law, who was with Carr at the time of the accident, went back to the scene of the accident about an hour and a half thereafter, and states that she found this brake-shoe at about the place where she had dropped it, although Murphy testified that he had thrown it down the embankment.

The tracks of the defendant are laid on a high embankment along there, and there is a road known as Marshall avenue, which runs parallel with the railroad tracks a short distance west of plaintiff’s home, and south of defendant’s right of way there was a public road running to Tuxedo station, which Oarr could have used if he had wished to avoid the railroad tracks. Instead of doing that he walked along the north side of the west-bound track, towards Tuxedo and the church he was going to attend, as it was a more direct route and the walking better. His only object in using defendant’s right of way was his own convenience. It was shown by quite a number of witnesses who testified for plaintiff, that people in that vicinity used the defendant’s right of way and tracks for that purpose quite generally.

The defendant proved, and its proof was not controverted by the plaintiff, that it inspected this train at Sedalia and Pacific, Missouri, before it reached St. Louis; that it was in good condition, and no brake-shoes were missing; that immediately upon its arrival in St. Louis that morning it was thoroughly inspected and no brake-shoes were found missing therefrom; that shortly after this regular inspection was made at St. Louis, a message was received by the superintendent’s office, which was near the place where the train was standing, to the effect that it was claimed that a man had been struck by a brake-shoe which came from that train, near Tuxedo, that morning, and that it was thereupon again inspected by three or four inspectors, all of whom testified that after a thorough inspection thereof, they found there was no brake-shoe missing therefrom.

At the conclusion of the evidence the plaintiff asked the court to instruct the jury as follows:

“1. If the jury believe from the evidence that on April 20,1902, the plaintiff, while walking on the right of way and roadbed of defendant in the city of Webster G-roves, in St. Lonis county, Missouri, was struck and sustained injury by a piece of an iron brake-shoe which was flung against him with force from a car of the moving passenger train, by reason of the movement of the train, which train was then and there one of the regular trains of the defendant engaged in carrying passengers and that the said brake-shoe was an appliance of said train and was then and there made use of and employed by defendant in operating said train, and if the jury find from the evidence that said brake-shoe was in a defective and dangerous condition and was liable to break and to be in whole or in part flung off while being used as aforesaid and was liable to inflict injury on persons along the road with whom it came in contact, and if the jury find from the evidence that all of said matters were known to the defendant at and before said time or [might] would have been known to it by ordinary care on its part in time to have remedied such defective and dangerous condition before said time in the exercise of ordinary care on its part, and if the jury further find from the evidence that plaintiff did not in any manner contribute to bring about the contact between himself and said piece of said iron brake-shoe, then the jury will return a verdict for the plaintiff, provided they further find from the evidence that the place where plaintifif was injured was not fenced and had for years with the [tacit] knowledge and consent of defendant been habitually used by the public as a public footway and footpath. Ordinary care as used in this instruction is such as 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 defendant whose conduct in that regard is in question in this case.”
Which instruction as offered the court refused to give. And the conrt of its own motion changed said instruction by striking out the words between brackets and inserting the words in italics, and said instruction, as so changed, the court gave. And to each and all of which rulings and actions of the court in refusing said instruction as offered, and in so changing said instruction, and giving the same so changed, the plaintiff duly excepted at the time.
“2. The court instructs the jury that the answer of defendant sets up contributory negligence on the part of plaintiff as a defense to this action, and is in the nature of a plea of confession and avoidance and impliedly admits some negligence on the part of defendant in the transaction involved in this case, and the jury are authorized so to find.”
Which instruction the court refused, and to the action and ruling of the court in refusing to give said instruction plaintiff duly excepted at the time.
“3. If the jury find for the plaintiff they will assess his damages at such sum as under the evidence they believe will compensate him for the pain and suffering endured, if any, by reason of the matters aforesaid, for the expense, if any, incurred by him thereby, for the loss of time, if any, resulting to him therefrom and for the impaired power, if any, of plaintiff to earn a livelihood by reason thereof, not exceeding, however, the sum of ten thousand dollars.”
Which instruction as offered the court modified of its own motion, by striking out the words “not exceeding, however, the sum of ten thousand dollars,” and said instruction so modified the court gave.
Over the objection and exception of plaintiff the court also gave the following instructions:
“1. The court instructs °the jury, that if you believe from the evidence that the plaintiff’s injuries were the result of mere accident, and not of negligence on the part of the defendant, your verdict will be for the defendant.
“2. The court instructs the jury that defendant was not required to anticipate or guard against unusual or extraordinary occurrences resulting from the operation of its trains, and unless you believe from the evidence that plaintiff’s injury resulted from a cause which men of ordinary prudence, engaged in the operation of railroads, would have naturally and reasonably anticipated, under the circumstances in evidence, your verdict will be for the defendant.
“3. The court instructs the jury, that unless you believe from the evidence that the piece of brake-shoe, by which plaintiff claims to have been struck, was a part of the train that was passing plaintiff at the time he was struck by said shoe, your verdict will be for the defendant. ’ ’

Under the facts disclosed by the record, it may be conceded, which is not, in fact, controverted by the defendant, that it is no defense to this action that plaintiff, at the time of his injury, was walking along on the roadbed of defendant. That plaintiff was tacitly a licensee, and exercising the privileges of such in using defendant’s right of way and track as a footway, is, we think, shown by the evidence, and this being the case, the question arises as to what duty defendant owed plaintiff as such licensee. Plaintiff contends that the defendant company owed a duty to the public to conduct its business in a manner safe to the public and to all persons traveling upon foot at the place where the injury occurred, because the tracks and right of way at that place had been used as footways by the public with the knowledge and tacit consent of the defendant, and that if plaintiff, while so using such tracks or right of way, was injured through the defendant company’s negligence in having and” using on a passing train, and in the operation thereof, an appliance that it knew, or by the exercise of ordinary care might have known, was defective and liable to fly off and injure persons along the route of the train, the company is liable.

In Brown v. Railroad, 50 Mo. 461, the plaintiff was injured by one of defendant’s trains while she was attempting to cross defendant’s track and right of way under the following circumstances: The plaintiff, Mrs. Brown, was in Cameron, and wanted to cross a street over which the defendant’s track was laid; but she discovered that the crossing was obstructed by a train of cars standing upon the track, so that she could not pass at that place. She then turned and crossed the track at a place where there was no public crossing, but there was a path across the track at that point which was occasionally used by the people, although it did not appear that the company had ever authorized, anybody to cross at that place. When plaintiff went on the track there was an engine and tender standing thereon about six feet distant, and while she was in the act of crossing, the engine moved and the tender struck her, the wheels passing over and crushing one of her legs. She testified that no signal was given of the moving train, and she did not notice the train, until struck by the tender. The evidence with regard to the ringing of the bell before the engine started was conflicting. The court held that though a person be injured while unlawfully on a railroad track, or contributes to his injury by his own carelessness and negligence, yet, if the injury might have been avoided by the use of ordinary care and caution by the railroad company, it is liable for damages for the injury. But in that case the injury occurred at a crossing in a town, and might have been avoided by the exercise of ordinary care on the part of the defendant’s servants in the movement and operation of the engine and train, and has no bearing on this case, so far as the cause of the alleged injury is concerned.

Lewis v. Railroad, 59 Mo. 495, was an action for damages for personal injuries sustained by a brakeman on defendant’s road, and caused by a defect in defendant’s track. It was held by tbe court that it is tbe duty of railroad companies to keep tbeir road and works and all portions of the track in such repair, and so watched and tended, as to insure the safety of all who may be lawfully upon, them, whether passengers or servants or others, and that if they fail to do so, they are guilty of a breach of duty, and liable for the consequences.. That case, like the former, differs very materially from the case at bar, and is not in point.

Another case relied upon by plaintiff is that of Hicks v. Railroad, 64 Mo. 430. In that case it was held that even supposing the child injured was a trespasser, the liability of 'the railroad company to him for injuries would not be restricted to those which were wanton, but would embrace all such as resulted from the want of ordinary care, and that the care and caution required of railroad companies in running their trains are commensurate with the danger to persons and property incident to that mode of conveyance. The plaintiff in that case was standing on the platform adjoiningthe railroad track at Lee’s Summit, when a freight train came in on the main track, and a piece of timber with which one of the cars was loaded, and which projected from twenty inches to two feet over the side of the car, struck and injured plaintiff. There is no analogy between that case and the case at bar. It is common' knowledge that a timber or other hard substance projecting some two feet from the side of a moving- railroad car endangers the safety of persons who might be standing near the track. In this case the situation is wholly different. The plaintiff was on the defendant’s right of way enjoying the privilege merely of a licensee in walking thereon, and the company owed him no other or greater duty than not to negligently or wantonly injure him. The evidence in no way shows that the injury was the result of negligence on the part of the company.

It makes no difference whether the instructions were right or wrong, if the plaintiff was not, from any point of view, entitled to recover. As was said hy Marshall, J., in speaking for the court in Moore v. Railroad, 176 Mo. l. c. 545: “If there is no evidence of a willful, reckless or wanton disregard of human life, on the part of the operatives of the train, there is nothing for a jury to pass upon, and the court should sustain a demurrer to the evidence. If, instead of so doing, the trial court submits the case to the jury and gives improper and erroneous instructions, and the jury find for the defendant, the verdict will not be disturbed, notwithstanding such misdirection, because it is in consonance with the true law, and is for the right party, and because the plaintiff would not be entitled to a verdict at all upon such a showing.” [Citing Hill v. Wilkins, 4 Mo. l. c. 88; Orth v. Dorschlein, 32 Mo. 366; Kelly v. Railroad, 88 Mo. 534; Ellerbe v. Bank, 109 Mo. 445; Homuth v. Railroad, 129 Mo. l. c. 642; Haven v. Railroad, 155 Mo. l. c. 223-224.]

The courts make a distinction between a person who comes upon a railroad’s premises at the invitation of the railroad company, or for some purpose connected with its business, and a person who goes upon such premises for his own convenience or pleasure. In the one case there is a duty to protect the person thus going upon the property of another from injury, while on his premises, while as to the other, there is no such duty. This distinction is nowhere more clearly stated than in the case of Sweeny v. Railroad, 10 Allen l. c. 372, in the language following:

“In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault, or negligence, or breach of duty, where there is no act, or service, or contract, which, a party is bound to perform or fulfill. All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered, or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been violated. Thus, a trespasser who comes on the land of another without right cannot maintain an action, if he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrongdoers. So a licensee, who enters on premises by permission only, without any enticement, allurement or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some prepar¿tion or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon.” Further on it is added: “A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner or person in possession to provide against the danger of accident. ’ ’

So in Moore v. Railroad, 84 Mo. l. c. 487, it is said:

‘ ‘ These facts would seem to bring this case within the rule founded in justice and necessity, and illustrated in many adjudged cases, that where one is not a mere licensee, but engaged with the consent of the railway company in a transaction of common interest to both, and is injured by a failure of the company to maintain its grounds and crossings and depot, in a reasonably safe condition, the railway would be liable. [Holmes v. Railroad, 4 Ex. L. R. 254; 1 Thompson on Negligence, 313; Bennett v. Railroad, 102 U. S. 577.] On the other hand, no duty is imposed by law upon the owner to keep his premises in a condition to prevent injury to those who come there solely for their own convenience or pleasure, or those who are not either expressly invited to enter,' or induced to come upon them by the purposes for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter. [Straub v. Soderer, 53 Mo. 38.] In other words, a mere passive acquiescence by an owner or occupier in a certain use of his lands by others involves no liability, but if he directly or by implication induces persons to enter on and.pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to one injured thereby. ’ ’

The same rule is announced in Morgan v. Railroad, 7 Fed. l. c. 79, wherein it is said:

“The court ruled that, inasmuch as nothing more than a mere license or permission to the plaintiff to cross where he did was shown, the defendant owed the plaintiff no duty and could not be liable for negligence. It was conceded on the argument that this ruling was correct, if the plaintiff was crossing the defendant’s premises by a license merely, and not by invitation. Indeed, the doctrine that a naked license or permission-to enter or pass over premises will not create a duty or impose an obligation on the part of the owner towards the licensee to provide against danger or accident, is so elementary that it cannot be questioned.”

The case of Sweeny v. Railroad, supra, was followed by this court in Wencker v. Railroad, 169 Mo. 592; also in Woolwine’s Admr. v. Railroad, 15 S. E. 81; Ladd v. Railroad, 119 Mass. 412; Severy v. Nickerson, 120 Mass. 307; Davis v. Central Congregational Society, 129 Mass. 371. In Cusick v. Adams, 115 N. Y. 55, the same principle is announced and stated to be of universal application.

There was no evidence whatever tending to show any negligence on the part of defendant tending to contribute to plaintiff’s injury. It was clearly an accident, a circumstance, which could not, in the very nature of things, have been anticipated by defendant, and it should not be held to respond in damages therefor. The verdict of the jury was- in consonance with the evidence and the justice and law of the case. The judgment is affirmed.

All concur.