author: GANTT, J.

text:
    FLORENCE KNIGHT, Appellant, v. RAWLINGS et al.
    Division Two,
    July 1, 1907.
    1. FALSE REPRESENTATIONS: Solvency: Credit: Not in Writing. Section 3422, Revised Statutes 1899, providing that “no action shall he brought to charge any person upon or by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and subscribed by the person to be charged thereby, or some person thereunto by him lawfully authorized,” is a complete bar to a suit for damages for false representations made to plaintiff that the person to whom she loaned her money was solvent and in good credit, unless such representations were in writing.
    2. —: -: -: -: Conspiracy. Nor does it matter whether the false representations were made in good faith, or were known to be false and made to deceive and defraud plaintiff; nor whether the complaint contains averments charging a conspiracy between the borrower and defendant to obtain a loan from plaintiff for the borrower’s use and benefit upon the false representation of a trusted friend, the defendant.
    3. STATUTE: Previously Construed: Adoption. When a statute of another state or country is adopted by the Legislature, the construction placed upon it prior to its adoption here will be presumed to have met the approval of the Legislature adopting it.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      M. F. Hanley and R. P. & G. B. Williams for appellant. .
    (1) “ Our statute, like tke Tenterdem Act of England, should be construed as embracing every false representation untinged by a fraudulent intent, but it does not constructively include any kind of actual fraud in wantonly misrepresenting a man’s credit or identity more than any other kind of fraud in fact. Written evidence is therefore not required by our statute if the case be sufficient to show actual • fraud. ” Warren v. Barker, 2 Duval (Ky.) 156; Clark v. Dunham, 86 Ala. 220; Dent v. McGrath, 3 Bush (Ky.) 174; Ball v. Farley, 81 Ala. 292; Hess v. Culver, 77 Mich. 598; Bush v. Sprague, 51 Mich. 41; Bank v. McDonnell, 87 Ala. 736. (2) “False affirmations tinged with actual fraud malo animo are excepted- from the operation of the statute and- should always be actionable without being written.” Dent v. McGrath, 3 Bush (Ky.) 174. (3) “The statute was not intended to apply to conspiracies to defraud, and where a representation as to the credit of another is made in pursuance- of a conspiracy, and of course in actual fraud, the statute does not apply.” Hess v. Culver, 77 Mich. 598 ; Hodgin v. Bryant, 114 Ind. .401; Coulter v. Clark, 66 N. E. 739. (4) “It is as much a fraud in law to affirm as true what is untrue, though not known to be so, as to assert what is known to be untrue; so, where one makes as of his own knowledge a false representation, not knowing whether it is true or false, it is a fraud as much as if he knew it .to be false.” Hamlin v. Abell, 120 Mo. 188; Cottrill v. Krum, 100 Mo. 403; Hampton v. McClarrahan, 143 Mo. 507; Ball v. Farley, 81 Ala. 292. (5) The essence of a conspiracy is a concert or combination to defraud which results in damage to the party defrauded. Slight evidence of collusion or concert will suffice to let in the declaration of one of the parties as evidence against all. Such evidence of collusion may be inferred from the relation of the parties and the circumstances surrounding them. Masby v. Commission Co., 91 Mo. 507; Bigelow on Fraud, sec. 6. (6) “In order that an action to recover damages for false and fraudulent representations may be maintained, it is well settled that it is not at all necessary to show that the defendant had any interest in the subject-matter of the representation or that he was in any way benefited by making the same, or that he was in collusion with some other person who was benefited. He is liable, not upon any idea of benefit to himself, but because of his wrongful act and the consequent injury to the other party.” Hampton v. McClarrahan, 143 Mo. 507; 14 Am. and Eng. Ency. Law (2 Ed.), 153; Endsley v. Johns, 120 111. 479; Coulter v. Clark (Ind.), 66 N. E. 739'. (7) “Where parties occupy confidential relations and one makes false statements to the other, they are fraudulent, whether he knew them to be false or made them in ignorance of the real facts. The law exacts more stringent rules in regard to transactions between parties occupying such relations.” Smith on Law of Fraud, sec. 47; Wells v. McGfeoch, 71 Wis. 196; Wheeler v. Bass, 33 Fla. 696; Thorn v. Prentiss, 83 HI. 99; Ruff v. Janett, 94 111. 475; Hubbard v. Weare, 79' Iowa 678'; Ford v. McComb, 12 Bush 723; Franch v. Mining, 102 Mass. 132. (8) The Statute of Frauds will not be so construed as to aid a party in the perpetration of a fraud; its design was to prevent fraud, and it cannot be converted into an instrument of fraud. Rose v. Bates, 12 Mo. 30; Damschoeder v. Thies, 51 Mo. 100; G-illispie v. Stone, 70 Mo. 506; O’Fallon v. Clopton, 89 Mo. 287; McNew v. Booth, 42 Mo. 190; Turner v. Johnson, 95 Mo. 431; Leahy v. Witte, 123 Mo. 207; Richardson v. Champion, 143 Mo. 538. (9) Where a literal interpretation leads to unreasonable or unjust consequences, and an intention to enact a reasonable and just statute may be fairly inferred, the court will adopt the construction that will avoid the objectionable and unjust consequences. State ex rel. v. Rambauer, 104 Mo. 619; Kane v. Kansas City, 112 Mo. 34; Bowers v. Smith, 111 Mo. 45; Lamar Water Co. v. Lamar, 128 Mo. 188', 140 Mo. 145,

      David Goldsmith for respondents.
   GANTT, J.

Plaintiff brought this action in the circuit court of St. Louis against the defendants, Edward W. Rawlings, T. S. Teuscher and Mrs. T. S. Teuscher, for damages for false and fraudulent representations concerning the financial standing of T. S. Teuscher, upon which plaintiff alleges she acted and relied, to her detriment and damage. The petition contained two counts. The first count alleges that the defendants falsely and fraudulently represented to the plaintiff in November, 1896, that the said T. S. Teuscher was worth the sum of ten thousand dollars over and above all liabilities, was solvent and ini good credit, and safe to be trusted for a loan of five thousand dollars ; that relying on said representations the plaintiff loaned said Teuscher the sum of five thousand dollars, and took for the loan Teuscher’s note payable one year after date with interest at the rate of six per cent per annum. The petition then alleges that each year thereafter until November, 1901, inclusive thereof, the said loan was extended for one year at the same rate of interest, and that at the date of each extension, the same representations were made by the defendants and relied on by the plaintiff, these allegations being relied upon after each extension separately. It is further alleged in the first count that at the date when the loan was made and at the time of each renewal thereof, Teuscher was insolvent and this was well known by the defendants and designedly concealed; that Teuscher has wholly failed to pay the loan or any part thereof, excepting that the interest was paid thereon up to the seventeenth of May, 1902. The second count refers to the same loan, and alleges a combination and conspiracy between the defendants to defraud the plaintiff and in furtherance thereof sets forth that Teuscher and wife, who were the brother-in-law and sister of the defendant, Rawlings, made various representations to plaintiff concerning Teuscher’s solvency and means, which are set forth specifically and are substantially the same as those alleged in the first count and added that Teuscher was willing to borrow the five thousand dollars from plaintiff as a favor to her; that in furtherance of this conspiracy the defendants Teuscher and Rawlings caused the wife of Teuscher to induce the plaintiff to come up to a meeting at the residence of Teuscher, it being known that plaintiff reposed special trust and confidence in the defendant Rawlings; that it was arranged between the said conspirators that at this meeting Rawlings should sanction and endorse the ■statements and representations of Teuscher, and represent himself to he acquainted with Teuscher’s financial condition; that, in furtherance of the conspiracy, Rawlings did make certain representations which were substantially the same as those set forth in the first count of the petition; that plaintiff relied upon these representations and made the loan, and, in reliance thereon, also renewed.the loan annually as stated in the first count.

At the beginning of the trial and before any evidence was introduced, the defendant moved the court to require plaintiff to elect upon which of the several causes of action alleged in the first count, she would proceed; and the court sustained this motion and plaintiff elected to proceed on that portion of the first count which related to the last extension^ namely, the extension from November 17, 1901, to November 17, 1902, and the false representations relief upon by the plaintiff in the making of the renewal. While that election was made the plaintiff introduced evidence, both in regard to the original transaction and the various renewals. At the close of the plaintiff’s evidence, the defendant asked an instruction in the nature of a demurrer to the evidence, which the court gave and thereupon the plaintiff took a nonsuit with leave to move to set the same aside, and having filed this motion it was overruled, and the plaintiff appeals to this court. The plaintiff dismissed as to the defendant Teuscher and there was no evidence tending to establish a ease against Mrs. Teuscher, so that the defendant Raw-lings is practically the only defendant on this appeal.

The evidence tended to establish that Mrs. Knight, the mother of the plaintiff, and Mrs. Rawlings, the mother of defendant Rawlings, were old acquaintances and friends; that, in the year 1896, the plaintiff and her two sisters became entitled to an inheritance in England, the share of each being $5,265, the proceeds of which were forwarded to them and were received by them on October 28, 1896; that Rawlings, the defendant, who was then a clerk in the employ of Whit-taker & Hodgman, assisted the plaintiff and her sistersi in the collection and depositing of these funds in the National Bank of Commerce of St. Louis; that the elder sister took charge of her share of the funds, but the plaintiff and the other sister deposited theirs at the National Bank of Commerce in their respective names; that' the defendant Rawlings advised them not to invest their funds until after the November election, 1896; that on November 11, 1896, Mrs. Teuscher, in the course of a social visit to Mrs. Knight, the mother of plaintiff, inquired whether the plaintiff and her sister had invested their funds and when informed that this had not been done, seemed surprised; that on the next day, Mrs. Teuscher in the course of another visit, mentioned that she had spoken of the matter to Mr. Teuscher, her husband, and he had expressed his willingness to borrow the money from the plaintiff and her sister; that Mrs. Knight, whu had acted for her daughters in this matter, informed Mrs. Teuscher that the consent of the defendant Rawlings would be necessary; that nothing further transpired until November 16, when Mrs. Teuscher called again and arranged that the plaintiff’s mother and sister should call at her residence that evening; that, when these ladies called that evening, the defendant Rawlings was present and Teuscher stated that he had life insurance amounting to sixty thousand dollars, was building a distillery at Vincennes, and had a splendid business in St. Louis, and that if anything happened to him Mr. Rawlings would have charge of his affairs and would see that ■they were protected. The testimony for the plaintiff also tended to show that she had never been in a bank prior to the deposit of this money and did not know how to draw a check; that defendant Rawlings wrote out the check and directed them how to sign their names and in this way they drew sixty-five dollars for their present needs. Plaintiff’s sister, Miss Alice Knight, was asked, “Now I will ask you to state what representations and statements as to what Mr. Teuscher had stated and as to his solvency at that time Mr. Rawlings made on.that occasion?” To- this question defendant objected unless such representations were in writing and the court sustained the objection, to which action of the court the plaintiff at the time excepted. The witness was then asked. “State whether after you left the house if any statement, and when you went to the car, before you got' on the car to go home, after you had had this conference with the three parties about loaning the money, whether Mr. Edward- Rawlings made any statements to you and your mother as to whether he had investigated the financial condition of Mr. Teuscher?” Ans. “Tes, Mr. Rawlings.” “Counsel for defendant, do not answer.” To this question the defendant objected upon the same ground as above, which objection the court sustained, and the plaintiff excepted. Witness was asked further, “What was the agreement and understanding between you, your mother and Mr. Teuscher and Mr. Rawlings as to loaning this money on that occasion?” Which question was objected to for the same reason as above and the court sustained the objection, and plaintiff excepted. Witness further testified that the defendant Rawlings on that occasion told them that the next morning they should come down to Teuscher’s office and sign a paper. He did not state what the paper was or would be; that on the next morning, the seventeenth, they went to Teuscher’s office and signed a paper, which she afterwards learned was a check for five thousand dollars. She further stated that on the evening before when the defendant Rawlings had arranged every thing and said every thing was all right, that their money would be safe, she asked if she should sign a paper so as to know they had the money and he replied that that was not necessary, that every thing would be all right. She identified the checks dated November 17, 1896, of the Bank of Commerce for five thousand dollars each, and stated that the checks were in the handwriting of Mr. Rawlings and were already filled out,for her and her sister to sign; that she did not know what the paper was that she was signing, but acted under Mr. Rawlings’ directions. That the notes were made by Teuscher and that she did not see them, Rawlings kept both the principal and interest notes; that Raw-lings took charge of the notes and collected the interest on them and sent it to them at Minneapolis; that they went to live in Minneapolis in May, 1897; that on the seventeenth of November, 1897, the note was renewed for another year. Rawlings attended to the renewal. On October 1, 1897, before the first notes matured, defendant Rawlings wrote to Mrs. Knight, the mother of plaintiff; among other things as follows: ‘ ‘ Regarding the Teuscher loan, which matures November 17 next, please direct me whether yon wish the same extended for one year at the same rate of interest.” Under date of November 5, 1897, Mrs. Knight instructed Rawlings to renew the note for another year. After this renewal Rawlings continued to collect and remit the interest until some time between June and October, 1898, when it appears that such remittance of the interest by Raw-; lings ceased and that direct remittance by Teuscher commenced. In the letter dated November 1,1898, Raw-lings wrote to ■ Mrs. Knight in relation to the second renewal as follows: “The Teuscher loan will mature the seventeenth of this month and I write to ask whether you desire me to renew the same, for you at the same rate of interest, if you so wish it, I think I can arrange with Mr. Teuscher." I will await your reply before taking any further action in the matter. ’' On December 15, 1899, the defendant Rawlings transmitted to Mrs. Knight the principal and interest notes given for the renewal made in November, 1899, and in that letter Rawlings stated: “The Messrs. Teuscher will remit you direct and as the notes are paid you can cancel them and send them to their address.” This appears to have ended the connection of Rawlings with the renewals, but on September 8, 1900, Rawlings after referring to the receipt of a letter from Mrs. Knight, wrote to her concerning an insurance policy, which it would appear Teuscher had promised to turn over to Mrs. Knight as collateral security and in that letter said: “I have your letter of the 4th inst., and have carefully noted contents. I have to-day seen Mr. Teuscher and he promises to deliver to me on next Monday the policy mentioned. He also states he will write you fully next week with the view of taking up the loan if you so desire. He has been a very busy man, hence acknowledges he has not given your matter the attention it demands. There is absolutely no necessity for you to come here, and I shall promptly advise you when the policy is in my care. I cannot help but believe your loan is perfectly secure as Mr. Teuscher is strictly honest and a young man with brilliant prospects.”

The witness was asked to state whether or not the loan was renewed from time to time on the faith of statements of Mr. Rawlings contained in any of these letters, to which counsel for the defendant objected on the ground that there was no evidence of such statements contained in the letters. Which objection the court sustained and plaintiff excepted. The loan was renewed the last time November 17, 1901, and matured November 17, 1902, and the note was never paid by Teuscher. Witness further stated that no policy of insurance was ever turned over to her or to her sister, the plaintiff, after the loan was made. They supposed it had been transferred to them and was being held by Mr. Rawlings as security for the loan as a part of the original understanding. She further stated they had never made any investigation as to the solvency of Mr. Teuscher, because they had relied implicitly upon Mr. Rawlings. Upon the motion of the ■ defendant the court excluded the evidence of the witness as to plaintiff relying upon Rawlings, to which action of the court the plaintiff excepted. She further stated that the services rendered to her and her sister in these matters by Mr. Rawlings were without any compensation.

The plaintiff in her own behalf testified and gave the same account of the transactions as above detailed by her sister. She added, however, that when the loan was made an insurance policy on the life of Mr. Tuescher was to be issued to them to secure the same. This policy was supposed to be issued for sixty thousand dollars. The policy was not taken out until the seventeenth of April, 1899, and was for ten thousand dollars. On June 6, 1902, she was in St. Louis and made some investigations as to whether the policy had been taken out. Teuscher had not been paying the interest promptly, and they hadwritten and telegraphed Mr. Rawlings, but could not get any satisfaction. She asked Mr. Rawlings about the policy and he first said he did not know anything about it. . She asked him if he had the policy and he replied, “Yes,” but that it was at his home and that he would mail it to her at Minneapolis. She asked him if the premiums had been paid and he said he did not know anything about it and referred her to Teuscher. She then went to the insurance office and was told that the first premium only had been paid and the subsequent ones had not been and the policy was not worth the paper it was written on. She then got the policy, and that 'was the first time she ever saw it. She identified the letter of September Í0, 1900, from Rawlings to her mother stating that Teuscher had at that time or date deposited with him a policy in the New York Life for ten thousand ¡dollars and he had placed the same in the safe deposit company for safe keeping, and to her credit, and stated that she had better hold his letter as a receipt. Plaintiff also identified a letter dated November 8, 1897, from Rawlings to her mother in which he stated, “I am having the loan extended for one year at the same rate of interest, the security being the life insurance policy as he informed you at the time the loan was made.” Plaintiff further stated that at the time the loan was made, a close relation of friendship existed between Mr. Teuscher and - Mr. Rawlings; that about three months, to-wit, in February, 1897, after the loan was made, the Mullanphy Bank in the .city of St. Louis failed. The matter of the failure was published in the newspapers and was commented on as an imp or t-•ant failure; that these comments of these papers were read by the plaintiff and that the newspaper reports stated that Teuscher was the principal debtor of that bank and was the cause of the failure-; that plaintiff and her sister paid no attention to these reports because they did not believe Teuscher was responsible for the failure, owing to their trust in Mr. Rawlings; that Rawlings Sent a message to her mother by his mother that they should not be worried about the matter. The defendant moved to strike out this part of the plaintiff’s answer, and it was sustained and plaintiff excepted.

Mrs. Harriett Knight, the mother of the plaintiff, stated that she had known Mr. Rawlings over thirty years and the relations between them had been intimate during that time; the two families lived for quite a time in the same house and this relation continued up to November, 1896. She corroborated the statements of her daughter as to what occurred at the house of Mrs. Teuscher when it was agreed the loan should be made. She was asked also as to what oral representations Rawlings made on that occasion as to the credit and solvency of Teuscher, to which questions the defendants objected, and the objections were sus- • tained and exceptions saved.

Mantón Davis testified for plaintiff that he was a member of the bar of St. Louis and represented the receiver of the Mullanphy Rank since its failure; that Teuscher was indebted to the bank to the amount of two hundred thousand dollars, evidenced by notes; that he had made repeated efforts to collect these notes and had failed to do so; that these notes were all dated prior to September, 1896. This is practically all the evidence in. the case.

I. Upon the case made, the circuit court held that •section 3422, Revised Statutes 1899, which provides: “No action shall be brought to charge any person upon or by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and subscribed by the party to be charged thereby, or by some person thereunto hy him lawfully authorized, ’ ’ was a complete bar to plaintiff’s recovery, and the propriety of this ruling presents the question for solution at this time. The Statute of Frauds (29 Car. II) did not contain the provision which now forms the subject of section 3422, Revised Statutes 1899, but with regard to the liability for the debts of others contained only the provision found in section 3418, to-wit: “That no action shall be brought to charge any person upon any special promise to answer for the debt, default or miscarriage of another pei'son, . . . unless the agreement upon which the action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized. ’ ’ The first instance in which an action of tort for a misrepresentation respecting the ability of a third person was solemnly adjudged to be maintainable is found in. the case of Pasley v. Freeman, 3 T. R. 51, decided by Lord Kenyon, C. J., and Ashurst, J., and Buller, J., against the opinion of Grose, J. in 1789. In that case Grose, J., in his dissenting opinion, said: “And even in this very case, if the action lies, the plaintiffs will stand in a peculiarly fortunate predicament, for they will then have the responsibility both of Falch and the defendant. And they will be in a better situation than they would have been if, in the conversation that passed between them and the defendant, instead of asserting that Falch might safely be entrusted, the defendant had said, ‘If he do not pay for the goods, I will,’ for then undoubtedly an action would not have lain against the defendant.” Lord Eldon, in Evans v. Biclmell, 6 Ves. Chan. 1. c. 184 and 187, discussed Pasley v. Freeman, saying: “It is almost improper at this day to say anything having a tendency to shake it; but I know Mr. Justice Grose very lately held the same opinion as he did at the time of the judgment. The doctrine laid down in that case is in practice and experience most dangerous. I state that upon my own experience; and if the action is to he maintained in opposition to the positive denial of the defendant against the stout assertion of a single witness, where the least deviation in the account of the conversation varies the whole, it will become necessary, in order to protect men from the consequences, that the Statute of Frauds should be applied to that case. Suppose, a man asked, whether a third person may be trusted, answers, ‘You may trust him; and if he does not pay you, I will.’ Upon that the plaintiff cannot recover; because it is a verbal undertaking for the debt of another. But if he does not undertake, but simply answers, ‘You may trust him; he is a very honest man, and worthy of trust,’ etc., then an action will lie. Whether it is fit the law should remain with such distinction, it is not for me to determine.” And then he adds: “Upon the case of Pasley v. Freeman I have always said, when I was Chief Justice, that I so far doubted the principles of it, as to make it not unfit to offer, as I always did, to the counsel, that a special verdict should be taken; but that offer was so uniformly rejected that I suppose I was in some error upon this subject. I could therefore only point out to the jury the danger of finding verdicts upon such principles; and I succeeded in impressing them with a sense of that danger so far that the plaintiffs in such actions very seldom obtained verdicts.” And he added further: “It leads to the absolute necessity of affording protection by a statute, requiring that these undertakings shall be in writing.” Lord Eldon’s opinion of the wisdom of the decision in Pasley v. Freeman met with so much favor that on May 9, 1828, Parliament enacted the statute 9 Geo. IV, c. 14,.commonly known as Lord “Tenterden’s Act,” and made the same a new section to the English Statute of Frauds, of which our statute, section 3422, is to all intents and purposes a copy, except that the English statute contains a provision restricting its application to representations concerning the character, condition, etc., of any other person made with the intent or purpose that such other person shduld obtain money or goods upon the credit thereof. Of the purpose of Lord Tenterden’s Act, it is said in a review of Chandelor v. Lopus, 2 Croke 4; 1 Smith’s Leading Cases, 319, “It was in order to prevent the Statute of Frauds from being thus trenched upon that the Legislature enacted what is commonly called Lord Tenterden’s Act.” In Savage v. Jackson, 19 (la. 1. c. 300, 310, in discussing Pasley v. Freeman, it was said by the Supreme Court of that State: “Finally, Parliament, after allowing the decision to stand long enough to show the sort of fruit it would bear, laid the axe to its root. In the 9th year of George IV, under the auspices of Lord Tenterden, Parliament passed an act containing these words [here quoting the statute and adding], “this was done, says Smith, to prevent the Statute of Frauds from being trenched upon by this decision in Pasley v. Freeman.” In Weil v. Schwartz, 21 Mo. App. 1. c. 385, Philips, P. J., said, in reference to Lord Tenterden’s Act, “The history of the first enactment of this statute by the English Parliament furnishes most persuasive proof that its design and purpose were to cut up by the roots the great evil of the frequency and success .of such actions, based on mere loose verbal representations, by requiring the action to' depend exclusively on the written, undertaking, duly signed by the party sought to be held.” See Lyde v. Barnard, 12 N. & W. 101; Savage v. Jackson, 19 Ga. 306. As said by Behring, J., in the case last mentioned, “When a statute says that a promise to answer for a debt of another shall not bind, does it not say that anvthing less shall not bind?” Browne on Statute of Frauds (5 Ed.), sec. 181, pp. 226, 228, after stating that since the case of Palsey v. Freeman it has been considered, both in England and in this country, that the original Statute of Frauds does not apply to false and deceitful representations as to the credit or solvency of third .persons, commends the doctrine of that case as a firm stand against actual frauds and cheats, but adds: “At the same time it comes dangerously near to the invasion of the statute which was wisely designed to prevent them; and accordingly it has been strongly condemned by Lord Eldon. Impelled by that consideration, Parliament enacted what may be called a supplement to the Statute of Frauds,” known as “Lord Tenterden’s Act.” “The plain meaning of this statute seems to be that, it requires writing to charge a defendant upon any representation made in regard to the credit, etc., of a third party, whether the representation was made in good faith, or was known to be false and was made in order to deceive and defraud the plaintiff; because the presence of this element of intention to deceive and defraud was the very point on which Pasley v. Freeman held that the Statute 29 Car. II did not apply; and the purpose of the Tenterden Act was to require a writing in a case for which 29 Car. II had failed to do so.” In 14 Am. and Eng. Ency. of Law (2 Ed.), 33, under the title “Fraud and Deceit” it'is said: “Some courts have held that the statute does not apply to cases of actual fraud; that is, cases in which the representation is not only false, but is made with a fraudulent intent. The better opinion, however, is to the contrary, for there is no* such restriction in the statute.” In Cook v. Churchman, 104 Ind. 1. c. 146, 147, et seq., the Supreme Court of Indiana discusses this whole question, and after a review, of Pasley v. Freeman and Lord Tenterden’s Act and the American decisions on similar statutes in this country, says: “That the complaint contains averments charging a conspiracy cannot affect the question. The purpose' of the statute cannot be disappointed by the form of the complaint. The necessity that the representations should have been made in writing is the same, where a conspiracy is set up and where it is not. When the action is to recover damages for false representations made by a stranger to a contract concerning any of the subjects enumerated in the statute, it must fail, unless the representations were made in writing, duly signed, etc. This must be so, whether the representations were made as a result of a conspiracy, and with intent to perpetrate a fraud, or otherwise.” And to the same effect will be found Kimball v. Comstock, 14 Gray 508; Brown v. Kimball, 84 Me. 280; Hunter v. Randall, 62 Me. 423; Bates v. Youngerman, 142 Mass. 120; Hunnewell v. Duxbury, 157 Mass. 1.

Counsel for plaintiff among other cases cite Bush v. Sprague, 51 Mich. 41, as supporting their contention that the statute does not apply to conspiracies or actual frauds. But an examination of that case will show that counsel have quoted from the opinion of Campbell, J. On the contrary, the Chief Justice, in discussing this section of the Statute of Frauds and the occasion of its passage, in connection with the decision in Pasley v. Freeman, said: “It is therefore obvious that a charge of conspiracy to defraud by false representations will not disappoint the statute. Neither the reason nor the language of the provision will exclude a case on account of the number of wrongdoers, or in consequence of their having acted on a previously concerted plan.” And Judge Cooley, the remaining member of the court, said: “I agree with the Chief Justice in the view he takes of the application of the Statute of Frauds to this case.” The other case, Hess v. Culver, 77 Mich. 598, has no bearing upon the question under consideration. It simply held that the statute does not apply to a conspiracy or actual fraud where the representation is made to enable the party making it to profit by it. And the later case of Bank v. Steel, 135 Mich. 165, shows that that court construes the statute in accordance with the great weight of authority as shown in the cases cited.

We come now to the case of Warren v. Barker & Co., 2 Duv. (Ky.) 155, relied upon by the plaintiff as holding a contrary view to the decisions in Massachusetts, Indiana and Maine. The Kentucky statute, section 1, page 22, Stanton’s Revised Statutes, page 264, then in force, was to all practical effects the same as the Tenterden Act of England. As said by Chief Justice Stone, in Ball v. Farley, Spear & Co., 81 Ala. 1. c. 293, that case is meagerly reported, but enough is shown to give a correct understanding of the principles declared. Barker and Company had introduced a man to Warren, who offered a bill of exchange for sale, which was apparently indorsed to the offerer. Warren purchased the bill, and it turned out to be a forgery. The decision of the court, and the language in which it is expressed, force the conclusion that there was an entire absence of proof of combination or collusion between Bárker & Company, and the man introduced. The report contains only the opinion of the court, .and the following is the summation of the facts as therein shown: “The appellant, Warren, sued the appellees, Barker & Company, for a false and fraudulent introduction to him, as an exchange banker, of an impostor, holding, as apparent indorsee, a forged bill offered for sale, and which, on the faith of that recommendation, he was induced to buy.” The trial court sustained a demurrer to the petition. An amendment was then offered and allowed, charging a fraudulent combination between Barker & Company and the seller of the bill. The trial court peremptorily instructed the jury to find for the appellees, Barker & Company, which they accordingly did. Judge Robertson, speaking for the Court of Appeals in pronouncing on the demurrer to the petition as first framed, said the primary court ‘ ‘ seemed to be of the opinion, that, according to the first section of chapter 22 of Stanton’s Revised Statutes, p. 264, even a fraudulent representation, without written evidence of it, would not be actionable.” The circuit court held there was no testimony of a fraudulent combination and the Court of Appeals . held that the trial court did not err in so instructing the jury. The Court of Appeals further said: “Nor will a majority decide that there was error in sustaining the demurrer to the original petition, charging or attempting to charge, a fraudulent misrepresentation. A false representation may not be fraudulent in intent; for, although it may be constructively, it is not actually fraudulent to affirm absolutely as’ true that which the asserter believes to be true. The mains animus is the essential and distinctive element of actual fraud. Had the original petition intended to charge only a false representation, the appellees would not be suable for it. . . . Our statute, like the Tenterden Act of England, should be construed as embracing 'every false representation untinged by a fraudulent intent; but it does not constructively include any' case of actual fraud in wantonly misrepresenting a man’s credit or identity, more than any other kind of fraud in fact. Written evidence is not, therefore, required by our statute, if the petition be sufficient to charge actual fraud. ’ ’ And in this case, the judgment was affirmed. It will be noted that Chief Justice Robertson did not dissent from the views of the other members of the court "that a mere false representation is within the Statute of Frauds, and not suable unless evidenced in writing. It will be noticed that the Court of Appeals of Kentucky says that the Kentucky statute “like the Tenterden Act of England, should be construed as embracing every false representation untinged by a fraudulent intent, but does not constructively include any case of actual fraud,” etc. We think it is a fair inference that the court held that such was the construction of the Tenterden Act in England, and if so it was surely an error, because, at that timé, the Tenterden Act had been construed by the English courts to the contrary. Thus, in Devaux v. Steinkeller, & Bing. N. C. 84, the court held that a false representation knowingly made concerning a firm by one of its members was within the purview of the statute. And in Haslock v. Fergusson, 7 A. & E. 86, Lord Denman, C. J., speaking for the court of King’s Bench, said: “'The question in this case was, whether the representation which it was proposed to give in evidence came within 9th Geo. 4, c. 14, sec. 6, so as to be inadmissible unless in writing.' It is suggested, on the part of the plaintiff, that the representation was fraudulent, and that the defendant caused it to be made for the purpose of fraud. The case does not appear to us to raise any doubt in point of.law. The question is, whether the action is brought according to the terms of the statute. . . . Such, then, being the question, the plaintiff says that the action is not upon the representation,, but for money had and received; that the representation is a mere medium of proof, the ease being that a fraud was committed, in the course of which this representation was made, and that the produce of the goods obtained by such fraud belongs to the plaintiff. But the only fact on which the case of fraud rested at the time of offering the evidence was that the defendant had authorized Hobson to give Mrs. Barnes a fair character. We think that a representation made under those circumstances is within the very terms of the 6th section of statute 9 Geo. 4, c. 14, and therefore could not be recéived in evidence, unless put into writing.” And to the same effect is Swan v. Phillips, 8 A. & E. 457 (1838). So that if the Court of Appeals of Kentucky was of the opinion that the English courts had so construed the Tenterden Act Ave respectfully submit they were mistaken. In Dent v. McGrath, 3 Bush (Ky.) 174, the Court of Appeals of Kentucky approved what has been said in Warren v. Barker & Company, supra. And to the same effect is Clark v. Dunham Lumber Company, 86 Ala. 220, in which it is said: “No representation made by the defendant as to the character,conduct, ability, trade or dealings of a third person, even though false, can be made a basis of an action unless reduced to writing and signed by the party sought to be charged, or unless it is fraudulently made. ’ ’ And to the same effect is Ewins v. Calhoun, 7 Vt. 79. As to the last-mentioned case, however, which was decided in 1835, we have not been able to discover that Lord Tenterden’s Act had been adopted at that time and if not then of course Pasley v. Freeman would have been a precedent for the court. As was the case in Upton v. Yail, 6 Johns. 181, as the Tenterden Act has never been adopted by New York.

Section 3422 was first adopted in this State March 15, 1845. [R. S. 1845, p. 531.] The annotator of that revision remarks: ‘ ‘ This section is borrowed from the English code where it was first enacted in the 9th year of George IV. It has been adopted in the late Revised Statutes of Massachusetts, and Chancellor Kent, speaking of it, says: ‘It wonderfully relieves the courts, the profession and the country, from the evils of fluetating and contradictory decisions.’ [2 Kent’s Com., 489, in note.] ”

This court had occasion in Clark v. Edgar, 84 Mo. 106, to comment upon this section, and Judge Bi^ack said in passing upon a demurrer to the petition: “A further objection is that the representations were not made in writing, subscribed by the defendants, or any one authorized so to do by them. This objection is based upon section 2515, ReAdsed Statutes 1879, which differs in no material respect, so far as this case is concemed, from that of 9 Geo. 4 chap. 14, sec. 6. This statute is regarded as a supplement to the Statute of Frauds, and has been adopted by a portion only of the states of this Union.” After quoting the section in full, he says: “It was considered in McKinney v. Whiting, 8 Allen 208; Wells v. Prince, 15 Gray 562; Kimball v. Comstock, 14 Gray 510; see, also, Devaux v. Steinkeller, 6 Bing. N. C. 84, 3 Jur. 1053. We are not to go beyond the express terms of the statute in its application. [Medbury v. Watson, 6 Mete. 246; Norton v. Huxley, 13 Gray 285.] If ivritten representations are the substantial inducements, recovery can be had, although some reliance may be placed upon oral assurances. [Tatton v. Wade, 18 C. B. 371.] ”

Now it is familiar doctrine that when the statute of another State or country is adopted by the Legislature of this State, the construction placed upon that statute prior to its adoption in this State, will be presumed to have met the approval of our Legislature when adopting it. We have seen that Lord Tenterden’s Act was enacted in 1828, and that the courts of England had prior to 1845 expressly ruled that a false representation as to the credit of another would not take the case out of that act. And considering the purpose of that act and the causes which led to its adoption, particularly the case of Pasley v. Freeman and the great weight of authority in this country, we are inclined to the opinion expressed by Browne in his work on the Statute of Frauds, and hold that the plain meaning of this statute is that it requires a writing to charge a defendant upon any representation made in regard to the credit, etc., of a third Party whether such representation is made in good faith, or is known to be false and made in order to deceive and defraud the plaintiff, because the presence of this very element of intention to deceive and defraud was the very point upon which the court in Pasley v. Freeman held that the Statutes of Frauds of 29 Car. II did not apply.

The plain purpose of Lord Tenterden’s Act was to require a writing in a case for which 29 Car. II had failed to provide, and to sustain the contention of the plaintiff in this case we must go back to Pasley v. Freeman and ignore the statute, section 3422, Revised Statutes 1899, which was enacted to remedy the ruling in that case. To do that we must import an exception into the statute, a restriction and exception which its language does not. justify.

Accordingly, it must be held that the circuit court committed no error in rejecting the offers to prove the oral representations of the defendant Rawlings, as to the solvency and credit to which Teuscher was entitled. And we are wholly unable to agree with counsel that the defendant can be held liable for misrepresentations without knowledge of their falsity and that the statute does not cover any case for which a liability would exist at common law. To reach such a conclusion we must disregard the statute entirely. As to the evidence on the part of the plaintiff and her sister as to why they did not make other inquiries and that the defendant Rawlings stood in a confidential relation to the plaintiff, we are of the opinion that the defendant did not sustain any such relation within the meaning of the law. He was at most but a friend of the family and received no compensation whatever for his acts in assisting them in collecting and depositing their money.

Our conclusion is that the circuit court committed no error in rejecting the evidence, and that the statute is a complete bar to plaintiff’s action, and accordingly the judgment must be and is affirmed.

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


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    ELIZA BROCKSCHMIDT v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant.
    Division Two,
    July 1, 1907.
    1. NEGLIGENCE: Contributory: Assuming Position of Danger: Demurrer. One who was familiar with the frequent movement of cars upon a public street, and the loud noise they made in approaching, and was a part of a gang who for three weeks had been working in the same vicinity and knew the men were in the habit of working on the track until a car got very close and then suddenly stepped out of the way, who deliberately assumed a position of danger on the track by turning his back towards the direction from which the cars uniformly approached and there engaged for five or six minutes in removing dirt which had fallen from his master’s wagons, without looking or listening, was guilty of contributory negligence; and if struck by a car moving at an ordinary speed and killed, there being no wantonness or recklessness on the part of the motorman, his widow cannot recover for-his death, whether the bell was being rung or not. And a demurrer to the evidence, if offered, should be sustained.
    2. -: -: -: Vigilant Watch Ordinance. And that must be the ruling although the petition alleges as a ground of recovery a violation of the Vigilant Watch Ordinance which required motormen to keep a vigilant watch for persons on the track and on the first appearance of danger to them to stop the cars in the shortest time and space possible.
    Appeal from St. Charles Circuit Court. — ILon. H. W. Johnson, Judge.
    Beversed.

      T. M. Pierce, 8. P. McGhesney and Boyle & Priest for appellant.
    The court erred in refusing to take the case away from the jury at the close of the plaintiff’s case and at the conclusion of all the evidence, because the proof showed conclusively that the deceased was guilty of such gross contributory negligence as to bar a recovery. Davies v. Railroad, 159 Mo. 6; Evans v. Railroad, 178 Mo. 512; Tanner v. Railroad, 161 Mo. 497; Engleking v. Railroad, 187 Mo. 158; Wheat v. St. Louis, 174, 579; Clancy v. Railroad, 192 Mo. 652; Ries v. Railroad, 179 Mo. 1; Deane v. Railroad, 192 Mo. 575; Giardina v. Railroad, 185' Mo. 330'.

      A. B. Taylor for respondent.
    Appellant contends that a demurrer to the evidence ought to have been sustained, because the deceased was guilty of negligence in working on the track in a position where he couldn’t see the approach of a car that struck him. This proposition is a renewal of the challenge to the doctrine that, although a person is guilty of negligence in being upon a track and failing to watch and look for the car, yet if the operatives of the car saw, or by exercise of ordinary care would have seen, the person so on the track and in peril and thereafter by the exercise of ordinary care could have averted the injury, the company is still liable, notwithstanding the negligence of such party. This question, long contested, it was supposed by many, was finally settled against appellant’s contention, but it appears that it will reappear whenever a case is presented to an appellate court. It might be conceded that deceased, Herman Brockschmidt, was negligent in not keeping a look-out for the car. His negligence was of the most pardonable quality. He was on a public street, where he had a lawful right to be. He was not a trespasser. He was engaged in a beneficent work for the benefit and welfare of the appellant, to-wit, removing what might be a dangerous obstruction to appellant’s car and a menace to its passengers. He is absorbed in his work. He had a right to expect at least some -notice of an approaching car and that he would not be run down whilst so at work, without warning. Hence, we do not think that the failure of deceased to keep a sharp look-out for the car can be called gross negligence, as appellant asserts in its brief; but conceding, as said, that he was to a degree negligent in failing to keep a constant watch behind him whilst at work, is it the law that such negligence defeats the right of recovery where, as the plaintiff’s evidence shows, he was in plain view of the motorman of the car whilst he runs down his car upon him without warning, except a halloo when the car was within eight or ten feet and too late to stop the car and allow him to'escape? We submit that such is not the law of this State. Engleking v. Railroad, 187 Mo. 165; Seaboard Coasting Co. v. Tolson, 139' U. S. 558; Kelly v. Railroad, 75 Mo. 140; Werner v. Railroad, 81 Mo. 374; Bergman v. Railroad, 88 Mo. 678; Dunkman v. Railroad, 95 Mo. 244; Kellny v. Railroad, 101 Mo. 67.
   FOX, P. J.

This cause is now pending before this court upon appeal by the defendant from a judgment rendered in the circuit court of St. Charles county, Missouri. This suit was originally instituted in the circuit court of St. Louis on the eleventh day of September, 1902. The cause was removed upon the application of the plaintiff to St. Charlés county, where it was finally tried at the February term of said court.

This is an action in which the plaintiff is seeking to recover of the defendant five thousand dollars as a statutory penalty for the wrongful killing of her husband. The plaintiff’s petition states, in substance, that she was the lawful wife of Herman Brockschmidt at the time of his death; that the defendant is a corporation under the laws of the State of Missouri, and used and operated a street railway in the city of St. Louis, over and along Manchester avenue, and at and near its intersection with Mitchell avenue, both public streets; that on the thirteenth day of August, 1902,-the plaintiff’s said husband was on Manchester avenue, at or near the intersection of Mitchell avenue in the city of St. Louis, engaged in removing dirt, which had fallen upon said street, when the defendant’s motorman and conductor in charge of its east-bound car on Manchester avenue carelessly and negligently and without using any care to- control or stop- the said car to prevent its striking the said Brockschmidt, and without keeping any watch or lookout to see the persons on said street, and without giving any warning by bell or otherwise to the said Brockschmidt of the approach of said car, and whilst running the said car at a high and negligent "speed, caused and suffered said car to1 strike and injure said Brockschmidt, so that he died from said injuries on said day. The plaintiff then pleaded an ordinance of the city of St. Louis,, which provided that motormen and conductors of street cars should keep a vigilant watch for persons on foot, either- upon street railway tracks or moving toward them, and upon the first appearance of danger to such persons the car should be stopped within the shortest time and space possible, and that at the time and before the injuries to her husband the aforesaid motorman and conductor in charge of said car failed to keep such vigilant watch and failed to stop said ear within the- shortest time and space possible, which violation of said ordinance directly contributed to cause the injury and death of the plaintiff’s husband. The prayer of the petition was for five thousand dollars and the statutory penalty for the killing of the said Brockschmidt,

The defendant’s answer was a general denial, and a further plea that whatever injuries were sustained.by the said Brockschmidt were caused by his own contributory negligence, in that, while an east-bound car of defendant was approaching, he carelessly and negligently stepped near and upon the east-bound track of defendant, immediately in front of said car, without first looking and listening to ascertain whether a car was approaching in an easterly direction, and that said negligence on the part of plaintiff’s husband directly contributed to cause whatever injuries, if any, were sustained by him on said occasion.

The reply was a general traverse of the averments in the answer.

The testimony developed at the trial tended to show about this state of facts concerning the killing of plaintiff’s husband by the defendant’s car: At the time of the death of plaintiff’s husband, Herman Brockschmidt, the defendant, St. Louis & Meramec River railroad Company, was maintaining a double-track electric railway system on the south side of Manchester avenue in the city of St. Louis. Manchester avenue runs east and west, cars moving west on the north and east on the south track. 'Just south of Manchester avenue is the right of way and tracks of the Missouri Pacific Railway Company. Streets run into Manchester on the north hut not through.1 On the thirteenth day of August, 1902, at'about six o’clock in the afternoon, the plaintiff’s husband was acting as foreman of a gang of men engaged in excavating along the right of way of the Missouri Pacific Railway Company, and south of defendant’s tracks over which wagons were continuously hauling dirt. It was a bright, clear afternoon. In passing over the rails of the defendant’s tracks, dirt would naturally fall off the wagons and would accumulate on the rails. This work of hauling dirt across the defendant’s tracks had been going on for about three weeks before the injury. According to the testimony of the witnesses on the part of the plaintiff, as an east-hound car approached, the deceased was engaged in shoveling dirt off of the south rail of the defendant’s east-hound track, with his hack toward the west, facing the east, and standing astride the south rail. He had been in that position from two to five minutes before he was struck by the defendant’s car. The testimony tended to show that the noise and rumbling of the car as it approached could be heard for some distance away, and some of the witnesses who were present- testified that they heard the noise and rumbling of the car as it approached. The plaintiff testified that she was the wife of Herman Brockschmidt, deceased, and that Manchester avenue had been an open public street in the city of St. Louis for more than twenty years, and that she had known it that long; that her husband at the time of his death on the thirteenth of August, 1902, was a very healthy man, had never been sick and his sight and hearing was as good as a young man of twenty years; that her husband was injured about six o ’clock and that he died at the hospital about two hours later; that her husband was a contractor engaged in the business of taking contracts for grading and city work and for doing work connected with putting in streets and had lived on Manchester avenue twenty years and was living there when the tracks were first put down. That their residence was about a block from Manchester avenue and that the noise of the cars running on the tracks could be heard from their residence, and that standing on the front porch of their residence she had frequently heard the noise and rumbling of the ears on Manchester avenue. There is no dispute in the testimony that the deceased, had he looked, could have seen the car coming, for other witnesses who were present did see it, and on the other hand that the motorman could see the- deceased on the track. The evidence further tended to show that the deceased was familiar with the operation of the cars and it further appears that cars ran along there on Manchester avenue every five or ten minutes, and sometimes at longer intervals. The evidence on the part of the plaintiff further tended to show that the car was running at an ordinary speed of from five to eight miles an hour, and that the deceased stood with his back toward the west and his face toward the east whilst at the work of shoveling dirt off of the track, with his left foot inside or between the rails of the south or east-bound track and his right foot outside or south of the south rail. Some of the witnesses for the plaintiff testify that when the ear was within eight or ten feet of the deceased the motorman hallooed or gave him a warning to get out of the way. Witness John Schultz for the plaintiff said that this exclamation of warning was in a loud tone of voice; that he heard it one hundred and fifty feet away. This same witness testified that deceased in shoveling this dirt was not doing anything unusual; that he had seen him doing the same thing every day. He further testified that the men in doing this work did not ordinarily stop their work until the car got very close to them. One of the witnesses for the plaintiff, Charles Becker, testified that he saw the car ■ strike the deceased, which resulted in his death, and that he observed the car about ten or fifteen feet before it reached the deceased, and he saw the motorman applying the brakes with .both hands. Upon cross-examination he said he did not know whether the motorman had been applying the brakes prior to the time he observed him or not. The witnesses for the plaintiff testified that they did not hear any gong or bell ring, however, with the exception of one of them they say that they would not testify that a bell or gong was not sounded, but simply state that they did not hear it. One of the witnesses for the plaintiff, Frank Harrison, testified that the motorman did not give any signal by bell or otherwise; but that he heard him give the verbal warning “to get out of there.”

The evidence on the part of the defendant tended to show that as the ear approached the place where the defendant was struck, opposite the intersection of Mitchell avenue with Manchester avenue, the motorman rang the hell when seventy-five or one hundred feet away and that when the car was only eight or ten feet away from the deceased he suddenly stepped upon the track and was run over and killed, and that the motorman did all in his power with the appliances in his hand to stop' the car as soon as the danger to the deceased was discovered. Some of the witnesses for the defendant as well as the plaintiff heard the motorman call out to the deceased in a loud tone .of voice “to get out of the way,” hut the deceased remained with his hack turned toward the car and his face turned eastward until he was struck hy the car and killed.

At the close of the plaintiff’s evidence as well as at the close of all the evidence the defendant requested an instruction in the nature of a demurrer to the evidence that the plaintiff was not entitled to recover. This request was denied and to the action of the court in refusing such request an exception was duly preserved. The court then gave its instructions to the jury and the cause was submitted and they returned a verdict finding the issues for the plaintiff and assessing her damages at the sum of five thousand dollars. A timely motion for a new trial was filed and by the court overruled. Judgment was rendered in accordance with the verdict and from this judgment the defendant in due time and proper form prosecuted its appeal to this court, and the record is now before us for consideration.

OPINION.

The record in this cause discloses that at the close of the evidence on the part of the plaintiff an instruction in the nature of a demurrer to the evidence was requested, by the defendant, declaring to the jury that . plaintiff was not entitled to recover. This request was again renewed at the close of all of the evidence. We have carefully analyzed in detail all of the evidence disclosed by the record in this cause and in our opinion there is no escape from the conclusion that the demurrer to the evidence should have been sustained, and it was manifest error on the part of the court to refuse it. The material testimony developed upon the trial of this cause is brief, and while it may be said there may he some conflict in the testimony as to the sounding of a gong or the ringing of a bell, considering the testimony alone as offered- on the part of the. plaintiff there can be but one conclusion as to the position assumed by the deceased upon the track of the defendant at the time he was stricken by defendant’s car. The testimony clearly shows that the deceased was familiar with the- tracks, and that he knew that cars were passing on these tracks every few minutes; he had been at' work about the place where this injury occurred for something near three weeks. A part of the work consisted in removing dirt which had fallen off the wagons in crossing the track and would accumulate on the rails. One of the witnesses for the plaintiff said it was nothing unusual to see the deceased removing this dirt from defendant’s track, for he had seen him doing that character of work nearly every day. Other persons of the gang of workmen under deceased’s control did work of a similar character, and one of the witnesses testifies that it was very common for them in removing the dirt to remain on the track until the cars in passing would get very close to them. There is no dispute in the testimony as to the view being unobstructed, and that persons giving any atten-' tion to the approach of a car coiffd see it. Neither is there any dispute as to the testimony showing that the cars in approaching would make a. rumbling noise and could be heard for some distance, and that the attention of those who were listening would he attracted by such noise.

On the afternoon of August 13, 1902, about six o’clock, plaintiff’s husband proceeded to remove some dirt off of the south rail of the east-bound track, and as before stated, he was familiar with these tracks and knew that the* cars upon the track from which he was removing the dirt were coming from the west and going east. Notwithstanding this knowledge he took a position to do this work with his back turned toward the west and his- face toward the east, and while in that position he was struck by one of defendant’s cars coming from the west and going east. There is no pretense that the motorman was running this car in a reckless manner, and it is not contended on the part of the respondent that there was any wilful or wanton negligence on the part of the motorman. The car was being run- at an ordinary speed of from five to eight miles an hour. It is apparent that had the deceased had his face turned toward the west and giving any attention to the approach of the carj this accident would not have occurred. It is equally apparent, even in the position that he assumed, that had he not become so engrossed in his work as to give no attention to the fact that cars were being run upon that track, coming from the west, the accident would not have occurred, and in our opinion, the assuming of a position in which he was unable to see the approach of the car, when he knew that cars were passing over that track every few minutes, and giving no attention whatever, so far as the testimony discloses, to its approach, neither looking nor listening for its approach, was such negligence as directly contributed to the accident, and is a bar to any recovery for his death under those circumstances.

Taking the strongest possible view of the testimony in this case in favor of the plaintiff, and conceding for the purposes of this case that the motorman did not sound the gong or ring the hell, if we are to follow the rules as announced by the very recent well-considered cases upon this subject, there can clearly be no recovery in this proceeding.

In Davies v. Railroad, 159 Mo. 1, the facts were strikingly similar to those in the case at bar. In that case at the time of the accident the plaintiff was standing with his back to the approaching car and prying up the end of a beam while his assistants were fastening the hoisting apparatus around it. He did not see or hear the car; the parties in charge of it failed to cheek its speed or ring a bell or give any warning whatever of its approach. The conclusions reached in that case and concurred in by all of the judges in Division No. 1 were thus expressed: “Certainly it must go by the saying, that the voluntary assuming of a position upon or so near to the tracks of a street railway, over which cars are run every few minutes, that they can not pass without inflicting an injury to the party so positioned, unless the intervention of some independent agency occurs to prevent it, is an act in itself of the grossest negligence. If in taking the position assumed by plaintiff, and at the same time engaging in an undertaking, as he says he was, that prevented his seeing or hearing the approach of the cars upon defendant’s road, that he knew were due and liable to pass along at any moment, does not constitute an act of negligence that must be said to have contributed to the injury resulting to him, on account of being run against by one of defendant’s cars pursuing its usual course upon the tracks, it would be idle to search the field of practical experience for an illustration of what is termed in law an act of contributory negligence. The plaintiff had no right to assume a place of danger upon defendant’s tracks and deliberately engage in an undertaking in such a manner as to deprive tiimself of the benefit of the sense of sight and hearing, the common avenues through which the approach of danger is communicated, and trust that defendant’s agents in the course of their employment would be more considerate and watchful for his safety than he himself. ’ ’ The rule announced in this case is cited with approval in Evans v. Railroad, 178 Mo. 1. c. 512, and Clancy v. Railroad, 192 Mo. 615; and a similar rule is clearly announced in the cases of Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Engleking v. Railroad, 187 Mo. 158, and Wheat v. St. Louis, 179 Mo. 572.

In Clancy v. Railroad, supra, while it is true that the majority of the judges of that division did not concur in the views as expressed in the discussion of the last chance and the humanitarian doctrine, yet there was a concurrence by a majority of the court upon the announcement of the conclusions reached in that case upon the facts, which- were thus expressed: “The plaintiff had no right to rely upon the motorman to sound the gong. It may be considered negligence for the motorman not to do so, but it was clearly negligence for the plaintiff to place himself in such a position that he could not see the approaching car, and to take no precautions whatever looking to his own safety. Such conduct on his part was clearly contributory negligence and bars his recovery, even conceding that the defendant was guilty of negligence.”

In Giardina v. Railroad, 185 Mo. 1. c. 334, plaintiff was denied a recovery in that case and this court held that the trial court did right to direct a verdict for the defendant on the evidence of the plaintiff. Valliant, J., speaking for the court in that case, thus announced the rule that: “It may be -conceded that the defendant was negligent in running its car at a high rate of speed and without sounding the gong past á standing car from the rear of which the motorman ought to have known that people were liable to pass. It is not likely that the peremptory instruction was-given on the theory that no negligence of. the defendant was shown, but rather, that the plaintiff failed to observe that degree of care that was to be expected of a man of ordinary prudence, and that his negligence contributed with the negligence of the defendant to produce the injury complained of. ”

In Clancy v. Railroad, supra, it was said by this court: “Conceding, then, that the defendant was guilty of negligence in the running of the car, and in not sounding the gong, and that all the other witnesses in the case, both for the plaintiff and the defendant, were mistaken in saying that the noise made by the running of the car could have been heard by any one listening for it, still, the plaintiff himself was guilty of negligence which bars his recovery. A similar contention was decided adversely to the plaintiff in Wheat v. St. Louis, 179 Mo. 1. c. 580, and it was there said: ‘ The contention of the plaintiff that he had a right to have his mind so engrossed in his business that he did not think of the obstruction or thought he had passed it, is wholly untenable. Persons traveling on a highway are charged with the duty to exercise réasonable care to observe and avoid obstructions and defects. They have no right to be so engrossed in their own affairs as to be negligent of their own safety.’ The principle underlying that decision is equally applicable to this case. There is, likewise, no difference in principle between the case at bar and the cases of Davies v. Railroad, 159 Mo. 1, and Evans v. Railroad, 178 Mo. 1. c. 517.”

In Evans v. Railroad, supra, this court, speaking through Judge Burgess, quoted approvingly Davies v. Railroad, supra, and commented upon the fact that it was held in that case that the court should have declared, as a matter of law, that, upon plaintiff’s own showing, he could not recover, and it was error to submit the case to the jury, and then added: “But plaintiff claims that even if the deceased was guilty of negligence, yet if defendant’s employes in charge of the train became aware of his peril, or might, by the exercise of ordinary care, have become aware of it, in time to have enabled them by the exercise of ordinary care to have averted the injury, and they failed to exercise such care, plaintiff was entitled to recover. It will not do to apply this rule in all of its strictness to section men, whose business it is to work upon and keep in repair railroad tracks, for they are supposed to look to their own personal safety, and to know of the times at which trains pass, to look for them and see them, and to move out of the way. It is of common knowledge that these men often voluntarily wait until trains get dangerously close to them, and then step out of danger and let them pass by, and to require trains to stop upon all such occasions, when section men are discovered at work on the track, would not only be imposing upon railroads unjust burdens, but would greatly interfere with traffic and travel. Those in charge of trains have a right to presume in the first place that such persons will keep out of danger, and not until they have good reason to believe they will not do so, and then fail to use all proper means at their command to prevent injuring them, in consequence of which they are injured, or are injured by reason of the willful negligence of those in charge of the train, should the defendant be held liable, and there was nothing of that kind in this case. Our conclusion is that the demurrer to the evidence interposed by the defendant should have been sustained.”

What is said in the case just cited is equally applicable to the case at bar. In view of the fact that the deceased had been engaged at this work for about three weeks, and according to the testimony, that those engaged in removing the dirt from the track were in the habit of waiting until the car approached very near them before stepping to one side, — under this state of facts the motorman had every reason to believe (it only requiring a moiñent to step to one side) that the deceased knew the car was approaching and would in due time step to one side and allow the car to pass.

We deem it unnecessary to pursue this subject further. That the testimony as disclosed by the record in this cause shows conclusively that the negligence of the deceased contributed directly to the injury received by him which resulted in his death, is too plain for further discussion. In the first place, he knew that cars were passing every few minutes upon the track where he was at work; he knew the direction from which those cars came. Notwithstanding his knowledge' of these facts he carelessly and negligently assumed a position in doing the work which would prevent him from seeing the approach of defendant’s car, and there is. an entire absence of any evidence, notwithstanding his full information as to the operation of the cars, tending to show any precaution whatever or that he looked or listened, as it was his duty to do, for the approach of the cars being run and operated by the defendant; and we repeat, there can be no escape from the conclusion that the instruction in the nature of a demurrer to the evidence should have been given to the jury directing them to return a verdict for the defendant.

We have indicated our views upon the leading proposition in this cause, which makes it unnecessary to discuss the remaining complaints of appellant. Our conclusion is that the judgment of the trial court should be reversed, and it is so ordered.

All concur.