text:
    MART A. JACKSON, Appellant, v. GRISSOM et al.
    Division One,
    May 30, 1906.
    1. ABSTRACT: Size of Type. The rules of this court require abstracts to be printed in “fair type.” That does not mean nonpareil.

      2. Confidential Relation: Fraud: Innocent Purchaser: Voluntary Conveyance: Laches. Hunt, claiming to be a lawyer and physician, sustained confidential relations with Whitwell, and secured from his wife $1,000, and from the devisees of Horner a deed to lands in Missouri and in Tennessee, under an agreement in writing that he was to hold the lands in trust to secure the repayment to her of the $1,000 after he had settled with Horner’s Tennessee heirs, who had been disinherited by the will and were contesting the same. He obtained a release from the Tennessee heirs of all claim to Horner’s lands there, and sold them for $500 and kept the money. He also obtained a release from them to the Missouri lands and dismissed the suit contesting the will, which judgment was afterwards at the suit of Horner’s devisees set aside as having been obtained through fraud and without the knowledge of the devisees, and the will established. Hunt paid nothing for the deed to him, but transferred the lands to Bedford who knew of his fraudulent schemes and shared in them, Bedford deeded them to Jackson, who also shared in Hunt’s fraudulent transactions and knew all about them, and he transferred them without consideration to his wife in 1891, while the suit in the Federal court to set aside the fraudulent judgment was still pending, and she now brings suit against the grantees of the devisees to ascertain, determine and quiet the title. Held, first, that she is not an innocent purchaser; second, that her claim is stale; and, third, that the trust deed should be dug up root and branch.
    Appeal from Stoddard Circuit Court.—Hon. J. L. Fort, Judge.
    Affirmed.

      N. A. Mosley for appellant.

      Wilson Cramer for respondents.
   LAMM, J.

—Mary A. Jackson claims to be the owner of tbe hereinafter mentioned realty, and at tbe September term, 1900, of tbe Stoddard Circuit Court, instituted a "suit against twenty-five defendants, tbe object and general nature of wbicb was to try, ascertain and determine tbe estate, title and interest of tbe plaintiff and defendants, respectively, in 213 acres of land in said county, described as follows: tbe southeast quarter of tbe northeast quarter and tbe northeast quarter of tbe southeast quarter of section 11, and tbe south half of tbe northwest quarter and tbe north half of tbe southwest quarter, and thirteen acres in the west part of the southwest quarter of tbe northeast quarter of section 12, township 28, range 10, excepting three acres situate in said northeast quarter of southwest quarter of section 11, which excepted land is described by references to conveyances therein pleaded by date and record.

Of this aggregation of defendants, only two made defense, to-wit, Milton A. Grissom and David A. Glenn, and their answer was a general denial coupled with affirmative pleas, one being that they owned the fee in the premises, another being the Statute of Limitations, and for a further defense the answer set forth a state of facts best shown by itself, as follows:

“And for another and further answer defendants' allege that plaintiff and these answering defendants claim under John II. Horner, deceased, as the common source of title; that these defendants claim under the will of said deceased, duly admitted to probate in the probate court of Stoddard county, Missouri, and by conveyances from the devisees therein, and that the pretended claim of this plaintiff is based upon an instrument of writing purporting to have been executed on the 26th day of June, 1885, by the heirs and devisees of said John II. Horner to one Andrew W. Hunt, and recorded in the land records of Stoddard county in book 8 at page 342, under and by virtue of which the said Hunt pretended to be the owner of said premises. And that these answering defendants further state that the said instrument of writing of June the 26, 1885, is without consideration and fraudulent and void, and was procured by said Hunt by -fraud, imposition and deception. That at the time of the execution thereof there was pending in the United States Circuit Court for the Eastern Division of the Eastern Judicial District of Missouri, an action brought by the heirs at law of the said John II. Horner, deceased, residing in Tennessee, against the legatees and devisees under his will, to contest said will and to have the paper purporting to be the last will and testament of said deceased declared not to be his last will and testament.
“That the said Andrew W. Hunt, who was then a practicing attorney in Stoddard county, Missouri, for the purpose of inducing said devisees and heirs of John H. Horner, deceased, to execute to him the aforesaid instrument of writing fraudulently promised and represented to them that, if they would furnish him $1,000 in money, he would go to the State of Tennessee and compromise with the Tennessee heirs of said Horner and obtain from them a deed of conveyance or release to said devisees under said will of all the property devised to them by said will and a dismissal of said will contest.
"That thereupon, in view of such undertaking of said Hunt, and relying upon his promises and representations, the mother of said devisees, Mary J. Whit-well, paid over to said Hunt the sum of $1,000 for the purpose aforesaid, and the devisees were induced by him to execute the aforesaid paper of June 26, 1885, upon the pretense and representation that the same was executed to secure the said Mary J. Whitwell for the money she had advanced.
"That the parties executing said paper had the utmost confidence in said Hunt and relied implicitly upon his statements and representations and did not know until long afterward that said Hunt pretended to claim any interest to said land by virtue of said instrument.
"And defendants further state that the said A. W. Hunt used the money so. advanced to him by the said Mary J. Whitwell in compromising with the Tennessee heirs, but instead of taking a conveyance or release to the devisees under said will, fraudulently took such conveyance to himself and placed the same of record in the land records of Stoddard county.
"And these defendants further state that the said A. W. Hunt subsequently executed a conveyance or conveyances to H. H. Bedford who thereupon executed deeds to E. J. Jackson from whom this plaintiff pretends to have acquired title.
"That the said H. H. Bedford, E. J. Jackson and this plaintiff at the time of receiving the several conveyanees under which they claimed, had full knowledge and notice of the deceit and fraud practiced by said Hunt as aforesaid, in procuring his pretended title, and that the conveyance from the said R. J. Jackson to this plaintiff, Mary A. Jackson, is a voluntary conveyance without consideration. Wherefore defendants pray judgment for all proper relief.”

To this answer, plaintiff replied by general denial.

The cause was tried in March, 1903, and the court found against plaintiff and all the defendants except David A. Glenn. As to said Glenn, it found him the owner in fee of the premises and entered its decree accordingly, from which plaintiff appealed.

This was an equity case and rule 7 of this court requires that in cases of equitable jurisdiction the whole of the evidence shall be embodied in the bill of exceptions, provided, however, that it shall be sufficient to state the legal effect of documentary evidence where there is no dispute as to the admissibility or legal effect thereof.

Appellant’s abstract somewhat violates the foregoing rule and does not comply with another rule of this court, in that, say, 54 pages of it are set in nonpareil type — a kind of type quite too small to read with either comfort or certainty with the natural eye, or by artificial aids, in daylight. With artificial light the difficulty is aggravated in the case at bar by using, instead of rough or antique finished paper, a paper known to the trade as “machine finished,” or “sized and super-calendered” paper — a glazed paper torturing to the human eye by gas or electric light and out of place in brief work.

Our rules require abstracts shall be printed in “fair type” (rule 13). The statutes, out of tenderness to the professional eye, and that of the general reader, require our reports to be published in a type equal in size to the fortieth volume of Iowa reports (R. S. 1899, sec. 1658) i. e., “long primer.” Out of tenderness to the legislative eye and to that of the general reader, the statutes require that hills, reports, communications and other legislative documents and reports he printed in “small pica.” [E. S. 1899, secs. 9015 and 9016.] Now, the type used here is five points smaller than “small pica” and four points smaller than “long primer,” nor is it “fair type” (in any fair sense), and its use seems precluded by several rules; for instance, by rule 13, supra, by the legislative rule, supra, by the rules of comity, as well as the rules of safety. Because, if its use be indulged, then, to the dangers now recognized as incident to every lawsuit there will be added an insidious and (possibly) new danger, to-wit, the danger of the judicial eye’s being unable to see (and, hence, the judicial mind’s overlooking) points made and relied on by learned counsel.

STATEMENT OF FACTS.

John H. Horner is the common source of both plaintiff’s and Glenn’s title, plaintiff claiming title through one Hunt (alleged to be grantee of the devisees under Horner’s will), and his vendees. Defendant Glenn claims title by conveyances directly from said devisees and by mesne conveyances.

Doing the best we can with the record, it may be said there was evidence tending to show that John H. Horner came to Missouri from west Tennessee, leaving his mother, brothers and sisters behind him. He was at outs with his immediate family, was unmarried, was in indifferent health, and after coming to Missouri substantially made his home tor a long time with Captain W. H. Whitwell and Mary Jane, his wife, in the town of Advance in Stoddard county. In some way, by marriage or collaterally, he was related to them, or either of them. In December, 1876, Horner sickened and died, testate, seized and possessed of several thousand dollars worth of real estate and personal property in Missouri and Tennessee, including the Stoddard county land involved in this litigation. Shortly prior to his death, he executed his last will and testament whereby he named, and substantially disinherited, his mother, brothers and sisters and left a legacy of $500 to Mary Jane Whitwell and the residue of his estate to the three youngest Whitwell children — appointing Captain Whitwell executor. This will was duly probated in common form in the probate court of Stoddard county, and possibly recorded in Tennessee. Presently after its probate, a will contest was instituted in Stoddard county and litigation pertaining to the same also instituted in Tennessee by the mother, brothers and sisters of testator. Touching the history of the Missouri wilt contest, it may be said there was a mistrial, a change of venue, a removal into the circuit court of the United States at St. Louis, and there the cause was pending in the year 1885, and was disposed of as presently shown. Early in 1885, or late in 1884, Andrew W. Hunt appeared on the stage. Precisely why he appeared is somewhat vague. He, himself, hazards two versions of it. In his answer, filed pro se in certain litigation in said Federal court, he averred the truth to be as follows: 44 That defendant ’ ’ (said Hunt) 44 was temporarily in Advance upon matters of business in no way connected with complainants or said will contest action.” On the stand, however, he said he was written to by Captain Whitwell and offered a fee of $500 and his expenses to come from Tennessee and assist as an attorney in the defense of the will in the Federal court, and came to Missouri on that errand. It seems that Captain Whitwell was a veteran Confederate soldier who lost a leg during the Civil War, and it seems that Hunt was of a musical turn and blew a horn in the service during the same war. When peace returned he straightway became a doctor, and, we infer from his evidence, a good one. Enamored presently of the law, he afterwards became a lawyer, and, we infer from his assertions preserved in the record (still blowing a horn?), a sound lawyer. Vide, the following excerpt from the record:

“Mr. Cramer: Now, if the court please, I desire to interpose an objection that he is not competent to testify in this case. Where is the statute?
“Mr. Hunt: You need not get the statute; just state what it is and I will tell you whether or not it is the law—I know the law.”

Off and on, thereafter, Dr. Hunt mixed medicine with law in his practice, or practices. When he first came to Missouri he made his home with the Whit-wells and busied himself about the will contest, and afterwards his family came and he and they continued to board with the Whitwells for a space of time without money and without price. He arrived, say, in March, and by June 26, 1885, his plans seem to have been ripe, since he drew and procured Captain and Mrs. Whitwell and the devisees and others interested under the Horner will to execute two unique instruments — unique in complications (spider webs), as well as tenor and effect. Both of these instruments were duly acknowledged and will hereinafter, for convenience, be referred to as instruments “A” and “B.” They refer to the same matter, were executed at the same time and self-evidently are part of the same arrangement.

Instrument “A” was at once placed of record in Stoddard county and is the foundation of plaintiff’s alleged title. Omitting acknowledgements and signatures, it is as follows:

“This indenture made and entered into June 26, A. D. 1885, by and between W. H. Whitwell and Mary J. Whitwell, his wife; Chase Gibbs and Elizabeth Gibbs (formerly Elizabeth Whitwell), his’wife; D. W. Eevelle and Henriette Eevelle (formerly Whitwell), his wife; Eandolph Eevelle and Josephine Eevelle (formerly Josephine Whitwell), his wife; J. F. Boss and Marsella Boss (formerly Marsella WMtwell), Ms wife; and A. Sidney WMtwell, being legatees and bnsbands and heirs of legatees of the estate of the late J. H. Horner, under his will made in Stoddard county, Missouri, December 30, 1876, to which reference is hereby had, the parties of the first part; and A. W. Hunt, the party of the second part; all of Stoddard county, Missouri,
‘£ Witnesseth, that for and in consideration of the sum of one dollar pMd unto the parties of the first part, by the'party of the second part, the receipt whereof is hereby acknowledged, the parties of thé first part have granted, bargained and sold and by these presents do grant, bargain and sell, remise, relinquish and convey unto the party of the second part, his heirs, and assigns forever, all the estate, right title, interest, claim and demand of the parties of the first part, in and to the estate of the said J. H. Horner, deceased, and to all actions, rights of actions, and all equities, law suits, cases or controversies, connected with or which relates to any and all parts of said estate and to all property in (away) whatsoever involved in any of said law suits, cases or controversies,
“To have and to hold unto the said party of the* second part, his heirs and assigns, together with all the rights, interests, claims and demands, of what nature and Mnd soever of the parties of the first part, and of either of them forever.
“On condition, nevertheless, that in the event the parties of the first part or either of them shall so elect, and do pay unto the party of the second part his heirs or assigns, within six months from the date hereof, the sum of two thousand dollars, then shall this conveyance be held void as to that part of the estate of the said J. H. Horner, as is now in the State of Missouri and at this time in the hands of the said W. H. Whitwell, his administrator with the will annexed, but shall remain in full force, even in case this condition is complied with, as to that part of said estate now in the State of Tennessee, and all property of whatsoever kind, in any and every way involved in law suits, cases or controversies, in said State of Tennessee, and the parties of the first part do hereby constitute and appoint the said party of the second part, their and each of their true and lawful attorney, irrevocable, in their name and names and in their place or places, and in their stead or steads, for the purposes aforesaid to ask, demand, sue for, attach, levy, recover and receive the interest and interests of the said parties of the first part or of either of them in said estate and to all property, of what nature or kind soever, which is in anyway connected with or involved in said law suits, cases- or controversies, giving and granting unto said attorney full power and authority to do and perform all and every act and thing, whatsoever requisite and necessary, as fully to all intents and purposes as we or either of us might or could do, if personally present with full power of substitution and revocation, whereby (hereby) ratifying and confirming all that the said attorney or his substitute or substitutes shall do or cause to be done by virtue hereof.”

Instrument “B,” as said, refers'to “A,” was executed simultaneously as part of the same arrangement, was signed by Hunt and the same parties executing “A,” was in duplicate, was not recorded, and is as follows, omitting the signatures and acknowledgments :

“Articles of agreement made and entered into this day of June, A. D. 1885, by and between W. H. Whit-well and Mary J. Whitwell, his wife; Chase Gibbs and Elizabeth Gibbs (formerly Elizabeth Whitwell), his wife; E. W. Eevelle and Henrietta Eevelle (formerly Henrietta Whitwell), his wife; Eandolph Eevelle and Josephine Eevelle (formerly Josephine Whitwell), his wife; J. F. Boss and Mo sella Boss (formerly Mosella Whitwell), his wife; and A. -Sidney Whitwell, parties of the first part, and A. W. Hunt, the party of the second part, all of the county of Stoddard and State of Missouri:
“Witnesseth, that, whereas there is a suit, case or controversy, now pending in the United States Circuit Court for the Eastern District of Missouri, wherein Mary Horner, E. Horner, L. K. Horner, Sarah Craig (formerly Sarah Horner), Elizabeth Warren (formerly Elizabeth Horner), and George Horner are plaintiffs, and W. H. Whitwell, Mary J. Whitwell, A. Sidney Whitwell, Margaret E. Whitwell and Mosella Whitwell, are defendants of record, and Elizabeth Gribbs, Henrietta Revelle and Josephine Revelle, together with their husbands on account of the death of their sister Margaret E. Whitwell, which occurred May 28, 1879, are defendants of interest, which case is by No. 2373, and conducted under the style of E. Horner et al., against W. H. Whitwell et al., the subject-matter of which ease, is the will and estate of the late J. H. Horner, who executed said will December 30, 1876, and died in Stoddard county, State of Missouri, January 2, 1877.
“And whereas, another case or cases is or are now pending in the State courts of the State of Tennessee, in Perry county, to all of which the above mentioned persons are plaintiffs and defendants either of record or of interest, as aforesaid, the subject-matter of all of which cases relate to the will and estate of the said J. H. Horner.
“And whereas, the parties of the first part herein, the defendants in said cases, either of record or of interest, as being legatees, or heirs at law of a deceased legatee of the said J. H. Horner, are desirous of having the said cases compromised or determined, or the interest of the said plaintiffs in said estate, or that part of said estate which is now in Missouri transferred to the said defendants, together with the power of attorney to W. H. Whitwell, authorizing him in their names to dismiss said case No. 2373, with costs against said plaintiffs and their security or securities. And whereas,
“Article I. Por and in consideration of the sum of five dollars paid unto the party of the second part, by the parties of the first part, the receipt whereof is hereby acknowledged and the further consideration of the covenants, grants, sales, conveyances, transfers and agreements on the part of the parties of the first part, and contained hereinafter in article (2) in these articles of agreement, and in a transfer and power of attorney this day executed and delivered unto the party of the second part by the parties of the first part, to which reference is hereby had, and which is intended as of the nature of a trust deed to secure the performance of tire undertaking of parties of the first part, and each of them herein and for other purposes, the said party of the second part covenants and agree to and with the parties of the first part, within the next six months from the date hereof, to procure a transfer of all of the interest and interests of the living plaintiffs aforesaid and that part of the estate of the late J. H. Horner as is now in the State of Missouri and in the hands of W. H. "Whitwell as his executor or administrator together with a power of attorney from the said plaintiffs executed and delivered to W. H. Whitwell authorizing him in their names to appear before the United States Circuit Court for the Eastern District of Missouri, at any practicable and proper time and dismiss said case No. 2373, and confess judgment against them and their security or securities for cost of suit.
“The said party of the second part further covenants and agrees to and with the parties of the first part, that he will hold them and each of them harmless from all further costs and lawyers’ fees in the case or cases in the State courts of the State of Tennessee; but nothing herein is to be so construed as to bind tb.© said party of the second part to pay any part of the costs, or lawyers’ fees, now accrued, or hereafter to accrue, in said' case No. 2373, or to he in any way liable for the same.
“Article II. For and in consideration of the covenants and agreements on the part of the party of the second part as hereinbefore contained in article (1) in these articles of agreement, we and each of us the said parties of the first part, do hereby grant, sell and convey unto the said party of the second, part his heirs and assigns forever all the interst and interests in that part of the estate of the said J. H. Horner which is at this time in the State of Tennessee, or in any way involved in the ease or cases in the State courts of that State, together with.all our equities, action and rights of action therein; and, further, when the covenants and agreements of the party of the second part, as contained in article (1), hereinbefore, shall have been fully performed, we the parties of the first part covenant and agree to pay unto the party of the second part, his heirs or assigns, the sum of two thousand dollars, for the payment of which, well and truly to be made we bind ourselves, our heirs, executors and administrators together with our entire estates in the estate of the J. H. Horner by said transfer and power of attorney aforesaid.
“Note I. The word (estate) is intended to comprehend property of every description.
“Note II. It is mutually understood that no part of the covenants or agreements on the part of the parties of first part are to be executed until all the covenants and agreements on the part of the party of the second part shall have been fully performed.
“Note III. It is mutually understood that the transfer and power of attorney hereinbefore referred to is intended to operate as trust deed only, so far as it relates to that part of the estate of said J. H. Horner which is now in Missouri; and the power of attorney does not confer any right on the party of the second part to determine said case No. 2373 otherwise than as contemplated herein; and in the event the said party of the second part should be unable to perform all his covenants and agreements, then said power of attorney, together with these articles of agreement, is to be held utterly void, and of no effect in law or equity.
“Note IY. There is an interlineation of the words ‘on account of the death of their sister Margaret E. Whitwell which occurred May 28, 1879,’ between the nineteenth and twentieth lines of page one (1); and of the words, ‘or that part of said estate which is now in Missouri,’ between the seventh and'eighth line of page two (2); which were made before the signing hereof. ’ ’

It seems the Whitwells reposed multiform confidences in Hunt; e. g., as doctor, as lawyer, as present guest and as old-time Tennessee friend. And it seems said devisees and legatees were unlearned — some of them, at least Mrs. Whitwell, not being able to read or write — and that they, without reading documents “A” and “B,” relied upon Hunt’s exposition of their tenor and effect.

There was evidence from which the chancellor could have found, and likely did find, that he. secured documents “A” and “B” by working on the fears of the beneficiaries under the will, causing them to believe he (Hunt), therewith could and would end all the expense and uncertainty of pending litigation and save their estate. There was substantial evidence tending to show that, immediately upon the execution of documents “A” and “B,” Mary Jane Whitwell turned over to him $1,000 in gold in a sack, the testimony showing that the gold was poured on the floor and Hunt got down on the floor and counted the money, put it in a sack and put the sack in his valise and carried it away to Tennessee to buy peace. There was also substantial evidence tending to show that the Whitwells and the devisees under the Horner will executed documents “A” and “B” on the theory outlined by Hunt to them, that the two documents would secure the mother for advancing this $1,000 in the devisees’ interest. Hunt admits the $1,000 was given him, but he says he did not take it to Tennessee. That within two or three days afterwards, at Captain Whitwell’s instance, he paid his (Whitwell’s) debts with it — thus leaving the inference open that Whitwell and Hunt conspired under cover of false pretense to get this money from Mary Jane Whitwell to loosen the Captain’s yoke of debt, then galling a bit.' But the evidence is conclusive to our minds, and doubtless was to that of the learned chancellor below, that he carried this identical money to Tennessee and there used it in making a settlement. Bn route he met an acquaintance who testified in his cause that Hunt asked him if he ever “hefted” $1,000 in "gold; and thereupon he allowed the witness to handle the valise and feel the weight of the coin.

There was also evidence showing that the devisees understood from Hunt that he was willing to take the Tennessee part of the Horner estate, estimated at considerable value, in personalty as well as realty, for his fee. On the other hand, Hunt says his understanding was that he was to get the whole Tennessee estate at all events, and also the estate in Missouri, subject, however, to the redemption of the Missouri part by paying him $2,000 in six months.

Armed with documents'“A” and “B” and with the $1,000 aforesaid, Hunt appeared in Tennessee and within a few days he got a conveyance from the Tennessee heirs to the Tennessee property and realized thereon $500 which he put (and kept) in his pocket. He also got from the Tennessee heirs the following conveyance and power of attorney, which he presently placed of record in Stoddard county, Missouri:

“This indenture, made and entered into July 7, 1885, by and between Elias Horner, Levi K. Horner, Sarah Craig, and Elizabeth Warren, the parties of the first part, and A. IV. Hunt, the party of the second part.
‘ ‘ Witnesseth, that for and in consideration of the sima of one thousand dollars paid unto the parties of the first part, by the p'arty of the second part, the receipt whereof is hereby acknowledged, the parties of the first part, and each of them, have bargained, and sold, and by these presents do grant and convey, remise, relinquish, set over, assign and transfer unto the party of the second part, his heirs and assigns forever all the right, title, interest, claim and demand, both in law and equity, and all the actions, suits, cases, controversies and equities in the estate of the late John EL Horner, who died in Stoddard county, Missouri, January 2, 1877, and to whose estate the parties of the first part or all the heirs at law and of whose estate the said Elias Horner is the administrator in the State of Tennessee.
“To have and to hold together with all the property of what nature or kind soever, interest, claim, demands, actions, rights of actions, and equities of the said parties of the first part, in and to said estate and all and everything of value connected with said estate, or suits, cases, or controversies now pending, or hereafter to be originated in any court or courts of any of the States of the United States, and in court or courts of the United States unto the party of the second part, his heirs, or assigns forever.
“And the parties of the first part and each of them do hereby appoint and constitute the party of the second part their and each of their true and lawful attorney irrevocably in their name or names, place or places, and stead or-steads for the consideration and purpose afore'said to ask, demand, sell, attach, levy, and receive the interest and interests of the parties of the first part, and each or either of them in the estate of the said John H. Horner, deceased, and to dismiss any or all suits, cases or controversies, in any and all courts at all the cost of the (of the) parties of the first part, and their security or securities which relate to the estate aforesaid or any part thereof or the subject-matter of which suit, case or controversy is an instrument of writing, dated December 30, 1876, purporting to be the last will of the said John H. Hornei*, deceased, and of which W. H. Horner of Stoddard county, Missouri, is administrator or executor and particularly and singularly is this intended to apply to cases No. 2373, in the circuit court of the United States for the eastern district of Missouri, wherein the parties of the first part are plaintiffs and said W. H. Whitwell and others claiming to be legatees and husbands and heirs of deceased legatee and defendants, giving and granting unto said attorney full power and authority to do and to perform all and every act and thing whatsoever requisite and necessary in and about the premises as fully to all intents and purposes as the parties of the first part or either of them might or could do if personally present with full power of substitution and revocation hereby ratifying and confirming all the said attorney or his substitute or substitutes shall do or cause to be done by virtue hereof.
“It is intended that this conveyance and power of attorney as hereinbefore set forth for the purpose mentioned shall fully bind such of the said parties of the first part as shall execute, subscribe and deliver the same without regard as to whether or not all of the said parties of the first part shall or shall not so subscribe, execute and deliver the same.”

The result unblushingly contemplated by Doctor Hunt, or lawyer Hunt, or both, and attained (if his theory is to be adopted) is shown by a part of his testimony on cross-examination. We take it it is to the credit of two noble professions that a like example of heartless greed in the spoliation of an estate, has not before come to the attention of this court. Here is his theory of what was to happen and what did happen:

“Q. Why didn’t you take that conveyance in Mrs. Whitwell’s name, as you stipulated here in this agreement? A. We had abandoned that.
“Q. It was a matter of indifference to you? A. Yes, sir.
“Q. You were just as willing for you to have it as her? A. No, sir.
‘ ‘ Q. This paper says that you agreed to get a deed of conveyance from the Horner heirs in Tennessee t° the widow Whitwell; now, why didn’t you do that? A. She did not want that — she abandoned that.
“Q. She wanted it for you, did she? A. She wanted me to leave the deed to her for the place on condition that she pay $2,000.
“Q. And then it appears that she paid $1,000? A. I never credited that $1,000.
“Q. Why didn’t you take the conveyance to her? A. Why, unless she paid the $2,000, she wasn’t entitled to it — we changed it.
“Q. Then it turned out you got the estate from» the Tennessee heirs? A. Yes, sir.
“Q. Eeal and personal property? A. Yes, sir.
“Q. And $1,000. of Mrs. Whitwell’s money? A. Yes, sir.
“Q. And you got all the interest of the Hornen estate in Missouri? A. Yes, sir.
“Q. Eeal and personal? A. Yes, sir.
“Q. And it did not cost you five cents? A. No1, sir; it cost me coming out here on contract of $500', and taking the liability of all costs that would have subsequently accrued in the Federal court, and all the costs of the suits out in Perry county, Tennessee — it cost me all of that.
“Q. Did you pay one cent of costs? A. No, sir.
“Q. Will you swear here that you paid one cent of costs in Tennessee on account of that litigation? A. I think I did.
“Q. Will you. swear that you paid one cent of costs in the litigation in the Federal court in this case ? A. . No, sir, I never.
“Q. Didn’t you have the suits in Tennessee dismissed at the costs of the Horners? A. Yes, sir.
“Q. And also in the Federal court of the United States at the costs of the Horner heirs? A. No, sir; I never.
“Q. You had it done? A* No, sir.
“Q. Who did? A. Major Bedford.
“Q. He was acting for you? A. No, sir.
“Q. He was acting for himself? A. Yes, sir.
“Q. Now, is it not a fact that you got the entire estate of the Horners in Tennessee, and the entire Horner estate in Missouri, and Mrs. Whitwell’s one thousand dollars, without paying out anything at all, excepting your attorney fee for coming here for Captain Whitwell? A. Yes, sir, that is it really; that is all I paid out.”

An outline of the remaining record is this: Dr. Hunt presently appeared before the attorney of record of the contestees in the Federal court, exhibited his alleged title papers and powers of attorney, from contestants and contestees, and told said attorney he held both and did not want to “weaken either title.” It also appears by inference that he showed these same documents to the resident attorney of contestants, Mr. Bedford, who about that time, or shortly thereafter, took the title to the land in suit for himself and for the benefit of Hunt. Hunt denied that he procured the dismissal of the will contest. But his conduct and the powers of attorney embodied in documents “A” and “B,” as well as in the conveyance from the Tennessee heirs, and the present dismissal of the suit in the Federal court show that such dismissal was contemplated and brought about by Hunt and Bedford, who at that time was a co-conspirator of his. The date of this dismissal we have not discovered in the record. At about this time Captain "Whitwell died, and at about this time one Joseph Howell was murdered. The Howell estate also “got into chancery,” it seems, and was beset with litigation; and Hunt during these times had a partner in the practice of the law named K., and K. became administrator of the Howell estate, as well as administrator de bonis non c. t. a. of the Horner estate after the death of the executor, Captain Whitwell. The evidence indicates that Hunt, Bedford and K., in the language of the day, “pooled their issues,” went into a partnership to handle the Howell and Horner estates, then being administered upon by one of their number — in short, forming a sort of dead man’s trust with each a finger in the pie for by-ends — each owning one-third, though the title was still left in Bedford. It seems, moreover, that deeds were made to K. for an undivided interest in both estates, but he never put them on record. Presently these men took in Thomas Howell, an heir of the Howell estate, and Bedford deeded an interest to Mm in both estates, which he thereafter re-deeded to Bedford. The evidence tends to prove that Bedford had notice of Hunt’s dealings with the devisees under Horner’s will and conveniently carried the title for the public eye, allowing Hunt and K. to remain in the background. Presently after K.’s death, they took in R. J. Jackson, another doctor, and he became a partner in this same scheme — Bedford deeding at first a two-thirds interest to him in 1889, and, finally, in 1893, conveyed to him the other third. We think there was evidence showing that Dr. Jackson, also, had notice of the secret interest of Hunt, the nature of Ms and Bedford’s title, and of the general scope and character of the scheme for exploiting these trust estates. How this astonishing and sinister partnership of lawyers, doctors and administrators was wound up does not appear.

As part of the scheme, the old suit in the Federal court was revived by Hunt and Bedford and a judgment was procured declaring the will of John H. Horner not his will. This judgment was without the knowledge and behind the backs of the devisees of said will, and it remained in existence for some time, when the devisees, becoming aware thereof, lodged their bill in equity in said court to have said judgment vacated for fraud. To this proceeding, eventually, Dr. Jackson, Dr. Hunt and Bedford, were made parties and, as we understand the record, after the taking of much testimony, which, first introduced in that case, was finally offered in the case at bar, a decree was entered setting aside the judgment entered in the Horner will case for fraud, and the will was established in solemn form as the will of John H. Homer.

While that ease was pending in the Federal court, the devisees under the Horner will instituted a suit in the State court against Hunt, Bedford and Jackson to set aside conveyance “A,” as we gather it, at least to clear up the title of the devisees to the premises in dispute. This suit was begun in 1891 and a notice of lis pendens was presently filed as provided by statute. Pending this latter suit and also pending the equity suit in the Federal court, Dr. Jackson placed the title to the land in controversy in his wife, Mary A. Jackson, and she was thereupon made a party to the equity suit in the Federal court and in the pending litigation in the State court. What became of the suit in the State court does not appear from this record, but the case in the Federal court, as we understand it, resulted, as said, in a judgment setting aside the former judgment annulling the will for fraud, and establishing the will.

Hunt, Bedford and Jackson were business associates and not only partners in this dead man’s trust, but in other matters as well. The evidence tends to show that not only Bedford, as said, but Jackson had notice and knowledge of Hunt’s scheme and were ready participants therein — in short, were all tarred with the same stick. The same evidence shows that fraud in its most repellant form leaves a trail like a serpant over this whole ease.

The testimony, furthermore, shows that the deed to Mrs. Jaekson was a mere voluntary conveyance. No money was paid. It seems that in 1894 at the time of the conveyance to his wife, Dr. Jackson’s conscience was pricked and he conveniently remembered that twenty-two years prior to that he had appropriated many thousand dollars’ worth of his wife’s property. Therefore, he says, he conveyed to her the real estate in controversy, with other lands, to wipe off this old score. , His wife held no notes, no account was kept between them, the appropriation of her estate was done with her acquiescence, she never expressed or indulged any solicitude over it, and made no demands of her husband for repayment then, or at any time. She was the passive receptacle of this tainted title — was mere clay in the hands of a potter, and that potter, her husband. Not having procured the conveyance to herself, the conclusion is irresistible that no blame is to be attached to her, her husband merely using her name, if the simile be allowed, as a harbor to escape adverse gales then blowing his treasure-ship, laden with the spoils of piracy, upon the rocks of justice.

On the issue of the Statute of Limitations the evidence is very unsatisfactory. On the other hand, evidence was introduced tending to show adverse possession since 1876 in the devisees under the Horner will; contra, there was evidence tending to show that three small parcels of the land, aggregating three acres, were deeded away by Jackson and passed off to parties who are now in possession. So, too, there was evidence 'that, first K., as administrator of the Horner estate, and then Bedford, as his successor, were in possession and collected rents for the benefit of that estate on the land in suit, at any rate, on part of it, up to the time of the final settlement of Bedford as administrator, to-wit, a few months before this suit was begun.

OPINION.

On the above record, respondent contends that no issues of law are involved and we sympathise with that view. The statement of facts would seem to carry with it and foreshadow, in this instance, the only conclusion that a court of conscience could entertain, hence, argumentation and authority are superfluous. Hunt held peculiarly confidential relations with the devisees under the Horner will. Hence, any one, charged with notice, holding under contract and conveyance “A,” carried the burden of showing it was fair. This burden was not carried successfully.

It is a far cry from what the ethics of an honorable profession will allow, to what Hunt did, as conclusively established to the chancellor below, and to this court. On the other hand, the burden was on respondent Glenn to show that Bedford and Jackson had notice of and participated in Hunt’s covinous contrivances. We think that burden was successfully carried by respondent Glenn. So, too, the burden was on respondent Glenn to show that the conveyance to appellant, Mary A. Jackson, was voluntary and was part and lot of the general scheme to defraud. We think Glenn carried that burden successfully, also.

Appellant is in a court of equity and must come with clean hands. This she does not do, under the facts disclosed. Her claim is not only stale, hut is tainted with the frauds of Hunt, shared in by Bedford and her husband. Evidently, the dangers of pending litigation caused the title to he put in her, in the vain hope, entertained by her husband, Bedford and Hunt, that she could plant herself under the folds of the flag of an innocent purchaser. An innocent purchaser she is not, as that term is recognized in equity.

If conveyance “A,” under which she holds, he considered a deed with a clause of repurchase, or a mortgage, it matters little, because its fate is inexorably sealed in equity and it must be cut up root and branch.

The decree of tbe learned chancellor, nisi, was right and is, therefore, affirmed.

Brace, P. J., and Valliant, J., concur; Graves, J., not sitting.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    LANNING v. CHICAGO GREAT WESTERN RAILWAY COMPANY et al., Appellants.
    In Banc,
    June 1, 1906.
    1. REMOVAL OF CAUSES: Diverse Citizenship: Action Against Railroad and Engineer: Federal Decisions. The plaintiff, a citizen of Misssouri, sued a railroad company, a citizen of another State, and its engineer, a citizen of this State, the cause of action being based solely on the negligence of the engineer, no concurrent negligence on the part of the company being charged, but the negligence charged against the company being the imputed negligence of the engineer. Held, that the right of the company to have said suit transferred to the Federal court has been settled adversely to the company by the decisions of the Supreme Court of the United States, holding that such an action is joint, and that the suit is not removable to the Federal court, on the motion of the company, because of the diverse citizenship of it and' plaintiff, said decisions being constructions of the Federal statute of 1901 in exactly parallel cases.
    2. NEGLIGENCE: Fellow-Servant: Engineer and Coal Chute Worker. Two employees of a railroad company who look to separate individuals as the master’s representatives for directions in their work, are not fellow-servants. A workman engaged as a part of a crew emptying ears of their coal into bins at a coal chute, and who was injured while engaged in pinching a car with a crowbar, is not a fellow-servant with the engineer on the locomotive which pushed the cars up the incline and caused them to strike against the one at which the crew was working, the crew having its own foreman, from whom plaintiff took his directions, and the engineer working under the directions of the yard-master.

      3. -: Backing Car Onto Coal Dock: Instruction. The engineer in charge of an engine in the track yards hacked cars up an incline of a coal dock, striking other cars from which plaintiff and his crew had emptied their coal into the bins, and causing them to move backward and injure plaintiff while he was using his crowbar as a prize to move said cars out of the way, and forcing said crowbar down on plaintiff’s leg. There was ample evidence that the engine bell was not rung, nor was any other warning or notice given of the engine’s approach. Held, that an instruction which permitted plaintiff to recover if the engineer caused the engine to collide with' the cars behind which plaintiff was working “without giving any warning or signal that would be reasonably calculated to notify and warn plaintiff of the approach of said engine,” was not error.
    4. -: -: -: Knowledge. Where the knowledge of the engineer that the crew to which plaintiff belonged was at work on the track was established, an instruction permitting plaintiff to recover if the engineer caused his engine to force other cars back and to collide with the one behind which plaintiff was working and forced it back over plaintiff, without notifying him by bell or signal, is not erroneous, although it says nothing about the engineer’s knowledge and although his knowledge is alleged in the petition.
    5. -: -: Beil and Whistle: Negative Proof. Where none of the crew heard the bell or other warning before the cars were made to collide with the car behind which they were rightfully working, by the backing of an engine in close proximity to them, the argument against negative testimony loses much of its force when it is shown that the foreman and other members of the crew besides plaintiff were knocked down.
    Appeal from Buchanan Circuit Court.—Eon. A. M. Woodson, Judge.
    Affirmed.

      Culver & Phillip for appellants.
    (1) The court .erred in denying the petition of defendant railway company to remove this case to the circuit court of the United States, (a) Plaintiff’s petition upon its face presented a controversy between plaintiff and the defendant railway company which was wholly separable from the controversy between plaintiff and the defendant Galiagan. The engineer is liable solely because of his personal act in doing the wrong. The defendant company is liable not because it was negligent, but because upon considerations of public policy, it is responsible for the acts of those it employs. And where, as in this case, the cause” of action alleged in a complaint against a railroad company and one of its employees is based solely on the alleged negligence of the employee, no concurrent negligence of the company being charged, the cause is removable by the company as involving a separable controversy. Helms v. Railroad, 120' Fed. 389; Warax v.Railroad,72Fed.637; Shaffer v. Union Brick Go., 128 Fed. 97; McIntyre v. Railroad, 131 Fed. 985; Sessions v. Railroad, 134 Fed. 313; Hukill v. Railroad, 72 Fed. 753; Landers v. Felton, 73 Fed. 311; Free v. Tel. Co., 122 Fed. 309; Bryce v. Railroad, 122 Fed. 709; Gustavson v. Railroad, 128 Fed. 85; Parsons v. Wincheel, 59 Mass. 592; Bailey v. Bussing, 37 Conn. 351; Campbell v. Portland Sugar Co., 62 Me. 552; Mulchev v. Methodist Religious Soc., 125 Mass. 487; 13 Enc. Plead, and Prac., 921. (b) Plaintiff and the defendant engineer were fellow-servants; so that while, at common law, the engineer was liable for the injury, the defendant railway company was not responsible. If there is any liability on its part, it is a statutory liability only. R. S. 1889, secs. 2873, 2874, 2875. And where the defendant servant is liable for the wrong complained of at common law, but the defendant railroad company’s responsibility, if any, is purely statutory, the controversy is separable. Helms v. Railroad, 120 Fed. 397; Beuttel v. Railroad, 26 Fed. 50. (c) The petition for1 removal alleged that the engineer Gahagan was fraudulently joined as a defendant in the suit in order to defeat the jurisdiction of the Federal court. If these allegations were true, the case was removable. The trial court evidently held that these allegations were subject to proof in the State court, and denied the petition because no proof was offered, though the petition was verified. In this the court erred. The rule is that the allegations of the petition must he taken as true; and if the plaintiff desires to controvert them he must do so by plea in the Federal court. Hickman v. Railroad, 151 Mo. 653; Dis-hon v. Railroad, 133 Fed. 475; Gustavson v. Railroad, 128 Fed. 88; Kelley v. Railroad, 122 Fed. 286; Durkee v. Railroad, 81 Fed. 1; Dow v. Bradstreet Co., 46 Fed. 824. (2) The court erred in giving plaintiff’s instruction 1. (a) Plaintiff and defendant Gahagan were fellow-servants. Therefore, the defendant railway company was not liable at common law for plaintiff’s injuries resulting from the negligence of Gahagan. Nor is a corporation operating a railroad liable under the “fellow-servant” statute unless the plaintiff sustained the damages “while engaged in the work of operating such railroad.” Sec. 2873, R. S. 1899. Whether plaintiff while unloading coal from cars into the bins or while “pinching” a car forward with a crowbar in order to pick up coal on the floor of the dock was “engaged in the work of operating such railroad” is a mixed question of law and fact which the jury had to determine affirmatively before the defendant railway company could be held responsible for the injuries inflicted upon plaintiff by a fellow-servant. Callahan v. Bridge Co., 170 Mo. 496. But plaintiff’s instruction 1 predicated a verdict in his favor without requiring the jury to find that plaintiff was engaged in work necessary to the operation of a railroad; and it was therefore erroneous, (b) The instruction directed a verdict for plaintiff if the engineer caused the engine to come in contact with the cars “without giving any warning or signal that would be reasonably calculated to notify and warn the plaintiff of the approach of said engine.” In view of the facts in this' case this charge was not only technically erroneous, hut very prejudicial to both defendants. There is no allegation in the petition that it was the duty of the engineer to warn plaintiff of the approach of the engine other than by blowing the whistle or ringing the bell. There is not a particle of evidence that .the engineer had any other means of warning the plaintiff, (c) The charge of negligence in the petition is that the engineer ran the engine up the incline without any warning, “well knowing, or by the exercise of reasonable care and diligence could have known, that plaintiff was working in and about said cars.” It is clear that the engineer was not negligent in failing to give warning of the approach of the engine and plaintiff was not entitled to recover unless the further fact was established that the engineer knew or by the exercise of ordinary care would have known that plaintiff was on the dock in a place of danger. And yet plaintiff’s instruction 1 permits him to recover without establishing that fact; and it was therefore erroneous. (3') The court erred in refusing to give the demurrers asked at the close of plaintiff’s evidence and at the conclusion of all the testimony. The physical fact is indisputable that an engine could not work up the incline without creating loud exhausts which necessarily continued until it reached the very top, within four or five car lengths of where the plaintiff was. The statement of plaintiff that he did not hear the exhausts of the engine is no evidence whatever that there were none, because it is common knowledge that it was a physical impossiblity for the engine to come up without the exhausts. This court has frequently ruled that there must be substantial evidence to support a verdict; that testimony which is improbable, at war with the physical facts, or contrary to human experience, is equivalent to no evidence, and a verdict based on such evidence will not be permitted to stand. Payne v. Railroad, 136 Mo. 575; Lien v. Railroad, 79 Mo. App. 475; Kelsay v. Railroad, 129 Mo. 362; State v. Detmer, 124 Mo. 435; State v. Bryan, 102 Mo. 624; Lane v. Railroad, 132 Mo. 4; Champagne v. Harney, 189 Mo. 709.

      Allen & Mayer for respondent.
    (1) Plaintiff’s petition stated a joint cause of action against both defendants, and the case was not removable to the Federal court as involving a separable controversy. Winston’s Admr. v. Railroad, 55 L. E. A. 603; Railroad v. Dixon, 179 IT. S. 131; Powers v. Railroad, 169 IT. S. 92; Railroad v. Herman, 187 IT. S. 63; Torrence v. Shedd, 144 H. S. 527; Eailroad v. Wangelin, 132 U. S. 599; Charman v. Eailroad, 105 Fed. 449; Riser v. Eailroad, 116 Fed. 215; Dougherty v. Eailroad, 122 Fed. 202. (2) Plaintiff and defendant Gahagan were not fellow-servants. “Each looked to a different individual as the master’s representative for directions in his work, and had no practical connection with the superior who guided and supervised the acts and conduct of the other.” Dixon v. Eailroad, 109 Mo. 413.
   GANTT, J.

—On April 17,1903, the plaintiff began this action in the circuit court of Buchanan county, Missouri. The petition in substance states that the defendant is a railroad'Corporation duly organized and incorporated under the laws of Minnesota and is conducting a railroad business in this State; that the defendant railroad has and owns within its railroad yards in the city of St. Joseph what is known as a coal dock. That said coal dock is a structure by which coal bins and chutes are erected and placed upon piers or trestle work about twenty feet above the surface of the ground. That approaching and extending to the surface of said bins and chutes is an elevated incline made of piers and trestle work. That bins, from one end to the other, cover a space of about one hundred feet in length. That said incline from the end of the bins to where the same reached the level of the ground is about three hundred feet; that upon the said incline and trestle work and by the side of the said coal bins, the defendant maintains a regular railroad track; that defendant by its agents and servants and by means of steam engines pushes carloads of coal up said incline and up the side of the said bins and chutes, and that there the defendant railroad company has a gang of men whose duty it is to empty the coal from said cars to said coal bins and. to work around and upon said coal dock. That just at the top of said incline track, about forty feet from said coal bins, said defendant has erected and placed a large block attached to a large hinge which fits over and upon one of the rails of said track and is used for the purpose of stopping and preventing cars that have been pushed upon said dock from running dpwn and along said incline.

It is then alleged that on December 4, 1902, the defendant’s agent and servant in charge of one of defendant’s engines had pushed three large box cars containing coal up and along said incline track and upon said dock by the side of said coal bins. Plaintiff states that at all the time complained of the defendant John H. Gahagan was the agent and servant of the defendant as a locomotive engineer and was acting in the scope of his employment and agency; that on said day while plaintiff was assisting in pushing said three large cars, which had been emptied, out of the way and along said railroad track on said dock in order to enable plaintiff and those working with him to clean up the coal that had dropped down on the floor of said dock between said cars and bins, and while plaintiff, in the exercise of due care and caution, was prizing one of the back wheels of the rear ear of said three cars with a steel crowbar in order to cause said car to move forward, said defendant, John H. G-ahagan, in charge of one of defendant’s engines, and in the course of his employment by defendant, carelessly, negligently, recklessly and wantonly, without giving any warning or ringing any bell of said engine or blowing the whistle of said engine or by any other manner or means giving any notice to plaintiff, and while knowing, or by the exercise of reasonable care and diligence conld have known, that plaintiff was working in and about said cars, directed and operated and ran said engine up and along said incline and caused it to come into violent contact and collision with said three cars, causing them to move backward and the back wheels of the rear car of said three cars to roll upon the steel crowbar that plaintiff was using, as aforesaid, and causing said crowbar to catch and clinch plaintiff’s right foot and leg between said crowbar and the iron rail of the railroad track, and thereby to crush and mangle plaintiff’s right foot and leg; that plaintiff did not know that the said defendant Gahagan in charge of said engine was approaching said cars up said incline, and from plaintiff’s position could not see or hear the approach of the said defendant Gahagan; that on account of the negligence and carelessness of the said railroad company by its .agents and servants aforesaid, and on account of the carelessness and negligence of the said agent and servant of the defendant, John H. Gahagan, plaintiff’s right foot was mangled and crushed and had to be amputated and taken off; that by reason of the injuries aforesaid, plaintiff was and is permanently injured by the loss of his right foot; that plaintiff is twenty-seven years old and was of robust health and earning $45 per month; that he has no other business or avocation; that on account of the loss of his said foot, he is incapable of earning a living and will never be able to earn a livelihood for himself; that on account of said injuries, he suffered untold and excruciating physical pain and mental agony, and on account of all the premises he .was and is damaged in the sum of twenty-five thousand dollars, for which he prays judgment.

On the second day of the May term, 1903, the defendant railroad company filed its petition to remove said cause to the United States Circuit Court within and for the St. Joseph Division of the Western District of Missouri, on the ground that the controversy in said cause was wholly between citizens of different states, the defendant company being at the time a corporation organized and existing under the laws of Illinois, and the plaintiff being at the time of the commencement of said suit a resident and citizen of the State of Missouri; that the matter and amount in dispute exceeded, exclusive of interest and costs, the sum of $2,000; that the time within which the company and its co-defendant were required by the laws of this state to answer or plead had not expired; that the controversy between plaintiff and its said co-defendant was wholly separable from the controversy between plaintiff and the defendant company and the grounds of action charged in each of said controversies are based wholly upon different facts and principles of law; that the liability of the defendant company is widely different and distinct from the liability of the defendant company’s co-defendant, the said John H. Gahagan; that the said John H. Gahagan was and is improperly and fraudulently joined with the defendant company as a defendant in said cause by reason of his citizenship in the State of Missouri, for the sole purpose of defeating the jurisdiction of the United States Circuit Court within and for said district and division thereof. Defendant at the same time tendered a bond with good and sufficient security for entering a copy of the record in said suit in the United States Circuit Court, On the hearing of said motion, it was conceded by plaintiff that the bond for removal was good and sufficient, but the court refused to grant the petition for removal and refused to order the cause removed to the Circuit Court of the United States. Afterwards on the 28th of September, 1903, the defendant filed an answer which consisted of a general denial and a plea of contributory negligence on the part of the plaintiff, and, third, an assumption of the risk of any and all injuries that might have been caused or occasioned by reason of the facts stated in the petition. The reply was a general denial of all of the new matter set out in the answer.

The cause was tried at the September term, 1903, of the circuit court of Buchanan county and resulted in a verdict for the plaintiff in the sum of five thousand dollars against both defendants. A judgment was rendered accordingly. A motion for new trial was duly filed, heard and overruled and an appeal granted to this court. Three grounds of error are assigned by the defendants for the reversal of the judgment.

I. It is first insisted that the circuit court erred in refusing to remove the ease to the Circuit Court of the United. States.

Upon this point it is insisted that the plaintiff’s petition upon its face presented a controversy between the plaintiff and the defendant railroad company, which was wholly seperable from the controversy between the plaintiff and the defendant Bahagan; that the engineer was liable solely because of his personal act in doing the wrong, and the company was liable because it was responsible for the acts of its agent, and it is earnestly urged that where, as in this case, the cause of action alleged against a railroad company and one of its employees, is based solely on the negligence of the employee, no concurrent negligence of the company being charged, that is to say, no actual negligence on the part of the company as distinguished from imputed negligence, the cause is removable from the state to the federal court under section 2 of the act of March 3,1887, as corrected August 13, 1888 (1 U. S. R. S. Supp. 611, U. S. Comp. Statutes 1901, page 509), which provides: “And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district. ’ 5 In support of this contention numerous decisions of the federal circuit courts are cited and relied upon, but in our opinion the recent decisions of the Supreme Court of the United States in the cases of Railroad v. Thompson, 26 Sup. Ct. Rep. 161, and Railroad v. Bohon, Admr., 26 Sup. Ct. Rep. 166, have foreclosed further discussion of this question on our part. This being purely a federal question, the judgment of the Supreme Court of the United States must be accepted as final. In Railroad v. Thompson, the ease reached the Supreme Court of the United states on a certificate from the United States Circuit Court of Appeals for the Sixth circuit. The Circuit Court of Appeals certified to the Supreme Court the following questions: “May a railroad company corporation be jointly sued with two of its servants, one the conductor and the other the engineer of one of its trains, when it is sought to make the corporation liable only by reason of the negligent act of its said conductor and engineer in the operation of a train under their management and control, and solely upon the ground of the responsibility of a principal for the act of his servants, though not personally present or directing, and not charged with any concurrent act of negligence V’ “Is such a suit removable by the corporation, as a separable controversy, when the amount involved exceeds $2,000, exclusive of interest and costs, and the requisite diversity of citizenship exists between the said company and the plaintiff, the citizenship of the individual defendants sued with the company as joint tortfeasors being identical with that of the plaintiff?” To these questions the Supreme Court of the United States returned the following answers: “We answer the first question: That for the purpose of determining the right of removal, the cause of action must be deemed to be joint. Tbe view herein expressed leads to an answer to the second question in the negative.” Mr Justice Day delivered the opinion of the court and made an exhaustive review of all the eases, and, among other things, said: “As shown in the opinion of the chief justice in the Dixon case, 179 U. S. 131, 45 L. Ed. 121, 21 Sup. Ct. Rep. 67, the cases are in difference as to whether a common-law action can be sustained against master and servant jointly because of the responsibility of the master for the acts of the servant in prosecuting the master’s business. In good faith, so far as appears in the record, the plaintiff sought the determination of his rights in the state court by the filing of a declaration in which he alleged a joint cause of action. Does this become a separable controversy within the meaning of the act of Congress because the plaintiff has misconceived his cause of action, and had no right to prosecute the defendants jointly? We think, in the light of the adjudications above cited from this court, it does not. Upon the face of the complaint — the only pleading filed in the case — the action is joint. It may be that the state court will hold it not to be so. It may be (which we are not called upon to decide now) that this court would so determine if the matter shall be presented in a case of which it has jurisdiction. But this does not change the character of the action which the plaintiff has seen fit to bring, nor change an alleged joint cause of action into a separable controversy for the purpose of removal. The case cannot be removed unless it is one which presents a separable controversy wholly between citizens of different states. In determining this question the law looks to the case made in the pleadings, and determines whether the state court shall be required to surrender its jurisdiction to the federal court .... The federal courts in some states hold a different rule as to the doctrine of fellow-servants from that administered in the state courts, and in other ways administer the common law according to their own views. It has not been suggested that a right or removal should arise from such differences. No more has Congress given the right where the state permits the action to be prosecuted jointly which would be held to be several only in the courts of the United States.” These decisions of the Supreme Court of the United States fully cover all the propositions as to the right of removal, which have been urged by the defendant corporation, and accordingly it must be held that the circuit court committed no error in refusing to remove the cause to the United States circuit court.

II. The next assignment of error is leveled at the first instruction which the court gave for the plaintiff. This instruction in substance required the jury to find that the plaintiff was in the employ of the defendant company, and while acting in the scope of his employment, he was engaged in prizing the rear wheel of the railway car on the coal dock in the railroad yards of the defendant, and that the defendant Gahagan was an engineer in charge of one of the defendant’s engines, and while acting in the scope of his employment as such engineer, and without any warning or signal that would be reasonably calculated to warn the plaintiff of the approach of his engine, negligently caused his engine to come in contact and collision with the cars on the dock as mentioned in the evidence and thereby caused the rear wheel of said car to run down the pinchbar in the hands of the plaintiff and thereby caused plaintiff’s right foot to be caught and pinched by the pinchbar, and plaintiff’s foot to be injured as mentioned in the evidence, then they would find for the plaintiff.

The objection to this instruction is that the plaintiff and the defendant Gahagan were fellow-servants and, therefore, the defendant was not liable for the injuries resulting from the negligence of Gahagan. The evidence ■ discloses that the plaintiff -was a member of a crew employed by the defendant to work on the dock and handle the coal. Hiram Sellers was the foreman of this crew. This crew had nothing to do with the running of the engine or trains. The defendant G-ahagan was an engineer in the employ of the company, in charge of an engine, and worked under the direction of a yardmáster by the name of Botsford. Gahagan had nothing to do. with the dock work except to push cars in on the dock and pull them out with his engine. The foreman of the dock crew had no control whatever over the movement of the company’s engines. Plaintiff and defendant Gahagan were thus employed in widely different departments, “each looked to a different individual as the master’s representative for directions in his work, and had no practical connection with the superior who guided and supervised the acts and conduct of the other. ” In Sullivan v. Railroad, 97 Mo. 113, it was held by this court that a trackwalker on the railroad is not a fellow-servant with the locomotive engineer, or fireman of a passenger train, and in Condon v. Railroad, 78 Mo. 567, it was ruled that a car-repairer at a station and a trainman were not fellow-servants within the meaning of the rule that exempts the company from liability to a servant for injuries occasioned by .the negligence of another servant. And in Hall v. Railroad, 74 Mo. 298, it was held the section foreman and switchman were not fellow-servants, and in Dickson v. Railroad, 104 Mo. 491, a. quarry laborer under orders of a foreman, who had control of the quarry and represented the company there, was not a fellow-servant with the trainmen on a passenger train. In view of these decisions we think that the workmen so distantly related to each other in the service of a common master as plaintiff and Gahagan were, were not fellow-servants within the meaning of the rule which exempts the master from liability for injuries inflicted by a fellow-servant upon a fellow-servant. It would serve no good purpose to enter upon a general discussion or attempt to enumerate the cases in which employees of a common master are held to he or not to be fellow-servants. In our opinion the reason of the rule forbids its application to the facts in this case, and we think there was no error in the giving of instruction numbered 1 for the plaintiff so far as this objection is concerned.

Nor is there any merit to the other objection to the instruction on the ground that it permitted the plaintiff to recover if the engineer caused the engine to collide with the cars under which plaintiff was working, “without giving any warning or signal that would be reasonably calculated to notify and warn the plaintiff of the approach of said engine.” There was ample evidence to the effect that the bell of the engine was not rung, nor any other warning or notice given of the approach of the engine, and the jury were fully justified in finding that the bell was not rung. On behalf of the defendants, the court instructed the jury that if the bell was rung, plaintiff could not recover. The defendants have no cause of complaint on this score.

Again, it is objected that although the petition contained the averment that the engineer “well knowing or by the exercise of reasonable care and diligence could have known that plaintiff was working in and about said cars,” yet this instruction permitted plaintiff to recover without requiring him to establish such knowledge on the part of the engineer. That the engineer did know that the crew to which plaintiff belonged worked on the dock all the time, was established by his own testimony. The instruction required the jury to find that the engineer without giving any warning or signal to notify plaintiff of the approach of his engine, negligently ran the engine in his charge so as to collide with the cars under which plaintiff was working. 'Certainly the allegation of the petition as to his knowledge of plaintiff’s presence on the dock was established and in determining whether he was guilty of negligence in causing Ms engine to collide with said cars and forcing them back over plaintiff, the jury were at liberty to consider his knowledge of the danger to plaintiff even though it was not made a condition of plaintiff’s recovery in the instruction. Under the general allegation of negligence it was entirely competent to prove such knowledge and the instruction was well enough in view of the evidence and the theory upon which both parties tried the cause.

III. Finally it is insisted that the circuit court erred in not sustaining the demurrer to the evidence at the conclusion of all the evidence.

"We deem it unnecessary to recapitulate all the testimony to demonstrate that the evidence sustained the charge of negligence on the part of the engineer in running his engine against the stationary cars behind which plaintiff was working, with his knowledge at the time, without giving plaintiff’s crew any warning of his approach. The plaintiff was not a trespasser. He was working at his usual work and place, under the direction of his foreman and along with said foreman and .the other members of his crew. That not oneofhiscrew heard the bell or any other warning is attested by the established fact that the foreman, Sollers, was knocked against the guard-rail of the chute, and Woods, another of the gang, was knocked down. That all of this crew of grown men should have neglected" a warning in such a perilous position is contrary to all human experience. They each testified they heard none and considering their proximity to the engine some one would have heard it if it had been rung. In such circumstances the argument against negative testimony loses much of its force. The suggestion that the noise made by the “exhaust” of the engine drowned the sound of the bell does not appeal with much force to us, Masmuch as the crew, none of them, heard it, and they were knocked in every direction when the engine struck the cars. Obviously the jury found the engineer did not ring the bell or give any other warning of his approach. The court was exceedingly liberal to defendants in instructions. There was no error in refusing' the demurrer to the evidence.

The judgment of the circuit court must be and is affirmed.

Brace, G. J., Burgess, Valliant, Fox. Lamm, and Graves, JJ., concur.


text:
    PHOENIX POWDER MANUFACTURING COMPANY v. WABASH RAILROAD COMPANY, Appellant.
    In Banc,
    June 1, 1906.
    1. APPELLATE JURISDICTION: Federal Question: Bona Fide in Case. The Supreme Court will look deep enough into the case to see if there was in truth any Federal question involved, and if there was not it will not entertain the appeal on that ground. An attempt to get a Federal question into the case by presuming a case within the Interstate Commerce Act will not be countenanced.
    2. -: -: -: Freight Rate: Fixed by Bill of Lading: Interstate Commerce Act. Where no freight rate is fixed verbally or in writing, and no allusion is made to a reduced rate, the shipper is not to be presumed to have known that a reduced rate was charged because the printed schedule contained a clause limiting the carrier’s liability; and in such case the question of whether or not the carrier’s liability for loss of goods shipped over the defendant’s road and transfered to a connecting road in another State, is limited because of reduced rates, cannot be brought into the case by a presumption that the shipper knew that the carrier had filed with the Interstate Commerce Commission a schedule of rates for shipments of goods to other States over defendant’s and connecting lines, knew such rates were based on a limitation of the carrier’s liability, and knew that such rates, having been approved by the commission, were unalterable. A Federal question cannot be based on any such presumption.
    Appeal from St. Louis City Circuit Court.—Ho». H. D. Wood, Judge.
    Transferred to st. lotjis court of appeals.

      Geo. S. Grover and Henry W. Blodgett for appellant.
    (1) A contract, if disaffirmed, must be disaffirmed in toto. Estes v. Reynolds, 75 Mo. 563. (2) If a shipper receives a bill of lading at the time the shipment is made and does not object to its terms, either then or at any time before it is too late to recall the property in the absence of fraud or mistake he is bound by it. Can v. Railroad, 194 U. S. 427; O’Bryan v. Kinney, 74 Mo. 125; McFadden v. Railroad, 92 Mo. 343; Railroad v. Cleary, 77 Mo. 634; Kellerman v. Railroad, 136 Mo. 177; Arthur v. Railroad, 40 Am. and Eng. R. R. Cases 127. (3) While primarily the responsibility of a common carrier is that expressed by the common law, and the shipper may insist upon such responsibility, he may consent to a limitation of it, and so long as there is no stipulation for an exemption which is not just and reasonable in the eye of the law, the responsibility may be modified by contract. It is not necessary that an alternative contract be presented to the shipper .for his choice. A bill of lading is a contract, and knowledge of its contents by the shipper will be presumed, and a provision therein against liability for damages by fire is not unjust or unreasonable. It is not necessary that there be an independent consideration apart from that expressed in the bill of lading to support a reasonable stipulation from exemption or liability. Cau v. Railroad, 194 U. S. 427. (4) While the burden may be on the carrier to show that the damage resulted from the excepted cause, after that has been shown, the burden is -on the plaintiff to show that it occurred by the carrier’s own negligence, from which it could not be exempted. Cau v. Railroad, 194 U. S. 427; Davis v. Railroad, 89 Mo. 340; Witting v. Railroad, 101 Mo. 631.

      Kinealy & Kinealy for respondent.
    (1) Appellant is liable as a common carrier for tbe loss of the goods in question since respondent did not ask or contract for any reduced rate of freight, and there is consequently no consideration for any alleged contract limiting appellant’s liability. Such a contract must be an express agreement consented to by the shipper and supported by an independent consideration. Phoenix Powder Mfg. Co. v. Railroad, 101 Mo. App. 442; Kellerman v. Railroad, 68 Mo. App. 255; Levering v. Union T. & S. Co., 42 Mo. 88. (2) There is no Federal question in this record. Appellant undertook to carry these goods to destination and is liable for their loss, as its liability was not restricted. This is the law of Missouri and the Federal interstate commerce statute in no way affects it. Western Sash & Door Co. v. Railroad, 177 Mo. 641.
   GANTT, J.

—This is an appeal from a judgment of the circuit court of the city of St. Louis, for the plaintiff, for $1,548.97.

The action was for damages to the amount of two thousand dollars for a failure to safely carry from St. Louis to Twist, Texas, eight hundred kegs of blasting powder, eighty cases of forty per cent dynamite, and two barrels of D. T. fuse, and to deliver the same to W. R. Stubbs Contracting Company in as good condition as when received by defendant.

While enroute the car in which the said powder was stored, and said powder, were destroyed by fire and was never delivered. The defendant pleaded a special written contract with plaintiff whereby in consideration of a reduced rate of freight, it undertook to transport said goods to the end of its line only, and that by said special agreement neither defendant nor any of its connecting lines should be liable for the loss of said property occasioned by fire or tbe negligence of defendant or its connecting carriers, and would not be liable for any damages to the said property after it was receipted for in good order by the next succeeding carrier, and for the same consideration it was agreed that in case of loss the value should be computed as of the time and place of shipment, and. said property should be transported at plaintiff’s risk, and that it faithfully complied with said contract and transported said property safely over its line to Kansas City, the end of its line, and there safely delivered the same to the Rock Island Railway Company and said company safely transported the said property to Bowie, Texas, and there safely delivered the same to the Fort Worth and Denver Railway Railway Company, and that while in the possession of the last-named company, at Bowie, Texas, it was accidentally destroyed by fire.

The reply was a general denial of the new matter set up in the answer, and also set up facts surrounding the destruction of the car of explosives, and upon those facts charged that the destruction of the ear was due to the negligence of the defendant. On the first trial of the case the plaintiff was nonsuited in the circuit court, and appealed to the St. Louis Court of Appeals, and the judgment was reversed and the cause remanded with a direction that the only matter to- be investigated in the ease, was the amount of the damage sustained by plaintiff. [Phoenix Powder Mfg. Co. v. Railroad, 101 Mo. App. 442.]

Upon the return of the ease to the circuit court, an amended answer was filed, which was the same as the original answer except that it contained the following allegations:

“Defendant says that in the month of March, 1901, as well as long prior thereto, a certain act of Congress of the United States, entitled, ‘An Act to Regulate Commerce,’ approved February 4, 1887, with the various amendments thereto, enacted by said Congress in the years 1888, 1889, and 1891, respectively, was in full force and controlled all shipments over the railroad of defendant from all points on its lines in Illinois and Missouri, to all points on its connecting lines in the State of Texas, and elsewhere beyond the state line of Missouri. That in due compliance with said law of the United States then and there in force as aforesaid, defendant had in March, 1901, and .still has, on file with the Interstate Commerce Commission, a body created by said act of Congress above cited, at the office of said commission in the city of Washington, D. C., its printed schedules or tariffs, showing the rates of freight then in force, for all classes of property, including live stock, from all points on its own railway in one state, to points on its own and connecting lines of railway in other states; that said schedule and tariffs were then, as now, duly printed, published and filed by defendant, in strict conformity to the said laws of the United States then in force as aforesaid. That said act of Congress of the United States, entitled, ‘An Act to Regulate Commerce,’ approved February 4, 1887, with the various amendments thereto, enacted by said Congress of the United States, in the years 1888, 1889 and 1891, respectively, were in full force and effect at said time, and are now valid statutes, duly enacted by said Congress of the United States, and that said Congress of the United States was then, as now, duly authorized and empowered to enact such laws, and that under said valid statutes of the United States said contract of shipment, as contained in the bill of lading hereinbefore set forth, supported and based upon said reduced rate as aforesaid as a consideration therefor, as hereinbefore set forth, was a valid and subsisting agreement for the transportaton of the property therein described,, between the states therein named, which could not, under the penalties then and there prescribed by said valid statutes of the United States, be departed from, varied, modified, controlled, abrogated or repudiated by either the plaintiff or the defendant herein.
“Further answering, defendant says, that any construction of said statutes of the United States, or upon said interstate contract of shipment, as aforesaid, placed upon either said statutes or said contract of shipment which would abrogate, modify or destroy said contract, as hereinbefore set forth, would be a violation of the fifth and fourteenth amendments to the Constitution of the United States, as well as of section 30 of article 2 of the Constitution of Missouri, in that such a construction by said courts of said statute, or of said contract, would deny to the defendant herein the equal protection of the laws of the United States, and also deprive the defendant herein of its property without due process of law, and also deny to the defendant herein, a right, privilege and immunity guaranteed to it by the Constitution and laws of the United States, as well as of the State of Missouri. Wherefore defendant says that plaintiff ought not to have or maintain this action, and having fully answered, prays to be discharged with its costs.”

The reply denied all new matter contained in the amended answer. Upon the trial the bill of lading was in evidence and no rate of freight was named in it and there was absolutely no pretence that the plaintiff or any agent of it and the defendant, or any of its agents, had ever agreed verbally upon a reduced rate or even discussed such a thing. There was not a word to show plaintiff knew it was to receive a reduced rate, and there was no testimony to show plaintiff was in the habit of shipping over defendant’s road. While defendant’s counsel concede this, they seek to fasten up.on plaintiff, constructive knowledge that it was to receive a reduced rate. As pithily put by Judge Goode, on the appeal in the St. Louis Court of Appeals, 101 Mo. App. l. c. 455, “Their argument runs in this wise: The contract showed on its face a limitation of defendant’s liability, which the plaintiff is presumed to have known; in consideration of this limitation a smaller freight charge was always made in accordance with a tariff of rates which had been fixed by an association of railway companies, vised by the Interstate Commerce Commission and published in a book open to the inspection of shippers; plaintiff is presumed to have known the different rates for freight of different classes when carried at the railway company’s or at the shipper’s risk, because the Interstate Commerce Commission had approved them. All this is far-fetched, and to our minds still other presumptions are required to carry knowledge to the plaintiff of the rate charged by the defendant for the shipment in controversy. Plaintiff must be presumed to have known the goods were first-class freight according to the defendant’s classification for interstate business, and presumed also to have known the defendant would charge the tariff rate for first-class freight carried at the owner’s risk and no more; would observe its schedule. We grant that plaintiff is presumed to have known the contents of the bill of lading and is bound by them, there being no evidence of deception. [Railroad v. Cleary, 77 Mo. 634; McFadden v. Railroad, 92 Mo. 343; Kellerman v. Railroad, 136 Mo. 177.] We grant also that it has been decided a shipper is presumed to know the rates fixed and approved by the Interstate Commerce Commission, and whether a rate named in a bill of lading, or agreed to verbally, is higher or lower than one published pursuant to the Interstate Commerce Act. [Gerber v. Railroad, 63 Mo. App. 145; Wyrick v. Railroad, 74 Mo. App. 406.] And if a bill of lading, without naming the rate, recites that it was a reduced one, proof may be made that the rate was less than the one charged for non-release contracts. [Duvenick v. Railroad, 57 Mo. App. 550.] But that when no rate is fixed verbally or in writing, and no allusion is made to a reduced rate, the shipper is presumed to have known a reduced one was charged because the printed receipt contained a clause limiting the carrier’s liability, has never been decided in this state or to our knowledge.” All of which we endorse. The attempt to get a Federal question into this case by presuming a case within the Interstate Commerce Act and thereby give this court jurisdiction of this appeal cannot be countenanced. We will look deep enough into the case to see if there was in truth any ground upon which this appeal should have been certified to this court, and upon such examination we are of opinion that the Interstate Commerce Act had nothing whatever to do with the case, and there is no bona-fide Federal question involved in the appeal, and this being the only possible ground upon which this court could entertain jurisdiction of the appeal, the appeal must be transferred to the St. Louis Court of Appeals, and it is so ordered.

Brace, G. J., Burgess, Valliant, Fox, Lamm and Graves, JJ., concur.