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    LITTLE et al. v. ST. LOUIS UNION TRUST COMPANY et al.; NATIONAL BANK OF COMMERCE OF ST. LOUIS, Appellant.
    Division One,
    June 19, 1906.
    1. INTERPLEADER: Equity: Right to Maintain Bill. To entitle one to maintain a bill of interpleader in equity, be must be a mere disinterested stakeholder or trustee; be must act in good . faitb, and must have a real doubt as to which of the claimants of the'fund is entitled to it.
    -: -: -: Informing Claimants: Collusion. Where a question is once raised as to which of certain claimants is entitled to a fund, if the trustee deems the question a serious one, if the facts are sufficient to cause the trustee to seriously question whether he is in duty-bound to pay the money to the one claimant or to the other, there is nothing wrong in Ms informing either claimant that such a question has arisen; and even though one of them had known nothing of the fund or his right thereto, if he was in law entitled to it, good faith required the trustee to inform him of the facts, and such action does not indicate collusion between the trustee and the person so informed, even if such person afterwards sues the trustee for the fund, and the trustee pays the fund into court, and asks that the rival claimants be compelled to interplead for it.
    3. -: Corporation: Treasury Stock: Certificate to Treasurer: Assignment: Notice: Rightful Owner. A certificate or receipt of a trust company issued to the treasurer of a corporation, for certain unissued certificates of treasury stock of the corporation, which, with all other stock of its stockholders, have been deposited with the trust company in trust in pursuance of the sale of the corporation’s assets to a purchaser and for the purpose of conveying title to the purchaser and distributing the money paid pro-rata among the stockholders, is not a negotiable instrument in the sense' of the law merchant, and, therefore, the trust company is not estopped from questioning the assignment thereof by the treasurer to a third party. Besides, when the certificate recites on its face that it is issued to the “treasurer . . . under and pursuant to the terms” of the trust agreement made by the trust company with the corporation, the assignee taking it is chargeable with notice of the contents of that agreement, and if the agreement means that the entire sum .paid is to be divided pro-rata among the bonafide holders of the stock that had been actually issued, to the exclusion of the holder of the treasury stock which was never issued, then the assignee is bound by the terms of that agreement and has no right to the fund.
    4. -: -: -: Release by Directors. A resolution of directors, reciting that a payment of a certain sum of money on each share of stock by a trustee employed to transfer the properties of the corporation to a purchaser, would be “a final liquidation of the assets” of said corporation, cannot limit the stockholders’ demands, even if complied with.
    5. -: -: -: Receipt. ’ A receipt by stockholders from the trustee authorized to transfer the corporation’s properties and receive payment therefor, in which they acknowledge payment in full and transfer their stock, does not preclude them from demanding more if more is due them.
    6. _; -: -: Majority of Stockholders. Every stockholder is free to act for himself in demanding of a trustee money received by the trustee for the assets of the corporation. The minority are not bound to concede that a certain fund received for unissued treasury stock belongs to a claimant simply because a majority do so. Besides, the relation of the majority to the other claimant is a proper subject of inquiry in determining the right of the minority to interplead for the funds.
    7. -: Doubt: Question of Law or Fact. Where there is sufficient substantial doubt or hazard of payment to justify interpleader at all, the bill will be entertained, whether the conflicting claims depend on questions of fact or questions of law.
    Appeal from St. Louis City Circuit Court. — Eon. John A. Blevins, Judge.
    Affirmed'.

      Albert N. Edwards and Geo. L. Edwards for appellant.
    (1) “It is very well settled that an interpleading suit involves two successive litigations; one between the plaintiff in the bill and the defendants, upon the question whether or not the defendants shall inter-plead; the other between the different defendants, i. e., the interpleading itself. The subjects of these two litigations are wholly separate and distinct, and, therefore, require separate and distinct allegations and proofs. In such a case the only decree that a plaintiff can have is that the defendants do interplead. When, this is obtained, the plaintiff is altogether out of the suit, leaving the interpleading defendants alone to contest their conflicting claims.” Luke, Lennon & Co. v. Duke & Wood, 93 Mo. App. 250; Roselle v. Bank, 119 Mo. 92. (2) The equitable remedy of interpleader depends upon and requires the existence of the four following elements, to-wit: “1. The same thing, debt or duty must be claimed by both or all of the parties against whom the relief is demanded; 2. All their adverse titles or claims must be dependent, or be derived from a common source; 3. The person asking the relief —the plaintiff — must not have nor claim any interest in the subject-matter; 4. He (the plaintiff) must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder.” 4 Pomeroy’s Eq. Jur. (3 Ed.), sec. 1322. (3) The applicant for interpleader “must not have lent himself in any way to further the claim of either party to the funds in controversy. Marvin v. Ellwood, 11 Paige '374. The whole theory upon which an interpleader is allowed is that the claims against the plaintiff have been made against him without his procurement (Belcher v. Smith, 9 Bing. 82) and without collusion with either claimant. ’ ’ Swain v. Bartlett, 82 Mo. App. 642. (4) “In order to justify the sustentation as such, a bill of interpleader should show that there is some doubt in point of fact to which of the rival claimants the admitted debt or duty belongs. It should show also a color of right derived from a common source in the respective claimants, but it should not show a clear title in either against the other. It should satisfy the court that the debtor is a mere stakeholder and entitled before payment to the protection of equity in enforcing a settlement of the opposing claims.” Beach’s Modern Equity Practice, see. 148; Supervisors v: Alford, 65 Miss. 63; Sullivan v. Knights of Father Matthew, 73 Mo. App. 45; Funk v. Avery, 84 Mo. App; 494; Atkinson v. Carter, 101 Mo. App. 484. (5) “ A stakeholder cannot have an interpleader when it appears that a payment of delivery to one of the claimants would have discharged him from all liability.” Maclennan on Interpleader, p. 136; Delaney v. Murphy, 24 Hun 503. (6) Because of the certificate issued by the Trust Company to W. P. Heath, and upon the faith of which the bank bought the same and invested its money, the Trust Company is now estopped to set up or claim that said stock so certified to have been deposited with it by said Heath is “dead” stock, or not lawful stock of said corporation, and that the “legal holder” of said certificate is not entitled to receive the money which it therein certifies he is entitled to receive. 1 Greenleaf on Ev. (15 Ed.), sec. 22; 11 Am. and Eng. Ency. Law (2 Ed.), 400'; Bigelow on Estoppel (5 Ed.), pp. 459 and 460; Ewart on Estoppel (.1900), p: 340. (7) “A fact agreed or assumed to be true as the basis of a contract must be taken to be true specifically until .the contract itself is lawfully impeached by plaintiff or defendant, or until some legal proceeding is taken to impeach the truth of the supposed fact, assuming that the contract itself is not contrary to law. In other words, supposing the contract to be lawful and binding, the party or parties (it may be one or it may be all) pledging or justly assuming the fact in question will be estopped from taking any position to the detriment of other parties inconsistent with the special fact except for the purpose of reforming the language of a written contract and making it conform to the real'terms of the agreement.” Bigelow on Estoppel (5 Ed.), pp. 459, 460; 11 Am. and Eng. Ency. Law (2 Ed.), 400; 1 Gréenl. Ev. (15 Ed.), sec. 22; 2 Ency. PL and Pr., 459; Maclennan on Interp., pp. 148-154.

      George H. Williams for respondents.
    (1) “When it appears that there are conflicting claims to a sum of money owing by the debtor (to two or more persons), each with a color of, - or apparent right, and the debtor, being disinterested as to the rights of either, would hazard a suit by the other if he paid to either, he may maintain a bill of interpleader. ’ ’ Roselle v. Bank, 119 Mo. 84; Hayden’s Executors v. Marmaduke, 19 Mo. 403; Keener v. Grand Lodge, 38 Mo. App. 543; Sullivan v. Knights, etc., 73 Mo. App. 43; State ex rel. v. Kumpff, 62 Mo. App. 335; 3 Pomeroy Eq. Jur., sec. 1320; Davidson v. Hough, 165 Mo. 561; Woodmen v. Wood, 100 Mo. App. 655. (2) It was not necessary for the Trust Company to decide at its peril either close questions of fact or nice questions of law, but it was sufficient if there was a reasonable doubt as to which claimant the debt belonged. Briant v. Reed, 1 McCart. (N. J. Eq.) 271; Crane v. McDonald, 118 N. T. 655; Woodmen v. Wood, 100 Mo. App. 655. (3) An estoppel against A can arise only where B, in whose favor it is sought to raise it, has acted to his prejudice upon some statement or representation of A’s. Acton v. Dooley, 74 Mo. 67; Blodgett v. Perry, 97 Mo. 263. (4) The facts are all set forth in the complaint; are admitted practically in their entirety; are fully sustained by the proof; are found by the court, and contain all essentials of a strict interpleader.
   VALLIANT, J.

This is an appeal from a decree sustaining a bill of interpleader. The plaintiffs as stockholders of the Kansas & Texas Coal Company, brought suit in behalf of themselves and all other such stockholders against the St. Louis Union Trust Company to compel payment to them of what they claim is a balance of a trust fund applicable to their stock. The defendant, The St. Louis Union Trust Company, filed a cross-bill, in the nature of a bill of interpleader, admitting the possession of the fund, but averring that other parties claimed it, adverse to the plaintiffs’ claim, making those other parties defendants to the cross-bill, praying to be allowed to pay the fund into court and be then discharged with its costs, and that the plaintiffs and the other parties named be required to interplead for the fund. Upon the filing of the cross-bill the parties therein named as claimants of the fund, among which was the National Bank of Commerce, were brought in and contested the right to an inter-pleader. The cause was heard on the pleadings and proof, and a decree in conformity with the prayer of the cross-bill requiring the parties to interplead for the fund in dispute was rendered, from which decree the National Bank of Commerce has appealed.

There is little, if any, dispute as to the facts, which are as follows:

The Kansas & Texas Coal Company, a Missouri corporation (hereinafter called the Kansas Company), owning mines and mining property, having a paid-up capital of $2,000,000' divided into 20,000 shares of stock of $100 each, par value, in 1891 increased its capital stock by adding $500,000 in 5,000 shares of $100 each. The purpose of issuing this increased stock was to obtain means to purchase other mining property, which was done. Of this 5,000 shares of increased stock 4,366 shares were purchased by the then shareholders, leaving unsold 634 shares, for which a certificate was issued to Mr. Heath as treasurer of the corporation and by him endorsed in blank and deposited in the safe deposit box of the corporation in the St. Louis Union Trust Co. where it remained until 1900', when it was cancelled and two certificates issued in its stead, one for 600 shares in the name of Mr. Hobart, who was the president of the corporation and who used it as collateral for a loan which he obtained for the corporation of $20,000, which loan was afterwards paid, the collateral redeemed and the certificate for the 600 shares was returned to the president, Mr. Hobart, who endorsed it to Mr. Heath, as treasurer, and it was redeposited in the company’s safe deposit box. In the meantime a certificate for the 34 shares had been issued in the name of Mr. Heath as treasurer, and also deposited in the company’s safe deposit box. The 5,000 shares of increased stock were carried on the books of the corporation as an asset until the sales of the 4,366 shares of the same to the then stockholders as above mentioned, after which only the 634 shares were carried on the books as the property of the corporation and so stood in 1902, when this corporation sold out to the Central Coal & Coke Company, as will be presently mentioned.

In 1902 the Central Coal & Coke Company, (hereinafter called the Central Company), proposed to the Kansas Company and its stockholders, to purchase all of the capital stock of that company, 25,000 shares, at the price of $55 a share, amounting to $1,375,000, which proposition was accepted. But when the Central Company undertook to gather the money to make the purchase it experienced a difficulty which made it necessary to alter its proposal and thereupon it proposed, instead of purchasing the stock, “to purchase all of the real and personal property of the Kansas & Texas Coal Company, including its assets of every kind, and to pay therefor one million thrée hundred and seventy-five thousand dollars.” The only difference in effect in the two proposals being, the first was for the purchase of all the capital stock, the second for the purchase of all the assets of the corporation, the price offered in both being the same. The proposition carried also the obligation of the Central Company to assume all the liabilities of the Kansas Company. This proposition was also accepted by the Kansas Company and all its shareholders.

This proposal of the Central Company to purchase the assets of the Kansas Company was in writing and it specified that the Central Company would pay the Kansas Company $1,375,000' in cash and assume all its liabilities “so that there shall remain for distribution among your stockholders said cash payment of one million three hundred and seventy-five thousand dollars. ’ ’ And it was also therein specified that the Central Company would “give such bonds of indemnity as may be deemed necessary to enable you to distribute to the stockholders of the Kansas & Texas Coal Company the entire cash payment above contemplated.”

The St. Louis Union Trust Company was selected as the medium for carrying the contract into effect. The Central Company deposited with the St. Louis Union Trust Company $1,375',000, of which $1,201,650 was in cash, and the balance in shares of stock of the Central Company, which some of the shareholders of the Kansas Company had agreed to take in lieu of cash.

A written contract was entered into between the Trust Company and the stockholders of the Kansas Company,' reciting in its preamble the contemplated purchase of the assets of the Kansas Company by the Central Company for the price named, $1,375,000, to carry which into effect it was agreed that the stockholders would deposit their stock with the Trust Company which was made their agent and authorized to vote the same and authorized to assent to any contract the officers and directors of the Kansas Company might make with the Central Company to carry the purchase into effect, provided it should yield the stockholders at least $55 a share for their stock, and secure the payment of the liabilities of the Kansas Company; it-was also agreed that the entire net proceeds of the sale received from the Central Company for the assets of the Kansas Company should be paid and distributed by the Trust Company to these stockholders according to their respective interests.

Under that contract all the stockholders of the Kansas Company deposited their respective stock holdings with the Trust Company, and each received from the Trust Company a receipt or certificate of deposit for the stock he deposited. In this receipt or certificate the contract last above mentioned was referred to and it was therein recited that the original contract between the stockholders and the Trust Company above mentioned was lodged with the Trust Company, that the holder of the receipt was a party to that contract, and the receipt or certificate concluded as follows: “The legal holder of this certificate is entitled to receive in cash the sum of fifty-five dollars per share for each and every share of stock so deposited, out of the proceeds of the sale of the assets, real estate and property of said Kansas & Texas Coal Company, as and when the same is payable under and pursuant to the terms of said agreement. This certificate is transferable only on the books of the undersigned, when properly endorsed and surrendered for that purpose.”

Stock certificates for the whole 25,000' shares of stock were thus deposited in the Trust Company, including the two certificates for the 634 shares in question which were deposited by Mr. Heath as treasurer of the Kansas Company, he stating to the Trust Company at the time that they belonged to the Kansas Company, and he received a receipt or certificate as above described in his name as treasurer. After receiving this receipt or certificate Mr. Heath by his written endorsement assigned the same to Mr. Hobart individually, and he assigned it to the National Bank of Commerce, to whom also the Central Company assigned the 634 shares of stock, and the Bank has demanded of the Trust Company payment for the stock at the sum of $55 a share, which demand the Trust Company has refused.

Pursuant to the terms of its contract the Trust-Company has paid to all of the shareholders the sum of $55 a share for their stock so as above mentioned deposited, except the bank, the holder of the receipt for the 634 shares in question, and the Trust Company still has in its keeping the sum of $34,870-, which is sufficient to pay $55- a share for those 634 shares, if it is to be so paid, or to pay an addition of $1.43 a share for the other 24,366 shares if it is to be paid on them. The whole controversy in this case is involved in the question, who is or are entitled to that balance of $34,870? The plaintiffs who are some of the stockholders have sued the Trust Company claiming that the fund belongs to the stockholders, the National Bank of Commerce claims not only that the fund belongs to it, but also that its right to the fund is so unquestionable that the Trust Company has no right to relieve itself of the responsibility involved by paying the money into court and requiring the Bank to interplead for it.

’ I. To entitle one to maintain a bill of interpleader in equity he must be a mere disinterested stakeholder or trustee; impartial in so far as his conduct may influence the judgment to be ultimately rendered between the conflicting claimants, he must act in good faith and he must have reasonable cause for a real doubt as to which of the claimants is entitled to the fund.

It is insisted in the brief for the Bank that the Trust Company has not acted in good faith, that it has instigated the stockholders to make this claim. The evidence in the case indicates that in the transactions under review the fact that there were 634 shares of stock unissued and belonging to the corporation was overlooked, at least that no express provision was made in reference to it. There was evidence to the effect that at a meeting of the directors of the Kansas Company while the subject of the sale was under discussion, Mr. Leighton, the vice-president, asked what disposition was to be made of the 634 shares of unissued stock, and Mr. Hobart, the president, replied that he had arranged to buy them from the Central Company. That is the only mention of those shares that was made during the negotiations and that is all that was said, nothing was done. The certificates for the 634 shares were deposited with the St. Louis Union Trust Company by Mr. Heath as treasurer by order of Mr. Leighton, vice-president, in the absence of the president. The $1,375,000 was deposited by the Central Company with the Trust Company on April 16, 1902. On that day some of the stockholders, among them Mr. Leighton, Mr. Davis and Mr. "West, directors of the Kansas Company, discussed among themselves the question as to the status of those shares, and the result was Mr. Leighton notified Mr. Orr, who was the trust officer of the Trust Company and had charge of the matter, not to pay anything on those shares. Mr. Orr, upon being so notified, sent for Mr. Sherwood, the attorney for the Kansas Company, and Mr. Perry, attorney for the Central Company, and discussed the matter with them. Neither of those gentlemen had heard of the matter before. Mr. Perry said he had not known that there was any unissued stock, but expressed no opinion on the legal question; Mr. Sherwood expressed the opinion that the holder of the receipt for those shares was not entitled to payment. On that day or the next, Mr. Hobart presented the receipt and demanded payment and it was refused. After the conference between Mr. Orr and the two attorneys, Mr. Orr in conversation with some of the stockholders told them of the question that had arisen, and of Mr. Sherwood’s opinion, Mr. Sherwood also spoke of it with such of the stockholders as he chanced to meet, and in that way the matter came to be discussed by the stockholders, and soon a demand was made in behalf of some of them on the Trust Company for the payment of the additional $1.43 a share, which the Trust Company refused and this suit followed.

There is nothing in the facts of this ease to indicate bad faith on the part of the Trust Company or collusion with the stockholders to bring this suit. When the question was once raised, if it was deemed by the Trust Company a serious one, if the facts were sufficient to cause the Trust Company to seriously question whether it was in duty-bound to pay the money to the holder of the receipt for the 634 shares of stock or to divide it pro rata with the other shareholders, there was nothing wrong in informing the stockholders that such a question had arisen. The Trust Company was the trustee of this money, holding it for whomsoever in law was entitled to it, and if the stockholders were in law entitled to it, good faith demanded of the trustee that they should have it, even though they had known nothing of it before and had erroneously supposed that they had already received all that they were entitled to. Indeed, if the trustee after its attention was called to the matter had withheld from the stockholders this information it would have béen an act of bad faith to them; they were entitled to know it, and it was the duty of the trustee, who was in a fiduciary relation to them as well as to Mr. Hobart or the Bank, to- give them the information.

It is said in appellant’s brief in connection with the suggestion that the suit of the stockholders was procured by collusion, that the plaintiffs in that suit consented that this decree of interpleader should be entered. The only legitimate inference that can be drawn from that fact is favorable to appellant, that is, that the plaintiffs concede to the Bank that its claim is of such a character as fairly deserves the consideration of the court; also that they concede without detriment to their own claim, that in view of the Bank’s claim the Trust Company is entitled to the judgment of the court before paying the money to either. The Bank has no cause to complain of that. J

II. The receipt or certificate issued by the Trust Company to Mr. Heath as treasurer for this stock does not estop the Trust Company from questioning the holder’s title to the same. The receipt is not commercial paper, it is not a negotiable instrument in the sense of the law merchant. It indicates on its face that the title to the stock is in the Kansas Company — not in Mr. Heath individually — therefore the mere assignment of it by Mr. Heath did not preclude the Trust Company from questioning the title of the assignee. Besides the receipt on its face says that it was issued to “W. P. Heath, Treasurer, Kansas & Texas Coal Company . . . under and pursuant to the terms of a certain trust agreement (original of which is lodged with the St. Louis Trust Company),” etc. Therefore, an assignee taking the receipt is chargeable with notice of the contents of that trust agreement, and if, as the plaintiffs, the stockholders, claim, that agreement means that the whole sum of $1,375,000' is to be divided pro rata among the bona-fide holders of the stock that had been actually issued, to the exclusion of the holder of the certificates for the 634 shares which were never issued, then the assignee is bound by the terms of that agreement and has no right to the fund in dispute. In issuing that receipt the Trust Company assumed no obligation except to carry out its obligation theretofore made in that trust agreement, and the only effect of the receipt was to show that the holder thereof was entitled to as much, if any, of the trust fund as the owner of the particular 634 shares of stock mentioned in the receipt was entitled to under the terms of that trust agreement, nothing* more.

III. It is contended that the Trust Company could have obtained an absolute discharge of its obligation by paying the fund over to the Bank, regard- ' less of the equities, for the simple reason that the Bank was the legal holder of the receipt. That is to say, although the stockholders may be entitled to this trust fund in the hands of their trustee, yet if the Bank is the legal holder of the receipt, the trustee would be discharged of its duty if it paid the money to the Bank. These stockholders have not selected this Bank for their trustee in this matter; they have chosen the Trust Company and have caused the trust fund to be put into its hands, and are now demanding that fund of their trustee, and there are but two ways in which the trustee can meet that demand, one is to pay them the money demanded, the other is to show that they are not entitled to it.

The receipt contains no promise to pay; it is only a certification by the trustee, as such, that “the legal holder of this certificate is entitled to receive in cash the sum of fify-five dollars per share for each and every share of stock so deposited, out of the proceeds of the sale of the assets, real estate and property of said Kansas & Texas Coal. Company as and when the same is payable and pursuant to tbe terms of said agreement. ’ ’ Under tbe very terms of tbe receipt, of which it claims to be the legal holder, if the Bank is entitled to the fund it is so entitled under and pursuant to the terms of that trust agreement, not otherwise.

IY. The main insistence of appellant is that its title to the fund in question is so absolutely clear that it leaves no room for a reasonable doubt, and therefore the Bank ought not to be put to the expense of interpleading.

It will be difficult to discus's this proposition without using language that might be interpreted as expressing our opinion on the Bank’s title, which we do not intend to do at this time, because that title is not before us now for judgment, and we would not say anything that might prejudice the Bank’s case when it comes to trial. What is hereinafter said under this head therefore is only intended to show that in our opinion the question of title is a serious one and the Trust Company is entitled to have it settled in a court of equity by interpleader.

After the money had been paid into the Trust Company, a meeting of the board of directors of the Kansas Company was held, at which a resolution was adopted by which the Trust Company was directed to pay the shareholders $55 a share, in which resolution was this clause: “which payment, so made by said Trust Company to holders of said stock, shall be in final liquidation of the assets of said Kansas & Texas Coal Company, and shall be accepted by said holders as such. After making such distribution said trust company shall be authorized to transfer the certificates representing the capital stock of this company to such person, or persons, as the Central Coal & Coke Company may in writing’ direct. ’ ’

And upon payment by the Trust Company to thé shareholder of the $55 per share, each'shareholder gave the Trust Company a receipt in full and authorized it to transfer the stock to such person or persons as the Central Company might direct. Appellant thinks that those documents preclude the stockholders from demanding anything more after they have received the sum specified; but can a resolution of the directors limit the stockholders in their demands, or if under the trust agreement the stockholders are entitled to more than they have received, does the fact that they have given a receipt in full preclude them from demanding their due?

It is said that only two-fifths of the stockholders are making this demand, while the balance recognize the Bank’s claim. Every stockholder is free to act for himself; therefore, because even a majority are willing to concede the Bank’s claim, the minority are not bound to do so. Besides, before we can give due weight to the opinion of the majority on such a question it would be necessary to know what relation the' complacent stockholders bear to the Bank. As a general rule men act in such matters as their interests prompt.

Up to the date of the sale of its assets of the Kansas Company to the Central Company these 634 shares of stock had never been sold, never issued; they remained the property of the Kansas Company and the certificates were held in its treasury; the title to them therefore passed with the other assets of the Kansas Com-to the Central Company, and appellant says, the Central Company having sold the stock to Mr. Hobart and he to the Bank, that is the end of the controversy. And so it would be if the controversy was over the ownership of the 634 shares of stock, but that is not the controversy; the stockholders who have brought this suit against the Trust Company are not claiming to own that stock, but are claiming what they think is their share of the money which the Central Company paid the Kansas Company for that stock. Their theory is that the $1,375,000 paid by the Central Company was the purchase money of all the assets of the Kansas Company, and that the stockholders, that is, those who own the stock that had been issued before the sale, are entitled to all that money, to be divided among them pro rata according to their stockholdings as express];/, stated in the trust agreement, that the $34,870 now in the hands of the Trust Company is the price paid to the Kansas Company by the Central Company for these 634 shares of treasury stock, just as the balance of the $1,375,000 was the price paid for the mines and other property, and that that which the Central Company is entitled to is the property which it purchased, it is not entitled to the money it paid for the same, that the Central Company if it pleases may sell to Mr. Hobart or the Bank the mines or the treasury stock or any other of the assets so purchased, but the ownership of the property so acquired would not authorize the assignee to have the property and the price paid for it also.

We cannot say that that theory is so void of reason that the Trust Company has not the right to have the courts to settle the controversy.

Appellant says that the Bank by the assignment from Mr. Hobart is a stockholder to the extent of 634 shares and entitled as such to share with the other stockholders the proceeds of the sale. But since the Bank in this instance must stand in the shoes of Mr. Hobart, and he in the shoes of the Central Company, the following questions arise: Can an assignee by his assignment acquire a greater right than the assignor had? could the Central Company who bought this asset and paid $34,870 for it retain the asset and recover back the purchase money? what right has the Central Company to the stock if it is entitled to take back the money it paid for it? and if it has no such right can it impart such right to its assignee? Again, if there had been no intervening trustee employed, if the Central Company had paid the $1,375,000 directly into the treasury of the Kansas Company and the Kansas Company had thereupon, as was the purpose of the sale, ceased business and wound up its affairs to whom would the money in the treasury belong? These questions arise when we face the proposition of the appellant that its title is too clear to admit of a doubt, and without answering them or intending to intimate any opinion on them we deem it proper to say that they are questions for the trial court to consider.

For some reason the Central Company seems to have desired to acquire all the stock of the Kansas Company and therefore in the receipt taken by the Trust Company from each stockholder on payment to him of tne $55 a share is a clause authorizing the Trust Company to transfer the stock to whomsoever the Central Company should designate, but that was not intended to authorize the Central Company or the person designated by it to withdraw from the Trust Company any of the purchase money paid by the Central Company for the assets of the Kansas Company.

Y. The remaining question in the case is, can the stakeholders or trustee maintain a bill of interpleader when the facts are practically undisputed and the only question is one of law? Appellant’s contention is that when the facts are undisputed it is the stakeholder’s duty to consult- his counsel learned in the law and decide the question of law at his peril. That doctrine in its unlimited scope would impose a very onerous burden on a stakeholder and give a very harsh force to the doctrine that every one is presumed to know the law. Courts of equity do not administer justice with so harsh a rule. A bill of interpleader is an invention of equity jurisprudence, and is designed to relieve a party who holds in trust a fund to which there are several claimants and who in good faith is in doubt, and has reasonable grounds to doubt, as to whom it should be paid. Appellant cites Sullivan v. Knights of Father Mathew, 73 Mo. App. 43, and Funk v. Avery, 84 Mo. App. 490, as holding that in order to sustain a bill of in: terpleader the doubt as to the merits of the rival claims must be founded on a question of fact as distinguished from a question of law. The language quoted from the Sullivan case is that to sustain such a bill it “should show that there is some doubt in point of fact to which of the rival claimants the admitted debt or duty belongs, ’ ’ and this is repeated in the other case. But after reading those opinions we think the court intended only to say that in point of fact the bill should show that there was doubt as to which of the rival claimants was entitled to the fund, not that the doubt should be as to the facts.

In Woodmen v. Wood, 100 Mo. App. l. c. 658, the precise question was discussed and decided; the court, per Ellison, J., said:

“It has been sometimes suggested that the doubt as to which of the claimants is entitled to the thing claimed by them must be a doubt as to the facts upon which their claims are founded and that a doubt as to the law would not justify an interpleader. A remarle in Supervisors v. Alford, 65 Miss. 63, seems to justify the suggestion. But when it is considered that the object of a bill of interpleader is to save the debtor or other party in possession of the thing claimed, from the hazard of paying to the wrong party, as well as the harassment of suits, it seems to be clear that a doubt of the law as to the opposing claims should justify a bill for an interplea as well as a doubt of fact. And so it has been decided. [Crane v. McDonald, 118 N. Y. 648.]”

In Hayden’s Exrs. v. Marmaduke, 19 Mo. 403, this court, per Gamble, J., said: “Any trustee placed in circumstances in which he may have reasonable doubt as to the proper disposition of the funds in his hands, has a right, for his own safety, to apply to a court of equity for directions, making the persons interested parties to the proceeding.”

In 5 Pomeroy Eq. Jur. (3 Ed.), sec. 40, p. 68, after stating that the rival claims must Pave some reasonable foundation so that the trustee cannot without hazard determine to which of the claimants he should pay the fund, the law-writer adds: “The plaintiff’s risk may depend up a doubtful and disputed question of law, instead of a question of fact.” The text-writer in that connection refers to Crane v. McDonald, 118 N. Y. 648, which fully sustains the text.

We hold that a bill of interpleader may be maintained not only when the conflicting claims depend on a question of fact but also when they depend on a question of law, when, as said by the New York Court in the case above cited, there is ‘ ‘ sufficient doubt and hazard to justify the protection which is afforded by the beneficent action of interpleader.”

The trial court took the right view of this case. The judgment is affirmed.

All concur, except Graves, J., not sitting.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    MARY S. HIGGINS v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant.
    Division One,
    June 19, 1906.
    1. DAMAGE STATUTE: Death Claims: Applicable to Street Railways. The damage statute (sec. 2864', R. S. 1899) giving to the widow $5,000 damages for the negligent killing of her husband, applies to street railways, whether operated by electricity or other motive power. They are “public conveyances” and they use “cars” to carry the public — things to which the statute expressly applies.
    2. NEGLIGENCE: Warning: Instruction: Uncontradicted Evidence. In a negligence suit based on the failure of the motorman of the street car to ring the bell, where there is evidence that the bell was sounded and none by plaintiff to the contrary, the court should leave negligent failure to give warning out of the instructions.

      3. -: Unlighted Car: Trolley off of Wire. The petition alleged negligent failure to have a light upon the car that struck plaintiff’s husband as he was about to cross the track, and the evidence showed that the trolley pole left the trolley wire 300 feet or more before it reached the place of the accident, and that this divested the car both of light and motive power, but the evidence does not explain how this happened to be done, or whether it was the result of the negligence of defendant’s agents operating the car, or of some independent cause. Held,, that the evidence does not sustain the allegation.
    4. -: Speed of Car: No Evidence of Surroundings. A rate of six or eight miles an hour in the early night by a street car on a public street in the midst of a great city does not indicate such negligence as will authorize the court to submit the question of excessive speed to the jury. .There must, in addition, be some evidence as to the surroundings, the amount of travel, and the character of the streets and crossings.
    6. -: Contributory: Presumption. The presumption is that the driver of a heavy wagon on a public street early in a November night, exercised due care for his own safety before attempting to cross the track, by looking and listening. But this presumption disappears in face, of the fact that he was moving facing the car for at least 133 feet before he was struck, that it could have been seen for 700 feet, that it moved 400 feet before its lights went out by the trolley pole leaving the wire, that it continued to move as a result of its own momentum, that two of his witnesses saw it, one of them at a distance of 300 feet, notwithstanding the lights were out, and, therefore, he was guilty of contributory negligence.
    Appeal from St. Louis City Circuit Court. — Now. Robert M. Foster, Judge.
    Reversed.

      Jefferson Chandler and T. M. Pierce for appellant.
    (1) The court erred in refusing to instruct the jury at the conclusion of plaintiff’s case in chief that under the pleadings and the evidence their verdict should be for defendant, and that plaintiff was not entitled to recover. The jury should have been instructed that plaintiff was not entitled to recover because the proof showed that the injury to deceased, from which he died, was brought about and occasioned by his own negligence; there was no evidence in the record that defendant was guilty of any negligence on account of which deceased was injured. Lee v. Jones, 180 Mo. 299; Nellis St. Ry., Sur. Law 391; Feary v. Railroad, 162 Mo. 75; Wynn v. Railroad, 133 N. Y. 575; Anderson v. Railroad, 30' Misc. Rep. (N. Y.) 104; Donelly v. Railroad, 109 N. Y. 16; McFarland v. Railroad, 29 Misc. Rep. (N. Y.) 128; Kelley v. Railroad, 75 Mo. 138; Carl v. Railroad, 55 Mo. 476; Maher v. Railroad, 64 Mo. 267; Powell v. Railroad, 76 Mo. 80; Payne v. Railroad, 129 MO'. 405; Prewitt v. Railroad, 134 Mo. 615; Railroad v. Beale, 73 Pa. St. 504; Donohue v. Railroad, 91 Mo. 357; Railroad v. Swanson, 57 111. App. 309; Bryant v. Railroad, 22 S. W. 797. (2) No negligence was shown on the part of defendant contributing to the injury of deceased, and the proof showed that the negligence of deceased was the direct cause of his death. Frank v. Railroad, 99 Mo. App. 331; Schmidt v. Railroad, 163 Mo. 657; Stepp v. Railroad, 85 Mo. 229; Powell v. Railroad, 76 Mo. 80; Bank v. Bank, 10 Wall. 639; Harlan v. Railroad, 64 Mo. 484; Lenix v. Railroad, 76 Mo. 86; Taylor v. Railroad, 86 Mo. .457; Yancey v. Railroad, 93 Mo. 433; Hayden v. Railroad, 124 Mo. 566; Hook v. Railroad, 162 Mo. 585; Bryant v. Railroad, 22 S. W. 799; Railroad v. Logan, 13 Lea 32; 27 Am. and Eng. Eney. Law (2 Ed.), 64; Anderson v. Railroad, 30 Misc. Rep. (N. Y.) 104. (3) It was the duty of deceased to have used all of Ms faculties before driving upon the track of the defendant, and not expose himself to danger, and this he did not do. Stepp v. Railroad, 85 Mo. 229; Powell v. Railroad, 76 Mo. 80; Harlan v. Railroad, 64 Mo. 480'; Railroad v. Beale, 73 Pa. St. 504; Donohue v. Railroad, 91 Mo. 357; Lenix v. Railroad, 76 Mo. 86; Yancey v. Railroad, 93 Mo. 433; Cagney v. Railroad, 71 Mo. 484; Nelson v. Railroad, 68 Mo. 593; Hayden v. Railroad, 124 Mo. 5.66; Hook v. Railroad, 162 Mo. 585; Anderson v. Railroad, 30 Misc. Rep. (N. Y.) 104.

      W. B. & Ford W. Thompson for respondent.
    (1) Whether or not a given rate of speed is unreasonable, and, therefore, negligent, is to be determined with reference to all the circumstances and conditions existing at the time. Van Natta v. Railroad, 133 Mo. 19; Holden v. Railroad, 177 Mo. 472; Sandifer v. Lynn, 52 Mo. App. 558; Wasson v. McCook, 80 Mr. App. 489; Urquhart v. Boutell, 15 Mo. App. 592; Montgomery v. Railroad, 181 Mo. 477; Campbell v. Railroad, 175 Mo. 161. The failure to show that appellant did not ring a bell would not constitute a variance between the allegata and the probata, since the ringing of a bell is a mere evidentiary fact of the circumstances of the case, and of the presence or absence of a reasonble warning of the car’s approach, and was not the act of negligence, upon which the petition was based, or upon which the issues were joined in the court’s charge to the jury. Kellny v. Railroad, 101 Mo. 67; Donohue v. Railroad, 91 Mo. 366; Oglesby v. Railroad, 150 Mo. 137; Price v. Railroad, 72 Mo. 414; Werner v. Railroad, 81 Mo. 368; Leslie v. Railroad, 88 Mo. 50 ; Ridenhour v. Railroad, 102 Mo. 270; Robertson v. Railroad, 152 Mo. 382; Anderson v. R. R., 161 Mo. 411. (2) 1. Where plaintiff has introduced evidence tending to show that defendant has been guilty of negligence which was the direct cause of the injury, the burden of proving that plaintiff was himself guilty of contributory negligence is upon defendant, and contributory negligence cannot be inferred from the mere fact that defendant took certain precautions, but must be established by evidence tending to show that the plaintiff was also guilty of some negligence which directly contributed to cause his injuries. Hall v. St. J. Water Co., 48 Mo. App. 356; Crumpley v. Railroad, 111 Mo. 152; Churchman v. Kansas City, 49 Mo. App. 366; Buesching v. Gas Light Co., 73 Mo. 219; Flynn v. Railroad, 78 Mo. 195; Weller v. Railroad, 164 Mo. 180; Baker v. Railroad, 147 Mo. 140; O’Connor v. Railroad, 94 Mo. 150; Petty v. Railroad, 88 Mo. 318; Richey v. Railroad, 7 Mo. App. 151; Montgomery v. Railroad, 181 Mo. 508; Riska v. Railroad, 180 Mo. 168; Campbell v. Railroad, 175 Mo. 161. 2. Under all of the decisions of this State we believe that at least three presumptions may be indulged, relative to decedent’s actions, in the absence of proof to the contrary: (a) That deceased exercised due care for his own safety before attempting’ to, and while crossing appellant’s track, and that it will be conclusively presumed, in the absence of evidence to the contrary, that he did look and listen before driving upon appellant’s track, (b) That he relied upon and was justified in relying upon the fact that appellant would comply with its duty, and that its west-bound car would give him due warning of its approach as it neared and was about to cross the public highway at Selby Place, (c) That having acted upon the investigation made by looking and listening, and having driven upon defendant’s track, the conditions which existed at the time must have justified his action, because otherwise he was not in the exercise of due care, viz: the car was either not in sight or was sufficiently far distant to reasonably justify his attempting to cross ahead of it, and he either received no warning, or if in fact he did receive a warning, received it at a time and under circumstances which reasonably justified him to attempt to cross ahead of it. Riska v. Railroad, 180 Mo. 168 ; Richey v. Railroad, 7 Mo. App. 151. (3) The only evidence which appellant introduced was the affidavit in lieu of the testimony of its motorman. This affidavit, instead of disproving appellant’s negligence, we think tended to strengthen the case already made against it, and, furthermore, tended to show that deceased was not guilty of contributory negligence. It is very loosely and indefinitely drawn and states conclusions rather than facts, and was admitted against the objection and exception of the respondent, and from it the jury might reasonably find that the motorman did not ring his bell as he approached Selby Place until he was within about twenty-five or thirty feet from the corner of Selby Place. The evidence of the motorman, as to what he saw and what took place when he was within twenty-five or thirty feet of the place of contact with the wagon, when taken in connection with plaintiff’s testimony that the lights were out for 244 feet, certainly entitled respondent to go to the jury. (4) The court very properly refused to instruct the jury, as a matter of law, under the circumstances in this case, that if decedent failed to look and listen before driving upon the track, he was ipso facto guilty of contributory negligence, in view of the fact that it was very questionable whether or not a person would have seen this car approaching, or would have heard it by listening before crossing the track, at such a time and place as the evidence shows decedent to have done. Kennayde v. Railroad, 45 Mo. 255; 2 Pattison, Missouri Digest, par. 206, p. 1749; Tabler v. Railroad, 93 Mo. 79; West v. West, 144 Mo. 119; State v. Easton, 138 Mo. 103; Em v. Rubinstein, 72 Mo. App. 337; McAtee v. Valandingham, 75 Mo. App. 45; Connolly v. Printing Co., 166 Mo.. 447; Dixon v. Atkinson, 86 Mo. App. 24; Klockenbrink v. Railroad, 81 Mo. App. 351; Holden v. Railroad, 177 Mo. 456; Campbell v. Railroad, 175 Mo1.161.
   GRAVES, J.

Action by wife for the alleged wrongful killing of her husband. Plaintiff is the widow of John Higgins, who was seriously injured at about 6:20 p. m. on the 4th day of November, 1901, by a car, operated by defendant, colliding with a wagon driven by deceased. From the injuries thus received, Higgins died some three days later. In the lower court plaintiff had judgment for $5,000 and defendant appealed; hence, .the controversy here.

Defendant is a street railway corporation and at the time was operating a donble-track railway on "Wash street in the city of St. Louis. West-bound cars ran upon the north track, and east-bound cars upon the south track. From Fourteenth street for some distance west these two tracks ran east and west. The tracks came into Wash street from the south on Fourteenth street, at the intersection of which with Wash street, the turn west was made.

The amended petition, upon which the case was tried, for grounds of negligence charges: first, an unreasonable rate of speed; second, a failure to ring the bell or sound the gong or to give warning of the approaching car; and third, a failure to display a light to warn travelers of an approaching car. The answer is first, a general denial, second, a plea of contributory negligence, and third, section 1473 of oridnance 19991, .which is as follows:

“Any person who shall in this city ride or drive any animals in any highway, thoroughfare or public place, quicker than or beyond a moderate gait, or shall ride or drive any such animals so as to cause such animal or vehicle attached thereto to come into collision with or strike any object or person, shall be deemed guilty of a misdemeanor.”

The reply was a general denial of all new matter set up in the answer.

The evidence

The undisputed evidence shows that defendant’s double track comes in from the south on Fourteenth street and turns west on Wash street; that Fourteenth street is sixty feet in width; that from Fourteenth street to Fifteenth street is 376 feet; that Fifteenth street is sixty feet in width; that from Fifteenth street to Sixteenth street is 376 feet; that Sixteenth street is sixty feet in width; that from Sixteenth street to Seventeenth street is 376 feet; and that Seventeenth street is sixty feet in width; that Fifteenth street as it comes

from the south into Wash street, comes to Wash street, hut proceeds no further; that at this point it meets what is known as Carr Park, or City Block 1176, which is on the north side of Wash street; Carr Park from building line on east to building line on west is 356 feet as it faces south upon Wash street, from curb to curb it is 372 feet; to the east of Carr Park is Atchison Place, 60' feet wide, and to the west is Selby Place, sixty feet wide; both Atchison Place and Selby Place are streets or avenues coming from the north of Wash street, but having their southern terminus in Wash street; the point of the accident is a trolley pole fifty-nine feet west of Selby Place; from building line to building line from Fourteenth street to Atchison Place is 160 feet; that the point of accident is 725 feet west of the center of Fourteenth street and 131 feet east of the middle of Sixteenth street, and 567 feet west of the middle of Seventeenth street; there were no lights at either the intersections of Atchison Place or Selby Place, but there were lights (city lights) at Fifteenth and Sixteenth street; that the night was dark and it was dark at the time of the accident; that the lights on the car went out at Fifteenth street.

The foregoing facts stand undisputed, in the evidence, although in the petition, the question of darkness might be questioned from the allegations.

A plat of the situation was in evidence and for the information contained we incorporate it as a part of this statement.

Passing these undisputed facts, the testimony for plaintiff, which is practically undisputed except as hereinafter noted, shows that she is the widow of John Higgins, deceased. That Higgins died November 7, 1901, from injuries received November 4, previous, by colliding with a car upon defendant’s road; that the speed of the car was from six to 8 miles per hour; that the car did not stop at Atchison Place;, that deceased was driving a heavy single horse wagon toward the east and just before the accident attempted to cross with the same over the north track of defendant’s street railway, at or near a trolley pole fifty-nine feet to the west of Selby Place, as if to go into Selby Place; that in so doing his wagon was struck by a west-bound car and the deceased injured with results as above; that the car struck the front end of the wagon; that when the car stopped the rear platform was about two or three feet from Higgins, after the accident; that deceased was an old driver and familiar with the surroundings of the situs of the accident; that just before the collision deceased hollowed, “For God’s sake stop that car;” that the approaching car was seen by the only eye-witness to the accident, Frank J. Rogers, who says the motorman was trying to stop the car when he looked; that the dim outline of the car was seen by another witness who had crossed over just ahead of this car and hearing the crash looked to the west and saw the dim outline of the car; this witness was at the middle of Carr Park, or about 300 feet from the car at that time; that the lights in the car went out because of the trolley pole leaving the wire, which the conductor immediately attempted to adjust, by taking hold of the rope on the trolley pole. These facts appear from plaintiff’s testimony.

The defendant introduced the ordinance pleaded in its answer hereinabove set out, and in addition the statement of the motorman, as follows:

‘ ‘ That he was the motorman on west-bound car No. 143, on the 4th day of November, 1901, and was proceeding west, when he received a bell to stop at Sixteenth street. That he rang his bell as he approached Selby Place, which runs north from Wash street, a short distance east of Sixteenth street; that when within about twenty-five or thirty feet from the comer of Selby Place while the car was running about six or éight miles an hour, the flow of electricity in the trolley wire was interrupted and failed, and said ear was for a few seconds left without light or power, except its own momentum. That about this time a wagon, coming from the south and moving diagonally southeast, suddenly appeared across the west-bound track, a few feet in front of said west-bound car; that the said motorman made every effort to stop the car as soon as he saw thewagon but was unable to stop it, only after it struck the wagon, at about the front wheel, and had pushed the wagon in front of the car for a few feet. That about the time said horse and wagon was drawn into and across said west-bound track, the said west-bound car was without power and could not be reversed, and could not be stopped with the appliance at hand before it struck the said wagon.”

This was all the evidence for the defendant. The contentions go chieflly to the giving and refusing of instructions, and in addition that section 2864, Eevised Statutes 1899, does not apply to street railways. These will be noticed in the course of the opinion in so far as it is necessary.

I. At the threshold of this case we are met with the statement and contention upon the part of defendant that section 2864, the section under which this action is brought, does not apply to street railroads. At some time the question must be squarely met, notwithstanding the amendment of 1905, and it might as well be here as later.

The statute provides: “Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee whilst running, conducting or managing any locomotive, car or train of cars, or of any master, pilot, agent or employee whilst running, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stage coach or other public conveyance whilst in charge of the same as driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or any steamboat, or the machinery thereof, or in any stage coach or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employee, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, .stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskillfulness, negligence or criminal intent above declared, shall forfeit and pay- for every person or passenger so dying, the sum of five thousand dollars.”

To our mind the purpose of this statute was to allow damages for the negligent acts of the servantsmanaging, running and controlling public conveyances. These conveyances may be such as are composed of steam engines and cars; they may be cars propelled by horse power; they may be cars propelled by electricity; they may be coaches propelled by horse power; they may be coaches propelled by steam or other power, as the automobile, so they be public conveyances. The statute uses the term ‘ ‘ or any other public conveyance. ’ ’ But we need not go even thus far. The statute says, “whilst running, conducting or managing any locomotive, car or train of cars.” Notice the punctuation and connectives; analyze the sentence, supplying the omitted'words and we have, (1) “Whilst running, conducting or managing any locomotive; (2) “Whilst running, conducting or managing any car;” (3) “Whilst running, conducting or managing any train of cars.” The motive power used in the locomotive is not limited to steam, nor is the method of running the car, or train of cars, limited to any particular means or motive power. It was no doubt couched in these general terms, when originally enacted, in view of onr American progressiveness.

If we are to construe the statute otherwise, we would have a singular situation. There is no question that a street car is a public conveyance. If we attach horses thereto and put on a driver, under another clause of the statute, we would have liability of the company, but according to contention of counsel for defendant, no liability, if we changed the propelling power to electricity. In other words, we would have street railway companies liable at times and not liable at other times, if they changed their motive power. In our judgment the statute was intended to apply to public conveyances of whatever kind, as first hereinabove stated.

The Bench and Bar of the State have proceeded upon that theory for these many years, and it remained for the act of 1905 to suggest to lawyers, for the first time, that street railways were not within the purview of the statute.

This act of 1905' brings about several radical changes in the statute, amongothers streetcars are specifically mentioned, but it does not necessarily follow from this fact that the statute was not previously broad enough to cover such public conveyances. This change might have been suggested to the legislative mind by the suggestion made by Valliant, J., in Drolshagen v. Railroad, 186 Mo. 258, decided December 22, 1904, the motion for rehearing being decided February 15', 1905, while the Legislature was in session. However, in that case Judge Valliant was “better satisfied” to leave the judgment rest upon another and different proposition, and we think that to conclude that he intended to hold section 2864 as not applicable to street railways a misconception of his opinion.

That our Bench and Bar has proceeded upon the theory that this statute applied to street railways, is evidenced by the number of cases brought and determined without the question being raised, which, to say the least, is very persuasive authority of the construction to be given to this statute. [Liddy v. Railroad, 40 Mo. l. c. 518; O’Flaherty v. Railroad, 45 Mo. l. c. 71; Farris v. Railroad, 80 Mo. l. c. 330; Werner v. Railroad; 81 Mo. l. c. 370; Welsh v. Railroad, 81 Mo. l. c. 468; Lynch v. Railroad, 112 Mo. l. c. 441; Riska v. Railroad, 180 Mo. l. c. 184; Meeker v. Railroad, 178 Mo. 173; Schmidt v. Railroad, 163 Mo. 645.]

The above are some of the cases wherein verdicts for $5,000 were sustained by this court, and wherein instructions were approved making street railways amenable to the death penalty clause of section 2864.

In the Lynch case, supra, Gantt, J., expressly passes upon the question in this language: “That street railways come within the scope of section 4425,we think clear.” Section 2864 was section 4425 in Revised Statutes of 1889.

On the other hand, it can be argued that by reason of the act of 1905, the Legislature has construed the former statute not to cover street railways. This action of the lawmaking power can as reasonably be construed to mean that whilst they had no doubt of the construction to be given the statute, yet to obviate the misconceived doubt thrown thereon by the misunderstood remarks in the Drolshagen case, they would make “assurance doubly sure” by incorporating the matter in express terms. The date of the opinion and the date of the act would lend support to this view. There was evidently a misunderstanding of Judge Yalliant’s remarks. .

But, however this may be, we think the statute upon its face is in language broad enough to make street cars and street railways amenable thereto.

II. We next confront the demurrer to plaintiff’s testimony, offered at the close of all the evidence in the case, which in our judgment presents the serious question in this case. The trial court by instruction left out of the case the alleged negligent failure of the defendant to give warning, and properly so, because there was evidence showing that the hell or gong was sounded, and no evidence introduced by plaintiff showing that it had not been sounded. This leaves two grounds of alleged negligence, to-wit: the failure to have a light upon the car, and the alleged unlawful speed of. the car. In passing upon this demurrer it becomes necessary not only to look into these two alleged acts of negligence, hut likewise the alleged contributory negligence of deceased.

1. The evidence shows that the light upon the car went out at Fifteenth street, by the trolley pole leaving the trolley wire, by which the car was divested both of light and motive power. How this happened to he done is not explained by the evidence. Whether this failure to have the light was the negligence of defendant’s agents whilst running, conducting or managing the car, or of some independent cause is not made to appear from the evidence. All that does appear is that the trolley pole left the trolley wire and that the conductor immediately tried to replace' it. We conclude, therefore, that there was no sufficient evidence to sustain this ground of alleged negligence.

2. The evidence does show that the lights went out at Fifteenth steet; that the car was running from six to eight miles an hour and continued so to run with the lights out, hut with the failure of the lights, the power to stop the car also failed. It is contended that under these circumstances the rate of speed was negligence. The rate of speed in so far as the petition and evidence shows was not in violation of any ordinance or law, in fact, no ordinance negligence is pleaded, the plaintiff relying upon common law negligence.

There can he no doubt that there are circumstances under which a speed of six to eight miles an hour would he negligence, hut the question is whether or not a state of facts has been shown in this case which would authorize a court to submit this rate of speed as a matter of negligence for the determination of the jury. The only thing in the entire record concerning the character of the place of the accident is that these streets are public streets. There is no evidence as to the amount of travel upon these streets or at these street crossings. As was well said by Burgess, J., in Van Natta v. Railroad, 133 Mo. l. c. 19: “What constitutes negligence in any given case must necessarily depend upon the facts connected with the accident which is claimed to have been occasioned thereby, and the place where it occurred. What would be a negligent rate of speed for an electric street ear in one locality, would not necessarily be so in another part of the same city or the same street. ’5

In this case the crossing at Selby Place and even at the other streets indicated in the evidence mighthave been crossings and places where there was little or no travel, and where no one lived or did business and where the agents of the railway company would little expect either persons or vehicles to be upon the tracks. This court can’t conclude'that, because the streets and crossings mentioned are within the corporate limits of a large city, they were such as would require a reduced rate of speed in approaching them even without lights upon a car. There should have been some evidence as to the character of these streets and crossings more than the mere bit of evidence found in this record. We therefore conclude that negligence upon this point was not sufficiently shown.

3. The next is the alleged contributory negligence of deceased. It stands' undisputed that the light upon this car was burning until it got within 330 feet of the place of accident; it is alleged in the petition and in a way shown by the evidence that plaintiff was driving eastward on the south side of Wash street, and would therefore be facing the approaching car; that the car ran 400 feet or nearly so from Fourteenth street to Fifteenth street with the lights on; plaintiff was evidently facing this car and by the exercise of care conld have known of the approach thereof and could even have known of the fact that these lights went out at Fifteenth street; the closest point at which deceased could have come into Wash street was at Sixteenth street, a distance of 130 feet from the point of accident; as to where he did come into this street is not shown by the testimony; it further appears that both of the witnesses for the plaintiff, who were not on the ear, were able, notwithstanding the absence of lights on the car, to see the car, one of them at a distance of 300 feet. What they did, deceased, by the exercise of ordinary care and caution, could have done. There is no direct evidence as to what he did or did not do before attempting to cross this track, and as was said in the course of the oral argument, “The plaintiff’s case rests •largely in the bosom of a family of friendly presumptions ; ” that it will be presumed that deceased exercised due care for his own safety before attempting to cross the track, by looking and listening; that it will be presumed that the defendant would comply with its duty by giving due warning of the approach of its car and that deceased relied upon this fact; that it will be presumed that he, deceased, was reasonably justified in attempting to cross the track ahead of the car, having looked and listened, as in the previous . presumption stated.

We are not desirous of taking from deceased any of the presumptions to which he is entitled, and we are not saying that he was not, as a matter of law, entitled to all claimed for him by counsel for plaintiff. Presumptions, however, vanish upon the appearance of testimony and upon the appearance of facts and circumstances which would show that the presumptions ought not to be indulged. The basic presumption in this case is that deceased exercised due care for his own safety before attempting to cross the track by looking and listening. Should this presumption be indulged in the light of the testimony? In other words, had he looked, could he not have seen the car as did the witnesses? Had he listened, couldn’t he have heard the coming ear? There are no circumstances showing any obstructions to the view save and except the darkness of a November evening at 6:20 p. m., described in plaintiff’s petition as, “nightfall fast settling down upon the highways.” There is nothing in the evidence tending to show any obstacle as to his hearing the approaching car, save and except the movement of his own wagon. The evidence shows a light at Fifteenth street and one at Sixteenth street, the one about 300 feet and the other about. 130 feet from the place of accident. It is true the character of these lights is not shown by the record, a thing which ought to have been shown, not only for the enlightenment of the jury but for the enlightenment of this court. Under these facts we are inclined to the view that the contributory negligence of the deceased is sufficient to defeat this action. The demurrer to the evidence should have been sustained.

In our judgment, we think this case should be reversed, not only upon the ground of contributory negligence of deceased, but upon the failure of the record to disclose such facts as would show the alleged negligence of the defendant as pleaded in the petition.

Cause reversed.

Brace, G. J., and Valliant, J., concur m toto; Lamm, J., concurs in all except the remarks as to the contributory negligence of deceased.


author: VALLIANT, J.

text:
    GILPIN v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.
    Division One,
    June 19, 1906.
    1. STOCK ON RAILROAD: No Cattle-Guard: Liability: Exception. . Under the statute (sec. 1106, R. S. 1899) giving to the owner damages for stock which go onto a railroad not “inclosed by a good fence” and are injured, no liability attaches to the railroad company for failure to put a cattle-guard at the place where the stock enters if to do so would endanger the lives or limbs of the company’s employees. No such express exception is written in the statute, but to construe it otherwise would make its meaning unnatural.
    2. -: -: -: Uncontradicted Evidence. And where the evidence was uncontradicted that a cattle-guard at the crossing where the horse sued for entered upon the track would have endangered the lives of the railroad’s employees operating the switches at that point, a judgment for plaintiff cannot stand.
    3. -: -: -: Prima-Facie Case: Exception: Burden. The owner of a horse which went onto a railroad track and was killed, makes out a prima-facie case of negligence on the part of the railroad by showing that there was no cattle-guard at the crossing where the horse entered upon the track, and because of that fact the horse got on the track and was killed. And if his evidence stops there, he has made out a prima-facie case, which casts the burden on the railroad company to show that a cattle-guard could not have been maintained there without imperiling the lives of railroad employees whose business required them to walk over it. But if, in order to show the condition of the crossing at the particular place, it becomes necessary for plaintiff to show the whole condition and in doing so he shows a condition which speaks for itself and suggests a question of whether or not- a cattle-guard could be maintained at the place without endangering the lives of the company’s employees whose business in operating trains compelled them to pass over it, the burden is not cast upon defendant, but plaintiff, under such circumstances, is not entitled to ask the jury for a verdict until he has shown by some explanatory evidence that a cattle-guard could have been maintained there without imperiling the lives and limbs of the railroad employees.

      4. -: -: Expert Testimony. Expert testimony is not necessary to show that a cattle-guard in a switch-yard will endanger the lives of railroad employees engaged in operating trains there.
    Transferred from Kansas City Court of Appeals.
    Reversed.

      Geo. P. B. Jackson for appellant.
    (1) The court erred in permitting plaintiff and witness Cox to testify in rebuttal. The inquiry did not cover the whole situation, and the witnesses, by their own testimony, showed that they were not qualified to speak on the subject. (2) The court erred in giving plaintiff’s first instruction. There was no evidence to warrant it; it did not present the question fully and fairly to the jury with reference to the locality of and danger to defendant’s employees. It made defendant’s duty as to fencing depend upon absolute necessity, and not upon the exercise of reasonable care for the safety of its employees. Pearson v. Railroad, 33 Mo. App. 543; Jennings v. Railroad, 37 Mo. App. 652; Crenshaw v. Railroad, 54 Mo. App. 233; Grant v. Railroad, 56 Mo. App. 65; Webster v. Railroad, 57 Mo. App. 451; Plurd v. Chappell, 91 Mo. App. 317. (3) The court erred in refusing’ to give the instructions as prayed by defendant. They were in accord with the decisions on the subject, and correctly stated the rights and duties of the parties in the premises. Cases cited under point 2; Lewis v. Railroad, 59 Mo. 495; Morris v. Railroad, 58 Mo. 78.

      E. W. Hinton, Webster Gordon and N. T. Gentry for respondent.
    (1) Plaintiff made a prima-facie case when he proved that the animals came on the right of way and tracks at a point where they were unfenced, scared by a passing train and caused to run into a bridge and killed. Perkins v. Railroad, 103 Mo. 52; Briggs v. Railroad, 11 Mo. 175 ; Kauffman v. Railroad, 67 Mo. App. 156; Fullerton v. Railroad, 84 Mo. App. 498; Knoche v. Railroad, 86 Mo. App. 572. The burden of proof, that is, the burden of ultimately establishing the fact, was then cast on the defendant to show that a sufficient cause existed for leaving the right of way and tracks unfenced at that point. Cox v. Railroad, 128 Mo. 371; Ellis v. Railroad, 89 Mo. App. 241; Riley v. Railroad, 89 Mo. App. 375; Glasscock v. Railroad, 82 Mo. App. 146. After such a prima-facie ease was made the trial court could not take the case from the jury, though no witness contradicted the oral testimony offered by defendant to show such excuse, because plaintiff had a right to have the jury (or the trial court sitting as a jury) to pass on the credibility of those witnesses whose evidence they were not bound to believe. Gannon v. Gas Co., 145 Mo. 502; Seehorn v. Bank, 148 Mo. 265; Hendrickson v. Grafe, 157 Mo. 48; Schroeder v. Railroad, 108 Mo. 326; Waggoner v. City of Gorin, 88 Mo. App. 33; Harris v. Box Co., 87 Mo. App. 438; Kingsbury v. Joseph, 94 Mo. App. 304; Kenny v. Railroad, 79 Mo. App. 207; Johnson v. Kahn, 71 S. W. 726; Chinn v. Railroad, 75 S. W. 377; Hugumin v. Hinds, 71 S. W. 482. (2) There were physical facts and circumstances in evidence tending to show that no such necessity existed, and all the testimony offered by defendant in support of its excuse was that of experts testifying solely as a matter of opinion, and was expert testimony. Goins v. Railroad, 47 Mo. App. 181; Rog. Exp. Test., sec. 1; 1 Greenl. Ev., sec. 44-lb.
   VALLIANT, J.

Plaintiff sues under section 1106, Revised Statutes 1899, to recover the value of his mare killed by falling off of a railroad bridge belonging to defendant.

The facts shown by plaintiff’s evidence are substantially as follows:

A public road crosses the railroad at a point just east of tbe village of McBaine in Boone county. On each side of defendant’s railroad east of tbe public road was a fence enclosing tbe right of way. There was at this time no cattle-guard or wing fences at this crossing to prevent animals entering upon the tract or right of way. Such cattle-guard and wing fences had been there originally when there was only the main track of the railroad, but for a year or more and after the building of the Columbia Branch track there were three, that is one main track and two side or switch tracks crossing this public road, and when those two additional tracks were put in, the cattle-guard and wing fences were removed. There is a switch at each end of each one of these side tracks; those at the west ends were west of the crossing, and those at the east end were east of the crossing.

About seven or eight o’clock in the evening of September 1, 1901, plaintiff’s mare got loose from a post in the village at which she had been hitched and strayed onto the railroad, entering presumably at this crossing and going east. Shortly afterwards a freight train came along going east; the next morning the mare was found dead in the bed of a dry creek near a bridge from which she had apparently fallen.

The evidence on the part of defendant tended to show that in the movement of its trains it was necessary for its employees in operating these switches to pass on foot over the tracks at this crossing, and that a cattle-guard there would endanger their lives. Defendant’s testimony also showed that as this freight train was going along that night the engineer saw the horse on the track in front running toward the bridge; that he “slowed up” his train, and the animal went on ahead and got out of sig’ht; the engineer knowing that there was a bridge in front of him and realizing the danger to himself and his train of encountering an animal on the bridge, stopped the train and he and the head brakeman went forward to reconnoiter, and when they got to the bridge they found that the mare had jumped or fallen off and was lying under it.

The cause was tried by the court, jury waived; there was a judgment for the plaintiff for $150, and defendant appealed to the Kansas City Court of Appeals, where the judgment was reversed on the ground that the uncontradicted evidence on the part of the defendant having shown that a cattle-guard at that crossing would endanger the lives of the railroad employees operating the switches it was not negligence on the part of the defendant not to have a cattle-guard there, but one of the judges of that court deeming that ruling contrary to the decision of this court in Gannon v. Gas Co., 145 Mo. 502, the cause was certified to this court.

Section 1106, Revised Statutes 1899, on which this action is founded, is as follows: “Whenever any live stock shall go in upon any railroad or its right of way, in this State, and the said railroad is not at such place or places inclosed by a good fence on both sides of said railroad, such as is by law required, and such stock, by being frightened or run by any passing locomotive or train on said railroad, shall be injured or killed by or because of having run against the fence on either side, or into any culvert, bridge, slough or mire, or other object along the line of said road, the railroad company shall pay the owner of any such stock so injured or killed the damage sustained.”

According to the interpretation that this court and our Courts of Appeals have in several cases put upon that statute no liability will attach to a railroad company for failure to put a cattle-guard in a place where to do so would endanger the lives or limbs of its employees.

There is no such express exception written in the statute, but to construe it otherwise would make its meaning unnatural. [Pearson v. Railroad, 33 Mo. App. 543; Jennings v. Railroad, 37 Mo. App. 652; Crenshaw v. Railroad, 54 Mo. App. 233; Grant v. Railroad, 56 Mo. App. 65; Webster v. Railroad, 57 Mo. App. 451; Hurd v. Chappell, 91 Mo. App. 317; Lewis v. Railroad, 59 Mo. 495; Morris v. Railroad, 58 Mo. 78; Hamilton v. Railroad, 87 Mo. 85.]

In the case last cited it was held that when the plaintiff’s evidence showed that the defendant had failed to fence the track as the statute required, the burden was on the defendant to show circumstances exempting it from the performance of that duty. That holding is in accordance with the general rule that when a plaintiff has made out a prima-facie case the burden is on the defendant to contradict or avoid it. When the defendant says in effect: ‘ ‘ True it is wé did not have a cattle-guard at that point, but we are not liable under the terms of that statute, because a cattle-guard at that point would endanger the lives of our employees whose duties require them to pass over it,” the defense is an affirmative one and the burden of proving it is on the defendant. But that burden is not cast on the defendant until the plaintiff makes out a prima-facie case.

We have a familiar example of this issue when a plaintiff sues for damages for personal injuries caused by defendant’s negligence and there is a plea of contributory negligence; if the plaintiff in such case makes a prima-facie showing by his evidence, the burden of proving the facts constituting the contributory negligence is on the defendant; but if the plaintiff in his effort to make out his case himself shows that he was guilty of negligence that contributed to the result, he cannot recover and the court will so declare. But if the plaintiff, having otherwise made his prima-facie case, shows by his evidence a state of facts from which an inference of his own negligence may be drawn but not necessarily so, a state of facts from which two different opinions might reasonably be drawn, then the question of contributory negligence goes to the jury. In the supposed ease we would have two issues, viz: was the defendant negligent? if yea, was the plaintiff also negligent? The burden of proof in the one would be on the plaintiff; in the other, it would be on the defendant.

Those issues are separate and do not necessarily depend the one on the other; the evidence may show that the plaintiff was not guilty of contributory negligence at all, yet unless it shows that the defendant was guilty of negligence the plaintiff cannot recover. The evidence must make a prima-facie case for the plaintiff.

"What is a prima-facie case? s The following answers have been given to that question: “A prima-facie case is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side.” [2 Abbott’s Law Die., 312.] “A prima-facie case is that which is received or continues until the contrary is shown.” [22 Am. and Eng. Ency. Law (2 Ed.), p. 1294.] Prima-facie evidence. “It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.” [Kelly v. Jackson, 6 Peters 632.] “Prima-facie evidence of a fact is such evidence as in judgment of the law is sufficient to establish the fact, and if not rebutted remains sufficient for the purpose.” [Smith v. Burrus, 106 Mo. 100.]

"When we come to judge the plaintiff’s case in the light of a demurrer to the evidence we must take his evidence for truth and credit him with every inference that can fairly be drawn from the facts shown. It is not necessary that the inference the plaintiff seeks to draw is the only one that can in reason be drawn from the facts shown; it is sufficient if from those facts the inference may fairly and reasonably be drawn. But a prima-facie case must be complete in itself. If it depends on an inference to be drawn, the facts shown in evidence must be sufficiently explanatory of themselves to justify the inference; if the evidence goes no further than to show a condition from which the defendant might or might not be judged to be in fault, as further developments might show, and the plaintiff leaves the subject at that point, he has not made out his case; if from the case made the inference the plaintiff seeks to draw cannot be drawn without further facts or explanation he is not entitled to throw on the defendant the burden of proving that the undisclosed facts are such as forbid the inference the plaintiff seeks to draw.

In the case at bar the plaintiff’s evidence showed that there was no cattle-guard at that opening in the fence and by that fact the mare got on the track and was killed; if the evidence had stopped there it would have shown a prima-facie case of negligence on the part of defendant. But in order to show the condition of the crossing in that particular, it became necessary for the plaintiff to show the whole condition and in doing so he showed a condition which spoke for itself and which suggested the question, could a cattle-guard be maintained there without imperiling the lives of the railroad employees whose business required them to walk over it? The plaintiff sought to leave the subject at that point without any further evidence or explanation. If that condition had not been shown in the plaintiff’s evidence he could have rested his case on the simple fact of the absence of the cattle-guard, and have thrown the burden of proving that condition on the defendant, but with that fact in the case and no explanatory evidence on the point, the plaintiff was not entitled to ask the trier of the fact to find that a cattle-guard could have been maintained there with reasonable safety to the railroad employees.

The court trying the fact was not bound to say that there was no evidence that a cattle-guard in that position was dangerous to the lives of the railroad employees simply because there was no expert evidence introduced on the subject. The thing itself spoke. Men know by common experience what a cattle-gtuard is, as well as they know what a fence is; they also know what a switch in a railroad is; they know the purposes of those things and how they are used. We need no expert testimony to tell us that a cattle-guard in a switch-yard would endanger the lives of the men working there.

As an example of the wisdom of expert evidence on a question of that kind may be taken from the testimony of one of plaintiff’s witnesses who was gravely asked whether or not in his opinion a man while turning the switch at one end of these- side tracks would be in danger of getting caught in a cattle-guard at this •crossing a hundred yards or more distant, and the witness as gravely gave it as his expert opinion that a man in that act was in no danger from that source.

The same witness, however, when asked about the manner in which the work was done in that yard, said: 4 When they switch trains from one track to another, the men that do the work of switching have to pass along on the ground; the brakemen get off of the train and walk along the ground back and forth; they have to throw the switch, then they have to wait on the ground for the train to pass on the switch and then get back on the train. If there was a cattle-guard there it would make it much more dangerous for the trainmen who have to do the work along there. They would be in much more danger of falling in and being caught in there as they were going along making the switch.”

This was a part of the evidence for the plaintiff on which he relies for his prima-facie case.

We hold that the plaintiff’s evidence itself showed that a cattle-guard at that point would be dangerous to the lives of the railroad men whose duties called them to pass over it on foot at all hours in the day or night, and, therefore, the defendant was not liable for failing to put a cattle-guard in that place. The instruction in the nature of a demurrer to the evidence should have been given. The judgment is reversed.

All concur.