author: LAMM, J.

text:
    H. P. COLEMAN v. S. P. REYNOLDS, Appellant.
    Division One,
    November 27, 1907.
    1. MOTIONS IN ANSWER: No Ruling or Exception. Where no error is predicated in the motions for new trial and in arrest on the trial court’s failure to rule upon or otherwise dispose of motions hid away in appellant’s answer, that a certain person be made a party plaintiff, etc., such questions cannot be considered on appeal.
    2. REPLEVIN: Rescission of Contract of Sale: Materiality of Question. If by the uneontradicted evidence the sale of the lumber was fo!r cash on delivery and defendant was not entitled to possession until payment was made (the two acts being concurrent), then, on a showing in the replevin suit that payment was not made, it is not necessary to consider plaintiff’s right to the property on the theory that he rescinded the contract of sale for alleged violations thereof by defendant; but absent either of these concurrent acts, then the question of rescission is material.
    3. -: Cash on Delivery: Evidence: Peremptory Instruction. Where plaintiff positively testifies that the terms of the oral agreement for the sale of the lumber were cash on ’delivery on board of cars and that the lumber remained in his possession until paid for, and nowhere in the record is there any contradiction of that testimony, but, on the contrary, there is by indirection and inference cogent testimony, unchallenged, sustaining plaintiff’s theory, he is entitled to a peremptory instruction directing the jury to find for him.

      4. -: Right to Possession: Subsequent Sale: Advanced Payment. Where the contract for the sale of lumber was for cash on delivery, the title did not pass until payment was made; and where payment was not made, and plaintiff sold it to another, and thereupon the first purchaser brought replevin against the second and the sheriff put the lumber in the possession of the first purchaser, the seller may maintain replevin - against him, and is entitled to a peremptory instruction where the evidence is uncontradicted that the sale was for cash on delivery and where plaintiff pays into court for defendant the cash he has advanced in part payment therefor.
    5. -: -\: Rescission. And that being the case, the question of plaintiff’s right to rescind the contract for defendant’® breach theireof, is no longer in the case.
    6. -: -: -: Subsequent Replevin: In Custodia Legis. If Reynolds sue Hurd, a subsequent purchaser, and get possession of Coleman’s lumber, Coleman may institute his independent suit against Reynolds to recover possession of the lumber. Coleman is not required to intermeddle in the first suit and abide its intermediate incidents and final event, or to postpone the recaption of his lumber, until the first suit is out of the way. The property being placed in possession of Reynolds, and not retained by the sheriff, is not in custodia legis„ and Coleman is entitled to recover it from Reynolds, notwithstanding his previous suit against Hurd is not determined but is still pending.
    Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Affirmed.

      Faris £ Oliver for appellant.
    Under tbe facts tbe title bad passed from Coleman to Reynolds. Tbe latter bad paid $5.00 per thousand for eacb thousand feet of lumber as per estimate; be bad marked eacb separate stack in which tbe 349,200 feet were contained with bis initials; be bad received a receipt from Coleman, bis vendor, containing tbe stack numbers of tbe stacks sold and initialed, and be had taken possession of all of said stacks and was loading ont the lumber. The segregation from'the other lumber was complete. The receipt recites that the lumber in question was ‘ bought of me, H. P. Coleman. ’ ’ It could not be “bought” unless concurrently it was sold. Glass v. Blazer, 91 Mo. App. 564; Kuhler v. Tobin, 61 Mo. App. 576; Keiler v. Tutt, 31 Mo. 301; Gatzweiler v. Morgner, 51 Mo. 47; State to use v. Knapp, 13 Mo. App. 467; Toney v. Goodley, 57 Mo. App. 235; Collins v. Wayne Lumber Co., 128 Mo. 451; Caldwell v. Garner, 31 Mo. 131; Creelman v. DeLisle, 107 Mo. App. 615. There was here such a change of possession and such a notorious continuance of possession as even to satisfy and comply with the statute, if this had been required. Sec. 3410, R. S. 1899. And by the common law, as well as by statute, the title had passed by the sale from Coleman, the plaintiff, to Reynolds, the defendant. Rheu v. Reins, 21 111. 530; Sutherland v. Brace, 73 F’ed. 624. Yet plaintiff was permitted to go to the jury in a replevin case, without having prior thereto- demanded a return of the lumber, without returning, or tendering the money paid therefor before suit was brought, without having rescinded the contract, without proof of fraud in the making of said contract, and without showing the insolvency of his vendee. Lynch v. Bucher, 38 Conn. 490; Woodruff v. Adams, 37 Conn. 233; Cobbey on Replevin, secs. 454, 456, 462; Cole v. Railroad, 21 Mo. App-. 443; Smith v. Woodleof, 21 Kan. 717.

      J. B. Brewer and Everett Beeves for respondent.
    (1) Coleman is entitled to maintain this action for the reason that at the time of the institution of this suit he was the owner and entitled to the possession of the property in question. For the undisputed testimony is that under the contract the title was to remain in him until the lumber was paid for. Boutell v. Wame, 62 Mo. 350; Bergeman v. Railroad, 104 Mo. 77; Johnson-Brinkman Com. Co. v. Railroad, 126 Mo. 344; Bank v. Tiger Tail Mill & Land Co., 152 Mo. 145 ; Com. Co. v. Railroad, 72 Mo. App. 437; Johnston v. Parrott & Barnes, 92 Mo. App. 199; Little v. Page, 44 Mo. 412. (2) The facts do not show a change of possession of said lumber from Coleman to Reynolds, as contended by appellant. The marking of the lumber “S. P‘. R.” while the same was on the mill-yard of respondent and in his possession did not constitute a change of possession. Said marking of said lumber, as shown by the testimony, was for the purpose only of determining the amount of money to be advanced on said lumber. Bank v. Tiger Tail Mill & Land Co., supra. (3) No demand for the property in question before the institution of this suit was necessary. The only effect of failure to make demand is that plaintiff should be taxed with the costs of suit, provided the defendant pleads a want of demand. Sec. 1575, R. S. 18-99. (4) Cole-man was not required to make a tender to Reynolds prior to the institution of this suit, of the amount due said Reynolds- upon the contract. Reynolds wrongfully and tortuously took the lumber of Coleman under the writ of replevin sued out by the former against Hurd. Coleman had the right to place himself in statu quo by replevin. Bergeman v. Railroad, supra. But if a tender was required, which we deny, then there was a sufficient tender made by Coleman to Reynolds before the institution of this suit. Burt v. Cook, 151 Mo. 416; Stephenson v. Kilpatrick, 166 Mo. 262. (5) The doctrine of in custodia legis does not apply in this case, for the reason that Coleman was a stranger to the suit of Reynolds v. Hurd, There is no privity between Hurd and Coleman. The lumber had never been delivered to Hurd by Coleman, and under the contract between Coleman and Hurd no title passed to the latter. Mohr v. Langan, 162 Mo. 474.
   LAMM, J.

— Coleman sued Reynolds in replevin in the circuit court of Pemiscot county to recover possession of 256,000 feet of. described cottonwood lumber, in part in certain cars and in part in a certain mill yard, and was put in possession under his writ. At the trial judgment went in Coleman’s favor and Reynolds appeals here.

No point is made on the petition, which is in conventional form and needs no attention.

The answer was a specific denial of each averment of the petition, except that relating to the value of the lumber. It is alleged, furthermore, that defendant owned the lumber at the time suit was brought and owns it now and is entitled to the possession. The damages for plaintiff’s alleged unlawful taking and detention is put at the sum of $3,000, and defendant claims said damages and the return of the lumber. The answer then avers that prior to the institution of the suit at bar defendant, Reynolds, as plaintiff, brought replevin against oue Hurd for the same lumber and by the writ in that case was put in possession of it by the sheriff of Ppmiscot county; that said prior suit is pending and undisposed of in the circuit court of said county; that-said lumber, by the writ issued in said prior suit, came into “the custody of the court as aforesaid, and defendant says that plaintiff herein cannot have and maintain his cause of replevin against said lumber and property for the reason above stated.”

Finally, the answer states that “defendant prays that said O. P. Hurd may be by a proper order of court brought in and made a party plaintiff to this action; that said two suits now pending may be consolidated and that upon a proper hearing defendant have judgment as above prayed herein, and for his costs.”

The replication was, in effect, a denial of new matter in the answer.

I. If the concluding clause of the answer, by whatsoever benevolent and bland interpretation, be deemed two motions, one that Hurd be brought in as a party plaintiff and the other that the two replevin suits be consolidated, yet we find no ruling, nisi, on such submerged motions, so hid away in such unexpected place as an answer. We find no disposition of the motions in the abstract, and no error predicated in the motions for new trial and in arrest, on any failure to rule in that behalf. Therefore, such questions become by-matter and out of the case.

II. In 1902 Coleman was a millman, running a saw mill in Pemiscot county and manufacturing lumber. In that year one Stinson appeared on the scene representing Houston Brothers of Cairo, Illinois, and contracted in their name and in their behalf with plaintiff for a lot of lumber — as we infer, “in the stick.” At all events, whether in the stick or not, it was not ready for delivery, was roughly estimated at nearly 350,000 feet — the price, $11.75 per 1,000 feet “log run.” At a certain time plaintiff entered upon the performance of this contract, and we take it some of the lumber had been inspected by Stinson; but whether this be so or not, plaintiff demanded an advancement to pay his mill hands, and Stinson informed him that Reyholds would advance the money. There was evidence introduced by defendant tending to show that Houston Brothers refused to take the lumber on the terms agreed on, or propositions made to their agent, Stinson, and refused to make any advancement on lumber “in the stick;” that plaintiff was informed of that fact and thereupon entered into a new contract with Reynolds with full knowledge of the fact that he was thereafter dealing with the latter and not with Houston Brothers. There is, however, evidence introduced by plaintiff (and some phases of it are corroborated by defendant’s testimony), that Reynolds at this time was dealing in connection with Houston Brothers; that when Stinson referred plaintiff to Reynolds, plaintiff was allowed to suppose he was still dealing with Houston Brothers and carrying out the deal made with Stinson, and never became aware of the fact that Reynolds claimed to be the owner of the lumber until :about the time (or after) the replevin suits were brought. The testimony is exceedingly diffused and confused on this point. Some of the lumber, say sixty-odd thousand feet, was delivered; and some of the testimony indicates that Houston Brothers got one part of that so delivered and that Reynolds got another. Some of the testimony bears the construction that Reynolds got all that was delivered, and that whatever part Houston Brothers got came from Reynolds. But we deem all of this testimony unimportant. It throws no light on the vital question in the case, to-wit, who was entitled to the possession of the lumber in suit when suit was brought? The right answer to that question does not depend upon the time when plaintiff became aware of the fact that Reynolds claimed the lumber and was paying for it out of his own funds. It sufficiently appears that Reynolds and plaintiff entered into a new arrangement, as plaintiff supposed, on behalf of Houston Brothers, and as Reynolds contends, on his own behalf; and the record substantially shows that it was on Reynolds ’ behalf alone. This arrangement was made because there was a squabble between Stinson and plaintiff about the terms of the original contract, .which squabble arose after Stinson began inspecting the lumber ostensibly for his principals, the Houston Brothers. Be that as it may, it appears, as said, that Stinson sent plaintiff to Reynolds to receive a demanded advancement, that Reynolds advanced him $500 of his own money, and thereafter in two other installments advanced him enough more to make up the sum of $1,746 at $5 per 1,000 feet on the estimated amount of lumber covered by the contract — leaving $6.75 per 1,000 feet back.

The case was put to the jury on two theories by plaintiff’s instructions. The first theory was based on the terms of the new arrangement finally entered into between plaintiff and defendant. It involves the question whether the title and right to possession remained in plaintiff under the terms of the contract until the lumber was paid for by defendant. The second theory is based on the notion of a rescission of the contract by plaintiff; and this theory involves a consideration of the facts uncovered at the trial relating to alleged violations of the contract by Reynolds and his agent, one Bostick, upon which facts plaintiff builds a contention that he was entitled to rescind and did rescind.

It stands admitted in the case that the lumber was not paid for in full by defendant. It stands admitted defendant never tendered such payment. If, therefore, it be determined by the uncontradicted testimony that under the contract the sale was cash on delivery, that defendant was not entitled to possession until payment was- made (the two acts being concurrent), and that the title was to remain in plaintiff until such time, then we need not consider the second theory nor the instructions on either side relating to that theory because error in the giving or refusing of such instructions could not be error materially affecting the merits of the case. If, however, there was any substantial evidence in the case that the terms of the sale did not include cash on delivery, and that the title was not to remain in plaintiff until the lumber was paid for; and if the facts tend to show that under the contract the defendant was entitled to and in rightful possession of the lumber at the institution of the suit (unless the contract was rescinded) then the question of rescission is reached, the instructions pro and con on that question become material and the assignment of errors relating to such instructions is here for consideration.

Attending to the contract between plaintiff and defendant the record shows this condition of things: The new arrangement between plaintiff and defendant was built on the old arrangement made by Stinson with plaintiff for Houston Brothers. Some of the terms contemplated by the old arrangement were not changed, and some of them were. Among the terms remaining unchanged were those relating to delivery and to the possession of and title to the lumber. Two witnesses testified about the old agreement (an oral one) — plaintiff and said Stinson. Plaintiff testified the arrangement was that “the lumber became his [referring to Stinson as representative of Houston Brothers] when it was was put aboard the cars, when it was put on the cars and paid for by him.” Referring to the new arrangement with Reynolds the plaintiff testified that, when the squabble arose with Stinson, he met Reynolds who asked him: “What is the matter with you and Stinson down there; . . .it looks like you people could get along?” Plaintiff then told Reynolds the details and explained to him the merits of the trouble. Thereat Reynolds told him the advance payments had been made by him (Reynolds) — “That is my money in that lumber, I would like to have the lumber.” Plaintiff said to him: “All right;” he would as soon let him (Reynolds) have it as the others “if he would take it according to contract.” Reynolds then asked what the contract was, and plaintiff told him that he made two propositions to Stinson relating to measurement — one, “inch for inch, or whatever it measured;” the other, “% up for an inch, and under % for % inch.” Plaintiff then and there told defendant that Stinson had agreed to take the lumber on “the first proposition, and to pay for the lumber as fast as it was put aboard the cars, and that he (Reynolds) could take it the same way. I told him Stinson was to give me $11.75, to be paid for when put aboard the cars; he to advance $5 and to pay $6.75 when put aboard the cars. . . . All the rest of the contract, except the measurement of the lumber, remained unchanged with Reynolds . . . and there was to be no certain amount of lumber at all. ’ ’ Returning to the matter at a subsequent time in his testimony, the court propounded this inquiry: “State all the contract between you and Reynolds. A. Well, -the contract was made that he was to take the lumber log run, % up as an inch and under % for half an inch, and to pay for it when it was put aboard the cars as the other people were. . . . Q. (By Mr. Collins): And there in the contract was it said about whose property it was until it was paid for? A. Of course, it was mine.” Thereupon, according to plaintiff’s testimony, Reynolds agreed to take the' lumber on the second proposition, to-wit, % and up for an inch, and under % f° % inch, the other terms of the new arrangement remaining as in the old. The terms of measurement were then written in a little book, reading as follows: “All over % goes for 1; all under % for % inch. ”

Stinson’s deposition was taken and read by defendant. That deposition in substance begins with the affair (as to details) after Reynolds got into it. He does not deny that propositions passed between him as the representative of Houston Brothers and plaintiff, and that he (Stinson) accepted one of these propositions on behalf of Houston Brothers; nor does he undertake to testify in regard to the terms of the contemplated deal as it stood originally between him and plaintiff. He dismisses the original deal by planting himself on the theory that it was declared off by Houston Brothers. He says “Houston Brothers had been advised of the pending deal and wired me to make no advanee on lumber or stick in country,” and that be so told plaintiff. Tbe only just conclusion to draw from bis testimony is that Houston Brothers withdrew after tbe arrangement was made and at tbe time when an advancement was demanded. So that, Stinson’s testimony throws no light on tbe precise terms of tbe original agreement, nor wa,s be asked to state tbe terms ‘ ‘ of the pending deal, ’ ’ as be puts it. However, be did testify on cross-examination to tbe terms of tbe contract between plaintiff and defendant, as follows: “In tbe agreement with Mr. Coleman, Mr. Eeynolds was to pay him $11.75 f. o. b. at loading point; there was a stipulated advance payment, I think, of $5 per 1,000, the balance due when stack was loaded” — tbe word “stack” referring to lumber piles in tbe mill yard.

Tbe defendant took tbe stand on bis own behalf and testified, in substance, that knowing Stinson rep>resented Houston Brothers and was negotiating for tbe Coleman lumber and that tbe deal was off, be bought tbe lumber himself through Stinson. He subsequently made tbe advance payments referred to in person and at tbe end of these payments took a receipt, writing it himself and banding it to Coleman for bis signature. This receipt runs as follows:

“Becd. of S. P. Eeynolds for Eeynolds & Crews, tbe sum of 1,746 and no-100 as first payment for 349,-200 feet of cottonwood lumber bought of me, H. P. Coleman, by H. Stinson, representing Houston Brothers of Cairo, the lumber to be delivered in accordance with the trade made with Stinson.
“H. P. Coleman.”

It will be seen that this written memorandum unquestionably refers to tbe deal between Stinson, acting for Houston Brothers, and plaintiff, and recognizes that tbe delivery of tbe lumber was to be made in accordance therewith.

We have read and weighed painstakingly .every line of defendant’s testimony and can find nothing contradicting the testimony of plaintiff relating to the terms of the original agreement pertaining to delivery, title or possession. He says he talked with Coleman but he does not pretend to give the terms of the conversation. He sums it up as follows: “When we were talking on the crossing, there I agreed to take it like he says he wanted Stinson to take it.” In his cross-examination he states as follows: “In my examination in chief I said I didn’t remember the exact words between us, but I tried to remember the general tenor of the conversation.”

The case then may proceed on the theory that plaintiff’s version of the terms of the original contract stands practically confessed, because the force of defendant’s testimony was leveled at establishing the fact that he (Reynolds) and not Houston Brothers purchased the lumber under the new arrangement, that Coleman was fully advised of that fact, and that no substantial grounds for rescission were laid. Nowhere else in the record is there any contradiction of the fact that the terms of the trade were cash on delivery on board the cars, and that the lumber remained plaintiff’s until paid for. To the contrary, there is by indirection and inference cogent testimony, unchallenged, sustaining plaintiff’s theory of the terms of the agreements with Stinson and Reynolds.

It seems that Stinson not only represented Houston Brothers, but in certain particulars acted for Reynolds. One of them was that after Reynolds took Houston Brothers’ place and agreed to make the advance payments he (Stinson) caused a brand, to-wit, “S. P. R.,” to be put on certain stacks of lumber in plaintiff’s mill yard, which brand was the initials of defendant’s name. Coleman says this brand was put there to show merely what stacks of lumber were in the deal so that an estimate could be placed on them for the purpose of the advance payment. Defendant, himself, ordered Stinson to brand the stacks of lumber and, as we gather, the significance defendant seems to attach to this branding is that it operated by way of segregating his lumber from the mass in the mill yard, and is to be taken as a sort of symbolical delivery whereby he was put in possession. But there is no evidence, direct or inferential, that this branding constituted a delivery or was intended to be taken as and for a delivery. To the contrary, the lumber remained in Coleman’s mill yard, in his actual possession, and subject to the contract that he (Coleman) was to put it on board the cars and was to be paid in full when it was so delivered; and no word of testimony squints at the idea that Coleman ever contemplated taking his hand off his lumber until he was paid for it, and, as said, there is no pretense he made any contract requiring him to do so.

Presently Coleman was dissatisfied with Stinson’s inspection. Presently Mr. Reynolds sent another agent to inspect and receive the lumber — one Bostick. He measured and received a small part of it, when again plaintiff became dissatisfied with the inspection. He claimed Bostick was not taking it “log run,” but was rejecting lumber that should be taken. Thereat plaintiff forbade Bostick to proceed in the way he was doing; and, basing his action on the foregoing and other facts developed in this connection, forbade him to proceed at all and, refusing to go on with the contract, undertook to sell the lumber remaining to one Hurd. Here again there is no dispute in the evidence. It stands unquestioned that by the arrangement with Hurd he was to take the lumber at a slight advance per 1,000 feet (75 cents) and under an oral contract containing the same terms in the Reynolds contract — that is, it was to be placed by plaintiff on board the cars and was to be paid for on delivery, the title and possession to remain in plaintiff until paid for. A bayou ran between the lumber and the loading switch. The rainy season was about to set in and plaintiff was under a sharp pressure to get the lumber out before the roads became founderous. Being asked in whose possession this lumber remained, plaintiff said: “In my possession all the time. It never was put in Stinson’s. I never let any of them take charge of the lumber until I get my full amount of money. ’ ’ Again he was asked whether it was Hurd’s lumber after his deal with Hurd. His answer was: “No, sir; Hurd had never received that lumber. The contract between me and Hurd with reference to when the lumber should be his, was that it should be his when put aboard the cars and paid for like the others. ’ ’

The case went to the jury with the foregoing evidence unimpeached. The record shows without any question that Reynolds had paid for more lumber than was actually delivered to him; that Coleman before suit offered to settle with him and pay back the excess; that Reynolds declined to receive back the money and claimed the lumber. It seems that after plaintiff and Hurd entered into their agreement, a few cars (two, as we see it) were loaded at the loading switch, but the great bulk of the lumber still remained in stacks in plaintiff’s mill yard. In this condition of things, without making Coleman a party, Reynolds brought a replevin suit against Hurd, and the sheriff took all the lumber and put it in the possession of Reynolds. Thereupon Coleman brought the present suit, made a recaption, and subsequently paid into court for Reynolds’ benefit so much of the $1,746 as remained after deducting the price of the lumber that Reynolds actually got.

On this record there can be no question but what (unless the Hurd replevin suit is in the road) plaintiff was entitled to a peremptory instruction that the jury should find for him. The contract remaining executory, and payment and delivery being concurrent acts, then, as a matter of law, the title to the lumber and right to possession did not pass in a sale, cash on delivery, until payment was made. The defendant having possessed himself of the lumber wrongfully, and in .the very teeth of his contract with plaintiff, the latter was entitled to he placed in statu quo ante. [Little v. Page, 44 Mo. 412; Bontell v. Warne, 62 Mo. 350; Bergeman v. Railroad, 104 Mo. 77; Johnson-Brinkman Com. Co. v. Central Bank, 116 Mo. l. c. 570; Bank v. Tiger Tail Mill & Land Co., 152 Mo. 145; Johnston v. Parrott & Barnes, 92 Mo. App. 199.]

Plaintiff did not ask a peremptory instruction, but was given an instruction putting it to the jury to find as a fact whether the contract between plaintiff and defendant was cash on delivery on board cars; and they were told that if they found the contract to he that way, and if they further found that the lumber was not paid for, then their finding should he for plaintiff. If the jury had found against plaintiff under that instruction, it would have been the duty of the court to have .set their verdict aside instanter on the record presented to us. No such verdict could stand. The jury, however, found for plaintiff, thus doing the only thing they could do, and the very thing the court should have told them to do, without regard to the issue of rescission. Their verdict being right, and a judgment thereon following, it ought not to be reversed because of harmless errors in other instructions addressed to an immaterial issue on rescission. In this view of the case the question of rescission is not reached; and the facts depended upon by plaintiff to show a rescission and a right to a rescission, and the facts depended upon by defendant to show no right to a rescission and no rescission, need not be developed.

III. But it is contended by defendant that the pendency of the prior replevin suit of Reynolds v. Hurd, pleaded in the answer, must be taken into account. In considering that contention, it may he said that the defendant asked a mandatory instruction that the jury find for him. This instruction was refused and it is sought to predicate error of that refusal. If, therefore, the pendency (if pendency was proved) of the prior replevin suit, as a matter of law, stands in the way of plaintiff’s recovery of the possession of his property, then it was error to refuse that instruction. In disposing of this insistence it is proper to say in passing that there was no competent evidence of the bringing of a former suit or of its pendency. The pleadings, writ and return in that case were not introduced, nor was there any proof, worthy of the name, showing that such suit was still pending or what the issues were. But lay witnesses were allowed to testify that the suit of Reynolds v. Hurd was brought, the writ served and the property taken under it (all, without objection); and as the case was tried on the theory that the first replevin suit covered the same property and was seized under a writ therein and turned over to Reynolds, and that the case was pending, we shall treat it as tried on that theory. At the outset it must be observed that this is not a case where chattels were seized under a second writ of replevin while they were in the very hands of the officer of the law and not yet delivered to the plaintiff in the first suit. Nor is this a case where it is shown that the defendant in the first suit had been put into possession of the chattels, as owner, by the plaintiff in the second suit; nor is it a case where Coleman holds any title or right, now at issue, as grantee or donee of Hurd, or in subordination to the title put in question in the first suit.- It is a case presenting a simple and single issue, viz.: If A sue B in replevin and get possession of C’s lumber under the writ, may C institute his independent suit against A to recover possession of the lumber? Or must 0 inter-meddle in the first suit and abide its intermediate incidents and final event, or postpone the recaption of his lumber until the first suit is out of the way? The question is neither new nor open in this State and the learning thereon need not be restated. On the hypothesis in hand the property was not in custodia, legis and Coleman was entitled to bring his suit and maintain it. [Coen v. Watkins, 62 Mo. App. 502; Westbay v. Milligan, 74 Mo. App. 179; Mohr v. Langan, 162 Mo. 474; 24 Am. and Eng. Ency. Law (2 Ed.), 503.]

If Reynolds has subjected himself to annoyance in instituting the first suit, or put himself in the way of loss by voluntarily enmeshing himself in entanglements, then he fell into a pit he digged himself, it is his affair and Coleman cannot be hindered or delayed thereby in enforcing his rights to his own property. [Ilsley v. Stubbs, 5 Mass. 280.] If the cause of Reynolds v. Hurd had proceeded to judgment, that judgment would not be res judicata as to Coleman, who was no party to it and did not hold in subordination to Hurd’s title as his grantee, donee, or otherwise. [Womach v. St. Joseph, 201 Mo. 467.] Therefore, if the judgment would not bind him, so much the less will the mere pendency of the suit bind him or affect his rights. We rule the point against the defendant.

Questions are made here by learned counsel of defendant touching the admission and exclusion of testimony. We find no reversible error in any assignment on that score.

The judgment must be affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    GEORGE KLEBE, Appellant, v. PARKER DISTILLING COMPANY.
    Division One,
    November 27, 1907.
    1. MASTER AND SERVANT: Safe Appliances: Res Ipsa Loquitur. The rule of res ipsa loquitur, whereby plaintiff makes out a prima-fq,cie cause of negligence against hi® master by showing á break in the machinery with which he was working and his injury as a result of such break, is allowed where the machinery is peculiarly within the master’s- knowledge and under his control, and he is for that reason in a better position to explain the cause of the accident than his injured servant.
    2. -: —*-: -: Applies Generally. And where the reason for the rule exists it applies to masters and servants generally, as well as to common carriers and passengers.
    3. -: -: -: Opportunity for Knowing. But where the servant or his associates have knowledge or opportunity to know of the defect in the machinery which caused his injury, the rule of res ipsa loquitur does not apply, but the master’s negligence must be proved, and if not proved plaintiff must be nonsuited.
    4. -: -: -■: Elevator. Whisky barrels were placed on an elevator and carried to the fourth floor of defendant’s building and there were removed by plaintiff. On the day of the accident he had removed seven barrels, and while he was in the act of removing the eighth the rope broke, the elevator fell and he was injured. He was twenty-three years old, had operated this and similar elevators more than four years prior to his injury, had access to all parts of the building, and his duties called him to every floor almost daily, and in connection therewith he used and operated the elevator from one to six times a day. The rope was of wire, from three-fourths to an inch thick, had been in use two years, and was not inclosed, so he had an unobstructed view of it. He knew defendant’s other employees, who had knowledge of the elevator and its operation; the master had nothing to do with either. No evidence was offered explaining why those employed in the building did not explain the cause of the break. Held, that the irule of res ipsa loquitur does not apply, and there being no evidence that the master was in. any wise negligent either in the construction, inspection or use of the elevator or rope, oir that his negligence caused the accident, plaintiff was properly nonsuited.

      5. -: -: Inspection. Where the engineer who had control of the elevator and cable inspected them once or twice a week and the city inspector inspected and approved it about three weeks prior to the accident, and there was no evidence of the master’s negligence, a demurrer to the evidence should have been sustained, as pointing to something other than the master’s negligence as the cause of the accident
    Appeal from St. Louis City Circuit Court. — Row. Horatio D. Wood, Judge.
    Affirmed.

      Rassieur, Schnurmacher & Rassieur for appellant.
    (1) Since plaintiff’s duties required him to work upon the elevator platform, it was incumbent on defendant to see that the elevator was safely suspended. This involved the furnishing of a rope or cable of sufficient strength, and a continuous duty of inspection on the part of defendant, to see that it remained so. Labatt on Master and Servant, sec. 7; Wendler v. Peoples House Furnishing Co., 165 Mo. 536; Pauck v. Dressed Beef Co., 159 Mo. 467; Settle v. Railroad, 127 Mo. 336; Blanton v. Dold, 109 Mo. 75. (2) Elevator cables of sufficient strength, and under reasonable inspection, when subjected to merely ordinary and usual strain, do not break. Therefore, the proof in this case that the elevator cable parted under an ordinary load, and precipitated plaintiff to the bottom of the elevator shaft, made out a prima-facie case under the doctrine of res ipsa loquitur, and shifted the burden of the evidence upon defendant to explain the accident, if it could. Blanton v. Dold, 109 Mo. 74; Turner v. Haar, 114 Mo. 346; Sackewitz v. American Biscuit Mfg. C'o., 78 Mo. App. 151; Johnson v. Railroad, 104 Mo. App. 592; Scott v. Dock Co., 3 Hurl. & Colt. 596 ; Kearney v. Railroad, L. R. 5 Q. B. 411, L. R, 6 Q. B. 759'. For the application, of the doctrine to elevator cases, see: Ellis v. Waldron, 19' R. I. 369; Fairbank Canning Co. v. Innes, 24 111. App. 33, affirmed, 125 111. 410; Gerlach v. Edelmeyer, 88 N. Y. 645; Hartford Deposit Co. v. Sollitt, 172 111. 222; Springer v. Ford, 189 111. 430; Tread-well v. Whittier, 5 L. R. A. 498. Also see: Labatt on Master and Servant, sec. 834, and cases cited in notes 1 and 8.

      Seddon & Holland for respondent.
    The court did not err in giving a peremptory instruction at the close of the testimony of appellant (plaintiff), because while appellant showed that he was injured by the breaking of a rope, he did not show that the rope broke on account of any defect, much less on account of a defect the existence of which would have been known to respondent by the exercise of ordinary care. The doctrine of res ipsa loquitur has no application to a case of this kind between master and servant. Bowen v. Railroad, 95 Mo. 268; Copeland v. Railroad, 175 Mo. 650; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Bohn v. Railroad, 106 Mo. 429; Patton v. Railroad, 179 U. S. 658; Railroad v. Barrett, 166' U. S. 617; Shandrew v. Railroad, 142 Fed. 320; Westinghouse v. Hemlich, 127 Fed. 92; Reily v. Campbell, 59 Fed. 990; Ash v. Yerlending, 154 Pa. St. 246; Stackpole v. Wray, 74 App>. Div. 340; Searles v. Railroad, 101 N. Y. 662; Dobbins v. O ’Brien, 119 N. Y. 193; Quincy Mining Co. v. Kitts, 42 Mich. 35; Brownfield v. Railroad, 5 Am. Neg. Rep. 33; Kepner v. Traction Co., 183 Pa. St. 24; Railroad v. Campbell, 97 Ala. 147; Kaye v. Rob Roy Hosiery Co., 51 Hun 519; Star'er v. Stern, 100 App. Div. (N. Y.) 383; Reid v. Railroad, 81 Ga. 694; Davidson v. Davidson, 46 Minn. 117; Huff v. Austin, 46 Ohio 386'; Bohn v. Railroad, 106 Mo. 429.
   WOODSON, J.

— This suit was. instituted in the circuit court of the city of St. Louis, seeking to recover damages in the sum of $20,000 for personal injuries received by plaintiff, caused by the breaking of an elevator rope or cable, and thereby permitting the elevator, upon which he was working, to drop from the fifth floor of the building to the basement. In the fall he sustained injuries of a very serious nature and they are permanent in their character.

At the close of plaintiff’s evidence in chief, the defendant offered a demurrer thereto, which the court gave, to which action of the court the plaintiff duly excepted, and took a nonsuit with leave. Within proper time he filed his motion to set aside the nonsuit and prayed for a new trial, which was, by the court, overruled, and, after properly excepting to the ruling of the court, he appealed the cause to this court.

The facts as disclosed by the record are substantially as follows:

The defendant was engaged in the wholesale liquor business, at No. 213 Market street, in the city of St. Louis, and the plaintiff was one of its employees. The building in which the business was conducted was five stories high. The defendant maintained in its establishment a freight elevator for hoisting and lowering barrels and packages; the elevator was operated by hydraulic power, and the car thereof was suspended from a wire rope of cable provided for that purpose.

The evidence on behalf of plaintiff established that he was twenty-three years of age when he entered the employ of the defendant in April, 1902; that in the beginning his duties consisted of bottling whisky out of barrels. He was assigned to work on the fourth floor of defendant’s establishment. Whisky would be sent up from the first floor in a barrel, placed on a freight-elevator; the barrel would be rolled on the elevator there by the foreman, Homberg, or under his directions. By means of a starting rope from the first floor, the elevator would proceed to the fourth floor, where it was automatically stopped. Plaintiff would then enter upon the elevator platform and roll the barrel from the elevator to the floor of the fourth story.

After the first two months plaintiff was put to general work, about the establishment. The care of the elevator was no part of his duty'; an engineer was employed for that purpose.

What occurred on the day of the accident may be best explained in the language of the plaintiff himself and we therefore reproduce here so much of the record as bears directly upon this feature of the case:

“Q. Now, will you please tell the jury more particularly what happened on the 16th day of September, 1902, in connection with your having been hurt? A. Well,' the foreman rang the bell — it was about half past nine in the morning — he rang the bell for me to take the barrels off of the elevator as he sent them up. . . .
“Q. That is, they were sent up in single barrels? A. Yes, sir.
“Q. And you had taken off about seven barrels as they came up, one at a time? A. Yes, sir.
'“Q. And you were at work, taking off what you say was the eighth barrel? A. Yes, sir.
“Q. Wben the elevator fell? A. Yes, sir.
Q. WTat was on the elevator at the time that it fell? A. One barrel of whisky.
“Q. And yourself? A. Yes, sir.”

Plaintiff stated then that he believed a barrel of whisky weighed about three hundred and forty pounds.

The plaintiff also testified that he had operated a freight elevator about two years and a half prior to the time he entered the employment of defendant and had also operated defendant’s elevator about two years in conjunction with the other employees.

The evidence further showed that the cable was from three quarters of an inch to one inch in diameter and had been in use something over two years prior to the injury; that it was inspected once or twice a week prior to the injury, by the engineer in charge of it, and was by him regularly oiled; that two or three weeks prior to the date of the accident the elevator was also inspected by the city inspector, and a certificate of that fact was posted on the elevator by him. The only witness who testified regarding the break of the cable was Hugh F. Hombérg, and his testimony will be best stated in his own language, which is as follows:

“Q. Now, all you know about this accident yourself is that on the day of the accident, September 16th, the elevator fell? A. Yes, sir.
“Q. And the day after, when you went down to the cellar, you saw the cable was broken? A. Yes, sir.
“Q. That is all you know about it — those two facts ? A. Those two facts; yes, sir.
“ Q. You don’t know, I suppose, under exactly what circumstances, the cable broke? A. No.
“Q. You know it was broken? A. It was broken, that’s all I know.
‘ ‘ Q. And when you did see this cable broken the day after the accident at the point where it was broken, you saw no evidence of any defect in it, did you? A. How is that? I didn’t quite understand you.
“Mu. Holland: Hid you notice the rope the day after the accident with sufficient accuracy to describe it, or was it a casual glance that you took? A. It was a casual glance, that’s all I took of the rope.
“Q. Well, now, can you state whether or not at the time of this accident this cable was well oiled? A. Yes.
“Q. And what you noticed of the cable the time of the accident and prior thereto did you ever see anything the matter with it? A. No, I didn’t see anything the matter with it. The cable broke down in the basement, near the cylinder around which it operated.”

I. The plaintiff’s contention is that it was the duty of defendant to furnish him a secure place, in which to work, and reasonably safe appliances with which to labor, which involved the furnishing of a cable of sufficient strength to handle the elevator, and a continuous duty to inspect same, and to see that it did not become defective or dangerous.

The correctness of that contention has many times been approved by this court, and fully supported by the text-writers upon the subjects of negligence and master and servant. [1 Labatt on Master & Servant, sec. 7; Wendler v. People’s House Furnishing Co., 165 Mo. 536.]

It is not only the duty of the master to furnish suitable and reasonably safe means and instrumentalities with which the servant is to perform his labors, but he must also maintain them in such suitable and safe condition, which requires their continuous inspection, the repairment of defective parts, and the replacement.of those which are worn out. [1 Labatt on Master & Servant, sec. 7; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 477.]

The correctness of this wise and humane rule of law is not questioned by the learned counsel for defendant; but their insistence is that there is no evidence to be found in this record which tends in the remotest degree to show the defendant did not properly perform all of those duties to plaintiff.

We do not understand counsel for plaintiff to contend that there is any oral testimony from the mouths of the witnesses which tends to substantiate their charge of negligence against the defendant, but they rely solely upon the facts that the cable parted, the elevator fell and that defendant was injured thereby, to make out a primcu-facie case for the jury; in other words, they contend that the rule of res ipsa loquitur applies to the facts of this case, and that they imply negligence on the part of the defendant and call for an explanation on its part. That there is such a rule and that it is well grounded in the jurisprudence of this State cannot be questioned; but the difficulty the Bench and Bar have met with is the proper application of the rule to the facts of a particular case. Much of this trouble, however, disappears if we will but bear in mind the reason for the rule, because the reason of the law is the soul of the law, and where the reason for the rule exists the rule applies; but where that reason does not exist, then the rule has no application. This would seem to be self-evident.

This rule had its birth and origin in the law of necessity, and it may be .broadly stated thusly: Where the means and instrumentalities employed by the master are peculiarly within his knowledge and under his control, he is, therefore, in a much better position to explain the cause of the accident than the injured party is: then the burden of proof rests upon him to disprove the negligence. , [3 Hutchinson on Carriers (3 Ed.), sec. 1414; Stager v. Railroad, 119 Pa. St. 70.]

This broad rule, however, above stated, is limited to that class of cases where it appears that the accident was of that kind which, according to common experience, does not usually occur except from some' fault of the master himself or of his servants, or from some imperfection in the institution or its appliances. [3 Hutchinson on Carriers (3 Ed.), sec. 1415, and numerous cases cited; Ellis v. Waldron, 19 R. I. 371; Labatt on Master & Servant, sec. 834.]

This rule has been more frequently applied to carriers of passengers than to any other class of persons. In fact, many of the text-writers and the adjudicated cases hold that the doctrine of res ipsa loquitur is restricted in its application to carriers and passengers, and has no place in the law of master and servant.

While there may be stronger reasons for applying the rule to common carriers of passengers than to any other class of persons, yet we are not persuaded or prepared to hold that there are no good reasons for holding the rule does not apply to master and servant in proper cases, nor to hold that such a rule of law does not exist; but, upon the other hand, we think where the reason for the rule exists for its application between master and servant, it applies with equal force and effect as it does to common carriers.

In case of a carrier the means and the instrumentalities employed in transportation are peculiarly within the knowledge of the master, himself, or of his servants, and are exclusively under his or their control, and he is, therefore, in a much better position to explain the cause of the accident than the passenger, who might find the cause of the injury extremely difficult to prove. [Smith v. Railroad, 32 Minn. 1; 3 Hutch., Carriers (3 Ed.), sec. 1413.]

As a rule the passenger has no opportunity to investigate the means employed in his transportation, and he places himself at the mercy of the latter, and, therefore, “it has accordingly been held by this court that passenger carriers bind themselves to carry safely those whom they take into their coaches as far as human care and foresight can go, that is, the utmost care and diligence of very cautions persons, and, of course, they are responsible for any, even the slightest, neglect.” [Lemon v. Chanslor, 68 Mo. l. c. 356.]

And we might add another reason for the stringency of this rule against carriers and in favor of passengers, namely: In the great majority of cases the passenger is a stranger to the carrier and the employees in charge of the train, and, after sustaining an injury, he has no opportunity to investigate the cause of the accident, nor to ascertain the names and addresses of those who do know the facts which cause the injury, which facts in many cases would render it almost impossible for the passenger to- establish the cause of the injury; while, upon the other hand, that knowledge is almost without an exception within the knowledge of the carrier or his servants in charge-of the train, and for that reason there is no hardship or injustice imposed upon the carrier by shifting the burden of proof upon him and require him to establish the fact that there was no negligence on his part; and if he fails to do so, then the court is authorized and is in duty bound to submit the question of negligence to the jury.

But between master and servant this rule is not so universal in its application, and the reasons for the application of this extraordinary rule between them, in most cases, do not exist. This is largely on account of the fact that the servant as a rule has- as much or more knowledge of the place where and the instrumentalities with which he works than the master does, and has as good or better opportunities of investigating them, and especially is that true where the appliances are under the care, control or operation of the servant. In most instances he not only knows of the defects and imperfections in the appliances furnished him but he also has knowledge of the dangers incident to those conditions; and in almost every instance he is acquainted with the persons who own, operate, manage or control the premises and machinery wherein and by which he is injured, and in most cases those who are interested financially in his well-being either know those facts or can readily ascertain them by making inquiry of those who possess that knowledge-. So in most instances where the servant is injured by the negligence of his. master, the evidence thereof is obtainable from the lips of those who have knowledge thereof, and in most cases that is equally true whether the servant be killed or only injured. And under those conditions there is no need for the rule of res ipsa loquitur and it does not exist and has no application to such state of facts. In such cases there is no hardship or injustice imposed upon the servant or his rep'resentatives by requiring him or them to prove the charge of negligence against the master’by the testimony of those who have personal knowledge of the facts.

Based upon the reasons, just stated, a majority of the courts of this country, including the Supreme Court of the United States, make the broad statement, without qualification, that the rule mentioned has no application to master and servant. The following are some of the many cases which so hold: Bowen v. Railroad, 95 Mo. 268; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Patton v. Railroad, 179 U. S. 658; Railroad v. Barrett, 166 U. S. 617; Shandrew v. Railroad, 142 Fed. 320; Ash v. Verlenden Bros., 154 Pa. St. 246; Stackpole v. Wray, 74 App. Div. (N. Y.) 340; Searles v. Railroad, 101 N. Y. 662; Dobbins v. Brown, 119 N. Y. 188-193; Quincy Mining Co. v. Kitts, 42 Mich. 34; Brownfield v. Railroad, 5 Am. Neg. Rep. 331; Kepner v. Railroad, 183 Pa. St. 24; Railroad v. Campbell, 97 Ala. 147; Starer v. Stern, 100 App. Div. (N. Y.) 393; Reid v. Railroad, 81 Ga. 694; Davidson v. Davidson, 46 Minn. 117; Bohn v. Railroad, 106 Mo. 429; Huff v. Austin, 46 Ohio St. 386.

While the Missouri cases above cited broadly state that the rule has no application to master and servant, yet it was not necessary for a proper determination of those cases to state the rule so broadly. In those cases this court held, and properly so, that the rule did not apply to the facts of those particular cases; but it did intend to hold that it was a universal rule, without limitations or exceptions; but upon the contrary we have several times held that there were cases where the rule did apply, and the same ruling has been made by many other courts of respectability. [Blanton v. Dold, 109 Mo. 74; Turner v. Haar, 114 Mo. 335, 347; Sackewitz v. Am. Biscuit Mfg. Co., 78 Mo. App. 151; Johnson v. Railroad, 104 Mo. App. 588-592; Scott v. London Docks Co., 3 Hurl. & Colt. 596; Kearney v. Railroad, 5 L. R. Q. B. 411, 6 L. R. Q. B. 759; Ellis v. Waldron, 19 R. I. 369; Fairbank Canning Co. v. Innes, 24 Ill. App. 33, affirmed in 125 Ill. 410; Gerlach v. Edelmeyer, 88 N. Y. 645; Hartford Deposit Co. v. Sollitt, 172 Ill. 222; Springer v. Ford, 189 Ill. 430; Treadwell v. Whittier, 5 L. R. A. 498; Labatt on Master & Servant, sec. 834, and cases cited; Stearns v. Ontario Spinning Co., 184 Pa. St. 519; Grant v. Railroad, 108 N. C. 462.]

Having shown that the rule is in force in certain cases between master and servant, it now becomes our duty to determine whether or not the facts of this case bring it within its operation.

Conceding, as plaintiff contends, that this case falls within that class of cases which according to common experience does not usually occur except from some negligence of the master himself or that of his servants, can it be truthfully said, according to the rule, that the premises in question, the elevator and the instrumentalities employed by the defendant in the conduct of its business, were peculiarly within his knowledge and under his control? And, on that account, can it be said, in- the light of the t facts of this case, thát it was in a much better position to explain the cause of the accident than the injured party was?

We think not. The evidence shows that the plaintiff was a man twenty-three years of age, and had operated this and similar elevators for more than four years prior to the date of his injury; that he had access to all parts of the building, and his duties called him to. every floor thereof, almost daily, and that he used and operated the elevator in connection therewith from one to six times a day.

The elevator consisted of a platform, two upright posts and an overhead beam, to which the cable was attached. It had no cage or casing to obstruct his view of the cable, or that of the other employees of the defendant. Its operation was simple. One end of the cable was attached to the overhead beam of the elevator and the other to a revolving cylinder, located in the basement, the revolving of which caused the elevator to ascend and descend. He also knew some, if not all, of the employees of the defendant who had perfect knowledge of the elevator and its operation, and they also, in conjunction with plaintiff, actually operated it; and the master had nothing whatever to do with the elevator or its operation, so far as disclosed by this record, except by and through its servants and employees, one of whom was the plaintiff, who had as much knowledge of its operation and movements as any of them.

If the elevator or the cable was defective or out of repair, there was nothing to prevent plaintiff and his co-employees from seeing them; nor does this record show that there was any reason why those persons employed in and about the building could not or did not examine the break after it occurred, or that their names and places of abode were unknown to him, which prevented him from procuring them to testify in the ease. In the absence of any showing, it is reasonable to suppose he could have ascertained from his colaborers all the facts and circumstances connected with the accident, and doubtless could have placed them upon the witness stand and proved by them the exact cause of the accident, which is always more satisfactory and just to all parties than a mere presumption.

It is thus seen that all of the facts of the case were susceptible of direct proof by persons who possessed personal knowledge of the entire situation, and the cause of the accident and injury.

Measured by this state of facts, the plaintiff has fallen far short of showing that the cause of the injury was peculiarly within the knowledge of the master, or that he was in the exclusive charge or control of the elevator at the time of the injury.

Such a state of facts as disclosed by this record never gave rise for the necessity of the application of the rule of res ipsa loquitur. "Where the reason and the necessity for the application of the rule are lacking, it should never be resorted to or applied.

All the authorities where the question has been presented, so far as we have been able to find, which, hold that the rule applies to. master and servant, invariably limit its application to that class of cases which is not susceptible of direct and positive proof by living witnesses, and that doctrine is resorted to as a last resort in order to prevent a miscarriage of justice.

It cannot be said that this rule is a favorite of the courts. A majority of them look upon it with disfavor and limit its application to carriers and passengers, and under no circumstances extend its operations to master and servant, and even those courts which look upon the rule with more favor limit its operation to the necessities of each particular case as it may arise. The following cases indicate the circumstances under which the doctrine has been applied in employers’ liability cases: Wight Fire Roofing Co. v. Poczekai, 130 Ill. 139; McCray v. Railroad, 89 Tex. 168; Joint v. Webster, Rap. Jud. Quebec, 15 C. S. 220; The Joseph B. Thomas, 81 Fed. 578 ; Gruldseth v. Carlin, 19 App. Div. (N. Y.) 588, 46 N. Y. Supp. 357; Smith v. Baker, A. C. (1891) 325, 60 L. J. Q. B. (N. S.) 683, 65 L. T. R. (N. S.) 467; Armour v. Golkowska, 95 Ill. App. 492; Drug Co. v. Colladay, 88 Md. 78; Carroll v. Railroad, 99 Wis. 399; Tennessee Co. v. Hayes, 97 Ala. 201; Jones v. Railroad, 18 App. Div. (N. Y.) 267, 46 N. Y. Supp. 321; Van Sickel v. Ilsley, 75 Hun 537; Mulcairns v. Janesville, 67 Wis. 24; Green v. Banta, 16 Jones & S. 156, affirmed 97 N. Y. 627; Stewart v. Ferguson, 164 N. Y. 553; Westland v. Gold Coin Mines Co., 41 C. C. A. 193, 101 Fed. 59; Goodman v. Railroad, 81 Va. 576; Coleman v. Mechanics’ Iron Fdy. Co., 168 Mass. 254; Folk v. Schaeffer, 186 Pa. St. 253; Railroad v. Johnson, 23 Tex. Civ. App. 160; The Lizzie Frank, 31 Fed. 477.

We are of the opinion that the trial court properly sustained the demurrer to plaintiff’s evidence, for the reasons herein stated.

II. We are also of the opinion that the trial court properly sustained the demurrer to the evidence, because this record discloses the fact that the engineer who had control of the elevator and cable inspected them once or twice a week prior to the date of the accident, and that about three weeks before that it was inspected by the city inspector, and that he posted upon the, elevator a certificate of his inspection.

Instead of the evidence tending to establish negligence on the part of the defendant, we are clearly of the opinion that it pointed in the opposite direction, and at least tended to show due care on its part. [Buckland v. Railroad, 181 Mass. 3.]

For the reasons above stated, the judgment is affirmed.

All concur.


author: GRAVES, J.

text:
    TAYLOR v. ST. LOUIS MERCHANTS’ BRIDGE TERMINAL RAILWAY COMPANY, Appellant.
    Division One,
    November 27, 1907.
    1. APPELLATE JURISDICTION: Constitutional Question: Waiver. Where a constitutional question was lodged in the case by the answer, an appeal from a judgment is to the Supreme Court, and an order of the trial court sending it to a Court of Appeals is eirroneous. And if it is sent there, appellant cannot, after an order is made transferring it to the Supreme Court, biy its motion to vacate the order, in which it waives the constitutional question, vest the Court of Appeals with jurisdiction, for it never had jurisdiction.
    2. ATTORNEY’S LIEN: Act Constitutional. The Attorney’s Lien Act, Laws 1901, p. 46, is constitutional.
    3. -: Notice: On Attorney. Where a settlement is made of the cause of action after the suit was brought, a notice to defendant of the attorney’s lien on the cause of action for his services, was not necessary. And in such case it is not necessary to deteirmine whether or not a notice to defendant’s attorney was sufficient and valid.
    4'. -: Notice" Pleaded: Surplusage: Where the petition states all the facts entitling plaintifC to irecover under the Attorney’s Lien Act, but in addition states one other unnecessary fact, namely, that he gave the notice required by section 2 of the act, when no notice was necessary, since the settlement was made after the suit was brought, he will not be required to sustain the sufficiency of his notice or fail in his suit, even though he tried the case on that theory below, but the unnecessary allegation will be treated as surplusage.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      J. E. McKeighcm and William B. Gentry for appellant.
    (1) Service on the party himself must he had unless the attorney is mentioned in the statute. The fact that defendant was a corporation is no excuse for serving defendant’s attorneys rather than defendant. By a perusal of the statutes and the decisions of our courts construing them, it will be seen that wherever service on defendant is required the service must be the same as would be had in case of a summons instead of a notice. The same is true of corporations. There is no statute in this State authorizing service of a summons upon a corporation’s attorney. The statute, section 995, Revised Statutes 1899, mentions the president, and says that if he is absent some other chief officer may be served, and if there is no chief officer in the county, then provision is made for service by leaving a copy at the usual business office with the persons having charge thereof. These are the only methods by which service can be had in cases where personal service is required. Cosgrove v. Railroad, 54 Mo. 495; Wilson v. Railroad, 108 Mo. 588; Conway v. Campbell, 38 Mo. App. 473. The Attorney’s Lien Law does not say “upon notice to defendant or his attorney.” Ryan v. Kelley, 9 Mo. App'. 296 ; "Williams & Pearson v. Dittenhoefer, 188 Mo. 134; Maxwell v. Railroad, 91 Mo. App. 582; O’Connor v. Railroad, 198 Mo. 645. (2) Plaintiff must stand or fall in the appellate court on the theory upon which he tried his case in the court below. Ellis v. Harrison, 104 Mo. 270; Tomlinson v. Ellison, 104 Mo. 105; Walker v. Owen, 79 Mo. 563. Plaintiff tried the case in the court below on the theory that notice was necessary and that he had given sufficient notice, and he based his action on the notice which he gave. He is now bound by that theory.

      Gerald- Griffin and Howard Taylor for respondent.
    Was any notice of attorney’s lien necessary to be given where the suit had been brought and both parties were in court by their attorneys? This question has been fully answered by the decisions of this court. Wait v. Railroad, 204 Mo. 491; Taylor v. Railroad, 198 Mo. 715.
   GRAVES, J.

— Plaintiff, A. R. Taylor, is and for many years has been an attorney at law in the State of Missouri, residing in the city of St. Louis. Defendant is a Missouri railway corporation. One Oscar F. Randolph had a cause of action against the defendant in this case for personal injuries. Randolph employed Taylor as his attorney, by a written contract in these words:

This article of agreement made and entered into this May 31st, 1901, between Oscar F. Randolph, party of the first part, and A. R. Taylor, party of the second part, witnesseth that the said party of the first part has this day and by these, presents employed the party of the second part to institute and prosecute an. action for damages on account of personal injuries against the St. Louis Merchants’ Bridge Terminal Railway Company. For his services in so instituting and prosecuting said action, the party of the second part is to receive one-third of whatever sum shall be realized out of said claim. And it is agreed that no compromise shall be made of said claim without the consent of both parties hereto.”

Under this contract and in June, 1901, plaintiff herein brought suit for Randolph against the defendant herein. Defendant filed answer, and this plaintiff, for Randolph, filed reply. In fact he prepared the case for trial and appeared in it throughout as attorney for Randolph, making with counsel for defendant agreements and stipulations for continuances and change of venue. ’The venue of the Randolph case was changed from the city of St. Louis, the place of its institution, to Jefferson county.

On January 25, 1902, plaintiff, Taylor, served notice in form and manner as follows:

“Oscar Randolph v. St. Louis Merchants’ Bridge Terminal Railway Company. To the above-named defendant, John H. Overall, attorney: You are hereby notified that the undersigned has a contract with O'sear Randolph, the plaintiff in the above-styled ease, by which the undersigned is to receive as compensation for his services as attorney in prosecuting said claim one-third of whatever sum shall be realized out of said claim. You are further notified that the undersigned will assert his statutory lien on the cause of action set forth in said action.
“Dated this 25th day of January, 1902.
“A. R. Taylor.
“Copy received January 25, 1902.
“J. H. Overall, “Attorney for defendant.”

About May 12, 1902, over the protests of plaintiff in this action, the defendant settled the case with Randolph, paying him the sum of $2,500', and taking his release from all liability. Counsel for defendant had advised Mr. Taylor that the case would be settled; and requested his presence. Mr. Taylor was present and protested, because Randolph would not agree that he, Taylor, should have more than $250 out of the $2,500. Taylor objected to the settlement and demanded his one-third of the $2,500. Over the protests of Taylor the $2,500' was paid Randolph, and this action is to recover one-third of the $2,500 with interest thereon. The plaintiff had judgment for $926, and defendant appealed to St. Louis Court of Appeals, but upon motion of plaintiff the cause was transferred to this court upon the ground that a constitutional question was raised by the answer. There was such constitutional question in the answer, and after the St. Louis Court of Appeals had ordered the case here, the defendant filed a motion to have the order vacated,! and in its motion waived the constitutional question, which motion to vacate was overruled. Such are the facts of this case, both as to its merits, and its presence in this court.

l. Our first concern is as to the jurisdiction of this court. By answer in the circuit court, the defendant duly lodged a constitutional question in the cause. The cause was then tried upon that question as well as others. After trial an appeal was granted to the St. Louis Court of Appeals. Up to this time no steps had been taken to eliminate the constitutional question from the case. The act of the circuit court in sending the cause to the St. Louis Court of Appeals was erroneous upon the face of the record. The appellate jurisdiction was in this court, and not elsewhere. Upon attention being called to the condition of the record, the St. Louis Court of Appeals could do but one thing, and that was to order the case transferred to the appellate court having jurisdiction of such cases as was made by the face of this record. The jurisdiction is fixed by the character of the record at the time appeal is granted, and the record cannot be afterwards changed so as to change jurisdiction. The cause is rightfully here for determination.

M. By the answer defendant challenges the constitutionality of the Attorney’s Lien Act, Laws 1901, page 46. At the time of this appeal the question had not been before this court. Since that time, each division, as well as the Court in Banc, has spoken on the question. [Taylor v. Railroad, 198 Mo. 715; O’Connor v. Railroad, 198 Mo. 622; Wait v. Railroad, 204 Mo. 491.] In each ease above cited, the law is upheld. These cases settle this branch of the present controversy and we therefore rule this contention against defendant.

m. In the case at' bar the settlement was made after the suit was brought. In such cases we have held that notice to the defendant was not required. [Taylor v. Railroad, supra; Wait v. Railroad, supra.] Defendant here contends that service of the written notice upon John H. Overall, its attorney, was not service of notice upon it, but as we have held that in cases of this character, that is, cases where suit has actually been brought, no notice was required, a discussion of the validity of the service of this notice is not necessary. We are satisfied with the reasoning of Brace, P. J., in the Taylor case, supra, and if this case falls fully within the terms of that opinion, it is controlled thereby. To that question we proceed next.

IY. Defendant contends that inasmuch as plaintiff pleads that he gave the required notice called for by section 2 of the Attorney’s Lien Act, and tried the case upon that theory in the court below, he cannot now say that no notice was required, and if there was no valid service of his notice, his action must fail. It will be observed that the petition in this case states all facts necessary to constitute a cause of action under section 1 of the Act of 1901, as we construed that section in the Taylor case, supra. The petition goes further however and states more, that notice was given. This notice pleaded was a notice given after suit was begun. In the Taylor case, supra, we held in division that no notice was required after suit was brought. The petition in the case at bar says that suit had been brought before settlement, and under the Taylor case, 198 Mo. 715, no notice of the lien was required. The ruling in the Taylor case was approved by the Court in Banc, in the Wait case, supra. We therefore have a petition, which states all the facts necessary to a recovery under a section of statute, but in addition states one other fact.

It is not necessary in the petition to state that the action is brought under a certain statute, but it is sufficient if the petition sets forth such facts as bring it within the statute. And further, if, perchance, the pleader sets forth, more than is necessary to state his cause of action under the statute, such additional statements may be taken and considered as surplusage and a recovery had upon the petition remaining. This exact question was before this court in the case of Campbell v. Railroad, 121 Mo. l. c. 348. That case was to recover damages from defendant for the destruction of property by fire. The petition alleges negligence, as was usually pleaded in-a common law action. It stated more than was necessary under the statute. "We there said: “The petition charged that the fire causing the injury was permitted to escape through the negligence of defendant, and the court permitted a recovery under the statute without proof of negligence. Defendant assigns this action of the court as error in that it permitted a recovery upon a cause of action different from that charged in the petition. The petition states all the facts necessary to authorize a judgment under the provisions of the statute, and, in addition thereto, the allegation of negligence. By the statement of more than was required, plaintiff did not forfeit his right to recover upon proof of the facts he was required to state, and did state, in his petition. [Radcliffe v. Railroad, 90 Mo. 131; Morrow v, Surber, 97 Mo. 155.]” To the same effect is Walker Bros. v. Railroad, 68 Mo. App. l. c. 474.

Excluding the statement as to the service of notice, the petition in this case contains all the necessary averments to permit a recovery under section 1 of the Act of 1901. The evidence fully authorizes a recovery under that section, and the judgment in this case should be and is affirmed.

All concur.